MacCracken federal court Declaration defending EPA Endangerment Finding


Many of the legal challenges to the Environmental Protection Agency’s regulation of greenhouse gases have sought to undermine EPA’s reliance in its Endangerment Finding on the Intergovernmental Panel on Climate Change (IPCC) scientific assessment reports.  Dr. Mike MacCracken, Chief Scientist for Climate Change Programs at the Climate Institute, has submitted several declarations that have helped establish and defend EPA’s scientific basis for regulation.  Rejection by the DC District Court of Appeals of challenges to the Endangerment Finding would be an important affirmation that climate science can’t be overturned in court.  

Dr. MacCracken previously worked for many years as an atmospheric physicist at the Lawrence Livermore National Laboratory.  He was senior global change scientist and first executive director of the United States Global Change Research Program (USGCRP) Office, and executive director of the USGCRP’s National Assessment Coordination Office.  He has been a co-author/contributing author for various chapters in the IPCC assessment reports.

Dr. MacCracken originally wrote a scientific analysis of standing for the plaintiffs in the petition that became the case Massachusetts v. EPA, in which the U.S. Supreme Court ruled that EPA has the statutory authority to regulate GHG emissions under the Clean Air Act.  In his opinion for the majority, Justice Stevens cited Dr. MacCracken’s brief:

According to the climate scientist Michael MacCracken, “qualified scientific experts involved in climate change research” have reached a “strong consensus” that global warming threatens (among other things) a precipitate rise in sea levels by the end of the century, MacCracken Decl. ¶15, Stdg. App. 207, “severe and irreversible changes to natural ecosystems,” id., ¶5(d), at 209, a “significant reduction in water storage in winter snowpack in mountainous regions with direct and important economic consequences,” ibid., and an increase in the spread of disease, id.,¶28, at 218–219. He also observes that rising ocean temperatures may contribute to the ferocity of hurricanes. Id., ¶¶23–25, at 216–217.

In the wake of the Court’s decision, EPA began moving towards regulation of GHGs, setting off a firestorm of legal challenges in the DC Circuit Court of Appeals, which has jurisdiction over challenges to the Clean Air Act.  35 petitioners have filed more than 80 distinct claims, including multiple motions to put a hold on EPA’s rulemaking while claims move through the court.  EPA’s GHG rules will take effect on January 2, 2011, and petitioners argue that they will suffer “irreparable harm” if regulations proceed.

EPA responded to the motions for stay of implementation of the regulations, and a coalition of states and environmental groups, including many of the parties that originally petitioned EPA to begin regulating GHGs, filed a brief in support of the agency.

In conjunction with the state and environmental brief, Dr. MacCracken submitted a declaration of his expert scientific opinion on EPA’s assessment of the science underlying the Endangerment Finding.  His declaration focuses on:

  • The Sound Procedural Basis of EPA’s Endangerment Process: EPA correctly relied upon the most authoritative assessments as the sources for scientific information in developing, describing, and defending its Endangerment Finding;
  • The Sound Scientific Content of EPA’s Endangerment Findings: The Endangerment Finding is based on scientific information and findings that are credible and current, and that have been widely accepted in the scientific community through many assessment cycles; research reported since completion of the most recent assessments on which EPA relied has further strengthened the basis of EPA’s findings;
  • The Harm and Costs of Delaying EPA’s Endangerment Finding: Delaying the ability of EPA to move forward with its Endangerment Finding would increase the damage from climate change impacts that are already occurring, increase the risk and imminence of projected impacts, and make controlling climate change more difficult.

In a recent white paper, the Columbia Law School Center for Climate Change Law also affirms that EPA properly relied on the most authoritative scientific assessments in reaching its Endangerment Finding:

The major case against the Endangerment Finding rests on allegations that EPA illegally delegated its duties to unreliable outside parties (specifically the UN Intergovernmental Panel on Climate Change, or IPCC), and that it was impermissibly vague in its rulemakings. These arguments face an uphill climb: EPA has a long history of relying on outside peer-reviewed scientific reports with strong judicial deference. Notably, legal precedent such as Ethyl Corp. v. EPA has allowed endangerment findings to be made at the discretion of the Administrator, even without specific numerical determinations. Further arguments, which focus on the unreliability of EPA’s sources, attack the credibility of the IPCC, in part based on the well-publicized “Climate-gate” controversy. These arguments reflect a small minority view in the scientific and international community; their value in this case will depend on the court’s reading.

Earlier posts:

U.S. Chamber of Commerce again challenges legality of EPA greenhouse gas regulation

EPA denies all petitions for reconsideration of its Endangerment Finding on greenhouse gases

Climate Progress interviews Christopher Field and Michael MacCracken on climate change reality

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