William J. Brennan, Ph.D.
Assistant Secretary of Commerce for Oceans and Atmosphere
Acting Director, Climate Change Science Program
U.S. Department of Commerce
National Oceanic and Atmospheric Administration
U.S. Climate Change Science Program
1717 Pennsylvania Avenue, NW, Suite 250
Washington, DC 20006
Name: Alexandra Liddy Bourne, MSN
Title: Vice President, Policy and Strategic Development
Organization: The Heartland Institute
Address: 209 Pennsylvania Avenue, Suite 2109. Washington, DC 20006
E-mail: [email protected]
Area of Expertise: environmental policy
Name: Maureen Martin, JD
Title: Senior Fellow for Legal Affairs
Organization: The Heartland Institute
Address: 19 South LaSalle Street, 9th Floor. Chicago, IL 60603
E-Mail: [email protected]
Area of Expertise: environmental law
The Heartland Institute is a national nonprofit research and education organization dedicated to discovering, developing, and promoting free market solutions to current social and economic issues. Our focus is primarily environmental regulation, school reform, health care reform, budget and tax issues, and telecommunications regulation. Our publications are distributed to over 8,300 state and national elected officials and approximately 8,400 local government officials.
We are writing in response to the release of the U.S. Climate Change Science Program’s (CCSP) Draft Unified Synthesis Product Report: Global Climate Change in the United States (Synthesis Report) 1 on July 17, 2008. The Heartland Institute specifically requests that the Federal Register notice be withdrawn until such time that the underlying Synthesis and Assessment Products are publicly available as required under the Information Quality Act and the membership of the advisory committee that produced the report is properly constituted in compliance with the Federal Advisory Committee Act.
Noncompliance with Information Quality Act
On July 17, 2008, the National and Atmospheric Administration (NOAA) published a Synthesis Report notice of availability and request for public comment in the Federal Register with an announcement of a 28-day public comment period. The Synthesis Report is designed to be an integrative summary of 21 Synthesis and Assessment Products (SAPs) of the CCSP. It includes selected conclusions from the U.N. Intergovernmental Panel on Climate Change (IPCC) Fourth Assessment Report and other summaries from studies that have appeared in the scientific literature up until 2006.
Unfortunately, many of the underlying SAPs have not yet been completed and the public cannot review or judge the reliability and credibility of the Synthesis Report. The Synthesis Report indicates that the SAPs may be available by October 2008, well after the public comment period ends on August 14, 2008. Such transparency or access to the SAP’s is required under the Data Quality Act and is necessary to comply with the requirements of the Information Quality Act and guidelines established under said Act. “Agencies shall treat information quality as integral to every step of an agency’s development of information, including creation, collection, maintenance, and dissemination.” 2
The issuance of the CCSP’s draft Synthesis Report on July 17, 2008 without all 21 of the SAPs was premature and fails to comply with the Information Quality Act.
Page 15 of the Synthesis Report specifically states the goal of the report, “The goal of this report is to make the key results of the enormous body of scientific information about climate change and its impact on the United States accessible in a single plain English document that can help inform the public and private decision making at all levels.” The reference to key results indicates that all 21 CCSP SAPs have been included, yet only 8 CCSP SAPs have been completed to date.
As in any research methodology, this omission of data and lack of transparency places serious doubt on the ability of scientists, technicians, and other members of the public to review the document for reliability and credibility as a scientific guideline for climate change policy that calls for the regulation of greenhouse gas emissions.
The agency attempts to work around the language of the Information Quality Act by stating on the CCSP website that report is being released “solely for the purpose of pre-dissemination peer review under applicable information quality guidelines”. This new interpretation of the guidelines is unsubstantiated and conflicts with the definition of the term “dissemination” as found in the Office of Management and Budget’s Final Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility and Integrity of Information Disseminated by Federal Agencies which states that dissemination is defined to mean “agency initiated or sponsored distribution of information to the public” whether that information is the agency’s own or that of a third party.”
Clearly, the CCSP draft synthesis report was published in the Federal Register, the officially recognized vehicle for public dissemination of government information and should be treated as such under the Information Quality Act.
Noncompliance with the Federal Advisory Committee Act
The Synthesis Report was produced by an advisory committee to the U.S. Department of Commerce operating under the Federal Advisory Committee Act, 5 U.S.C. Appx. §§1 et seq. (“FACA”). Section 5(b)(2) of FACA “require[s] the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.”
The committee that produced the Synthesis Report is not fairly balanced and therefore violates FACA. The Synthesis Report should be stricken and the committee reconstituted to comply with FACA’s balance requirements.
The Court of Appeals for the District of Columbia explained the requirement of balance as follows:
[T]he Senate report on the Act states that “legislation [establishing an advisory committee] shall . . . require that membership of the advisory committee shall be representative of those who have a direct interest in the purpose of such committee.” S. REP. NO. 1098, 92d Cong., 2d Sess. 9 (1972). Referring to this statement, this court has noted that the Act’s “legislative history makes clear, [that] the ‘fairly balanced’ requirement was designed to ensure that persons or groups directly affected by the work of a particular advisory committee would have some representation on the committee.”
Public Citizen v. National Advisory Committee on Microbiological Criteria for Foods, 866 F.2d 419, 423 (D.C. Cir. 1989).
FACA imposes two types of balance requirements: (1) point-of-view balance; and (2) functional balance. Cargill, Incorporated v. United States of America, 173 F.3d 323, 335 (5th Cir. 1999). If the function of the committee is narrow, balance can be achieved without broad representation of varied points-of-view. Id. at 337-38. The converse is also true, however. An advisory committed tasked with broad functions must include broad point-of-view representation. Id.
The Committee’s Broad Functional Tasks
The committee’s core function is to predict the climate change impacts. This in itself is an extremely broad function, as it gauges climate change impacts on society, human health, energy production and use, transportation, water resources, agricultural and land resources, and natural environment and biodiversity, both nationwide and by sections of the country.
But the Synthesis Report explicitly admits that its function is even broader than its core function. First, more than 10% of the Report is devoted to alarmist “science” purporting to document that climate change is taking place and that it is induced by man-made emissions. (Report at 16-41.)
Second, the Synthesis Report proposes a wide range of measures that ought to be taken by industry, agriculture, and government in response to climate change:
[The report] also deals with some of the things society can do to respond to the climate challenge. Comparing the impacts of a range of heat-trapping gas emissions scenarios reveals differences related to the consequences of various emissions pathways, highlighting the choices we have with regard to human induced emissions. This report also explores some options for adapting to climate change and its impacts that could help in coping with the amount of additional warming that is inevitable as a result of past and ongoing emissions of heat-trapping gases and other human-induced emissions.
(Report at 14.) The Synthesis Report continues:
Most scientific research has focused on understanding the nature, causes, and impacts of climate change, and estimating the human contribution to these changes. Considerably less attention has been paid to the portfolio of approaches that will be needed to respond to the problem of human-induced climate change. Items in this portfolio include reducing emissions of heat-trapping gases, as well as developing measures to adapt to the amount of warming that is not prevented through such reductions.
Id. at 12. The Synthesis Report identifies measures that should be taken by several sectors of the economy–most prominently, the energy industry:
Throughout this report, the impacts of climate change will be viewed through the lens of our possible responses. Comparing impacts for low and high emission scenarios highlights the choices society faces with regard to levels of heat-trapping emissions. Options for reducing these emissions are often referred to as “mitigation” and include improved energy efficiency, using energy sources that don’t produce carbon dioxide or produce less of it, capturing and storing carbon dioxide from fossil fuel use, and so on.
The other major category of response strategies is known as “adaptation,” which refers to changes made to better respond to present or future circumstances. This includes deliberately adjusting to actual or anticipated changed conditions to avoid or reduce negative impacts or to take advantage of positive ones.
The Synthesis Report’s advice for the agricultural sector is sweeping. Farmers should develop new types of crops, a high-cost proposition. Id. at 95, 105. Livestock products should be changed, “a much more extreme, high-risk, and in most cases, high-cost option than changing crop varieties.” Id. at 105. Farmers should also change their use of water, fertilizers, herbicides, and pesticides. Id. at 95. Water may have to be rationed, which also “will increase costs for the farmer. Id.
The Synthesis Report also identifies adaptation measures for business in general, which should consider relocating important office centers away from coastal areas. Id. at 12.
Last, the Synthesis Report proposes several measures that should be taken by state and local governments. Building codes should encourage “green” buildings and make them more resistant to fires and extreme weather events. Id. at 12-13. But most radical is the Report’s suggestion that state and local governments should consider relocating their residents away from coastal zones. Id. at 13.
In light of the committee’s broad functions, its composition is unbalanced and violates FACA.
All but one of its 30 members are either university professors or federal government employees. Nearly one-third of its members are biological scientists. It includes, among others, one employee of the U.S. Department of Agriculture (crop specialist), one specialist in transportation/regional planning, two climatologists, two atmospheric scientists, three meteorologists, one drought specialist, one energy systems analyst for the U.S. Department of Energy, one M.D., and one MBA/water scientist. One member is a lawyer and one is a writer.
Initially, this committee is not competent to evaluate and opine on whether man-induced climate change is actually taking place. Fully half of its members contributed to one or more of the U.N.’s Intergovernmental Panel on Climate Change reports, whose work has been discredited by sound scientists. See Nature, Not Human Activity, Rules the Climate, published by Heartland for the Nongovernmental International Panel on Climate Change (“NIPCC Report”) in March 2008. Scientists unswayed by global warming alarmism and who are committed to sound, dispassionate, and non-political science must be included on the committee.
Furthermore, as discussed above, the committee’s membership is unbalanced when it comes to performance of its massive core function of evaluating the impacts of climate change on society, human health, energy production and use, transportation, water resources, agricultural and land resources, and natural environment and biodiversity. The last category can be addressed by about half of the committee membership. But the remaining categories fall within the educational/professional experiences of either one or none of the committee members. The committee includes no sociologists, one doctor, one government energy bureaucrat, one transportation analyst specializing in traffic congestion and air quality, and one agriculturalist with the U.S.D.A.
Last, the committee’s function includes making recommendations for massively complicated regulatory and private sector responses to climate change. The committee is unbalanced on these subjects and is therefore incompetent to make such recommendations, as follows:
1. Even though the committee opines that 86% of greenhouse gas emissions in the U.S. come from energy production and recommends drastic reductions in such emissions, not one single representative of the energy industry is included on the committee.
2. Even though the committee recommends high-risk and costly changes in agricultural livestock products, not one single expert in this area is included on the committee.
3. Even though the committee recommends shifts in usage of fertilizers, herbicides and pesticides in agriculture, not one single manufacturer or user of these products is included on the committee.
4. Even though the committee recommends business relocations, not one single business executive or business owner is included on the committee.
5. Even though the committee recommends serious changes in the engineering and construction of community structures through building codes, not one single code specialist, architect, construction manager or structural engineer is included on the committee.
6. Even though the committee recommends massive population relocations away from coastal areas, not one single state or local official from Maine to Florida or from Washington to California is included on the committee.
7. Even though the committee recommends massive population relocations away from coastal areas, not one single psychologist, psychiatrist, sociologist or other individual with expertise on the impacts of such massive relocations on individuals’ lives, and any required coping assistance, is included on the committee.
8. Even though the committee recommends all of these “adaptations” and more, and even though the committee concedes they will be hugely expensive, not one single economist is included on the committee.
All of these groups have a “direct interest” in the committee’s purpose and are “directly affected” by the committee’s work and its Report due to the massive regulation recommended by the committee for these sectors. Without their participation, the committee and its Report are unlawful, illegal, and subject to being stricken.
The Heartland Institute urges the following corrective measures.
The Federal Register notice ought to be withdrawn until such time that the underlying Synthesis and Assessment Products are publicly available as required under the Information Quality Act
The Committee should be declared unlawful due to its lack of balance. Its Synthesis Report should be stricken. Following release of the underlying Synthesis and Assessment Products, the Committee should be reconstituted in compliance with FACA. This reconstituted Committee should revisit and revise the Synthesis Report to reflect sound science and realistic analyses of climate impacts based on inputs from the industrial and governmental sectors affected. Economic experts should be included to project the actual costs of compliance with the report’s recommendations. Finally, the NOAA should release its findings in a new report that complies with the Information Quality Act.
Only after these steps are taken and concluded should the federal government consider the Synthesis Report’s advice.
1 U.S. Climate Change Science Program, Draft Unified Synthesis Product Report: Global Climate Change in the United States; Notice of Availability and request for public comment, Federal Register 73(138): 41042; July 17, 2008.