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