Applying Justice Scalia's methods to the EPA would help to end agency partisanship
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Something is rotten in the state of administrative agencies. Something was especially rotten in the Environmental Protection Agency (EPA) during the past administration, and the late Justice Scalia would have wholeheartedly agreed. Regardless of his personal stance on an issue, Scalia’s opinions were consistently based on a strict application of the law. He did not conclude and then search for support. He abhorred manipulation of the law to achieve some desired result, and the EPA’s selective use of scientific findings to support an administration’s pre-announced policy would have been equally repugnant.

It's one reason he voted with a majority of his colleagues in 2016 to issue a stay barring the agency from implementing the Clean Power Plan, a rule premised on the idea of manmade global warming that aimed to reduce carbon emissions. To honor his legacy, lawmakers could eliminate another one of the agency's major Obama era rulings in the days ahead.

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That's the "endangerment finding," a 2009 ruling by the agency that said greenhouse gases were dangerous to human health. To that end, a coalition of trucking, construction, logging, and manufacturing businesses represented by the Texas Public Policy Foundation recently filed a petition with the EPA asking the agency to reconsider the ruling.

 

The reason is that the endangerment finding paved the way for stringent federal carbon dioxide emissions standards. Because carbon dioxide is everywhere and in everything, the finding positioned the EPA to regulate virtually every nook and cranny of the national economy, making it among the most powerful administrative agencies in the nation.

In promulgating the endangerment finding, the EPA violated federal law. The agency failed to obtain peer review from the Science Advisory Board, a blue-ribbon panel of experts established by Congress to ensure that EPA regulations are based on accurate facts and credible scientific analysis. Congress established the board to prevent bureaucrats from imposing unnecessary restrictions on liberty in the pursuit of unnecessary regulatory goals. The EPA thwarted that congressional concern by ignoring the peer review requirement.

Instead, EPA relied almost exclusively on “assessment literature” generated by third parties that had summarized their own views of global climate change science.  According to the EPA, the administrator “relied heavily” on the assessments of the United States Global Change Research Program, the Intergovernmental Panel on Climate Change, and the National Research Council as the “primary scientific and technical basis of her endangerment decision.” In response to comments calling on the EPA to make “its own assessment of all of the underlying studies and information,” the EPA refused on grounds that it “had no reason to believe” the reports of the three non-governmental organizations were inaccurate.

The EPA should not ask business owners to shoulder heavy economic burdens unless a regulation is based on objective interpretation of science that is then reviewed by an outside objective body. Given the refusal to comply with laws requiring independent, objective review, there is no real way to know if the EPA’s regulations under the past administration truly contribute to health and human welfare, because there is no real way to know whether scientific findings have been skewed or manipulated.

With the effort to seek reconsideration of the endangerment finding, petitioners are seeking to start over. That would begin with the Science Advisory Board’s review of regulations issued by the Obama EPA to ensure that sound science forms the foundation of future EPA regulations.

Over the course of the Obama administration, the EPA became a tool for promoting partisan policy. It would do well to apply Justice Scalia’s methods to its scientific studies and regulations to prevent further slide into partisanship.

The Honorable Robert Henneke (@RobHenneke) is general counsel and director of the Texas Public Policy Foundation’s Center for the American Future. Merritt Lander is a research assistant for the Texas Public Policy Foundation’s Center for the American Future.


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