In a narrow 5-4 decision in 2007, the US Supreme Court authorized the EPA to consider the greenhouse gas CO2 as a 'pollutant' under the terms of the Clean Air Act -- provided EPA could demonstrate that CO2 posed a threat to human health and welfare.  (CO2 is a colorless gas, non-toxic and non-irritating, and a natural constituent of the atmosphere.  In the geological past, CO2 levels have undergone wide variations -- from as low as one half up to twenty times the present level.)

The EPA then issued an Endangerment Finding (EF) in 2009, which was promptly challenged in the DC Circuit Court of Appeals.  One of the challenges came from the Competitive Enterprise Institute (CEI) and the Science and Environmental Policy Project (SEPP).   We questioned both the procedure and the validity of the underlying science used by the EPA, as embodied in their TSD (Technical Support Document).

As my CEI colleague Marlo Lewis relates, the EPA's Inspector General (IG) released a report in September 2011, finding that EPA did not meet applicable federal Information (or Data) Quality Act (IQA) standards when developing the TSD. The IG argued that the TSD is a "highly influential scientific assessment," and therefore should have been subjected to the most rigorous form of peer review.  EPA fell short of the mark by not publishing the comments of the agency's 12-member peer-review panel, and by placing an EPA employee on the panel, compromising its independence.
 
EPA claims it met all IQA standards because the TSD, far from being a "highly influential scientific assessment," is not a "scientific assessment" at all.  According to EPA, the TSD did not involve any weighing of data, information, or studies. Rather, the TSD simply summarizes assessments of other authorities, principally the UN's Intergovernmental Panel on Climate Change (IPCC), the US National Academy's National Research Council (NRC), and the US Global Change Research Program (USGCRP).  [Note that neither NRC and USGCRP are "independent;" both reports are based on the IPCC, whose own Assessment has been compromised by the revelations of the Climategate e-mails.]

But in so saying, EPA may have leapt from the frying pan into the fire, because in the ongoing litigation over EPA's greenhouse gas regulations, a key claim made by the petitioners Coalition for Responsible Regulation is that when EPA developed its TSD and associated EF, it unlawfully outsourced its "judgment" to the IPCC and other non-agency experts.
 
The Coalition then sent a "request for judicial notice" to the D.C. Circuit Court of Appeals, asking the Court to take cognizance of the IG report and consider its implications for the case.  [Marlo Lewis has written an informative and extremely useful article about this new development at GlobalWarming.Org]

After all of the responses and briefs are filed, the Court may issue a decision around mid-2012.

Faulty EPA Science

The lack of an independent analysis of the science underlying the EF puts the burden right back on the soundness of the science used by the IPCC, which is the main source of the TSD.  [The NRC and USGCRP reports draw on the same IPCC data and models, and are not independent.]

But the science is certainly inadequate to support the IPCC conclusion of anthropogenic global warming (AGW).

1. The IPCC's own data contradict its own model results -- as a simple comparison shows.  Although the issue had been contentious, with one group claiming a disparity (Douglass, Christy, Pearson, and Singer, published in Int'l Journal of Climatology 2007) and the other group claiming "consistency" (Santer and 16 co-authors, published in IJC 2008), all now concur that "agreement between models and observations...is non-existent" in the crucial location, the upper tropical troposphere, above 5 miles (Thorne et al, published in Journal of Geophysical Research 2011).

2.  Further, (non-linear) climate models are subject to chaotic uncertainties; each model run shows a different temperature trend.  Hence, the IPCC models cannot be validated against observations.  Our NIPCC studies show that at least 10 runs have to be performed and averaged in order to obtain consistent temperature trends.  (But about half of the 22 IPCC models had only one or two runs; none had more than five.)

3.  Finally, the latest (2007) IPCC Assessment bases its conclusion about AGW on a reported global warming of the past 50 years.  It says: "Most of the observed increase in global average temperatures since the mid-20th century is very likely [90 to 99% certain] due to the observed increase in greenhouse gas concentrations."  [Ref: IPCC-AR4 2007, Summary for Policymakers, page 10.]

But the global surface warming reported since 1979 is fake; it does not exist -- as demonstrated by NIPCC in several other data sets: Atmospheric temperatures show no warming trend, as seen both by balloon-borne radiosondes and independent satellite observations.  

The reported warming of the sea surface can be traced to instrumental problems.  And the available proxy data show no post-1979 warming.

The reason for the reported surface warming, as reported by the IPCC, is still unclear.  But it is likely due to a selection of weather stations that favors an increasing fraction of urban stations and airports, which show a local warming trend because of increasing air traffic.It will be interesting to see the reaction of IPCC scientists, once these data are fully published and accepted by the scientific community.  

It is unlikely, therefore, that the EPA's TSD will stand.  And without the TSD, the Endangerment Finding is toast - and so is regulation of carbon dioxide.

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 Atmospheric physicist S. Fred Singer is Professor Emeritus of Environmental Sciences at the University of Virginia and founding director of the US Weather Satellite Service (now NESDIS-NOAA).  He is a Fellow of the Heartland Institute and the Independent Institute.  His book "Unstoppable Global Warming - Every 1500 Years" (Rowman & Littlefield, 2007) presents the evidence for natural climate cycles of warming and cooling and became a NY Times best-seller.  He is the organizer of NIPCC (Non-governmental International Panel on Climate Change, editor of its 2008 report "Nature - Not Human Activity - Rules the Climate", and coauthor of "Climate Change Reconsidered," published in 2009, with conclusions contrary to those of the IPCC <http://www.nipccreport.org/>.  As a reviewer of IPCC reports, he presumably shares the 2007 Nobel Peace Prize with Al Gore and 2000 others.