Environmental Protection Agency
EPA Docket Center (EPA/DC)
Mailcode 6102T
Attention Docket ID No. EPA-HQ-OAR-2009-0171
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460
By electronic delivery to: GHG-Endangerment-Docket@epa.gov
Re: Proposed Endangerment and Cause or Contribute Findings for
Greenhouse Gases under Section 202(a) of the Clean Air Act, Docket ID No.
EPA-HQ-OAR-2009-0171
Contact Information
Name: Sam Kazman, General Counsel
Organization: Competitive Enterprise Institute (CEI)
Mailing Address: 1899 L Street, 12th Floor
Washington, DC 20036
Phone: 202-331-2265
E-mail: skazman@cei.org
The Competitive Enterprise Institute (CEI), a non-profit, free-market public
policy organization, hereby submits these comments on EPA’s Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act.**
** EPA, Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section202(a) of the Clean Air Act, 74 Fed. Reg. 18,886, (April 24, 2009).
CEI is submitting a set of four EPA emails, dated March 12-17, 2009, which
indicate that a significant internal critique of EPA’s position on Endangerment was essentially put under wraps and concealed. The study was barred from being circulated within EPA, it was never disclosed to the public, and it was not placed in the docket of this proceeding. The emails further show that the study was treated in this manner not because of any problem with its quality, but for political reasons.
CEI hereby requests that EPA make this study public, place it into the docket,
and either extend or reopen the comment period to allow public response to this new study. We also request that EPA publicly declare that it will engage in no reprisals against the author of the study, who has worked at EPA for over 35 years.
The emails, attached hereto, consist of the following:
1) a March 12 email from Al McGartland, Office Director of EPA’s National Center for Environmental Economics (NCEE), to Alan Carlin, Senior Operations Research Analyst at NCEE, forbidding him from speaking to anyone outside NCEE on endangerment issues;
2) a March 16 email from Mr. Carlin to another NCEE economist, with a cc to Mr.
McGartland and two other NCEE staffers, requesting that his study be forwarded to
EPA’s Office of Air and Radiation, which directs EPA’s climate change program. The
email notes the quantity of peer-reviewed references in the study, and defends its
inclusion of new research as well. It states Mr. Carlin’s view that “the critical attribute
of good science is its correspondence to observable data rather than where it appears in
the technical literature.” It goes on to point out that the new studies “explain much of
the observational data that have been collected which cannot be explained by the IPCC models.” (Emphases added);
3) a March 17 email from Mr. McGartland to Mr. Carlin, stating that he will not forward
Mr. Carlin’s study. “The time for such discussion of fundamental issues has passed for
this round. The administrator and the administration has decided to move forward on
endangerment, and your comments do not help the legal or policy case for this decision.
…. I can only see one impact of your comments given where we are in the process, and
that would be a very negative impact on our office.” (Emphasis added);
4) a second March 17 email from Mr. McGartland to Mr. Carlin, dated eight minutes
later, stating “ I don’t want you to spend any additional EPA time on climate change.”
Mr. McGartland’s emails demonstrate that he was rejecting Mr. Carlin’s study because its
conclusions ran counter to EPA’s proposed position. This raises several major issues.
A. Incompleteness of the Rulemaking Record: The end result of withholding Mr.
Carlin’s study was to taint the Endangerment Proceeding by denying the public access to
important agency information. Court rulings have made it abundantly clear that a
rulemaking record should include both “the evidence relied upon [by the agency] and the
evidence discarded.” Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976), cert. denied,
426 U.S. 941 (1976).
B. Prejudgment of the Outcome of the Endangerment Proceeding: The emails also
suggest that EPA has prejudged the outcome of this proceeding, to the point where it
arguably cannot be trusted to fairly evaluate the record before it. Courts have recognized
“the danger that an agency, having reached a particular result, may become so committed
to that result as to resist engaging in any genuine reconsideration of the issues.” Food
Marketing Institute v. ICC, 587 F.2d 1285, 1290 (D.C. Cir. 1978).
C. Violations of EPA’s Commitment to Transparency and Scientific Honesty:
Finally, the emails suggest that EPA’s extensive pronouncements about transparency and
scientific honesty may just be rhetoric. Shortly before assuming office, EPA
Administrator Lisa Jackson declared: “As Administrator, I will ensure EPA’s efforts to
address the environmental crises of today are rooted in three fundamental values: sciencebased
policies and programs, adherence to the rule of law, and overwhelming
transparency.” Jan. 23, 2009,
http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/2297c12
a9f4773d285257547006497d4!OpenDocument. See also Administrator Jackson’s April
23 Memo to EPA Employees, “Transparency in EPA’s Operations”. These follow the
President’s own January 21 memo to agency heads on “Transparency and Open
Government”. And in an April 27 speech to the National Academy of Sciences, the
President declared that, “under my administration, the days of science taking a back seat
to ideology are over.”
Because of ideology, however, it was this back seat to which Mr. Carlin’s study was
relegated; more precisely, it was booted out of the car entirely.
For these reasons, we submit that EPA should immediately make Mr. Carlin’s study
public by entering it into the Endangerment docket, and that it should either extend or
reopen the comment period in this proceeding to allow public responses to that study. It
should do so, moreover, while publicly pledging that Mr. Carlin will suffer no adverse
repercussions from agency personnel. Mr. Carlin is guilty of no wrongdoing, but the
tenor of the emails described above suggests he may well have reason to fear reprisals.
Respectfully submitted,
Sam Kazman, General Counsel
Competitive Enterprise Institute
