Science Insight: Judge rules DOE climate group illegal, but lets their science stand – Explained

A group of researchers that the US Department of Energy handpicked to write a report on climate change was illegally formed and operated, a US district judge said Friday. But the judge stopped short of nullifying the report itself, meaning the Environmental Protection Agency can still legally use it to help overturn the scientific foundation of the country’s federal greenhouse gas regulations. 

In response to a lawsuit brought by the advocacy groups the Environmental Defense Fund (EDF) and the Union of Concerned Scientists (UCS), US District Court Judge for the District of Massachusetts William Young ruled that DOE Secretary Chris Wright and the Climate Working Group (CWG) acted illegally by not following transparency rules under the Federal Advisory Committee Act (FACA). 

But notably absent in the ruling is a response to the EDF and UCS’s request that the court strike the CWG’s report from the federal record. The DOE and EPA viewed this omission as a win. “We are pleased that the court rejected an attempt to erase this report from the public record,” DOE chief spokesperson Ben Dietderich told C&EN by email. EPA press secretary Brigit Hirsch responded, “EPA is heartened to see that the district court rejected EDF and UCS’s meritless attacks on the agency’s reconsideration of the 2009 endangerment finding.”

The EDF and UCS say that the EPA must withdraw its proposal to repeal the endangerment finding. Erin Murphy, senior attorney at EDF, says that because the effort to rescind the endangerment finding is so closely tied to the CWG report, the entire process is tainted and should not go forward. 

The CWG report is still legal fair game

The EPA heavily cited the CWG’s report, which casts doubt on the scientific consensus behind climate change, as the scientific justification to rescind the endangerment finding. This finding says that greenhouse gas emissions endanger human health and welfare and forms the scientific and legal basis for regulating these emissions under the Clean Air Act. 

FACA rules require government advisory committees to make their formation, meetings, documents, and notes public. According to records released as part of the court case, the CWG actively tried to conceal its existence. Now disbanded, the group was made up of five known climate change denialists specially chosen by Wright.

Their report, “A Critical Review of Impacts of Greenhouse Gas Emissions on the US Climate,” includes many arguments that have been debunked by the large consensus of climate scientists, and was blasted by the scientific community as “either misleading or fundamentally incorrect.” The National Academies of Sciences, Engineering, and Medicine later released its own report on climate change, which directly contradicted the CWG report’s findings. Internal reviewers at the DOE also called parts of the report unjustified and misleading.

“But the thing that matters is that it’s still in the record, even though it doesn’t have the status of the FACA report,” says Joseph Goffman, environmental law expert and former assistant administrator of EPA’s Office of Air and Radiation. This means that legally, the government can still use the CWG report. According to recent reporting by E&E News, the Florida Department of Government Efficiency and a group of Republican Attorneys General have separately used the report to undermine climate policy efforts. 

“It’s EPA’s funeral”

It’s unclear if the EPA will still cite the CWG report in its bid to overturn the endangerment finding. When asked if the agency made any changes to its proposal after the ruling, Hirsch responded, “EPA looks forward to publishing the final rule once it has completed interagency review and been signed by the administrator.”

The agency submitted the proposal to the Office of Management and Budget for review in early January. Goffman says that the agency should have the option to not cite the CWG report when it issues its final proposal. 

But “it’s EPA’s funeral” if the agency does continue to rely on the report, he says. If so, it will have to respond to the CWG report’s over 59,500 comments. 

“There’s no doubt that if the EPA does a poor job of responding to the comments criticizing the DOE report, then it will be vulnerable to a court later,” Goffman says. “This crappy report that they relied on, which is completely deficient on the merits, was authored by a group of people that shouldn’t even have existed,” he says. Because the CWG violated FACA, judges would likely give the report minimal weight. “If I were the [Department of Justice], I would strongly counsel EPA not to use the report,” Goffman says.

If the EPA pulls away from the CWG report, it’s left with trying to overturn the endangerment finding on a legal argument alone, Goffman says. In that respect, the EDF and UCS will essentially get what they want, for the EPA not to use the CWG report as part of its efforts to repeal the endangerment finding. 

The EDF and UCS lawsuit addressed both the DOE and EPA, but the judge dismissed the EPA as a defendant in the case in the ruling. He also said that the DOE released enough information after the report published that the CWG retroactively met the transparency requirements. Therefore, no more action is required by the DOE. 

EPA’s final proposal to rescind the endangerment finding is expected as early as next week.