Inspector General says EPA Bungled Endangement Rule Process

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The EPA Inspector General issued a report on September 26, 2011 prepared at the request of Senator James Inhofe about the integrity and veracity of the endangerment finding on greenhouse gas emissions issued by the agency in 2009.  The Endangerment Finding is a trigger and precedent for other rules, but is not itself a specific emission control regulation. Thus the Endangerment Finding itself has no compliance costs.  Those compliance costs will pile up in the specific subsequent rules adopted to enforce the endangerment finding.   The total cost of greenhouse gas emissions regulations are difficult to estimate in advance but could be in the range of $300 to $400 billion per year in compliance costs based upon the proposed and potential rules being considered.

Complex rules are supposed to be based upon “good science” in layman’s terms.  That good science is summarized in a Technical Support Document to accompany and support the proposed rulemaking. The EPA’s IG found that the endangerment finding’s Technical Support Document (TSD) is a “highly influential” scientific document. This ‘highly influential’ finding sets a higher standard of review, both EPA and Office of Management and Budget (OMB) Information Quality Act (IQA) guidelines require that the document be reviewed by an independent peer review panel, and that the panel’s views must be made available for public comment. EPA procedural error of not publishing the review panel’s views was made worse, according to the IG’s report, because one of the 12 reviewers was an EPA employee thus compromising the “independence” of the peer review process.  For those reasons the EPA Inspector General found that the TSD does not meet federal quality control criteria for “highly influential” scientific documents. These procedural and quality control criteria errors taint the entire rulemaking process and make it very difficult to rely upon the endangerment finding as the precedent for future rulemaking as EPA intended.

The EPA responded that “while EPA will consider the specific IG recommendations, we disagree strongly with the inspector general’s findings and followed all the appropriate guidance in preparing this finding.  Most importantly, the report does not question or even address the science used or the conclusions reached by EPA under this and the previous administration — that greenhouse gas pollution poses a threat to the health and welfare of the American people. Instead, the report is focused on questions of process and procedure.”

Appeals now pending before the District of Columbia Court of Appeals by several states, industry groups, and public policy organizations seek to overturn EPA’s endangerment rule and other greenhouse gas rules.  In addition, the US House of Representatives approved a bill to rein in EPA’s greenhouse regulatory surge.  Whether the IG report on the procedural and quality control criteria missteps significantly effects these efforts is unknown.

Advocates for the endangerment finding argue that the Inspector General’s report did not question the underlying science upon which the finding was made.  That response is correct but beside the point since the job of the IG is not to second-guess the scientists but to assure that the quality control criteria and applicable rulemaking procedures required are followed thus the dagger to the heart of the rule was the reality that EPA failed to follow the procedural rules for rules and thus tainted its own process.

Opponents of the regulations cheered feeling the tide turning their way while those favoring the endangerment finding are left to grumble about how EPA could bungle the process on something so important to them.