- SLF
9/27/10 - Argus Q&A: Shannon Goessling
Shannon Goessling is the executive director of the Southeastern
Legal Foundation (SLF), a Marietta, Georgia-based
conservative law firm and policy center. The SLF is one of
several organizations and businesses suing the Environmental
Protection Agency (EPA) to block implementation of
several efforts to regulate greenhouse gases, including the
endangerment finding, automobile emissions standards,
tailoring rule for stationary source permits and the finding that
GHGs are subject to Prevention of Significant Deterioration
(PSD) requirements starting in January 2011. SLF is representing
more than a dozen Republican House members
and several companies based in the Southeast. The group
recently filed motions to stay implementation of EPA’s decisions
while the court hears the cases. In this interview, edited
for length and clarity, Goessling talked to Argus about the
SLF’s lawsuits.
Argus: Why did you ask the court for the stay and why do you
think it will be granted?
Goessling: It is our position that we are going to win on the
merits in all four cases, and the cases are interrelated. The
staying of the effect of the rules at this point has no negative
impact on the Environmental Protection Agency or its convoluted
plan, but has pure positive effects for the public. Staying
the rules does not have a negative effect on the environment
and has a positive effect on the economy. And it does not affect
the single regulation that we are saying can stay in effect,
which is the tailpipe rule as it is applicable to National Highway
Traffic Safety Administration (NHTSA) and its ability to
regulate under the Corporate Average Fuel Economy (CAFE)
standard. We believe that in the end we have demonstrated
in the motion and the briefing to the court that we are going to
win on the merits because there are so many legal defects in
how the EPA has proceeded thus far.
Argus: Could you touch on the main legal defects you see in
each of the rules?
Goessling: In terms of the endangerment finding, EPA improperly
delegated its statutory judgment to other agencies,
including the United Nations Intergovernmental Panel on Climate
Change (IPCC). It failed to use its own judgment. It basically
created the problem and ignored the multitude of issues
that arise from any allegation of greenhouse gases and global
warming – if there is global warming, who is responsible and
what positive steps could be taken if you buy into the concept
of an anthropogenic basis for global warming.
The tailpipe rule also suffers from fundamental defects in
that the administrative record fails to establish any non-trivial
benefit for having the tailpipe rule. EPA is trying to infringe
on what NHTSA is already able to do. NHTSA can already
address emissions and will be doing so regardless of the
interpretation by the EPA.
As far as what we will call the triggering rule or the reinterpretation
of the PSD memo, that is a reinterpretation of an
original memo on when rules would take effect and when they
can be challenged. That reinterpretation is extremely creative
and attempts to modify and alter how affected parties can
challenge and when things take effect. For example, we are
seeing an effect right now on the industrial community, the
manufacturing community, the political community and the
government community across the board. When rules are
announced and they go through the public comment period
it puts the country on notice that there is something coming
unless information is provided to the agency that would cause
it to go in a different direction. That automatically has an effect,
which means chief executive officers and chief financial
officers have to make decisions about regulations that will
be coming. So to suggest that 2 January is the day that a
manufacturer here in Georgia is affected by EPA’s actions is
exceedingly disingenuous and certainly not true. Manufacturers
are making their decisions now and they are deciding not
to build. It is basically putting a ban on industrial construction
and definitely having an effect on manufacturing right now.
The tailoring rule is probably the clearest violation of
case precedent and the clearest violation of law. At no time
did Congress or the Clean Air Act give EPA the authority to
amend the Clean Air Act. That is exactly what it has done. In
order to solve the problem that EPA created itself, it will have
to rewrite the Clean Air Act or end up with what they would
call absurd results. Well, absurd is in the eye of the beholder.
If EPA followed the law, then it likely would not be making the
decisions it is making. Instead it is going to make political
decisions rather than good policy and scientific decisions.
And it is worse than that. EPA is going to do it knowing that
it is contrary to congressional intent and the law, and then it
is going to claim that it has a right to change the law. That is
where as a citizen it becomes exceedingly offensive that an
administrative agency would act so far outside the bounds of
reasonableness and lawfulness.
Argus: You said EPA had not demonstrated a non-trivial benefit
for the tailpipe rule. Do you mean that the emissions reductions
would not be significant? Should it have demonstrated
that a certain level of reductions needed to be achieved?
Goessling: That is correct. This goes to the tailpipe rule and
the other rules. If the EPA staff had looked at the full record,
not the record they produced but the record that resulted
from the public comment, it is replete with information,
documentation, published studies, and analyses coming
from a multitude of sources showing that the claimed benefit
is not going to happen. But let us just assume for a moment
that EPA is right and we are wrong, that there is going to be
a benefit. As a regulatory body, EPA has a duty to tell us at
what level greenhouse gases are dangerous, what reduction
is necessary to reduce that danger and how to accomplish
those reductions through a regulatory scheme that only affects
the US. Basically what EPA did is to say a huge problem
had been identified, we are responsible for it and now we
are going to give you a regulatory scheme that addresses
it but does not tell you how. It does not tell you what benefit
there will be. It does not talk about how a regulatory scheme
exclusive to the US is going to have a global impact. If it is a
global issue that means it is an international community issue
and goes well outside what a federal administrative agency
should be doing. This should be deferred to Congress and
the president.
Argus: How does EPA’s use of the IPCC report differ from
other rulemakings, such as for ozone standards, where EPA
cites studies and reports by outside groups?
Goessling: In the past administrative agencies looked at outside
reports to evaluate their credibility, checked for accuracy
and looked into the entire record of a report. EPA is an administrative
agency that is required to do a scientific analysis,
not default to a body that was not premised on science but
was premised on politics. All agencies of the federal government
have a certain standard by which they must conduct
themselves, including their scientific analyses. They cannot
adopt wholesale the reports or conclusions of any other entity,
including in this case the IPCC, without going through the
process to check whether it abides by the standards set out
for federal agency rulemaking. That was not done. The record
was not requested. It did not do a check. It did not get the
individual reports and it did not get the data from the IPCC.
As a result you cannot use it. EPA has to do its own analysis.
Argus: One of the issues you raise with EPA’s use of the IPCC
report is the “climategate” scandal. But several recent reviews
largely cleared the scientists involved. Why should the court
disagree with the findings of those reviews?
Goessling: We have filed two published reports with EPA that
reach contrary results. It is our opinion that the “climategate”
scandal demonstrated that there is potentially fraud involved,
there is financial benefit involved, and there are motivation
questions. If scientists are cleared that does not mean they
did not do anything wrong in terms of whether they followed
scientific protocol. There has been a strong position generally
in the US by scientists and in the international community
that there was wrongdoing. Now whether it rose to the level of
fraud or whether they will be held accountable, that is a different
question. But does it call into question the results of those
reports? The answer has to be yes. So rather than rely on
questionable authority and questionable conduct by scientists,
the real question is why EPA is digging its heels in when these
scandals have been brought forth quite publicly. If you have
read the e-mails in “climategate,” they can make explanations
but the written word speaks for itself. The answer is going to
be politics, not good policy or good science. What it should
do is withdraw all four of these rules and voluntarily, without a
court order, start over so that there can be a full public record.
There should be a full public hearing so that the presentations
can be made by the scientific community, with proper analysis
and open and honest dialogue, instead of decisions being
made behind closed doors. If EPA cannot muster that then it
should withdraw everything and defer to Congress.
Argus: You said that Congress did not intend for GHGs to
be regulated under the Clean Air Act. Was that question not
settled by the Supreme Court in Massachusetts v EPA when it
said GHGs could be considered a pollutant and EPA should
make an endangerment finding?
Goessling: The agency’s view on Massachusetts v. EPA now is
much broader than the actual ruling. That was a very narrow
ruling. It just said you must go through a process. It did not
say you have to regulate. If EPA had done a proper analysis it
would have realized that even if you agreed with their finding
they should have deferred to Congress. One of the reasons
why you know this is for Congress is that the American Clean
Energy and Security Act passed the House last year but [its
counterpart] failed in the Senate. That tells you this is an issue
for Congress, especially because for the EPA scheme to work
it has to avoid the law, rewrite the law, and avoid all of the
deadlines and policy-making plans set out in the Clean Air
Act.
For example, Congress expressly provides five years for
new pollutants to be integrated into the PSD program, from
the time that the rulemaking went into the Federal Register.
But EPA says it is so urgent we have to do it right now to have
any effect. But again what effect is it referring to? EPA still has
not told us what the standards are, what the state plans are
supposed to be, what the best available control technology
is for greenhouse gases. How can 50 states be expected to
sign their allegiance to a plan that EPA has not yet developed,
for standards it has not yet written, with a program