Petition of the U.S. Chamber of Commerce Petition for EPA to Conduct an On-the-Record Hearing on its Proposed Endangerment Finding

“[P]romoting science isn’t just about providing resources—it’s about protecting free and open inquiry. It’s about ensuring that facts and evidence are never twisted or obscured by politics or ideology. It’s about listening to what our scientists have to say, even when it’s inconvenient—especially when its inconvenient.”
—President Obama (Dec. 17, 2008)

“The public must be able to trust the science and scientific process informing public policy decisions…. To the extent permitted by law, there should be transparency in the preparation, identification, and use of scientific and technological information in policymaking.”
—President Obama (Mar. 9, 2009)

“As Administrator, I will ensure EPA’s efforts to address the environmental crises of today are rooted in three fundamental values: science-based policies and programs, adherence to the rule of law, and overwhelming transparency.”
—EPA Administrator Jackson (Jan. 23, 2009)
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The statements above (and dozens like them collected herein), pledging commitment to transparency, public participation, and the elevation of unbiased scientific inquiry over raw political calculus, are said to be the foundation of the Obama Administration’s approach to environmental policymaking. Now that the United States Environmental Protection Agency (“EPA”) is on the cusp of making a decision that will “result in an unprecedented expansion of EPA authority that would have a profound effect on virtually every sector of the economy and touch every household in the land,” Regulating Greenhouse Gas Emissions Under the Clean Air Act 73 Fed. Reg. 44,354-55 (July 30, 2008), EPA should match reality to rhetoric. In short, EPA should require that this proceeding to resolve its Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act; Proposed Rule, 74 Fed. Reg. 18,886 (Apr. 24, 2009) (hereinafter “Proposed Endangerment Finding”) be conducted on the record, in accord with the procedures described in APA sections 556-557.

To date, EPA’s informal rulemaking process has not matched its rhetoric, has not been based on the record, and has not been a transparent scientific process. Instead, we have a scientific issue of historic and economically massive consequence, as to which EPA itself admits extraordinary “uncertainty,” but proposes a rule based entirely on untested scientific sources—mostly a U.N. report. We have essential scientific issues that are hugely controverted, but regulated parties have no opportunity to question their proponents to ensure the validity of the science. And we have political actions starkly at odds with the promises of transparency, extending not only to last week’s belated White House report on the effects of global warming that was not provided with the Proposed Endangerment Finding, but also to revelations that the proposal the Administrator signed contains scientific assertions that are contrary to those reported by EPA’s own staff in April 2009 with regard to the impact of global warming on ozone.