by John O’Sullivan
on February 17, 2010
The world’s largest private sector coal business, the Peabody Energy Company (PEC) has filed a mammoth 240-page “Petition for Reconsideration,” a full-blown legal challenge against the U.S. Environmental Protection Agency.
The petition must be answered and covers the entire body of leaked emails from ‘Climategate’ as well as those other ‘gate’ revelations including the frauds allegedly perpetrated under such sub-headings as ‘Himalayan Glaciers,’ ‘African Agricultural Production,’ ‘Amazon Rain Forests,’ ‘Melting Mountain Ice,’ ‘Netherlands Below Sea Level’ as well as those much-publicized abuses of the peer-review literature and so called ‘gray literature.’ These powerful litigants also draw attention to the proven criminal conduct by climate scientists in refusing to honor Freedom of Information law (FOIA) requests.
Peabody is, in effect, challenging the right of the current U.S. federal government to introduce cap and trade regulations by the ‘back door.’ In this article we summarize Peabody’s legal writ.
PEC has pulled out all the stops to overturn the EPA findings ‘Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act’ made on December 7, 2009. Those findings were in turn premised on the Supreme Court decision of April 2, 2007 of Massachusetts v. EPA, 549 U.S. 497 (2007), where the court ruled that greenhouse gases are air pollutants covered by the Clean Air Act.
PEC argues inter alia that the law requires that the federal agency must articulate a “rational connection between the facts found and the choice made” as per the case of Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43 (1983).
The PEC arguments are based primarily on the release of email and other information from the University of East Anglia (“UEA”) Climatic Research Unit (“CRU”) in November of last year. Their civil action lists most of the principle scientists such as Professor Phil Jones, of the UK’s Climatic Research Unit, who recently admitted there has been no ‘statistically significant’ global warming for 15 years and agreed the Medieval Warm Period may have been just as warm, if not warmer than current global temperatures.
The petition argues the EPA must reconsider its Endangerment Finding based on all the new material from Climategate that was not available during the original EPA ‘comment period’ and which is central to the outcome that EPA reached in promulgating its Endangerment Finding.
The petition further states that the EPA failed to properly exercise its judgment as required by the Clean Air Act (“CAA”) and acted in an “arbitrary and capricious” fashion by relying almost exclusively on flawed reports of the IPCC in attributing climate change to anthropogenic greenhouse gas (“GHG”) emissions and which were influenced by political rather than scientific concerns.
Among their submissions the PEC legal team attacks the “Nice Tidy Story of Unprecedented 20th Century Warmth” using emails written while climatologists were making preparations for the Third IPCC report. Among them Keith Briffa stated that:
“I know there is pressure to present a nice tidy story as regards ‘apparent unprecedented warming in a thousand years or more in the proxy data’ but in reality the situation is not quite so simple.” [CRU email 938018124.txt (Sep. 22, 1999)]
Briffa went on to say that:
“I believe that the recent warmth was probably matched about 1000 years ago.” [CRU email 938018124.txt (Sep. 22, 1999)]
The PEC legal eagles then cite another key researcher, Ed Cook, who in a lengthy email bristles at the effort to eliminate the MWP and wrote:
“I do find the dismissal of the Medieval Warm Period as a meaningful global event to be grossly premature and probably wrong.”
[CRU email 988831541.txt (May 2, 2001)]
The PEC action criticizes the discredited IPCC reports that were not the product of a rigorous, transparent and neutral scientific process. PEC argues:
“The CRU information reveals that many of the principal scientists who authored key chapters of the IPCC scientific assessments were driven by a policy agenda that caused them to cross the line from neutral science to advocacy.”
As an example of bias, Dr. Kevin Trenberth – Senior Scientist, Head of the Climate Analysis Section at the National Center for Atmospheric Research is cited for his admission:
“I tried hard to balance the needs of the science and the IPCC, which were not always the same.”
Hide the Decline
The coal company’s lawyers argue that to hide the decline in the correlation between recent temperatures and what was showing in the proxy data, Professor Michael Mann and then Phil Jones unethically and fraudulently grafted on actual temperature data to the end of their proxy reconstructions rather than using the same proxy data as had been used throughout the reconstruction.
By this ‘trick’ they made the graphic presentations of the proxy reconstructions misleading, since the effect is to make it seem as if the proxy data shows rising 20th century warming when it doesn’t. But the real deception in the trick was in hiding what became known as the “divergence” problem.
The divergence problem is where the proxy data are contradicted by actual data, as they are for a significant period of the time when direct temperature measurements exist, the accuracy of the proxy data over the entire period of the proxy reconstruction is called into question so that the science cannot be determined to be “settled.”
In a robust attack lawyers for the PEC further assert:
“Moreover, the Information Commissioner’s Office of the United Kingdom (“U.K.”), the agency that oversees and enforces the U.K.’s freedom of information laws, after investigation, recently concluded that CRU broke those laws in refusing to respond to information requests.”
The petition concludes that:
“In sum, given the seriousness of the flaws that the CRU material and other information reveal in the development of the IPCC reports, the Agency must reexamine the Endangerment Finding. The Agency can no longer have confidence that those reports present a fair, unbiased and accurate assessment of climate science.”
Moreover, PEC is demanding that the EPA shall convene a full evidentiary hearing as a part of such reconsideration. If this element of the petition were granted it is highly probable that the weight of the new evidence now freely available since Climategate would expose the criminal and fraudulent component within the science of man-made global warming, and would likely succeed in having all the EPA’s findings on carbon dioxide invalidated.
Thereby, from accomplishing their civil task Peabody will lend further weight to the likelihood of criminal charges being brought against those individuals implicated in international fraud on the largest scale ever known.
SpikeStL 