PEABODY ENERGY
Peabody Plaza
701 Market Street
St. Louis, MO 63101-1826
314.342.3400

March 24, 2015
VIA E-MAIL ( GCC.guidance@ceq.eop.gov )
Mr. Horst Greczmiel
Associate Director for NEPA Oversight
Council on Environmental Quality
722 Jackson Place, NW
Washington, D.C. 20503
Re:

Revised Draft Guidance for Federal Departments and Agencies Consideration of
Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews, 79
Fed. Reg. 77,802 (December 24, 2014)

Dear Mr. Greczmiel:
Peabody Energy Corporation (“Peabody”) submits the following comments in response
to the Council on Environmental Quality’s (“CEQ’s”) Revised Draft Guidance for Federal
Departments and Agencies Consideration of Greenhouse Gas Emissions and the Effects of
Climate Change in NEPA Reviews, 79 Fed. Reg. 77,802 (December 24, 2014) (“Revised Draft
Guidance”).
INTRODUCTION AND SUMMARY OF COMMENTS
Peabody is the world’s largest private-sector publicly-traded coal company and the
largest producer of coal in the United States. Peabody’s products fuel approximately 10 percent
of America’s and 2 percent of the world’s electricity. In 2013, 73% of Peabody’s total coal sales
(by volume) were to U.S. electricity generators in nearly 40 states. Peabody has over 7 billion
tons of proven and probable coal reserves in the United States. In addition to Peabody’s mining
operations, Peabody markets and brokers coal from its operations and other coal producers, and
trades coal and freight-related contracts in the U.S. and abroad. Peabody also has an ownership
interest in a 1,600 megawatt coal-fueled electricity generation plant in the United States.
Peabody thus has an important interest in the manner in which federal agencies consider
greenhouse gas (“GHG”) emissions and “climate change” as part of their review under the
National Environmental Policy Act (“NEPA”).
In expanding NEPA’s purview to considerations of speculative GHG-related “impacts”
from proposed Federal actions, the Revised Draft Guidance is an answer in search of a problem.

 It constructs a pretext to regulate a non-existent harm and is based on flawed assumptions and
conjectures that defy actual data. The most ubiquitous “greenhouse gas,” carbon dioxide, is a
benign gas that is essential for all life. While the benefits of carbon dioxide are proven, the
alleged risks of climate change are contrary to observed data, are based on admitted speculation,
and lack adequate scientific basis. To presume, as the Revised Draft Guidance does, that
particular federal actions might have measurable relationships to “climate change” at all is also
baseless. It would be arbitrary and illegal to expand NEPA’s reach based on speculative and
flawed considerations.
The Administration’s efforts to unilaterally impose restrictions on development of energy
resources based on supposed climate change implications raises significant constitutional
implications as well. The Revised Draft Guidance implements a fundamental policy approach
toward severely restricting the country’s energy resource development, among other activities,
without approval by Congress. It is one thing for federal agencies to take internal actions to
address their own greenhouse gas emissions, but it is quite another for CEQ to require federal
agencies to incorporate speculative “climate change” considerations into the determinations that
affect and will likely halt many private projects, absent congressional authority to do so. Such
overreaching exceeds CEQ’s authority and violates the separation of powers.
EPA is attempting a similarly unauthorized and unconstitutional action with its so-called
“Clean Power Plan.” As noted constitutional scholar Laurence Tribe recently testified in
Congress regarding the “Clean Power Plan,” “EPA possesses only the authority granted to it by
Congress. It lacks ‘implied’ or ‘inherent’ powers. Its gambit here raises serious questions under
the separation of powers, Article I, and Article III, because EPA is attempting to exercise
lawmaking power that belongs to Congress and judicial power that belongs to the federal courts.
The absence of EPA legal authority in this case makes the Clean Power Plan, quite literally, a
‘power grab.’”1
Professor Tribe continued: “Even if the [Clean Air] Act could be stretched to usurp state
sovereignty and confiscate business investments the EPA had previously encouraged and in
some cases mandated, as this plan does, the duty to avoid clashing with the Tenth and Fifth
Amendments would prohibit such stretching.”2 “EPA is attempting an unconstitutional trifecta:
usurping the prerogatives of the States, Congress and the Federal Courts − all at once. Burning
the Constitution should not become part of our national energy policy.”3

1

Testimony of Laurence H. Tribe, “EPA’S Proposed 111(d) Rule for Existing Power Plants: Legal and
Cost Issues,” Hearing before the Subcommittee on Energy and Power, House Committee on Energy and Commerce,
at ii (Mar. 17, 2015), available at http://docs.house.gov/meetings/IF/IF03/20150317/103073/HHRG-114-IF03Wstate-TribeL-20150317-U1.pdf.
2

Id.

3

Id.

2

 The same concerns are apparent here. By instructing Federal agencies to consider the
“foreseeable effects” of GHG emissions (even though there are no demonstrated foreseeable
effects of any GHG emissions), CEQ has essentially issued its own de facto climate change
regulation, which can be used by project opponents and agencies alike to thwart otherwise
desirable and beneficial projects. The expansion of CEQ’s power is not authorized by law and
will upset well-settled, investment-based expectations of those who have been encouraged to
develop energy resources on federal land and elsewhere. Accordingly, Peabody objects to CEQ’s
attempt to require federal agencies to consider supposed climate change impacts in their
assessment of proposed Federal actions.
This is not the first time that CEQ has attempted to confront “climate change.” In 1981,
CEQ issued a report,4 based on nothing more than predictive modeling of the same type it relies
on now, asserting climate risks in a way that is comparable (if not almost identical) to current
warnings of apocalyptic dangers – risks that observational data since 1981 have proven to be
non-existent.
In 1981, CEQ predicted that if no action were taken to curb fossil-fuel use, the world
would face a temperature increase of approximately 3 degrees C by the year 2025.5 The 1981
report stated that a CO2-related global warming running up to the 3-degree increase “should be
observable now or sometime within the next 2 decades.”6 Yet real-world data disprove the
CEQ’s original model-based prediction of dramatic increases in global temperatures.
CEQ predicted that if “little global action is taken to control CO2 emissions over the next
several decades,” the world could be “faced with a drastically altered climate sometime in the
next half of the next century.”7 CEQ described the scenario:
In the short time span of a little more than a decade, the earth’s average
temperature increases several degrees Celsius, much larger increases occur in the
polar regions. Precipitation patterns shift dramatically from the average of the
previous several hundred years. . . . U.S. agricultural production declines sharply
due to the extremely arid conditions over most of what were prime agricultural
regions. Marginal agricultural areas in many arid and semi-arid regions of the
world become unproductive, with particularly serious impacts on many less
developed countries.8
None of these dire predictions has come to pass. In fact, in the nearly 35 years since the
CEQ issued its report, reliance on carbon-based fuels has powered unparalleled human progress,
4

CEQ, Global Energy Futures and the Carbon Dioxide Problem (1981) (“1981 Report”).

5

Id. at 5, 35.

6

Id. at 52

7

Id. at 28-29

8

Id. at 29.

3

 with hundreds of millions of people lifted out of poverty, and people the world over living longer
and better lives. Agricultural production has repeatedly hit record levels, and the Earth is
greening, not becoming more arid. Increases in CO2 emissions worldwide have led to prosperity,
not to the predicted global temperature increases or adverse effects.
Thus, the Revised Draft Guidance is premised on a series of errors and false assumptions,
which render it unfit for adoption:
•

Observational Data Disprove Alarmist Predictions of Significant Climate Change.
Contrary to CEQ’s modeling-based predictions published in 1981, real-world observational
data show that global average surface temperatures have not significantly increased. The
latest global average tropospheric temperatures based on NOAA satellite data (the most
reliable form of measurements) show a warming of (at most) 0.35°° C, or a rate of
approximately 1° C per century —significantly less than CEQ’s speculated warming of 3
degrees C by 2025.9

A March 2015 report by 13 esteemed scientists (including the Assistant Director of
Programs, Science and Technology Policy at the United States Department of the Interior)
explained that “[t]he temperature is virtually unchanged from that at the beginning of the
century. . . . [T]he question is not about warming per se but about how much warming there
will be compared to natural variability. The available evidence is entirely consistent with the
answer ‘not much.”10
9

Source: http://www.drroyspencer.com/latest-global-temperatures/.

10

Prof. Robert Carter, Prof. Ross McKitrick, Prof. Vincent Courtillot, Prof. Ian Plimer, Prof. Freeman
Dyson, Dr. Matt Ridley, Prof. Christopher Essex, Sir Alan Rudge, Dr. Indur Goklany, Prof. Nir Shaviv, Prof. Will
Happer, Prof. Fritz Vahrenholt, Prof. Richard Lindzen, “The Small Print: What The Royal Society Left Out” 1, 8
(Global Warming Policy Foundation March 2015).

4

 •

Observational Data Contradict Predictive Computer Models, Demonstrating Their
Scientific Unreliability. The computer models on which global warming predictions rely
cannot account for the real-world lack of warming. In fact, a 2008 report from the National
Oceanic and Atmospheric Administration (NOAA) acknowledged that a “pause” or “hiatus”
in warming of 15 years or more would invalidate current models: “The simulations rule out
(at the 95% level) zero trends for intervals of 15 yr or more . . . .”11 That trend has now
occurred, and it demonstrates that the existing models are fatally flawed. The models contain
further defects and cannot meet the NEPA standard for assessments because they are unduly
speculative.

•

The Revised Draft Guidance Would Allow Federal Agencies to Ignore The Proven
Benefits Of Higher CO2 Levels For Plants And Vegetation. Any assessments under NEPA
must account for the environmental benefits of a given project. CO2 is essential to plant
growth, and numerous studies have documented that rising CO2 levels will increase
vegetation, even in arid regions such as the Sahara Desert. “[S]cientists are agreed that the
extra carbon dioxide in the air has contributed to an improvement in crop yields and a
roughly 14% increase in the amount of all types of green vegetation on the planet since
1980.”12 That effect is documented and already occurring. A recent study by the
Commonwealth Scientific and Industrial Research Organisation (Australia’s national science
agency), in collaboration with the Australian National University, found (based on satellite
observations) that higher levels of CO2 have helped increase green foliage across the world’s
arid regions over the past 30 years. The study found an 11 percent increase in foliage cover
from 1982-2010 across Australia, North America, the Middle East and Africa.13

11

Peterson, T. C., and M. O. Baringer, Eds., 2009: State of the Climate in 2008. Bull. Amer. Meteor. Soc.,
90, S1–S196.
12

Matt Ridley, Fossil Fuels Will Save the World (Really), Wall St. J., Mar. 13, 2015 (available at
http://on.wsj.com/1CdXe05)
13

CSIRO, Deserts “Greening” from Rising CO2, July 3, 2013, available at
http://www.csiro.au/Portals/Media/Deserts-greening-from-rising-CO2.aspx (summarizing recent study by Donohue,
et al.)

5

 Similarly, a National Geographic report found that “[s]cientists are now seeing signals
that the Sahara desert and surrounding regions are greening due to increasing rainfall. If
sustained, these rains could revitalize drought-ravaged regions, reclaiming them for
farming communities.”14 The report added that “[t]his desert-shrinking trend” could lead
to a “return to conditions that turned the Sahara into a lush savanna some 12,000 years
ago” and that “rising temperatures could benefit millions of Africans in the driest parts of
the continent.”15 According to Robert Mendelsohn of Yale’s School of Forestry and
Environmental Studies and Department of Economics, “projections suggest that global
warming may be slightly beneficial to American agriculture.”16
•

Any Assessment Of Environmental Impacts Must Include Consideration Of The Most
Important “Environment” Of All: The Human Environment. The Revised Draft Guidance
fails to allow consideration of the societal impacts of a project, which intrinsically biases
NEPA against future development of our country’s energy resources, including coal. This
flies in the face of NEPA’s own statutory mandate, which requires Federal agency
consideration of the human environment.17 Under CEQ’s own NEPA regulations, the human
environment includes economic and social effects of an action as well as environmental
effects, necessarily including beneficial effects.18

14

Sahara Desert Greening Due to Climate Change?, National Geographic News (July 31, 2009), available
at http://news.nationalgeographic.com/news/2009/07/090731-green-sahara.html.
15

Id.

16

Mendelsohn et al., The Impact of Global Warming on Agriculture: A Ricardian Analysis, 84 AM. ECON.
REV. 753, 769 (1994).
17

NEPA § 102(2)(c), 42 U.S.C. § 4332(2)(c) (requiring federal agencies to prepare impact statements for
“major Federal actions significantly affecting the quality of the human environment”).
18

CEQ defines human environment at 40 CFR 1508.14:

6

 The importance of the human environment was recognized by governments worldwide
shortly after NEPA’s enactment. In the seminal “Declaration of the United Nations
Conference on the Human Environment” in 1972 (“Stockholm Declaration”), the
countries of the United Nations emphasized that alleviating poverty is a precondition to
environmental improvement, and that environmental regulation cannot ignore, and must
support, improving the social welfare of all peoples. As the Stockholm Declaration made
clear, “[o]f all things in the world, people are the most precious. It is the people that
propel social progress, create social wealth, [and] develop science and
technology….”19 The Stockholm Declaration further recognized that:
• “Both aspects of man’s environment, the natural and the man-made, are
essential to his well-being and to the enjoyment of basic human rights, the right to
life itself.”20
• “Economic and social development is essential for ensuring a favorable living
and working environment for man and for creating conditions on earth that are
necessary for the improvement of the quality of life.”21
• “Millions continue to live far below the minimum levels required for a decent
human existence, deprived of adequate food and clothing, shelter and education,
health and sanitation.”22
The Declaration also set forth a series of principles central to human progress, including
the propositions that “[d]evelopment is needed to improve the environment,” that
“[e]nvironment policy must not hamper development,” and that “[s]cience and
technology must be used to improve the environment.”23 Thus from the Stockholm
Declaration was born national and international environmental regulation based on
"Human environment" shall be interpreted comprehensively to include the
natural and physical environment and the relationship of people with that
environment. (See the definition of "effects" (Sec. 1508.8).) This means that
economic or social effects are not intended by themselves to require preparation
of an environmental impact statement. When an environmental impact statement
is prepared and economic or social and natural or physical environmental effects
are interrelated, then the environmental impact statement will discuss all of these
effects on the human environment.
19

Declaration of the United Nations Conference on the Human Environment, June 16, 1972, available at
http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=97&ArticleID=1503 .
20

Id.

21

Id.

22

Id.

23

Id.

7

 known health risks and improvements in pollution control technology, without sacrificing
social welfare.
The United Nation reaffirmed in a 2012 Rio Declaration that “[e]radicating poverty is the
greatest global challenge facing the world today and an indispensable requirement for
sustainable development. In this regard we are committed to freeing humanity from
poverty and hunger as a matter of urgency.”
Coal, which provides reliable and affordable energy, is central to achieving these goals.
Not only have worldwide GDP, life expectancy, and crop production soared since 1981
(contrary to the predictions of the 1981 CEQ Report), but for the last two centuries global
life expectancy has doubled, population has increased eight times, and incomes have
increased eleven times. Fossil fuels, chiefly coal, have helped power this progress.
Coal has helped raise society after society out of poverty and supply the benefits of
modern life across the globe. In the words of the Chief Economist and Director of Global
Energy Economics at the International Energy Agency in Paris, “The importance of coal
in the global energy mix is now the highest since 1971 [… Coal is] the fuel underpinning
the rapid industrialization of emerging economies, helping to raise living standards and
lift hundreds of millions of people out of poverty.”24 Quite simply, electricity is essential
for human progress, welfare and longevity:

24

Fatih Birol, “Coal’s Role in the Global Energy Mix: Treading Water or Full Steam Ahead?, “The
Official Journal of the World Coal Industry, (May 20, 2013), available at http://cornerstonemag.net/coals-role-inthe-global-energy-mix-treading-water-or-full-steam-ahead/.

8

 •

Consideration of Speculated “Climate Change” Impacts Violates NEPA’s Limitation to
Only Effects That Have Proximate Causation. Under NEPA, an agency has no duty to
consider indirect effects unless there is a “reasonably close causal relationship” that would
qualify as a “proximate cause” under tort law.25 In addition to the above-described issues,
climate change cannot meet that standard because it is a global issue. U.S. emissions of CO2
inevitably intermingle with emissions from other countries, and the U.S. is not the top or
fastest growing emitter. Secretary of State John Kerry has acknowledged that “[e]ven if the
United States somehow eliminated all of our domestic greenhouse gas emissions, it still
wouldn’t be enough to counteract the carbon pollution coming from China and the rest of the
world.”26 Even if carbon emissions were to lead to indirect effects (and the observational
data refute that claim), the NEPA “proximate cause” standard could not be satisfied.

•

The Federal Social Cost of Carbon Is Flawed And Should Not Be Used In Any NEPA
Assessment. The Federal Social Cost of Carbon (“SCC”) statistic should not be used in
NEPA assessments because it is a flawed and arbitrary figure, and is based on the same
speculations that are controverted by observed fact.

•

The Revised Draft Guidance Should Not Be Applied to Federal Land Management
Decisions. The Revised Draft Guidance reverses the 2010 original draft guidance and would
require application of the guidance to all federal land management decisions and projects.
This reversal is a mistake. The 2010 guidance properly recognized that there are no
established federal protocols for assessing the GHG impacts of land management techniques,
and CEQ does not propose any. Agencies are ill-equipped to conduct any kind of analysis of
climate-related effects from land use decisions, and the lack of any protocol or guidance
instructing the agencies will lead to widely varying results, greater uncertainty, and likely
greater opportunity for litigation from those who might challenge any particular project.

•

The Revised Draft Guidance will halt significant, beneficial projects. The Revised
Guidance will aggravate the already-well known delays for major projects under NEPA.
Beneficial projects will be halted altogether due to the complete speculation that would be
required of the Federal agencies (and the courts that review their actions) and the certain
litigation that will result over any project subject to the Revised Draft Guidance. The Revised
Draft Guidance will take an already cumbersome and unpredictable NEPA process and turn
it into an unworkable, project-killing disaster that will result in lost jobs, reduced investment,
and stifled economic growth. The Revised Draft Guidance should be withdrawn.

25

Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774 (1983).

26

John Kerry, “China, America and Our Warming Planet,” N.Y. Times, Nov. 11, 2014, available at
http://www.nytimes.com/2014/11/12/opinion/john-kerry-our-historic-agreement-with-china-on-climatechange.html.

9

 DISCUSSION
I.

History Demonstrates that CEQ’s Predictions of GHG-Related “Climate Change”
Are Mere Speculation and Unfounded.

The Revised Draft Guidance states that “Federal agencies, to remain consistent with
NEPA, should consider the extent to which a proposed action and its reasonable alternatives
contribute to climate change through GHG emissions and take into account the ways in which a
changing climate over the life of the proposed project may alter the overall environmental
implications of such actions.”27 However, under CEQ’s NEPA regulations, an agency’s
obligation to evaluate indirect and cumulative impacts is limited to those effects that are
“reasonably foreseeable.”28 Indeed, CEQ has reaffirmed that “[t]he focus should be and remains
on the foreseeability of identifying potential effects and the extent of those effects.”29
However, “‘[r]easonable foreseeability’ does not include ‘highly speculative harms’ that
‘distort[] the decisionmaking process.’”30 The relationship between GHG emissions and any
climate change has not been proven and, if anything, has been refuted by observed data over the
last three decades. Yet the Revised Draft Guidance would allow (if not force) federal agencies to
consider highly speculative causes and effects based on flawed science, which will surely result
in “distorted” decisionmaking.
A.
CEQ’s Predictions About Climate Change Are as Wrong Today as They
Were in 1981.
In 1981, CEQ issued its report on Global Energy Futures and the Carbon Dioxide
Problem. The 1981 Report opened with warnings of “far-reaching diverse consequences,
affecting our ability to feed a hungry and increasingly crowded world, the habitability of coastal
areas and cities, and the preservation of natural areas as we know them today.”31 CEQ’s dire
outlook at the time was based on its prediction that, if no action were taken to curb fossil-fuel
use, the world would face a temperature increase of approximately 3 degrees C by the year

27

79 Fed. Reg. at 77825.

28

40 C.F.R. §§ 1508.7, 1508(b).

29

79 Fed. Reg. at 77815.

30

City of Shoreacres v. Waterworth, 420 F.3d 440, 453 (5th Cir. 2005) (quoting Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 356 (1989)) (alteration in original).
31

CEQ, Global Energy Futures and the Carbon Dioxide Problem, at iii - iv. (1981)

10

 2025.32 This prediction was based on the “most widely accepted models” of climate change at
that time. 33
To CEQ’s credit, its Report acknowledged uncertainties and set forth the criteria for
evaluating whether the models it relied upon were correct or erroneous based on future
observable data.34 CEQ explained that, if these “widely accepted models are correct,” a CO2related global warming running up to the 2025 critical 3 degree increase “should be observable
now or sometime within the next 2 decades.” 35
We now have 34 years of actual observed temperature data since the 1981 Report to
determine if those models were correct. We now know they were not correct. As the
following chart shows, from 1979 to 2015, observational data show a warming of (at most) 0.35
degrees C—significantly less than CEQ’s speculated warming of 3 degrees C by 2025.36

This chart displays the latest global average tropospheric temperatures based on National
Oceanic and Atmospheric Administration (“NOAA”) satellite data, and it is corroborated (with
97% agreement) with data from weather balloons.37 These measurements are the best available,
32

Id. at 35, 56.

33

Id. at 52

34

Id.at iv-v, 52.

35

Id. at 52

36

Source: http://www.drroyspencer.com/latest-global-temperatures/.

37

Marc Morano, Scientists Balk at ‘Hottest Year’ Claims: Ignores Satellites Showing 18 Year ‘Pause’—We
Are Arguing Over the Significance of Hundredths of a Degree’—The ‘Pause’ Continues, Climate Depot (Jan. 16,
2015) available at http://www.climatedepot.com/2015/01/16/scientists-balk-at-hottest-year-claims-we-are-arguing-

11

 more accurate and reliable than surface temperature data because surface monitoring stations
have been plagued by a host of irregularities, including siting standard violations.38
A March 2015 report by 13 esteemed scientists (including the Assistant Director of
Programs, Science and Technology Policy at the United States Department of the Interior)
explained that “[t]he temperature is virtually unchanged from that at the beginning of the
century. . . . [T]he question is not about warming per se but able how much warming there will
be compared to natural variability. The available evidence is entirely consistent with the answer
‘not much.”39 “The relation of other observations such as sea-level rise, Artic sea ice extent and
ocean heat content all depend on more factors than global mean temperature, and are hardly
incontrovertible evidence of warming.”40 Moreover, “global sea ice levels declined for several
decades but are now above their long-term mean.”41 Himalayan glaciers are not retreating.42
“There has been no increase in the frequency or severity of storms or droughts, no acceleration
of sea-level rise. Arctic sea ice has decreased, but Antarctic sea ice has increased.” 43
In short, actual observed global average temperatures have not risen as predicted.44 In
fact, there has been a much-discussed “pause” or “hiatus” in warming since 1998, during which
global average surface temperatures have not significantly increased.45 The “hiatus” may now be

over-the-significance-of-hundredths-of-a-degree-the-pause-continues/ ; Roy Spencer, 2014 as the Mildest Year: Why
You are Being Misled on Global Temperatures, Global Warming (Jan. 18, 2015), available at
http://www.drroyspencer.com/2015/01/2014-as-the-mildest-year-why-you-are-being-misled-on-globaltemperatures/
38

The GAO found that the network of surface-temperature monitoring stations maintained by NOAA are
not sited in accordance with NOAA’s standards, which state that temperature instruments should be located away
from extensive paved surfaces or obstructions such as buildings and trees. See GAO, Climate Monitoring: NOAA
Can Improve Management of the U.S. Historical Climatology Network, GAO 11-800 (Aug. 2011).
39

Prof. Robert Carter, Prof. Ross McKitrick, Prof. Vincent Courtillot, Prof. Ian Plimer, Prof. Freeman
Dyson, Dr. Matt Ridley, Prof. Christopher Essex, Sir Alan Rudge, Dr. Indur Goklany, Prof. Nir Shaviv, Prof. Will
Happer, Prof. Fritz Vahrenholt, Prof. Richard Lindzen, “The Small Print: What The Royal Society Left Out” 1, 8
(Global Warming Policy Foundation March 2015).
40

Id. at 1.

41

Id.

42

Bahuguna, et al., Are the Himalayan Glaciers Retreating?, CURRENT SCIENCE 1008 (Apr. 10, 2014).

43

Matt Ridley, Fossil Fuels Will Save the World (Really), Wall St. J., Mar. 13, 2015 (available at
http://on.wsj.com/1CdXe05)
44

Nick Cater, Time for Cooler Heads to Prevail, The Australian, Oct. 21, 2014, available at
http://www.theaustralian.com.au/news/time-for-cooler-heads-to-prevail/story-e6frg6n6-1227096554835.
45

Matt Ridley, Whatever Happened to Global Warming?, WALL ST. J., (Sep. 4, 2014), online at
http://online.wsj.com/articles/matt-ridley-whatever-happened-to-global-warming-1409872855.

12

 as long as 26 years.46 To put temperature changes in perspective: there were 30 years of slight
cooling after 1940, then a burst of warming that lasted about 20 years, and then a plateau of
between 17-26 years. 47 “It has been roughly two decades since there was a trend in temperature
significantly different from zero.”48
Temperature has remained essentially static, despite rising emissions (primarily from
developing countries) and CO2 concentrations. The climate, in other words, is not as sensitive to
CO2 emissions as models predict.
Total Global CO2 emissions, 1980-2012:49

Total CO2 Emissions from the
Consumption of Energy
(Million metric tons)

1980
1982
1984
1986
1988
1990
1992
1994
1996
1998
2000
2002
2004
2006
2008
2010
2012

33000
30000
27000
24000
21000
18000

46

McKitrick, R. (2014) HAC-Robust Measurement of the Duration of a Trendless Subsample in a Global
Climate Time Series. Open Journal of Statistics, 4, 527-535. doi: 10.4236/ojs.2014.47050.
47

Matt Ridley, Whatever Happened to Global Warming?, WALL ST. J., (Sep. 4, 2014), available at
http://online.wsj.com/articles/matt-ridley-whatever-happened-to-global-warming-1409872855.
48

Id.

49

U.S. Energy Information Administration, International Energy Statistics,
http://www.eia.gov/cfapps/ipdbproject/iedindex3.cfm?tid=90&pid=44&aid=8&cid=regions&syid=1980&eyid=2012
&unit=MMTCD.

13

 Total CO2 concentrations, 1980-2015:50

The failure of the predicted increases in temperature is consistent with the most recent
research regarding the earth’s “climate sensitivity,” or how much the earth’s average surface
temperature is expected to rise in association with a doubling of the atmosphere’s carbon dioxide
concentration. A group of noted scientists explains that the direct effect of CO2 on warming “is
known to be relatively small: about 1°C for a doubling of carbon dioxide levels. Most of the
warming predicted in climate models arises from knock-on effects (‘feedbacks’) associated with
changes to cloud cover, atmospheric humidity, and so forth. Feedback processes are mostly
hypothetical and are therefore much more uncertain, and some may even have cooling effects.”51
Moreover, the role of “feedback” mechanisms in predictions is enhanced, because “[e]ach
additional increase of carbon dioxide levels is expected to produce less and less greenhouse
warming, so it takes far more emissions to produce the second degree of warming than the
first.”52

50

Source: National Oceanic & Atmospheric Administration Data Visualization,
http://www.esrl.noaa.gov/gmd/dv/iadv/.
51

Prof. Robert Carter, Prof. Ross McKitrick, Prof. Vincent Courtillot, Prof. Ian Plimer, Prof. Freeman
Dyson, Dr. Matt Ridley, Prof. Christopher Essex, Sir Alan Rudge, Dr. Indur Goklany, Prof. Nir Shaviv, Prof. Will
Happer, Prof. Fritz Vahrenholt, Prof. Richard Lindzen, “The Small Print: What The Royal Society Left Out” 2
(Global Warming Policy Foundation March 2015).
52

Id. at 8.

14

 Thus, the theory at the heart of the predictions reported by CEQ in 1981 and also at the
heart of the projections assumed by CEQ for the Revised Draft Guidance, is that climate
sensitivity would be greatly amplified by these “feedbacks” and result in warming of two to four
degrees C a century or more (as in the case of CEQ’s 3-degree prediction by 2025). That
“feedback” assumption of high “sensitivity” remains in virtually all of the mathematical models
used to this day by the U.N. Intergovernmental Panel on Climate Change (IPCC), and has led to
exaggerated proclamations about potential rise in global temperatures concurrent with increases
in carbon dioxide concentrations.
However, the science has failed to support the assumption of strong “feedback”
mechanisms. Since 2011, at least 14 peer-reviewed papers, published by 42 authors, many of
whom are key contributors to the reports of the IPCC, have concluded that climate sensitivity is
low because net feedbacks are modest or even close to zero.53 They arrive at this conclusion
based on observed temperature changes, ocean-heat uptake and the balance between warming
and cooling emissions (mainly sulfate aerosols).54 Most of these sensitivities are at least 40%
below the average climate sensitivity of the models used by the U.N.’s Intergovernmental Panel
on Climate Change (IPCC).55 In other words, these climate sensitivities would suggest warming
upon doubling of carbon dioxide concentrations significantly lower than the projections assumed
by CEQ,56 and well within the range that would actually benefit the environment and society, as
described further below.
These conclusions would explain the failure of the Earth’s surface to warm nearly as fast
as predicted over the past 35 years, despite carbon-dioxide levels rising faster than expected.
During this period the warming rate has never reached even two-tenths of a degree C per decade
and has slowed down to virtually nothing in the past 15 to 20 years. Indeed, the latest IPCC
report did not give a “best estimate” of sensitivity and, it lowered its estimate of near-term
warming.57 Researchers who examined discrepancies between previous IPCC reports and
observable data conclude that the impact of anthropogenic global warming over the next century,

53

Patrick Michaels and Patrick Knappenberger, The Collection of Evidence for a Low Climate Sensitivity
Continues to Grow, September 25, 2014, available at http://www.cato.org/blog/collection-evidence-low-climatesensitivity-continues-grow.
54

Id.

55

Id.

56

Id. For example, a recent paper published by scientists Judith Curry and Nicholas Lewis concludes that
the best climate sensitivity estimate is just a 1.64 degree C increase upon doubling of CO2 concentrations. See
Lewis, N. and J.A. Curry, 2014, The implications for climate sensitivity of AR5 forcing and heat uptake estimates.
Climate
Dynamic,
September
25,
2014
(prepublication
version
available
at
https://niclewis.files.wordpress.com/2014/09/lewiscurry_ar5-energy-budget-climate-sensitivity_climdyn2014_accepted-reformatted-edited.pdf.)
57

Climate Change 2014: Synthesis Report (released Nov. 1, 2014), discussed infra.

15

 and even as far as equilibrium many millennia hence, may be no more than one-third to one-half
of IPCC’s current projections.58
Thus, there exists a “large difference of observed data from the forecasts that underlie
much current policy.”59 In 1981, CEQ predicted significant temperature increases by now, but
acknowledged uncertainty and the ability to test its models in the future. Notwithstanding the
uncertainty and a complete lack of supporting observable data at the time, CEQ recommended
that the federal government “should give a high priority to ensure full consideration of the CO2
problem in U.S. energy policy and planning.”60 We now know, with the best temperature data
available, that the basis of CEQ’s dire predictions and call for regulation were not only unsound,
but simply wrong.
Yet, in 2015, CEQ disregards observed facts and relies on assessments and reports such
as the IPCC reports that are based on the same type of flawed models, with the same dire
predictions, in an attempt to affect a dramatic shift in federal policy through the NEPA review
process. This is no more justified than the previous attempt in 1981, which we now know to be
unsupported and based on flawed science.
B.
CEQ’s Earlier Predictions of Dire Human Consequences Have Been Proven
Wrong: The Human Environment Has Prospered, Not Suffered, During the Period of
Projected “Warming”.
In 1981, CEQ set forth dire predictions of a hypothetical future if its call to drastically
reduce fossil fuel use was not heeded:
In the short time span of a little more than a decade, the earth’s average
temperature increases several degrees Celsius, much larger increases occur in the
polar regions. Precipitation patterns shift dramatically from the average of the
previous several hundred years. . . . U.S. agricultural production declines sharply
due to the extremely arid conditions over most of what were prime agricultural
regions. Marginal agricultural areas in many arid and semi-arid regions of the
world become unproductive, with particularly serious impacts on many less
developed countries. . . . Agricultural disruption causes widespread food shortages
and hunger. Massive inflation occurs as the prices of declining quantities of basic
crops rapidly increase. Migration out of climatically impoverished areas is
restricted by political boundaries and cultural differences.61
58

Monckton, et al., Why Models Run Hot: Results from an Irreducibly Simple Climate Model, SCIENCE
BULLETIN 122 (Jan. 8, 2015), available at http://wmbriggs.com/public/Monckton.et.al.pdf.
59

Paul Ballonoff, A Fresh Look at Climate Change, Cato Journal 113 (Feb. 24, 2014), available at
http://www.insideronline.org/summary.cfm?id=21673.
60

1981 Report, at 65

61

Id. at 29.

16

 Decades later, the real world we live in does not show any signs of succumbing to this
apocalyptic prediction. Rather, since 1981, mankind has experienced significant growth in
quality of life. Worldwide GDP has increased dramatically; there has been no “massive
inflation.”

Life expectancy has increased dramatically:

Global and U.S. crop production has increased dramatically and outpaced
population growth; there have been no “declines” or “agricultural disruption”:

17

 Global Population, CO2 Emissions, and Food Production

Global Crop Production
(Million Metric Tons)

18

 U.S. Crop Production
(Million Metric Tons)

U.S. Crop Yields Per Acre
(Bushels Per Acre)

In short, CEQ’s 1981 report has been thoroughly disproven. It is deeply ironic that CEQ
seeks to repeat its mistake. CEQ was wrong then, and it is wrong now.
II.

Current Climate Modeling Does Not Support or Justify the Revised Draft
Guidance’s Mandate for an Analysis of Climate Change Impacts.
A.

Modern Computer Models Are Refuted by Real World Data.

The computer climate models on which global warming predictions rest cannot account
for the real-world observable data. Climate scientists have conceded that a pause of 15 years or
more would invalidate current models. A 2008 NOAA report explained: “The simulations rule
out (at the 95% level) zero trends for intervals of 15 yr or more.”62 Thus, there exists a “large
62

Peterson, T. C., and M. O. Baringer, Eds., 2009: State of the Climate in 2008. Bull. Amer. Meteor. Soc.,
90, S1–S196.

19

 difference of observed data from the forecasts that underlie much current policy.”63 The
discrepancy between the models and observational data has led many researchers to call into
question the reliability of climate models.64 Many experts have noted the models’ “systematic
failure.”65 “The computer models in which so much faith was invested got it wrong.”66 Simply
put, the climate models “expected much more warming to have taken place” than what actually
occurred, and the models overestimated “the sensitivity of the Earth’s average temperatures to
increases in atmospheric greenhouse gas concentrations (such as carbon dioxide) . . .”67 “[T]his
flat period of global average temperature occurred despite that CO2 emissions from human
sources continued at an increased rate. The total human-produced CO2 emissions in that period
of flat temperatures represent a quarter of all such emissions ever produced.”68 Some
researchers have even detected a cooling trend, caused by reduced solar activity, which is
thought to be the primary driver of Earth’s climate patterns.69
In short, observational data consistently refuted global warming predictions, including
CEQ’s predictions in its 1981 report. In fact, the history of climate modeling reveals a persistent
error in exaggerating projected warming:70

63

Paul Ballonoff, A Fresh Look at Climate Change, Cato Journal (Feb. 24, 2014), p. 113, available at
http://www.insideronline.org/summary.cfm?id=21673.
64

See Barbara Hollingsworth, Climate Scientist: 73 UN Climate Models Wrong, No Global Warming in 17
Years, CNS News, Sept. 30, 2013, available at http://www.cnsnews.com/news/article/barbarahollingsworth/climate-scientist-73-un-climate-models-wrong-no-global-warming-17; see also Paul Ballonoff, A
Fresh Look at Climate Change, Cato Journal (Feb. 24, 2014), p. 113, available at
http://www.insideronline.org/summary.cfm?id=21673.
65

Id. (citing Fyfe, Gillett & Zwiers, Overestimated Global Warming Over the Past 20 Years, Nature, Aug.
28, 2013; Knappenberger & Michaels, “Policy Implications of Climate Models on the Verge of Failure,” Paper
delivered at the American Geophysical Union Science Policy Conference, Washington, D.C., June 24–26, 2013).
66

Id.

67

Michaels & Knappenberger, What the New IPCC Global Warming Projections Should Have Looked
Like, Cato Institute (Oct. 4, 2013), available at http://www.cato.org/blog/what-ipcc-global-warming-projectionsshould-have-looked.
68

Ballonoff, supra, p. 113 (emphasis added); see also id., p. 114.

69

John Casey, DARK WINTER: HOW THE SUN IS CAUSING A 30-YEAR COLD SPELL (2014).

70

Christopher Monckton, IPCC Silently Slashes Its Global Warming Predictions in the AR5 Final Draft,
WATTS UP WITH THAT? (Jan. 1, 2014), available at http://wattsupwiththat.com/2014/01/01/ipcc-silently-slashesits-global-warming-predictions-in-the-ar5-final-draft/.

20

 Attempts to resuscitate the models have failed. One theory, namely, that the “hiatus” in
warming is only a short-term phenomenon because warmth is being trapped in the oceans, was
recently discredited by a NASA study.71 NASA’s “latest data from satellite and direct ocean
temperature measurements . . . found the ocean abyss below 1.24 miles (1,995 meters) has not
warmed measurably.”72 A joint study by the University of Washington and the National Oceanic
and Atmospheric Administration, published in the Proceedings of the National Academy of the
Sciences, examined some of the few long-term oceanic observations available (the Northeast
Pacific Arc, bounded roughly by Alaska, California, and Hawai’i, going back to 1900).73 When
the time frame is extended back to such a scope, the study shows that virtually all temperature
changes can be explained by shifts in circulation and pressure: “dynamical forcing accounts for
virtually all of the observed warming in NE Pacific Arc SST over the 1900–2012 period.”74
The study then applied a model for anthropogenic climate change and found that it could
not show any temperature impact from human influence.75 The largest changes in temperature

71

AFP, Lack of Ocean Heat Puzzles NASA Hunt for Warming “Hiatus,” Oct. 21, 2014, available at
http://news.yahoo.com/lack-ocean-heat-puzzles-nasa-hunt-warming-hiatus-201944793.html.
72

See id. (emphasis added, internal quotation omitted).

73

James A. Johnstone & Nathan J. Mantua, Atmospheric Controls on Northeast Pacific Temperature
Variability and Change, 1900-2012, Proceedings of the Nat’l Acad. of Sciences Early Edition 1 (published ahead of
print) (Sept. 22, 2014), available at http://www.pnas.org/content/early/2014/09/16/1318371111.short (subscription
required).
74

Id. at 5.

75

Id.

21

 and circulation occurred before 1940 – before climate modelers claim a human impact.76 If there
has been a human impact, it has been vanishingly small, prompting one commentator to note,
“The man-made warming of the past 20 years has been so feeble that a shifting current in one
ocean was enough to wipe it out altogether.”77 Thus, if climate modelers are right that oceans can
absorb warming caused by greenhouse gases, then they have dramatically underestimated the
ocean’s capacity to store warmth.78 One recent study found that feedbacks between trade winds
and sea surface temperatures in the Pacific Ocean may explain the plateau in temperatures as
well as the failure of computer models to match real-world data, showing that the models are
overly sensitive to warming.79
Nor are climate models supported by the recent claim that 2014 was “the hottest year on
record.” This announcement was based on flawed surface-level measurements that are inaccurate
and unreliable.80 For example, the surface-level measurements are corrupted by the urban heat
island effect.81 Satellite datasets, which on the other hand are much more reliable, do not
confirm the recent alarmist finding, and instead confirm the continuing hiatus in warming.82

76

Id.

77

Matt Ridley, Whatever Happened to Global Warming?, WALL ST. J. (Sep. 4, 2014), available at
http://online.wsj.com/articles/matt-ridley-whatever-happened-to-global-warming-1409872855. The study is
Xianyao Chen and Ka-Kit Tung, Varying Planetary Heat Sink Led to Global-Warming Slowdown and Acceleration,
345 SCIENCE 897 (Aug. 2014), available at http://www.sciencemag.org/content/345/6199/897 (subscription
required).
78

Eli Kintisch, Climate Models May Have Missed Massive Ocean Warming, SCIENCE (Oct. 5, 2014),
available at http://news.sciencemag.org/climate/2014/10/climate-models-may-have-missed-massive-oceanwarming.
79

Douville, et al., The Recent Global Warming Hiatus: What is the Role of Pacific Variability?,
GEOPHYSICAL RESEARCH LETTERS 880 (Feb. 16, 2015).
80

See NASA, NASA, NOAA Find 2014 Warmest Year in Modern Record, available at
http://www.nasa.gov/press/2015/january/nasa-determines-2014-warmest-year-in-modern-record/#.VOPGYPnF9dc
(Jan. 16, 2015) (discussing surface temperature collection data). See also [supra/infra] note [15] [(citing GAO,
Climate Monitoring: NOAA Can Improve Management of the U.S. Historical Climatology Network, GAO 11-800
(Aug. 2011))] which discusses the unreliable nature of the surface temperature data used for this finding.
81

See Roy Spencer, 2014 a Record Warm Year? Probably Not, Global Warming (Dec. 4, 2014), available
at http://www.drroyspencer.com/2014/12/2014-a-record-warm-year-probably-not/ (“2014 No Record”).
82

See Lubos Motl, NOAA, NASA: 2014 Was Probably Not the Warmest Year on Our Record, Climate
Depot (Jan. 18, 2015), available at http://www.climatedepot.com/2015/01/18/breaking-noaa-nasa-quietly-conceded2014-was-probably-not-the-warmest-year-on-record/ (“2014 Not the Warmest”); see also Marc Morano, Scientists
Balk at ‘Hottest Year’ Claims: Ignores Satellites Showing 18 Year ‘Pause’—We Are Arguing Over the Significance
of Hundredths of a Degree’—The ‘Pause’ Continues, Climate Depot (Jan. 16, 2015) available at
http://www.climatedepot.com/2015/01/16/scientists-balk-at-hottest-year-claims-we-are-arguing-over-thesignificance-of-hundredths-of-a-degree-the-pause-continues/ (“Scientists Balk”) (“The satellites show an 18 year
plus global warming ‘standstill and the satellite was set up to be “more accurate” than the surface records.”); Roy
Spencer, 2014 as the Mildest Year: Why You are Being Misled on Global Temperatures, Global Warming (Jan. 18,
2015), available at http://www.drroyspencer.com/2015/01/2014-as-the-mildest-year-why-you-are-being-misled-on-

22

 Indeed, satellite data show that the warmest year was 1998.83 “The satellite and balloon data of
the deep atmosphere have 2014 in a cluster of warmish years well below the hottest two of 1998
and 2010.”84 Overall, however, even the surface-level data confirm that global warming has
been on hiatus for almost two decades.85
The recent findings announcement became a political and media event,86 but the truth—
that the scientists found a less than 50% chance that 2014 was the hottest year on record rather
than a definitive conclusion based on the data—was obfuscated.87 The scientists were not sure,
even, that 2014 was truly the warmest year; rather, they stated that it was statistically probable.88
But this “conclusion” was based on a differences of hundredths of a degree, which is not even
within the margin of error for the faulty surface temperature measuring gauges.89
Most importantly, it is clear that despite this data and the claims regarding 2014,
computer-modeled climate projections continue to be disproven by real-world data.90 To be
clear, even with 2014 being slightly warmer than other years—and statistically similar in

global-temperatures/ (“2014 the Mildest Year”) (“our only truly global temperature measurements, the satellites, are
ignored because they don’t show a record warm year in 2014”).
83

See Motl, 2014 Not the Warmest, supra.

84

Morano, Scientists Balk, supra (quoting climatologist Dr. John Christy, professor of atmospheric
sciences at the University of Alabama-Huntsville).
85

David Whitehouse, 2014: Global Temperature Stalls another Year—Global Warming Pause Continues
Despite Warm Year, The Global Warming Policy Forum (Jan. 16, 2015), available at http://us4.campaignarchive1.com/?u=c920274f2a364603849bbb505&id=c8bbc1ccfe&e=f4e33fdd1e (“2014 Global Warming Pause”)
(“The addition of 2014 global temperature data confirms that the post-1997 standstill seen in global annual average
surface temperature has continued for one more year making it now about 17 years in duration.”).
86

See Roy, 2014 the Mildest Year, supra.

87

See Motl, 2014 Not the Warmest, supra.

88

See id.

89

See Morano, Scientists Balk, supra; see also Mercelo Gleiser, Was 2014 the Hottest Year on Record—Or
Not?,
NPR
Commentary
on
Science
and
Society
(Jan.
21,
2015),
available
at
http://www.npr.org/blogs/13.7/2015/01/21/378665687/was-2014-the-hottest-year-on-record-or-not (“the difference
of only 0.02 degrees Celsius ‘is within the uncertainty of the measurement.’”) (citing Hansen et al., Global
Temperature in 2014 and 2015, Climate Science, Awareness and Solutions (Jan. 16, 2015)); see also David Rose,
NASA Climate Scientists: We Said 2014 Was the Warmest Year on Record . . . But We’re Only 38% Sure We Were
Right, THE DAILY MAIL (Jan. 17, 2015), available at http://www.dailymail.co.uk/news/article-2915061/Nasaclimate-scientists-said-2014-warmest-year-record-38-sure-right.html.
90

See Whitehouse, 2014 Global Warming Pause, supra.

23

 temperature to 2005 and 2010, demonstrating no impactful trend between 2005 and 2014—any
temperature increase is still inconsistent with computer model forecasts.91
B.

Uncertainties in Climate Models Make Them Unfit for Policymaking.

There are so many uncertainties and flaws in the data and models on which global
warming predictions depend that they are not fit for reasoned decisionmaking. Professor Michael
Kelly, a member of the Royal Society and the Prince Philip Professor Of Technology At
Cambridge University, criticized climate models on March 14, 2015:
[T]here is even more uncertainty than previously thought. Carbon dioxide levels
in the atmosphere have continued to rise, but since 1998 there has been no
statistically significant rise in global temperatures at all.
This flies in the face of the confident predictions made by nearly all the climate
computer models that the temperature would continue to rise as it did from 1975
to 1998. More than 60 different explanations have been proposed to explain why
this ‘pause’ or ‘hiatus’ has happened, and their sheer number is the clearest
evidence that the system that climate scientists are seeking to model is irreducibly
complex. Human-sourced carbon dioxide is at best one of many factors in causing
climate change, and humility in front of this complexity is the appropriate
stance.92
Steven Koonin, former undersecretary for science in the Department of Energy during the
first Obama Administration and Director of the Center for Urban Science and Progress at New
York University, has written:
The idea that “Climate science is settled” runs through today’s popular and policy
discussion. Unfortunately, that claim is misguided. It has not only distorted our
public and policy debates on issues related to energy, greenhouse-gas emission
and the environment. But is has inhibited the scientific and policy discussions that
we need about our climate future.93
He points to multiple gaps where current understanding is crucially sparse:
91

See Jason Samenow, Scientists React to Warmest Year: 2014 Underscores “Undeniable Fact” of
Human-Caused Climate Change, THE WASHINGTON POST (Jan. 16, 2015) (quoting Judith Curry); see also Roy,
2014 No Record, supra.
92

Michael Kelly, Why my own Royal Society is wrong on climate change: A devastating critique of world's
leading scientific organisation by one of its Fellows, The Mail On Sunday (Mar. 14, 2015), available at
http://www.dailymail.co.uk/news/article-2995239/Why-Royal-Society-wrong-climate-change-devastating-critiqueworld-s-leading-scientific-organisation-one-Fellows.html.
93

Steven Koonin, Climate Science is Not Settled, WALL ST. J., (Sep. 19, 2014), available at
http://online.wsj.com/articles/climate-science-is-not-settled-1411143565.

24

 The first fundamental problem with establishing causality is the size of the problem: no
matter how measured, human influences on climate are dwarfed by the scope of natural shifts
over time. Koonin notes that, even under EPA’s models, human additions to GHG emissions are
predicted to affect the climate by at most 1-2%, which is well within the natural variation in
climate over time.94 A group of 13 scientists concluded that “[a] major error of modelling is the
failure to account for natural variability.”95
The second problem with establishing causality is the complexity of the oceanic systems
and our regrettable lack of understanding about them. As one would expect from a planet that is
over 70% covered by water, the oceans have a dramatic effect on climate: “The oceans, which
change over decades and centuries, hold most of the climate’s heat and strongly influence the
atmosphere.”96 But, as Koonin points out, our study of the oceans is immature: most records
only go back several decades.97 The group of 13 scientists observed that “major ocean
circulations are not correctly captured in the current climate models.”98 A recent study found
that
The third difficulty Koonin points to in establishing a causal link between an emissions
reduction program and any climate impacts is the complexity of natural feedback mechanisms,
such as clouds and water vapor. 99 As noted earlier, climate models assume significant feedback
effects; in the absence of such feedbacks, a doubling of CO2 levels would produce only about
1°C in warming, Yet existing feedback mechanisms are speculative and increasingly disproven,
meaning that climate models consistently “run hot” and overestimate climate change.
Other confounding factors are natural processes such as agricultural plant absorption of
CO2, which neutralize increased emissions, as discussed further in Part III, supra. Aerial
fertilization of plants via higher CO2 concentrations, which has typically been discounted by
climate scientists because they assumed that warming would inhibit plant growth, has instead
94

Steven Koonin, Climate Science is Not Settled, WALL ST. J. (Sept. 19, 2014), available at
http://online.wsj.com/articles/climate-science-is-not-settled-1411143565.
95

Prof. Robert Carter, Prof. Ross McKitrick, Prof. Vincent Courtillot, Prof. Ian Plimer, Prof. Freeman
Dyson, Dr. Matt Ridley, Prof. Christopher Essex, Sir Alan Rudge, Dr. Indur Goklany, Prof. Nir Shaviv, Prof. Will
Happer, Prof. Fritz Vahrenholt, Prof. Richard Lindzen, “The Small Print: What The Royal Society Left Out” 9
(Global Warming Policy Foundation March 2015).
96

Steven Koonin, Climate Science is Not Settled, WALL ST. J. (Sept. 19, 2014), available at
http://online.wsj.com/articles/climate-science-is-not-settled-1411143565.
97

Id.

98

Prof. Robert Carter, Prof. Ross McKitrick, Prof. Vincent Courtillot, Prof. Ian Plimer, Prof. Freeman
Dyson, Dr. Matt Ridley, Prof. Christopher Essex, Sir Alan Rudge, Dr. Indur Goklany, Prof. Nir Shaviv, Prof. Will
Happer, Prof. Fritz Vahrenholt, Prof. Richard Lindzen, “The Small Print: What The Royal Society Left Out” 10
(Global Warming Policy Foundation March 2015).
99

Steven Koonin, Climate Science is Not Settled, WALL ST. J. (Sept. 19, 2014), available at
http://online.wsj.com/articles/climate-science-is-not-settled-1411143565.

25

 caused significantly increased global biomass, “reducing deserts, turning grasslands to savannas,
savannas to forests, and expanding existing forests” and “in nearly all regions and globally, the
overall effect in recent decades is decidedly toward greening” which is “the opposite of what the
[International Panel on Climate Change] expected.”100 “Climate trend models have not fully
accounted for the ability of plants to use water more efficiently at higher CO2 concentrations and
have underrated the capacity for aerial fertilization to sharply improve sequestration via plant
growth.”101As one scholar noted:
The empirically demonstrated evidence on water use by plants in an enhanced
CO2 environment is the opposite of the commonly claimed effect from models
that look only at assumed increased heating due to CO2 increases. Empirically,
CO2 has recently been associated with warming only until increased green growth
set in. That increased growth however continues so long as the extra CO2 is
present. Despite reluctant rhetoric, other climate modelers recently studying the
process have also created models that show higher CO2 concentration increases
biomass.102
Climate science has documented so many uncertainties in existing models that including
them in NEPA would be impermissibly speculative. For example, one recent study evaluated
how well the models’ descriptions of the past (known as “hindcasts” rather than “forecasts”)
compared with actual historical precipitation records and found that for the tropics and
subtropics, there was a “lack of reliable and consistent estimations” that “might be connected
with model deficiencies in the representation of organized convective systems.”103 Another study
found a failure to predict monsoons.104 Yet another assessment of model performance showed
that not only do the models fail to match observed rainfall over China, but the “improved” model
(CMIP5) fared worse than its predecessor (CMIP3).105
These defects only scratch the surface. There is a large (and growing) literature
documenting the flaws in climate models, which is summarized in the attached Appendix. The
predictions of global warming have been proven to be inaccurate, unreliable, and unfit for
inclusion in NEPA.

100

See Ballonoff, supra, p. 114-15.

101

See id., p. 124.

102

See id., p. 123 (citations omitted).

103

Toreti, A., Naveau, P., Zampieri, M., Schindler, A., Scoccimarro, E., Xoplaki, E., Dijkstra, H.A.,
Gualdi, S. and Luterbacher, J. 2013. Projections of global changes in precipitation extremes from Coupled Model
Intercomparison Project Phase 5 Models. Geophysical Research Letters 40: 4887-4892.
104

Geil, K.L., Serra, Y.L. and Zeng, X. 2013. Assessment of CMIP5 model simulations of the North
American monsoon system. Journal of Climate 26: 8787-8801.
105

Chen, L. and Frauenfeld, O.W. 2014. A comprehensive evaluation of precipitation simulations over
China based on CMIP5 multimodel ensemble projections. Journal of Geophysical Research: Atmospheres 19: 57675786.

26

 C.

The IPCC Reports Cannot Provide a Basis for CEQ Action.

EPA and other federal agencies have looked to the reports of the International Panel on
Climate Change (“IPCC”), but those reports cannot satisfy the NEPA standard. In fact, the IPCC
has been significantly downgrading its projections of supposed warming. The IPCC now says
that the temperature rise it expects as a result of man-made emissions of CO2 is substantially
lower than it thought in 2007.106
In 2007, the IPCC projected that the “transient climate response” (TCR)—the actual
temperature change expected from a doubling of carbon dioxide — was “very likely” to be
warming of 1 to 3º C. By 2013, that number was scaled back to “likely” to be 1 to 2.5º C and
“extremely unlikely” to be greater than 3º C.107
Prior to September 2013, the IPCC projected warming of 0.4 to 1.0º C for the 30-year
period from 2016-2035 against 1986-2005.108 But in September 2013, the IPCC cut the 30-year
projection to 0.3-0.7º C, saying the warming is more likely to be at the lower end of the range,
equivalent to about 0.4º C over 30 years.109 Interestingly, this decrease, which should have been
headline material, was not mentioned in the “Summary for Policymakers” section.110
These overreactions and IPCC downgrades are significant, because the pace and
magnitude of any warming are critical to any projections of harm. In fact, one of the models on
which EPA has relied (the Climate Framework for Uncertainty, Negotiation and Distribution
(FUND)) shows “negative damage functions” – i.e., positive net economic benefits -- for
warming below 3º C.111

106

See Matt Ridley, "Dialing Back the Alarm on Climate Change," Wall Street Journal (Sep. 17, 2013),
available at http://online.wsj.com/articles/SB10001424127887324549004579067532485712464 (repeating the
findings).
107

See Matt Ridley, "Dialing Back the Alarm on Climate Change," Wall Street Journal (Sep. 17, 2013),
available at http://online.wsj.com/articles/SB10001424127887324549004579067532485712464 (repeating the
findings).
108

The 2007 AR4 Synthesis Report projected a rise of 0.2º C per decade, yielding 0.6º C over the 30-year
span. IPCC, AR4 Synthesis Report 45 (2007). The second draft of the final AR5 report gave a range of 0.4 to 0.7º C,
yielding a similar median of 0.6 º C. Christopher Monckton, "IPCC Silently Slashes Its Global Warming Predictions
in the AR5 Final Draft,” WattsUpWithThat.com (Jan. 1, 2014), available
at http://wattsupwiththat.com/2014/01/01/ipcc-silently-slashes-its-global-warming-predictions-in-the-ar5-finaldraft/.
109

Matt Ridley, Whatever Happened to Global Warming?, Wall St. J. (Sept. 4, 2014), available at
http://online.wsj.com/articles/matt-ridley-whatever-happened-to-global-warming-1409872855.
110

Christopher Monckton, IPCC Silently Slashes Its Global Warming Predictions in the AR5 Final Draft,
WATTS UP WITH THAT? ,(Jan. 1, 2014), available at http://wattsupwiththat.com/2014/01/01/ipcc-silently-slashes-itsglobal-warming-predictions-in-the-ar5-final-draft/.
111

U.S. Interagency Working Group on the Social Cost of Carbon, “Technical Support Document” at 9

(2010).

27

 Richard Tol of the University of Sussex, who has been active in the IPCC since 1994,
serving in various roles in all its three working groups, most recently as a convening lead author
for a working group for the Fifth Assessment report, has stated that “[t]here is broad agreement”
that “the initial benefits of a modest increase in temperature are probably positive, followed by
losses as temperatures increase further. . . . The initial benefits arise partly from CO2 fertilization,
and partly from reduced heating costs and cold-related health problems in temperate zones.”112
His academic paper shows positive effects on Gross Domestic Product (GDP) from temperature
increases below about 2.2º C.113
As one commentator has observed, “[g]iven what we know now, there is almost no way
that the feared large temperature rise is going to happen.”114 “Taking the IPCC scenario that
assumes a doubling of CO2, plus the equivalent of another 30% rise from other greenhouse gases
by 2100, we are likely to experience a further rise of no more than 1ºC” – even under the IPCC
assumptions.115 “A cumulative change of less than 2ºC by the end of the century will do no net
harm. It will actually do net good – that much the IPCC scientists have already agreed upon in
the last IPCC report. Rainfall will increase slightly, growing seasons will lengthen, Greenland’s
ice cap will melt only very slowly, and so on.”116 “Most experts believe that warming of less
than 2 degrees Celsius from preindustrial levels will result in no net economic and ecological
damage. Therefore, the new report is effectively saying (based on the middle of the range of the
IPCC’s emissions scenarios) that there is a better than 50-50 chance that by 2083, the benefits of
climate change will still outweigh the harm.”117 “Warming of up to 1.2 degrees Celsius over the
next 70 years (0.8 degrees have already occurred), most of which is predicted to happen in cold
areas in winter and at night, would extend the range of farming further north, improve crop
yields, slightly increase rainfall (especially in arid areas), enhance forest growth and cut winter
deaths (which far exceed summer deaths in most places).”118 “Increased carbon dioxide levels
also have caused and will continue to cause an increase in the growth rates of crops and the
greening of the Earth—because plants grow faster and need less water when carbon dioxide

112

R.S.J. Tol, “Targets for global climate policy: An overview,” Journal of Economic Dynamics & Control
37 (2013) 911, 912.
113

Richard S.J. Tol, Corrigendum to “Targets for global climate policy: An overview,” Journal of
Economic Dynamics & Control 42 (2014) 121.
114

Matt Ridley, Cooling Down the Fears of Climate Change, Wall St. J. (Dec. 19, 2012), at A19.

115

Id.

116

Id.

117

See Matt Ridley, "Dialing Back the Alarm on Climate Change," Wall Street Journal (Sep. 17, 2013),
available at http://online.wsj.com/articles/SB10001424127887324549004579067532485712464 (repeating the
findings).
118

See Matt Ridley, "Dialing Back the Alarm on Climate Change," Wall Street Journal (Sep. 17, 2013),
available at http://online.wsj.com/articles/SB10001424127887324549004579067532485712464 (repeating the
findings).

28

 concentrations are higher.”119
The IPCC’s 2007 assessment projected that, under such a
scenario, yields of the world’s main crops—wheat, rice, maize and soybeans—would improve in
temperate and cold climates, offsetting any declines elsewhere.120
The recently released IPCC Climate Change 2104: Synthesis Report (released November
2, 2014) is nothing new. The Fifth Synthesis report merely wraps together highlights from three
earlier reports dating from September 2013, March 2014, and April 2014. It contains no new
significant findings and no attempt to square the fatal flaws in the IPCC’s models with actual
observational data. Indeed, the Fifth Synthesis report acknowledges the long “hiatus” in warming
for the past decade and a half,121 which is contrary to the projections of its models. As two
commentators have noted, “[h]ad the IPCC been more interested in reflecting the actual science
rather than in preserving a quickly crumbling consensus (that human greenhouse gas emissions
are leading to dangerous climate change that requires urgent action), its Fifth Assessment Report
would have been a much kinder and gentler document—as it well should have been.”122
Even scientists who previously warned of global warming have criticized the IPCC and
have called into question the reliability of climate models:
•

Lennart Bengtsson—Professor Lennart Bengtsson is a Swedish meteorologist who has
conducted extensive and prize-winning research on climate. He was previously the Head
of Research at the European Centre for Medium-Range Weather Forecasts from 1975 to
1981 and then Director until 1990, Director of the Max Planck Institute for Meteorology
in Hamburg, and he is now a Senior Research Fellow at the Environmental Systems
Science Centre in the University of Reading. He became a member of the Academic
Advisory Council of the Global Warming Policy Foundation (“GWPF”). Quoted as
stating that the “whole concept behind IPCC is basically wrong,” Bengtsson objected to
the premise that the science is settled on questions regarding global warming. Indeed,
Bengtsson stated in an interview in May 2014 that
I have increasingly been disturbed by the strong tendencies to
politicization that has taken place in climate research in recent years. I
believe most serious scientists are sceptics and are particularly frustrated
that we are not able to properly validate climate change simulations. I
have always tried to follow the philosophy of Karl Popper that I believe is

119
See Matt Ridley, "Dialing Back the Alarm on Climate Change," Wall Street Journal (Sep. 17,
2013),available at http://online.wsj.com/articles/SB10001424127887324549004579067532485712464 (repeating
the findings).
120

The IPCC has subsequently retreated from that position, but its retreat contradicts the evidence showing
that rising CO2 levels have indeed stimulated the growth of vegetation. See Part IV-D, supra.
121

Climate Change 2014: Synthesis Report, Summary for Policymakers, SPM-3 through SPM 4 (released
Nov. 1, 2014).
122

Michaels & Knappenberger, What the New IPCC Global Warming Projections Should Have Looked

Like, supra.

29

 particularly important when you are dealing with complex systems of
which the climate system is a primary example. For this reason empirical
evidence is absolutely essential. The warming of the climate system since
the end of the 19th century has been very modest by some 3/4 °C in spite
of the simultaneous increase in greenhouse gas forcing by 2.5-3 W/m2.
I am concerned that this as well as the lack of ocean surface warming in
some 17 years has not been properly recognized by IPCC. Nor have the
cooling and increase in sea ice around Antarctica been properly
recognized.123
Bengtsson’s affiliation with the GWPF created such discord within the scientific
community that he experienced pressure both professionally and personally that he feared
for his safety and was compelled to resign from his membership on May 14, 2014, at
which time he referenced “McCarthy”-like persecution.124
•

Claude Allegre—Claude Allegre is a French scientist who has worked on global
warming issues for decades.125 Dr. Allegre received a Ph.D. in physics in 1962 from the
University of Paris, became the Director of the geochemistry and cosmochemistry
program at the French National Scientific Research Centre in 1967, in 1971 was
appointed Director of the University of Paris’s Department of Earth Sciences, in 1976
became Director of the Paris Institut de Physique du Globe, has authored more than 100
scientific articles and 11 books, many of them seminal studies on the evolution of the
Earth using isotopic evidence, and is a member of the U.S. National Academy of
Sciences and the French Academy of Science.126 Twenty years ago, he expressed his
position that human causes had raised global mean temperature by half a degree in the
last century, and fifteen years ago Dr. Allegre signed the “World Scientists’ Warning to
Humanity” about global warming.127 As more data accumulated, however, Dr. Allegre
switched sides. In his view, climate models do not establish man-made warming and
significant evidence indicates that warming is in fact a natural phenomenon.128 Dr.
123

See Hans von Storch, “Interview with Lennart Bengtsson,” Die Klimazwiebel, May 3, 2014, available at
http://klimazwiebel.blogspot.com.au/2014/05/interview-with-lennart-bengtsson.html?spref=tw.
124

See GWPF Press Release, Lennart Bengtsson Resigns: GWPF Voices Shock and Concern at the Extent
of Intolerance Within the Climate Science Community, May 14, 2014, available at http://www.thegwpf.org/lennartbengtsson-resigns-gwpf-voices-shock-and-concern-at-the-extent-of-intolerance-within-the-climate-sciencecommunity; see also Peter Foster, “Eminent Swedish Scientist Latest Victim of Climate McCarthyism,” Fin. Post,
May 15, 2014, available at http://business.financialpost.com/2014/05/15/eminent-swedish-scientist-latest-victim-ofclimate-mccarthyism/
125

See Lawrence Solomon, “Allegre’s Second Thoughts,” National Post, Mar. 6, 2007, available at
http://www.nationalpost.com/news/story.html?id=2f4cc62e-5b0d-4b59-8705-fc28f14da388
126

Id.

127

See id.

128

See id.

30

 Allegre points in part to evidence that Antarctica is gaining ice and that other, retreating
snow caps are retreating naturally. In his more recent words, “[t]he cause of this climate
change is unknown,” and the science is not “settled.”129

III.

•

Fritz Vahrenholt—Fritz Vahrenholt is a German professor and environmental activist
who was an early supporter of the German green movement.130 He holds a Ph.D. in
chemistry and is Honorary Professor at the Department of Chemistry at the University of
Hamburg. From 1976 until 1997 he served in several public positions with
environmental agencies such as the Federal Environment Agency, the Hessian Ministry
of Environment, and as Deputy Environment Minister and Senator of the City of
Hamburg. He then held top management positions in the renewable energy industry.131
In 2013, he changed his views and published a book entitled Die Kalte Sonne, in which
he argued in part that the sun rather than greenhouse gases driving climate change and
that anthropomorphic impact was overstated.132

•

Hans H.J. Labohm—Once a believer in man-made global warming, Labohm switched
his view after conducting research and reviewing both an IPCC Summary for
Policymakers and other research. He then coauthored a book skeptical of man-made
global warming with chemical engineer Dick Thoenes, former chairman of the Royal
Netherlands Chemical Society.133

•

Bruno Wiskel—A Canadian geologist, Mr. Wiskel reversed his view on man-made
climate change and wrote a book entitled “The Emperor's New Climate: Debunking the
Myth of Global Warming.”134

•

And there are many others.135
CEQ’s Revised Draft Guidance Ignores Consideration of the Environmental
Benefits of Carbon.

129

See id.

130

See GWPF Press Release, “Professor Fritz Vahrenholt Joins GWPF Academic Advisory Council, July
14, 2014, available at http://www.thegwpf.org/professor-fritz-vahrenholt-joins-gwpf-academic-advisory-council/.
131

Id.

132

See Delingpole, supra.

133

See id.

134

See Marc Morano, “Climate Momentum Shifting: Prominent Scientists Reverse Belief in Man-made
Global Warming—Now Skeptics,” U.S. Senate Comm. on Env’t & Public Works, May 15, 2007, available at
http://www.epw.senate.gov/public/index.cfm?FuseAction=Minority.Blogs&ContentRecord_id=927b9303-802a23ad-494b-dccb00b51a12.
135

For example, Nir Shaviv, Zbigniew Jaworowski, David Evans, Tad Murty, Denis Rancourt, David
Bellamy, Chris de Freitas, and Reid Bryson. See Morano, supra.

31

 Any analysis of the environmental effects of carbon dioxide emissions must include the
proven benefits of increased CO2 levels for vegetation and plant growth. Put simply: CO2 is
plant food. Plants are nourished by CO2 in the atmosphere, which they absorb and turn into fuel
for growth. CO2 is not a pollutant: It is the basis of life on Earth. If the world will be able to
grow crops in more geographic areas for longer growing seasons that absorb more CO2, the net
effect will be better and more crops with higher yields. The Revised Draft Guidance itself
advises that “agencies should take into account both the short- and long-term effects and benefits
based on what the agency determines is the life of a project and the duration of the generation of
emissions.”136
According to Robert Mendelsohn of Yale’s School of Forestry and Environmental
Studies and Department of Economics, “projections suggest that global warming may be slightly
beneficial to American agriculture.”137
The Pew Center on Global Climate Change has noted that, if warming occurs, it would
mean temperatures extends growing seasons, allowing agricultural activity for a larger part of the
year.138 “Clearly, the cold northern parts of the country could benefit from longer growing
seasons and warmer temperatures, which would allow these areas to grow high-yielding crops
and crop varieties consistent with soil resources. In addition, a reduced incidence of killing
frosts could benefit southern regions growing heat tolerant crops such as citrus.”139 Warmer
temperatures could also create agricultural potential in many areas of the United States that have
previously been unsuitable for that purpose.140
Comparison photos confirm the “greening” effect, on an observational basis:

136

Revised Draft Guidance, 79 Fed. Reg. at 77,826 (emphasis added). See also 40 C.F.R. § 1508.8(b)
(defining “effects”).
137

Mendelsohn et al., The Impact of Global Warming on Agriculture: A Ricardian Analysis, 84 AM.
ECON. REV. 753, 769 (1994).
138

See Pew Center on Global Climate Change, A Review of Impacts to U.S. Agricultural Resources, at 11
(1999), available at http://www.c2es.org/docUploads/env_argiculture.pdf.
139

Id.

140

Id.

32

 Juniper trees have greatly expanded their range

Devoid of shrubs in 1893, this area now boasts significant
populations of mesquite, ocotillo, mimosa, snakeweed
and burroweed

 

33

“Greening” is true outside the United States as well. One recent investigation of global
satellite photos concluded that “from this remarkable 30-year archive of satellite imagery, we
thus see evidence of a greening trend.”141 Another recent study -- by the Commonwealth
Scientific and Industrial Research Organisation (Australia’s national science agency), in
collaboration with the Australian National University -- found that higher levels of CO2 have
helped increase green foliage across the world’s arid regions over the past 30 years. The study
found an 11 percent increase in foliage cover from 1982-2010 across Australia, North America,
the Middle East and Africa.142

141

Eastman, J.R., Sangermano, F., Machado, E.A., Rogan, J. and Anyamba, A. 2013. Global trends in
seasonality of Normalized Difference Vegetation Index (NDVI), 1982-2011. Remote Sensing 5: 4799-4818.
142

CSIRO, Deserts “Greening” from Rising CO2, July 3, 2013, available at
http://www.csiro.au/Portals/Media/Deserts-greening-from-rising-CO2.aspx (summarizing recent study by Donohue,
et al.)

34

 Stefan Kröpelin, a climate scientist at the University of Cologne’s Africa Research Unit
in Germany, has reported that the desert is turning green in the eastern Sahara area of
southwestern Egypt and northern Sudan.143 “Shrubs are coming up and growing into big shrubs.
This is completely different from having a bit more tiny grass,” said Kröpelin, who has studied
the region for two decades.144 “The nomads there told me there was never as much rainfall as in
the past few years. They have never seen so much grazing land. Before, there was not a single
scorpion, not a single blade of grass. Now you have people grazing their camels in areas which
may not have been used for hundreds or even thousands of years. You see birds, ostriches,
gazelles coming back, even sorts of amphibians coming back.”145 “The trend has continued for
more than 20 years. It is indisputable.”146
Another recent study confirmed that the Sahel could become suitable for significant
vegetation:147
In spite of the gloomy predictions of even more frequent and severe droughts and
famines caused by global warming, vegetation in the Sahel has significantly
increased in the last three decades. This has been a very welcome and very
beneficial development for the people living in the Sahel. The increase in rainfall,
which was probably caused by rising temperatures, and rising CO2 concentrations

143

Sahara Desert Greening Due to Climate Change?, National Geographic News (July 31, 2009), available
at http://news.nationalgeographic.com/news/2009/07/090731-green-sahara.html.
144

Id.

145

Id.

146

Id.

147

See Philipp Mueller, The Sahel is Greening, Global Warming Policy Foundation, 2011, available at
http://www.thegwpf.org/images/stories/gwpf-reports/mueller-sahel.pdf.

35

 might even - if sustained for a few more decades - green the Sahara. This would
be a truly tremendous prospect.148
CO2 fertilization has been proven to increase crop yields.149 “In greenhouse studies
involving single-potted agricultural species, grown under well-watered conditions with adequate
nutrients and light and with an ambient CO2 concentration (about 660 parts per million or double
the current CO2 concentration), plant growth increases about 40% across a variety of young
plants and about 26% for tree seedlings and mature plants.”150 This impact has been recognized
worldwide, particularly in areas with tropical forests.151 A recent review of recent studies
concluded that “forest productivity has been growing ever greater with the passing of time, rising
hand-in-hand with the increasing CO2 content of the air.”152
In another study, “scientists artificially elevated CO2 levels in a US prairie grasslands
ecosystem for eight years. They found that the added carbon had increased the overall volume of
the plants and promoted the ecosystem’s stability by reducing the growth of normally dominant
plant species.”153 A recent meta-analysis of 90 studies involving wheat found that the beneficial
effects of increased CO2 concentrations would outweigh any harm on growth from higher
temperatures or decreased precipitation.154 Other studies have confirmed that plants have
accelerated growth patterns when higher concentrations of CO2 are present in the atmosphere.155

148

Id.

149

See Prigg, supra; see also, generally, Donohue, et al., Impact of CO2 Fertilization on Maximum Foliage
Cover Across the Globe’s Warm, Arid Environments, June 19, 2013; Reem Khondakar, CO2 Fertilization and
Climate Change, The Cornell Daily Sun, Oct. 24, 2013, available at http://cornellsun.com/blog/2013/10/24/co2fertilization-and-climate-change/; Sedjo & Sohngen, supra, at 97-98; Pew Center on Global Climate Change, supra,
at 12.
150

See Sedjo & Sohngen, supra, at 98.

151

See Center for the Study of Carbon Dioxide and Global Change, Biospheric Productivity in South
America, Mar. 5, 2014, available at http://www.co2science.org/subject/g/summaries/samergreen.php.
152

Id.

153

See Prigg, supra.

154

Wilcox, J. and Makowski, D. 2014. A meta-analysis of the predicted effects of climate change on wheat
yields using simulation studies. Field Crops Research 156: 180-190.
155

See generally CSIRO, Deserts “Greening” from Rising CO2, July 3, 2013, available at
http://www.csiro.au/Portals/Media/Deserts-greening-from-rising-CO2.aspx (summarizing recent study by Donohue,
et al.); see also Ballonoff, supra, p. 117; Sedjo & Sohngen, supra, at 98.

36

 In fact, the principle is so well established that a failure properly to consider it would be
arbitrary and capricious. As one study explained, “the recent increase in plant productivity has
been attributed to the CO2 fertilization effect,” citing a wealth of studies that have come to this
conclusion, including those of Amthor (1995), Lloyd and Farquhar (1996), Cao et al. (2001),
Lewis et al. (2004), Friedlingstein et al. (2006), Stephens et al. (2007), Ciais et al. (2009), Lewis
et al. (2009), Malhi (2010), Ballantyne et al. (2012) and Higgins and Scheiter (2012).156 And the
study notes that African researchers similarly “found that gross primary production increased
over the past 30 years even though soil moisture decreased.”157 “[P]eer-reviewed scientific
literature” indicates that “the ongoing rise in the air’s CO2 content will likely lead to substantial
increases in plant photosynthetic rates and biomass production, even in the face of stressful
environmental conditions imposed by less-than-optimum soil moisture conditions.”158 For this
reason, evidence to date implies that the view that global temperature is far less sensitive to CO2
than many fear, is likely correct. Simultaneously, demonstrated experimental evidence on plant
156

Fisher, J.B., Sikka, M., Sitch, S., Ciais, P., Poulter, B., Galbraith, D., Lee, J.-E., Huntingford, C., Viovy,
N., Zeng, N., Ahistrom, A., Lomas, M.R., Levy, P.E., Frankenberg, C., Saatchi, S. and Malhi, Y. 2013. African
tropical rainforest net carbon dioxide fluxes in the twentieth century. Philosophical Transactions of the Royal
Society B 368: 10.1098/rstb.2012.0376.
157

Id.

158

Center for the Study of Carbon Dioxide and Global Change, Growth Response of Grassland Species to
Elevated CO2 when Water Stressed, Jul. 9, 2013, available at.
http://www.co2science.org/subject/g/summaries/growthwatergrass.php.

37

 growth predicted exactly what the now extensive empirical literature shows: Enhanced CO2 is
associated with greatly increased biomass production, even in dry climates. The extent of
increased CO2 sequestration both in soil and in biomass associated with increased atmospheric
concentration has also been documented.159
Plants also utilize hydration more efficiently in an atmosphere containing increased
amounts of CO2.160 Enhanced photosynthesis occurs because when there is “more CO2 in the air
outside the leaf, then the diffusion of water molecules inward appears to be greater.”161 The
conclusion regarding plant growth is telling, because increased atmospheric carbon dioxide
would offset negative effects even if precipitation decreased:162
The empirically demonstrated evidence on water use by plants in an enhanced
CO2 environment is the opposite of the commonly claimed effect from models
that look only at assumed increased heating due to CO2 increases. Empirically,
CO2 has recently been associated with warming only until increased green growth
set in. That increased growth however continues so long as the extra CO2 is
present. Despite reluctant rhetoric, other climate modelers recently studying the
process have also created models that show higher CO2 concentration increases
biomass.163
Greater concentrations of CO2 “generally result in higher net photosynthetic rates and
may also reduce transpiration losses from plants (i.e. water loss). The photosynthetic rate is
enhanced as additional carbon is available for assimilation; thus, productivity and yields
generally rise.”164 Many studies have demonstrated this effect, and although different crops
respond differently, “the overall effect was certainly found to be favorable.”165
A recent study shows that these processes help explain why the predominant warming
CO2 models have been incorrect, with plant absorption of CO2 being much higher than expected

159

See Paul Ballonoff, A Fresh Look at Climate Change, Cato Journal, Feb. 24, 2014, p. 117, available at
http://www.insideronline.org/summary.cfm?id=21673 (citation omitted).
160

Paul Ballonoff, A Fresh Look at Climate Change, Cato Journal, Feb. 24, 2014, p. 115-16, available at
http://www.insideronline.org/summary.cfm?id=21673.
161

See Roger A. Sedjo & Brent Sohngen, What are the Impacts of Global Warming on U.S. Forests,
Regions, and the U.S. Timber Industry?, 12 PENN ST. ENVTL. L. REV. 95, 97 (2004).
162

Id.

163

Ballonoff, supra, p. 123 (citations omitted).

164

See Michael Bastasch, Studies: Increased CO2 Emissions are Greening the Planet, Daily Caller, Mar.
14, 2014, available at http://dailycaller.com/2014/03/14/studies-increased-co2-emissions-are-greening-the-planet/;
see also Pew Center on Global Climate Change, supra, at 12.
165

Ballonoff, supra, p. 116; see also id., p. 116-17.

38

 or integrated into such models.166 According to that study, “a 16 per cent ‘correction’ would be
‘large enough to explain the persistent overestimation of growth rates of historical atmospheric
CO2 by earth system models.’”167 Indeed, the research shows that “[p]revious climate models
have not fully accounted for how much carbon dioxide plants actually absorb.”168 For this
reason, Lianhong Gu, from the Climate Change Institute at Oak Ridge National Laboratory, has
said “most carbon-cycle models had over-predicted the growth rate” of CO2.169 Another recent
study reached the same conclusion.170 Plants not only perform the function of stripping the CO2
out of the atmosphere, which impacts warming directly by decreasing net CO2, but the CO2 that
they take in and the warmer temperatures both actually help the plants grow.
All of this helps explain why global climate models have been incorrect for almost two
decades:
A distinct kind of greenhouse effect is also predicted from increased CO2
concentration—namely, the aerial fertilization effect, which is that plants grow
better in an atmosphere of higher CO2. Many analysts, such as the IPCC, clearly
thought the greater effect would be from heating, not plant growth. One must
assume this was an intentional judgment, as the IPCC was aware of the CO2 aerial
fertilization effect from its 1995 Second Assessment Report, which contained
empirical evidence of increased greening in enhanced CO2 environments (Reilly
2002: 19). In contrast, climate analysts such as those with the Cato Center for the
Study of Science have argued since 1999 that atmospheric temperature is much
less sensitive to increased concentration of CO2 (Michaels 1999b).
While in fact heating has not occurred as the IPCC forecasted, greatly increased
global biomass is indeed demonstrated. Well documented evidence shows that
concurrently with the increased CO2 levels, extensive, large, and continuing
increase in biomass is taking place globally—reducing deserts, turning grasslands
to savannas, savannas to forests, and expanding existing forests (Idso 2012). That
survey covered 400 peer-reviewed empirical studies, many of which included
166

See Mark Prigg, Climate Change Is Being Slowed by Plants Far More than Expected, Researchers
Reveal, Mail Online, Oct. 13, 2014, available at http://www.dailymail.co.uk/sciencetech/article-2791771/climatechange-slowed-plants-far-expected-researchers-reveal.html.
167

Id.

168
Paul Fiddian, Plant CO2 Absorption Levels Underestimated, Enviro News, October 14, 2014, available
at http://www.enviro-news.com/news/plant-co2-absorption-levels-underestimated.html.
169

Mark Prigg, Climate Change Is Being Slowed by Plants Far More than Expected, Researchers Reveal,
Mail Online, Oct. 13, 2014, available at http://www.dailymail.co.uk/sciencetech/article-2791771/climate-changeslowed-plants-far-expected-researchers-reveal.html.
170

Sun, et al., Impact of Mesophyll Diffusion on Estimated Global Land CO2 Fertilization, PNAS 15774
(Sept. 19, 2014), available at http://www.pnas.org/content/111/44/15774.full (concluding that the magnitude of CO2
fertilization underestimation in current models matches the long-term positive growth bias in the historical
atmospheric CO2 predicted by such models).

39

 surveys of dozens to hundreds of sources. Comprehensive study of global and
regional relative greening and browning using NOAA data showed that shorterterm trends in specific locations may reflect either greening or browning, and also
noted that the rapid pace of greening of the Sahel is due in part to the end of the
drought in that region. Nevertheless, in nearly all regions and globally, the
overall effect in recent decades is decidedly toward greening (de Jong et al. 2012).
This result is also the opposite of what the IPCC expected.171
At the same time, even more CO2 emissions could help agriculture even further.
[A] doubling of the air’s CO2 concentration likely would lead to a 50% increase in
photosynthesis in C3 plants, a doubling of water use efficiency in both C3 and C4
plants, significant increases in biological nitrogen fixation in almost all biological
systems, and an increase in the ability of plaints to adapt to a variety of
environmental stresses. . . . [M]any other studies have been conducted on
hundreds of different plant species, repeatedly confirming the growth-enhancing,
water-saving, and stress-alleviating advantages that elevated atmospheric CO2
concentrations bestow upon Earth’s plants and soils.172
Further, any NEPA assessment must consider the fact the most immediate impact of
warming on human welfare would be positive. Studies show that human mortality and morbidity
drop when temperature increases (for example, fewer people freeze to death in the winter) and
that such impacts far outweigh any harms from warmer weather.173 Historical cycles of warming
(such as the Medieval Warm Period) led to temperatures higher than today’s, and these historical
warming periods had positive impacts for humanity.174

171

Ballonoff, supra, p. 114-15 (emphasis added).

172

Idso, et al., Climate Change Reconsidered II: Biological Impacts, Nongovernmental International Panel
on Climate Change, 2014, available at http://heartland.org/media-library/pdfs/CCR-IIb/Summary-forPolicymakers.pdf (citations omitted).
173

Cheng, et al., Impact of Diurnal Temperature Range on Human Health: A Systematic Review,
INTERNATIONAL JOURNAL OF BIOMETEOROLOGY 2011 (Feb. 18, 2014) (compiling 11 studies
investigating the relationship between Diurnal Temperature Range (“DTR”) and mortality as well as 14 studies
examining the impact of DTR on morbidity and explaining that the studies showed that a decrease in DTR, such as
typically occurs when Earth’s climate is in a warming mode, leads to decreases in both morbidity and mortality);
Bennett, C.M., Dear, K.B.G. and McMichael, A.J. 2014. Shifts in the seasonal distribution of deaths in Australia,
1968-2007. International Journal of Biometeorology 58: 835-8428 (finding that ratio of mortality in summer months
versus winter months has risen since 1968, driven by fewer deaths in winters (which have been milder) and that the
rate at which winters warm is greater than the rate at which summers warm, suggesting that temperature-related
mortality may net decrease as climate warms); Christidis, N., Donaldson, G.C. and Stott, P.A. 2010. Causes for the
recent changes in cold- and heat-related mortality in England and Wales. Climatic Change 102: 539-553 (finding
that lives saved due to increased temperatures in the coldest portion of the year outweigh any increased mortality
during the hottest portion of the year, and adaptation increases the benefit even more).
174

Kress, A., Hangartner, S., Bugmann, H., Buntgen, U., Frank, D.C., Leuenberger, M., Siegwolf, R.T.W.
and Saurer, M. 2014. Swiss tree rings reveal warm and wet summers during medieval times. Geophysical Research

40

 There is an extensive literature documenting the environmental benefits of increased CO2,
which is summarized in the attached Appendix. The literature included in the Appendix also
addresses arguments about ocean acidification, impacts on sea life, levels of Antarctic ice,
extreme weather effects, and other asserted impacts of global warming.
The scientific literature does not support those asserted impacts. For example, a group of
13 esteemed scientists wrote in March 2015:
Speculation that wet areas become wetter and dry areas become drier are claims
about increases in gradients and differences, which the global warming hypothesis
does not contain. In fact models call for a decrease in gradients between equator
and poles, which would imply a reduction in storminess. Drought levels have, if

Letters 41: 1732-1737 (explaining that the Medieval Warm Period resulted in “beneficial conditions for agriculture
and human well-being”); Olafsdottir, G.A., Westfall, K.M., Edvardsson, R. and Palsson, S. 2014. Historical DNA
reveals the demographic history of Atlantic cod (Gadus morhua) in medieval and early modern Iceland. Proceedings
of the Royal Society B 281: 10.1098/rspb.2013.2976 (suggesting that Medieval Warm Period may have been much
warmer than the Current Warm Period); Salzer, M.W., Bunn, A.G., Graham, N.E. and Hughes, M.K. 2014. Five
millennia of paleotemperature from tree-rings in the Great Basin, USA. Climate Dynamics 42: 1517-1526
(temperature data going back 5,000 years shows that Current Warm Period is not unusual and that periods prior to
Industrial Revolution showed even greater temperature swings); Stancikaite, M., Sinkunas, P., Risberg, J., Seiriene,
V., Blazauskas, N., Jarockis, R., Karlsson, S. and Miller, U. 2009. Human activity and the environment during the
Late Iron Age and Middle Ages at the Impiltis archaeological site, NW Lithuania. Quaternary International 203: 7490 (noting that “the transition from the first to the second millennium AD, also the onset of the 'Medieval Warm
Period,' coincided with a period of intensive human activity” and that “the favorable climatic conditions of [this]
'Medieval Warm Period' may have supported human activity during its maximum phase”)l Black, D.E., Abahazi,
M.A., Thunell, R.C., Kaplan, A., Tappa, E.J. and Peterson, L.C. 2007. An 8-century tropical Atlantic SST record
from the Cariaco Basin: Baseline variability, twentieth-century warming, and Atlantic hurricane frequency.
Paleoceanography 22: 10.1029/2007PA001427 (“on average, twentieth-century temperatures are not the warmest in
the entire record”); Vinther, B.M., Jones, P.D., Briffa, K.R., Clausen, H.B., Andersen, K.K., Dahl-Jensen, D. and
Johnsen, S.J. 2010. Climatic signals in multiple highly resolved stable isotope records from Greenland. Quaternary
Science Reviews 29: 522-538 (“temperatures [in Greenland] during the warmest intervals of the Medieval Warm
Period,” which they defined as occurring some 900 to 1300 years ago, “were as warm as or slightly warmer than
present day”); Frisia, S., Borsato, A., Spotl, C., Villa, I.M. and Cucchi, F. 2005. Climate variability in the SE Alps
of Italy over the past 17,000 years reconstructed from a stalagmite record. Boreas 34: 445-455 (describing the
Roman Warm Period and a Medieval Warm Period, both of which were “characterized by temperatures that were
similar to the present,” and in the case of the Roman Warm Period, “temperatures [that] were similar to those of
today or even slightly warmer”); Zhang, D.D., Lee, H.F., Wang, C., Li, B., Zhang, J., Pei, Q. and Chen, J. 2011.
Climate change and large-scale human population collapses in the pre-industrial era. Global Ecology and
Biogeography 20: 520-531 (historically, and for the Northern Hemisphere as a whole, warming and warmer times
have most often been good times for humanity, as exemplified by the greater numbers of people the earth was able
to support under such conditions, while cooling and colder times were typically just the opposite, with many
significant population collapses).

41

 anything, fallen worldwide in recent decades and there is little evidence of global
changes in floods. 175
With respect to “ocean acidification,” the scientists explain:
The oceans absorb some of the extra carbon dioxide released into the atmosphere.
It would form a weak acid if it were not already mostly alkaline. Human
emissions of carbon dioxide will tend to make sea water less alkaline and more
chemically neutral. The projected change over the next century is between 0.1 and
0.5 pH units. However, seawater pH naturally varies from 7.5 to 8.5 between
regions of the ocean, between habitats, between days, and even between times of
day. It is therefore misleading to talk of ‘ocean acidification’. Shallow-water coral
reefs are already subjected to hourly, daily and seasonal changes in pH that
encompass the full range of ocean variability, hence the effects of changes in pH
can be studied. Claims that corals and shellfish will find it harder to grow in
acidic water are overly simplistic, not only because the water is not expected to be
acidic but because the dissolved carbon dioxide forms bicarbonate and carbonate
ions, the raw material for shellfish shells. Most studies find mixed effects, with
some groups of organisms thriving as a result of increased dissolved carbon
dioxide and some doing less well.176
With respect to sea level rise, the scientists observe:
[S]ea level has been rising for thousands of years – since long before GHG
emissions became significant. Claims of an acceleration in sea level rise from 2 to
3mm per year and its attribution to mankind must be treated with caution. In
particular, it is not currently possible to reconcile estimates of sea level rise with
estimates of the factors that are thought to contribute to it. The picture is even
more unclear at the local scale where, depending on the location, many
contributions have nothing to do with climate, such as tectonics, vegetation cover,
hydrology, etc.177
Any NEPA assessment must therefore weigh the proven environmental benefits of
increased CO2.

175

Prof. Robert Carter, Prof. Ross McKitrick, Prof. Vincent Courtillot, Prof. Ian Plimer, Prof. Freeman
Dyson, Dr. Matt Ridley, Prof. Christopher Essex, Sir Alan Rudge, Dr. Indur Goklany, Prof. Nir Shaviv, Prof. Will
Happer, Prof. Fritz Vahrenholt, Prof. Richard Lindzen, “The Small Print: What The Royal Society Left Out” 13
(Global Warming Policy Foundation March 2015).
176

Id. at 15.

177

Id. at 14.

42

 IV.

CEQ’s Revised Draft Guidance Ignores the Societal Benefits of Carbon and Fossil
Fuels.

NEPA’s implementing regulations provide that “Federal agencies shall to the fullest
extent possible” use “all practicable means, consistent with the requirements of the Act and other
essential considerations of national policy, to restore and enhance the quality of the human
environment and avoid or minimize any possible adverse effects of their actions upon the quality
of the human environment.” 40 C.F.R. § 1500.2(f) (emphasis added). However, the Revised
Draft Guidance will, when applied, disproportionately stifle fossil fuel development and use,
despite the proven critical benefits that fossil fuels have produced for society. The Revised Draft
Guidance does not appear to allow consideration of these benefits, and it thereby
overwhelmingly tips the scales against development and use of such resources in the future.
The issue here is the continued improvement of the human environment, a concept
recognized since the “Declaration of the United Nations Conference on the Human
Environment” in 1972 and reaffirmed to this day. The Stockholm Declaration recognized that,
“[o]f all things in the world, people are the most precious. It is the people that propel social
progress, create social wealth, develop science and technology.” The Stockholm Declaration set
forth a series of principles central to human progress:
• “Both aspects of man’s environment, the natural and the man-made, are essential to his
well-being and to the enjoyment of basic human rights, the right to life itself.”
• “Economic and social development is essential for ensuring a favorable living and
working environment for man and for creating conditions on earth that are necessary for
the improvement of the quality of life.”
• “Millions continue to live far below the minimum levels required for a decent human
existence, deprived of adequate food and clothing, shelter and education, health and
sanitation.”
Subsequent declarations have reiterated these principles:
• 1992 - “Human beings are at the centre of concerns for sustainable development. They
are entitled to a healthy and productive life.” (World Health Organization, Rio).
• 2009 - “Social and economic development and poverty eradication are the first and
overriding priorities of developing countries.” (Copenhagen)
• 2012 - “Eradicating poverty is the greatest global challenge facing the world today and
an indispensable requirement for sustainable development. In this regard we are
committed to freeing humanity from poverty and hunger as a matter of urgency.”
(United Nations, Rio).
• 2014 - “Modern energy services are the key to changing people’s quality of life.” (UN
Secretary-General Ban Ki-moon).
43

 The Stockholm Declaration and related pronouncements have defined the criteria
necessary to improve the human environment: adequate food, sanitation and clean water,
economic development, shelter, education, control of toxic substances, and the well-being of
peoples. Any NEPA assessment must also include the recognition that fossil fuels — primarily
coal — are key to achieving all of these objectives. Coal produced the modern civilized world.
Coal and fossil fuels facilitated successive industrial revolutions (including the 21st century
electricity-based information revolution), created our advanced technological society, and permit
the high quality of life that we take for granted.178 Over the past 250 years, global life expectancy
has doubled, population has increased eight times, and incomes have increased eleven times.179
As one commentator has noted, “[t]he result of this great boost in energy is what the economic
historian and philosopher Deirdre McCloskey calls the Great Enrichment. In the case of the U.S.,
there has been a roughly 9,000% increase in the value of goods and services available to the
average American since 1800, almost all of which are made with, made of, powered by or
propelled by fossil fuels.”180 During this period, CO2 levels in the atmosphere increased from
approximately 320 parts per million (ppm) to approximately 400 ppm — from 0.032% of the
atmosphere to 0.040%.181
Thus, there is a strong relationship between coal and fossil fuel use and global
prosperity:182

178

Presentation by Roger Bezdek on Social Cost of Carbon (George C. Marshall Institute, Feb. 26, 2014),
available at http://marshall.org/climate-change/presentation-by-roger-bezdek-on-social-cost-of-carbon/.
179

Id.

180

Matt Ridley, Fossil Fuels Will Save the World (Really), Wall St. J., Mar. 13, 2015 (available at
http://on.wsj.com/1CdXe05)
181

Presentation by Roger Bezdek on Social Cost of Carbon (George C. Marshall Institute, Feb. 26, 2014),
available at http://marshall.org/climate-change/presentation-by-roger-bezdek-on-social-cost-of-carbon/.
182

Id.

44

 Not surprisingly, the United Nations Development Fund has cited electrification as the
world’s most significant engineering achievement of the past century and ranked it as the second
most significant innovation of the past 6,000 years, after the printing press.183 Coal is essential to
the achievement of the United Nations’ Millennium Development Goals, which range from
halving extreme poverty rates to achieving universal primary education.184 As one commentator
has written, “more than a billion people on the planet have yet to get access to electricity and to
experience the leap in living standards that abundant energy brings. This is not just an
inconvenience for them: Indoor air pollution from wood fires kills four million people a year.
The next time that somebody at a rally against fossil fuels lectures you about her concern for the
fate of her grandchildren, show her a picture of an African child dying today from inhaling the
dense muck of a smoky fire.”185
Quite simply, electricity is essential for human progress, and there is a strong relationship
between electricity consumption and increases in longevity:

183

Id.

184

United Nations, Millennium Development Goals, available at http://www.un.org/millenniumgoals/ (last
viewed on Oct. 16, 2014).
185

Matt Ridley, Fossil Fuels Will Save the World (Really), Wall St. J., Mar. 13, 2015 (available at
http://on.wsj.com/1CdXe05)

45

 A wide range of distinguished scholars supports the link between fossil fuels — primarily
coal — and prosperity. As noted by Robert U. Ayres (former Carnegie-Mellon professor and
now INSEAD Emeritus Professor of Economics and Political Science and Technology
Management in Fontainebleau, France), historically economic growth has been driven primarily
not by “technological progress” in some general and undefined sense, but specifically by “the
availability of ever cheaper energy - and useful work - from coal, petroleum, or gas.”186
Professor Ayres continues: “The rather standard assumption that economic growth is
independent of energy availability must be discarded absolutely. It is not tenable. It implies,
wrongly, that energy-related emissions (GHGs) can be reduced or eliminated without
consequences for growth.”187 In the words of Vaclav Smil (Distinguished Professor Emeritus in
the Faculty of Environment at the University of Manitoba), “[t]he most fundamental attribute of
modern society is simply this: Ours is a high energy civilization based largely on combustion of
fossil fuels.”188 Professor David Stern of the Australian National University explains that “[t]he
theoretical and empirical evidence indicates that energy use and output are tightly coupled, with
energy availability playing a key role in enabling growth. Energy is important for growth

186

Robert U. Ayres & Benjamin Warr, The Economic Growth Engine: How Energy and Work Drive
Material Prosperity (2009).
187

Robert U. Ayres, Jeroen C.J.M. van don Bergh, Dietmar Lindenberger, & Benjamin Warr, The
Underestimated Contribution of Energy to Economic Growth, (INSEAD, Working Paper No.
2013/97/TOM/EPS/SOCIAL Innovation Centre, 2013), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2328101.
188

Vaclav Smil, Energy at the Crossroads: Global Perspectives and Uncertainties, MIT PRESS (2005).

46

 because production is a function of capital, labor, and energy, not just the former two . . . .”189
Another group of scholars concluded: "The bottom line is that an enormous increase in energy
supply will be required to meet the demands of projected population growth and lift the
developing world out of poverty without jeopardizing current standards of living in the most
developed countries.”190
The data strongly bear out the scholars’ work: Increased energy consumption generally is
required for economic growth.191

Accordingly, there is a strong relationship between economic growth and energy use:192

189

David I. Stern, The Role of Energy in Economic Growth, (The United States Association for Energy
Economics and the International Association for Energy Economics, USAEE-IAEE Working Paper No. 10-055,
Nov. 2010).
190

James H. Brown, William R. Burnside, Ana D. Davidson, John P. DeLong, William C. Dunn, Marcus J.
Hamilton, Jeffrey C. Nekola, Jordan G. Okie, Norman Mercado-Silva, William H. Woodruff, and Wenyun Zuo,
“Energetic Limits to Economic Growth,” 61 BIOSCIENCE 1 (Jan. 2011).
191

Presentation by Roger Bezdek on Social Cost of Carbon (George C. Marshall Institute, Feb. 26, 2014),
available at http://marshall.org/climate-change/presentation-by-roger-bezdek-on-social-cost-of-carbon/.
192

Id.

47

 And also a strong relationship between coal and economic growth:

Coal has played a critical role in the development of the modern world. Per capita energy
consumption of coal has been historically significant and is growing today:193

193

Id.

48

 The reason is that coal is a plentiful, affordable resource and will therefore be essential to
continued economic progress:194

194

Id.

49

 Coal remains the critical fuel in the United States as well:
U.S. Power Generation:
Coal is the Workhorse
2500
Terawatt Hours

2000

Coal

1500
Gas
1000
Nuclear

500

Hydro
Wind

0

Solar

Source:
EIA
Source:
EIA

“The importance of coal in the global energy mix is now the highest since 1971 [… Coal is] the
fuel underpinning the rapid industrialization of emerging economies, helping to raise living
standards and lift hundreds of millions of people out of poverty.”195 As the developing world
continues its efforts at industrialization, promotion of education, and attainment of health and
sustainability, the availability of coal will be of utmost importance and will dictate success or
failure.

195

Fatih Birol, “Coal’s Role in the Global Energy Mix: Treading Water or Full Steam Ahead?, “The
Official Journal of the World Coal Industry, (May 20, 2013), available at http://cornerstonemag.net/coals-role-inthe-global-energy-mix-treading-water-or-full-steam-ahead/.

50

 Nearly 40 percent of global electricity is produced from coal.196 The need for increased
affordable energy cannot be ignored:

Indeed, “study after study – and pure common sense – tells us that access to electricity
helps people live longer and better. For every agency voicing a 2050 GHG goal … we need 10
working toward the goal of broad energy access to reduce global poverty.”197 For example, coal
has provided China the resources and power to provide electricity to the nation. Such electricity
brings with it jobs, health care, and better social and economic opportunities. “Electrification in
China is a remarkable success story … the most important lesson for other developing countries
[is] that electrified countries reap great benefits, both in terms of economic growth and human
welfare.”198
In fact, the U.S. has historically supported coal development through its support of
multilateral institutions such as the World Bank. Although the World Bank initially announced in
2012 that it would no longer issue loans for coal-fired plants, it changed its mind in the face of
the desperate need for stable power in the developing world.199 The international lender realized
that Africa was experiencing “almost energy apartheid,” according to its president, Jim Yong
196

International Energy Agency, Coal, available at http://www.iea.org/topics/coal/ (last viewed on Oct. 16,
2014). See also INTERNATIONAL ENERGY AGENCY, WORLD ENERGY OUTLOOK 2013.
197

Gregory H. Boyce, Empowered: The Peabody Plan and the Social Benefit of Coal – A Model for the
World, U.S. Energy Association (May 26, 2014), available at http://www.usea.org/sites/default/files/event/PEABODY%20PRESENTATION%20%20USEA%206th%20Annual%20Energy%20Supply%20Forum%202013
%20FIN.pdf.
198

International Energy Agency, World Energy Outlook 2007, at 281-87 (2007) available at
http://www.worldenergyoutlook.org/media/weowebsite/2008-1994/weo_2007.pdf.
199

Nina Glinski, “World Bank May Support African Coal Power,” Kim Says, BLOOMBERG (Aug. 5, 2014)
(“The proposition would force the lender and its biggest shareholder, the U.S., to make an exception in their cleanenergy commitments and concede that burning coal can be the fastest route out of poverty.”), available at
http://www.bloomberg.com/news/2014-08-05/world-bank-may-support-african-coal-power-kim-says.html.

51

 Kim.200 “There’s never been a country that has developed with intermittent power,” he stated,
recognizing that coal could provide stability that other sources of energy could not.201 In the end,
the World Bank and “its biggest shareholder,” the United States, recognized that raising the
developing world out of poverty depends on intelligent development and utilization of coal.
That is an important lesson for the United States to learn domestically as well. Low-cost
electricity from coal allows American business to prosper and lower-income Americans to
improve their quality of life. Studies have found that a 10 percent increase in the electricity price
will result in a one percent decrease in GDP and jobs.202 U.S. coal use has a strong relationship
with increased life expectancy:
U.S. Coal Power Is Correlated With
Increased Life Expectancy
2200

81

U.S. Coal Electricity (TWh)

79

1800
77

1600
1400

75

Coal power

1200

73

1000
800

71

Life expectancy

600

69

400
67

200

The National
Academy of
Engineering
declared
electrification as
“The Greatest
Engineering
Achievement of
the 20th Century.”

2010

2005

2000

1995

1990

1985

1980

1975

1970

1965

1960

1955

65
1950

0

Life Expectancy at Birth (years)

2000

Sources: EIA, Electricity, Generation & Thermal Output, Electricity Net Generation, Electric Power Sector, 1949-2011;
CDC, Life Expectancy; National Academy of Engineering

5

Coal fuels approximately 40 percent of our domestic electricity production.203 It is one of
the least expensive ways to generate electricity:204

200

Id.

201

Id.

202

See AMERICAN COALITION FOR CLEAN COAL ELECTRICITY, THE SOCIAL COSTS OF CARBON? NO, THE
SOCIAL BENEFITS OF CARBON, Appendix III, at 175-181 (Jan. 2014), available at
http://www.americaspower.org/sites/default/files/Social_Cost_of_Carbon.pdf.
203

Statement by Dr. S. Julio Friedmann, Dep’t Asst. Secretary for Clean Coal, U.S. Dep’t of Energy before
the Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, U.S. House of
Representatives (Feb. 11, 2014).
204

AMERICAN COALITION FOR CLEAN COAL ELECTRICITY, THE SOCIAL COSTS OF CARBON? NO, THE
SOCIAL BENEFITS OF CARBON, at Fig. Ex.-10, at 9 (Jan. 2014), available at
http://www.americaspower.org/sites/default/files/Social_Cost_of_Carbon.pdf.

52

 As a result, the higher percentage of coal used to generate electricity, the lower the electricity
rate:205

Conversely, the data show that less coal means high electricity prices:

205

Id. Ex-11, at 10.

53

 Less Coal = Higher Electricity Prices
$35
$30
75%

$25
$20

50%
$15

Coal % of
Electricity

$10

25%

$5

“U.S. states with
a higher coal
share in
electricity
generation also
have lower
electricity costs,”
International
Energy Agency,
2014

2013

2010

2007

2004

2001

1998

1995

1992

1989

1986

1983

1980

$0
1977

0%

Per Million Btu

Coal’s % of Total U.S. Electricity

100%

Sources: EIA; IEA, The Impact of Global Coal Supply on Worldwide Electricity Prices, 2014

The Revised Draft Guidance “advises agencies to consider the particular impacts of
climate change on vulnerable communities.”206 Yet the cost of energy is especially important for
low-to- middle-income families. The average energy costs for heating, cooling, and other energy
needs represent a greater percentage of their budget that the same costs for high-income families.
Households with pre-tax incomes less than $50,000 (49% of American households) devote 20%
of their after-tax budget to energy costs.207 For households with less than $30,000 in pre-tax
income (consisting of 37 million families), energy costs this year are expected to be 26% of their
post-tax expenditures.208 This fact is more alarming when considering that household incomes
have not returned to their pre-recession peaks.209 Fixed-income seniors are also vulnerable to
increased energy costs.210 In 2012, the median gross income of seniors fell one-third below the
national average.211

206

79 Fed. Reg. at 77821.

207

AMERICAN COALITION FOR CLEAN COAL ENERGY, ENERGY COST IMPACTS ON AMERICAN FAMILIES,
2001-2014, (Feb.2014).
208

Id.

209

Id.

210

Id.

211

Id.

54

 For millions of households – especially senior citizens, single parents, and minorities – high
energy costs force hard decisions about what bills to pay: housing, food, education, health care,
and other necessities. Energy costs are highly regressive, since energy expenditures consume
larger shares of the budgets of low-income families than they do for those of higher-income
families. Inability to pay utility bills is the second-leading cause of homelessness in U.S., after
domestic abuse.212 It is no surprise that consumer electricity prices correlate strongly with the
poverty rate:

212

THE AFFORDABLE POWER ALLIANCE, POTENTIAL IMPACT OF THE EPA ENDANGERMENT FINDING ON LOW
INCOME GROUPS AND MINORITIES (March 2010); Roger Bezdek, Maximum Burden: The Electricity Price
Increases From the Proposed EPA Utility MACT Will Act as a Regressive Tax on the Elderly, PUB. UTILS.
FORTNIGHTLY, (Dec. 2012); Roger Bezdek, Florida Will be Hit Hard by MACT, MODERN POWER SYSTEMS, 15—16.
(Sept. 2012).

55

 Any NEPA assessment must take into account the critical impact of coal on human
welfare and the human environment.
V.

Unilateral Action by the United States Would Lack Any Measurable Impact in Any
Event.

Under NEPA, an agency has no duty to consider indirect effects unless there is a
“reasonably close causal relationship” that would qualify as a “proximate cause” under tort
law.213 An agency need not consider environmental effects of subsequent actions over which it
lacks control.214
But there is a qualitative difference between climate change and other issues typically
subject to NEPA. In the words of a leading environmental lawyer, the relationship between
carbon emissions and climate change “does not operate like the kind of simple, short-term, more
linear relationship between cause and effect that most people . . . assume is at work when they
contemplate pollution.”215 The Supreme Court has similarly observed that “greenhouse gases
permeate the world’s atmosphere rather than a limited area near the earth’s surface.”216 There is
213

Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774 (1983).

214

See National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 667 (2007); Dep’t of
Transp. v. Public Citizen, 541 U.S. 752, 770 (2004).
215

Richard J. Lazarus, Super Wicked Problems and Climate Change: Restraining the Present to Liberate
the Future, 94 CORNELL L. REV. 1153, 1164 (2009).
216

Massachusetts v. EPA, 549 U.S. 497, 529 n.26 (2007).

56

 simply no cause-and-effect relationship between the actions of any individual emitter and any
specific harm. Even the CEQ has noted “the difficulties in attributing specific climate impacts to
individual projects.”217
Carbon dioxide emissions have a uniquely and inescapably global and systemic character.
All of us are emitters, and all of our contributions are commingled. Former EPA Administrators
Lisa Jackson and William Reilly have also agreed that GHG emissions cannot be solved through
unilateral action.218 Secretary of State John Kerry has acknowledged that “[e]ven if the United
States somehow eliminated all of our domestic greenhouse gas emissions, it still wouldn’t be
enough to counteract the carbon pollution coming from China and the rest of the world.”219
Even Intergovernmental Panel on Climate Change (IPCC) Chair R.K. Pachauri has stated that
“addressing climate change” “can only be achieved through cooperative responses, including
international cooperation.”220
The small and diminishing role of U.S. sources is apparent when compared to the
growing emissions by other nations. In 2013, CO2 emissions worldwide rose 2.5% and hit a
record high.221 The growth is being led by China, the world’s largest emitter, which this past
year surpassed the European Union in per capita emissions.222 India and Brazil are also
substantial sources of emissions and are rapidly increasing.223
To put emissions in perspective, China’s emissions are roughly double those of the
U.S.224 Hence, China will wipe out one year’s worth of emissions reduction under the Proposed
217

79 Fed. Reg. at 77808.

218

Matt Dempsey, Press Release, Sen. Comm. on Env’t and Public Works, Jackson Confirms EPA Chart
Showing No Effect on Climate Without China, India (Jul. 7, 2009) (quoting Lisa Jackson (then EPA Administrator):
“I believe the central parts of the [EPA] chart are that U.S. action alone will not impact world CO2 levels”),
available at
http://www.epw.senate.gov/public/index.cfm?FuseAction=Minority.PressReleases&ContentRecord_id=564ed42f802a-23ad-4570-3399477b1393; William Reilly, Testimony, Climate Change: The Need to Act Now, Hearing,
Comm. on Energy and Public Works, Subcomm. on Clean Air and Nuclear Safety, at 3 (June 18, 2014) (“Absent
action by China, India, and other fast-growing economies, what we do alone will not suffice.”), available at
http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=c2d43bbc-e60c-4a4f-b79435bdd51e5ad3.
219

John Kerry, “China, America and Our Warming Planet,” N.Y. Times, Nov. 11, 2014, available at
http://www.nytimes.com/2014/11/12/opinion/john-kerry-our-historic-agreement-with-china-on-climatechange.html.
220

Available at http://www.un.org/climatechange/blog/2014/11/climate-change-threatens-irreversibledangerous-impacts-options-exist-limit-effects/.
221

Promises Aside, Emissions Increasing, WASHINGTON POST, A4 (Sept. 24, 2014).

222

Id.

223

Promises Aside, Emissions Increasing, WASHINGTON POST, A4 (Sept. 24, 2014).

224

The best estimate of emissions from China is 9.86 Gt/yr in 2012. PBL Netherlands Envt’l Rsch. Agency,
Eur. Comm’n Joint Rsch. Ctr., Trends in Global CO2 Emissions: 2013 Report, 16-17 (table 2.2) (Oct. 2013).
Notably, this study accounts for the slightly reduced emissions as a result of the global recession, which include

57

 Rule in only 13.5 days, using 2030 projections.225 Other countries relying upon coal for energy
also swamp the minimal reductions the Proposed Rule would cause under EPA’s estimate.226
This is because of an “insatiable demand for power from emerging markets,” and the trend will
continue.227 Russia recently announced the construction of the largest coal-fired plant in the
world (8,000 Mw), with plans to sell the energy to China.228 And India’s prime minister recently
rejected the idea of GHG cuts, even though the country is the world’s third largest carbon
emitter: “What cuts? That’s for more developed countries.”229 He continued: “India’s first task
is eradication of poverty.”230 India has announced plans to double its use of domestic coal from
565 million tons in 2013 to more than a billion tons annually by 2019.231
In November 2014, the U.S. and China entered a non-binding and unenforceable
agreement on emission, which provides merely that “China intends to achieve the peaking of
CO2 emissions around 2030.”232 A study by the Lawrence Berkeley National Laboratory found
that, under current policies, Chinese CO2 emissions would peak sometime between 2030 and
2035 anyway.233 Thus, from China’s perspective, the November 2014 agreement simply reflects
the status quo. Even so, a Chinese government climate policy advisor was quick to make clear
that “the timeline China has committed to is not a binding target.”234 Although the official Joint
Announcement states that China “intends” to increase the share of non-fossil fuels in electricity
generation, whether China would actually meet such a target seems dubious. The target envisions
that China would add 800 to 1,000 gigawatts of nuclear, wind, solar and other zero-emission

massive efforts on China’s part to reduce GHG emissions. Even so, the United States as a whole (power plants plus
all other sources) emitted about 52% of China’s total emissions. Id.
225

The Energy Information Administration projects that China will emit more than 14 billion tons of CO2 in
2030. Source: http://www.eia.gov/forecasts/ieo/table21.cfm
226

International Energy Agency, Coal’s Share of Global Energy Mix to Continue Rising, with Coal Closing
in on Oil as World’s Top Energy Source by 2017, (Dec. 17, 2012), available at
http://www.iea.org/newsroomandevents/pressreleases/2012/december/name,34441,en.html (commenting on demand
for coal in China and globally and stating that “coal demand is not likely to stop growing even with more bearish
economic perspectives”).
227

Id. (quoting International Energy Agency Executive Director Maria van der Hoeven).

228

Russian Firm Studying World’s Largest Coal-Fired Plant to Supply China, REUTERS (May 26, 2014),
available at http://www.reuters.com/article/2014/05/26/russia-interrao-plant-idUSL6N0OC30R20140526.
229

Emissions from India Will Increase, Official Says, N.Y. TIMES, at A5 (Sept. 25, 2014) .

230

Id.

231

Coal Rush in India Could Tip Balance on Climate Change, N.Y. TIMES, at A4 (Nov. 18, 2014).

232

Available at chinadaily.com.cn/Agencies (emphasis added).

233

Lawrence Berkeley National Laboratory, “China’s Energy and Carbon Emissions Outlook to 2050” at ix
(April 2011).
234

Reuters, “China, US agree limits on emissions, but experts see little new,” (Nov. 12, 2014) available at
http://www.reuters.com/article/2014/11/12/china-usa-climatechange-idUSL3N0T21YK20141112.

58

 generating capacity by 2030, which is more than all the coal-fired power plants that exist in
China today and close to the total electricity generating capacity of the United States.235
Nor is the U.S-China climate agreement likely to have an effect on other nations. India
did not announce any reduction target for emissions cuts in response to the U.S.-China
agreement. In fact, its power minister recently announced, “India’s development imperatives
cannot be sacrificed at the altar of potential climate changes many years into the future. . . . The
West will have to recognize we have the needs of the poor.”236 A former Indian ambassador to
the EU predicted, “I doubt the Indian government is going to change anything at this time.”237
Even developed countries such as Germany, Japan, and Canada are missing their targets
for GHG reductions.238 A recent EU agreement on greenhouse gas emissions pledged a “40%
reduction” in emissions – but as measured against 1990 levels, when old and inefficient
technologies meant that carbon emissions were particularly high.239 In fact, the deal is pro-coal:
it includes hundreds of millions of euros in free allowances to Poland to modernize coal-fired
power plants.240 In addition, the deal includes a provision reconsidering the carbon reduction
target if an international treaty is not reached next year.241 Separate targets for renewable energy
and improving energy efficiency were made non-binding.242 A news account observed that
“recently there has been less enthusiasm among Europeans for a green agenda. The reasons
include the stagnant economy that has depressed manufacturing, jobs, and wages, and an
unwillingness to adopt new regulations that could worsen Europe’s declining international
competitiveness.”243
The Lima Climate Change Conference in December 2014, and the deal resulting from
those talks, will not lead to a reduction in emissions by other countries. The United Nations
countries, after two weeks of negotiations, did not really decide anything. The agreement
coming out of Peru was to “elaborate[e] the elements of the new agreement, scheduled to be
agreed in Paris in late 2015, while also agreeing the ground rules on how all countries can submit

235

“China and US strike ‘historic’ greenhouse gas emissions deal,” The Week, Nov. 12, 2004, available at
http://www.theweek.co.uk/world-news/61299/china-and-us-strike-historic-greenhouse-gas-emissionsdeal#ixzz3IrCm4kBm.
236

Coal Rush in India Could Tip Balance on Climate Change, N.Y. TIMES, at A4 (Nov. 18, 2014).

237

Climate Accord Relies on Environmental Policies Now in Place, N.Y. Times, Nov. 13, 2014, at A10.

238

Promises Aside, Emissions Increasing, WASHINGTON POST, A4 (Sept. 24, 2014).

239

See E.U. Greenhouse Gas Deal Falls Short of Expectations, N.Y. Times, Oct. 25, 2014, at A11.

240

See Arthur Neslen, EU Leaders Agree to Cut Greenhouse Gas Emissions by 40% by 2030, THE
GUARDIAN (October 23, 2014), http://www.theguardian.com/world/2014/oct/24/eu-leaders-agree-to-cutgreenhouse-gas-emissions-by-40-by-2030.
241

See E.U. Greenhouse Gas Deal Falls Short of Expectations, N.Y. Times, Oct. 25, 2014, at A11.

242

Id.

243

Id.

59

 contributions to the new agreement during the first quarter of next year.”244 Rather than a
concrete deal, the agreement was to lay out a “wide range of options,” and represents “a watereddown version of the original deal,” which took extra days of negotiations in order to salvage
anything from the session.245 Notably, China and major developing countries oppose plans for a
review process and the draft agreed to in Peru defanged requirements by changing the obligation
of countries to include quantifiable information showing how they intend to meet their emissions
targets to “may” instead of “shall.”246 The fact that the text no longer makes it mandatory for
countries to provide detailed information about their prospect reductions targets makes some
believe it unlikely that any deal to be struck will reduce warming in any meaningful way.247
An agreement to make an agreement, the Peru talks left unresolved the major
disagreements regarding how to distribute, between rich and poor countries, the burdens of
reducing emissions.248 Indeed, “progress in Lima was limited, and many decisions were simply
postponed.”249 Sam Smith, chief of climate policy for the WWF went so far as to say the Peru
text “went from weak to weaker to weakest and it’s very weak indeed.”250 And it is not clear that
the real agreement, to be made in Paris later in 2015, will happen; United Kingdom climate
change minister Ed Davey admitted that Paris will not “be a walk in the park”251 and any
agreement there will be “even more difficult.”252 To be sure, there were many attendees in Lima
who believe the deal was ineffectual, and therefore any deal in Paris will be “even more difficult
244

See United Nations Framework Convention on Climate Change, Newsroom: Lima Call for Climate
Action Puts World on Track to Paris 2015 (Dec. 14, 2014), available at http://newsroom.unfccc.int/lima/lima-callfor-climate-action-puts-world-on-track-to-paris-2015/.
245

See Aljazeera, Weakened Deal Reached in Peru Climate Talks (Dec. 14, 2014), available at
http://www.aljazeera.com/news/americas/2014/12/weakened-deal-reached-peru-climate-talks201412146525258501.html.
246

See id.

247

See Suzanne Goldenberg, Lima Climate Change Talks Reach Global Warming Agreement, The
Guardian (Dec. 14, 2014), available at http://www.theguardian.com/environment/2014/dec/14/lima-climate-changetalks-reach-agreement.
248
See BBC, UN Members Agree Deal at Lima Climate Talks (Dec. 14, 2014), available at
http://www.bbc.com/news/science-environment-30468048.
249

Id.

250

Id.

251

Id.

252

See Steve Connor, UN Climate Change Deal in Peru Attacked by Environmental Activists as “Weak”
and
“Ineffectual,”
The
Independent
(Feb.
18,
2015),
available
at
http://www.independent.co.uk/environment/climate-change/un-climate-change-deal-in-peru-attacked-byenvironmental-activists-as-weak-and-ineffectual-9924528.html.

60

 to reach.”253 At end, there are many significant and profound hurdles to making any deal in
Paris, including determining what countries will pay to help poor countries under any regime and
whether or not to make any agreement either non-binding or an actual treaty.254
Even if the negotiating countries can overcome their differences and create an agreement
in Paris, it will likely be non-binding due to China’s already-stated position on the issue.255 And,
as stated, any possible gains could be unrealized, as the agreement cannot address the fact that
even developed countries are missing their targets for emissions reductions in the status quo.256
As such, any regime, even if there is a miraculous turn of events in Paris, will be ineffectual.
Because of the global need for reliable, affordable energy, much of the rest of the world
will depend on coal for stable development in the twenty-first century. Any reduction made in
carbon emissions from generating units will be inconsequential given the international demand
for affordable, reliable electricity from coal. As Australian Prime Minister Tony Abbott recently
explained, “Coal is vital for the future energy needs of the world. Energy is critical if the world is
to continue to grow and prosper.” “So let’s have no demonization of coal.” “Coal is good for
humanity. Coal is good for prosperity. Coal is an essential part of our economic future here in
Australia.”257
Accordingly, CEQ should not adopt the Revised Draft Guidance because it would result
in no net environmental or societal benefit, and as discussed further below would only result in
economic and societal impairment.
VI.

The Federal Social Cost of Carbon is Based on Flawed and Highly Speculative
Assumptions and Should Not Be Applied in NEPA Analyses.

The Revised Draft Guidance directs federal agencies to apply the Federal Social Cost of
Carbon (SCC) metric when monetizing the costs and benefits of a proposed action and
alternatives.258 However, it is impermissible to rely on this metric, for several reasons: (i) it is
253

See id.

254

See Ben Jervey, Weak Deal at Lima Climate Talks Disappoints Climate Hawks, Grist (Dec. 15, 2014),
available at http://grist.org/climate-energy/weak-deal-at-lima-climate-talks-disappoints-climate-hawks/.
255

See Section IV, [infra/supra].

256

Id.

257

Jamie McKinnell, Coal good for humanity, says Abbott, THE WEST AUSTRALIAN, (Oct. 14, 2014),
available at https://au.news.yahoo.com/thewest/national/a/25247625/; see also Coal is good for humanity, THE
AUSTRALIAN, (October 15, 2014), available at http://www.theaustralian.com.au/opinion/editorials/coal-is-good-forhumanity/story-e6frg71x-1227090541610 (“Coal still fuels more than 40 per cent of all energy needs on the planet.
So, energy is good and required; and coal is its most important source…. If bread is the stuff of life, as they say, it is
not too much of a stretch to suggest coal is the stuff of civilisation.”)
258

79 Fed. Reg. at 77,827.

61

 inherently flawed and ultimately meaningless; (ii) it ignores the real-world observational data
and ascribes undue certainty and reliability to the scientific evidence; and (iii) it ignores the
environmental and social benefits of carbon.
The SCC is a classic case of “garbage in, garbage out.” The Integrated Assessment
Models (IAMs) on which it depends rest on the fatally flawed climate science discussed in Part I,
supra. For example, the SCC assumes “a two-third probability that climate sensitivity is between
2.0°C and 4.5°C.”259 But as noted in Part I, real-world data disprove those estimated sensitivity
values. The SCC’s assumptions cannot be squared with observational data showing that global
average surface temperatures have not significantly increased since 1998. And, as noted in Part I,
there are many other flaws in climate models. For example, DICE relies on a model of climate
change (rising emissions creates “radiative forcing,” which raises temperatures and lowers
economic output) that has already been disproven by scientific data.260
The SCC’s models then compound their error by adding arbitrary and unproven
assumptions regarding impacts on human welfare from climate change, without any theoretical
or empirically sound justifications.261 For example, none of the models adequately accounts for
the documented changes in agricultural productivity and environmental benefits from “greening”
discussed in Part II, supra. Two of the models (DICE and PAGE) do not even permit
consideration of “negative damages” – i.e., social benefits from CO2 emissions – even though the
third model (FUND) shows positive net benefits for warming below 3º C.262 Thus, DICE and
PAGE skew the analysis from the very beginning. Further, the models only assume human
adaptation and fail to include evolutionary adaptation by plants or animals.
In addition, the SCC’s models make assumptions about the vulnerability of society to
climate change, which is primarily driven by levels of economic development. Ironically, the
economic damage inflicted by attempts to cut fossil-fuel use would increase society’s
vulnerability to the very impacts that the SCC seeks to avoid. A richer, more productive world
will be able to withstand challenges of all kinds.
259

Frank Ackerman & Elizabeth A. Stanton, Climate Risks and Carbon Prices: Revising the Social Cost of
Carbon, ECONOMICS: THE OPEN-ACCESS, OPEN-ASSESSMENT E-JOURNAL, Apr. 4, 2012, available at
http://www.economics-ejournal.org/economics/journalarticles/2012-10.
260

Compare Frank Ackerman and Ian J. Finlayson, The Economics of Inaction on Climate Change: A
Sensitivity Analysis 2(Global Dev. & Env. Inst., Working Paper No. 06-07, 2006) (explaining the climate portion of
the DICE model, including radiative forcing) with James A. Johnstone and Nathan J. Mantua, Atmospheric Controls
on Northeast Pacific Temperature Variability and Change, 1900-2012, Proceedings of the Nat’l Acad. of Sciences
Early Edition 5 (published ahead of print, Sept. 22, 2014), available at
http://www.pnas.org/content/early/2014/09/16/1318371111.short (subscription required) (demonstrating that
changes in ocean and air temperatures are not the result of anthropogenic radiative forcing).
261

Stephanie Waldhoff, et al., The Marginal Costs of Different Greenhouse Gases: An Application of
FUND, ECONOMICS: THE OPEN-ACCESS, OPEN-ASSESSMENT E-JOURNAL, Oct. 1, 2014, available at
http://www.economics-ejournal.org/economics/journalarticles/2014-31.
262

U.S. Interagency Working Group on the Social Cost of Carbon, “Technical Support Document” at 9

(2010).

62

 In short, the SCC is fatally flawed. It is based on speculative assumptions (disproven by
the actual evidence) and much-criticized integrated assessment model simulations. The SCC
assumes that climate science is settled and uncontroversial, when in fact the opposite is true. The
SCC lacks theoretical and empirical foundation for the impacts of asserted climate change that
form the key parts of its analysis. It is entirely unsuitable for NEPA.
As MIT economist Robert S. Pindyck has written, the SCC contains “crucial flaws” and
ad hoc assumptions that make it “close to useless as [one of the] tools for policy analysis.”263 In
Professor Pindyck’s words, the SCC creates “a perception of knowledge and precision, but that
perception is illusory and misleading.”264 Other economists have cited the shortcomings of the
SCC for policymaking purposes.265 “There is no fact-of-the-matter concerning the social cost of
carbon that can provide an objective and value-free guide for policy evaluation.”266
Even Cass Sunstein, the former Administrator of the Office of Information and
Regulatory Affairs for the Obama Administration, has acknowledged that “[m]any people
believe that the [SCC’s technical supporting data] relies on unreliable integrated assessment
models.”267
A study by the National Research Council of the National Academies of Science268 found
that the SCC suffers from uncertainty, speculation, and lack of information about:
•

future emissions of greenhouse gases,

•

the effects of past and future emissions on the climate system,

•

the impact of changes in climate on the physical and biological environment, and

•

the translation of these environmental impacts into economic damages.

The federal Interagency Working Group that helped create the SCC acknowledged that
“[t]he limited amount of research linking climate impacts to economic damages makes this
263

Robert S. Pindyck, Climate Change Policy: What Do the Models Tell Us?, (NBER, Working Paper No.
19244, 2013).
264

Id.

265

E.g., Richard B. Howarth, et al., Risk Mitigation and the Social Cost of Carbon, 24 GLOBAL ENVT’L
CHANGE 123 (2014).
266

Id. at 130. See also Gary D. Libecap, Addressing Global Environmental Externalities: Transaction
Costs Considerations, 52 J. ECON. LIT. 424 (2014) (discussing difficulty of applying SCC to global externalities of
environmental policy, given debates over SCC and inherent scientific uncertainty).
267

Cass R. Sunstein, On Not Revisiting Official Discount Rates: Institutional Inertia and the Social Cost of
Carbon, 104 AM. ECON. REV.: PAPERS & PROCEEDINGS 547, 548 (2014).
268

National Research Council (2009). Hidden Costs of Energy: Unpriced Consequences of Energy
Production and Use. National Academies Press. See docket ID EPA-HQ-OAR-2009-0472-11486.

63

 modeling exercise even more difficult” and that the exercise is subject to “simplifying
assumptions and judgments reflecting the various modelers’ best attempts to synthesize the
available scientific and economic research characterizing these relationships.”269 Even EPA has
conceded: “As a result, any effort to quantify and monetize the harms associated with climate
change will raise serious questions of science, economics, and ethics and should be viewed as
provisional.” 270
But even taking the SCC at face value, it is clear that it is deeply flawed conceptually.
Because the SCC counts only the cost of carbon, it is a one-sided statistic. It ignores the other
side of the equation: the benefit of carbon. Only if both the cost of carbon and the benefit of
carbon are considered, could a balanced equation result.271 And it is both contrary to agency
practice and the familiar “arbitrary and capricious” standard of administrative law272 to quantify
only one side of the analysis.
Any comparison between carbon benefits and EPA’s asserted “costs” reveals that the
benefits are orders of magnitude larger. CO2 “is not a pollutant: It is the basis of life on Earth.
It facilitates plant growth and enhances agricultural productivity. It is the primary raw material
utilized by plants to produce the organic matter out of which they construct their tissues, which
subsequently become the food source for animals and humans. The more CO2 there is in the air,
the better plants grow.”273 Using GDP figures to compare CO2 “costs” and “benefits” (on a per
ton basis) based on EPA’s own SCC estimates demonstrate that the proven, documented benefits
of CO2 overwhelmingly outweigh EPA’s conjectural CO2 costs—regardless of what
assumptions, models, or discount rates are used.274 Notably, this comparison takes EPA’s SCC
estimates on their face—despite the many uncertainties and criticisms surrounding them—and
contrasts them with the simple, straightforward benefits of CO2 based on over two centuries of
historical fact. The comparison shows that any of the SCC estimates of CO2 costs “are relatively
so small as to be in the statistical noise of the CO2 benefits.”275

269

U.S. Interagency Working Group, 2010 and 2013, op. cit.

270

U.S. Envt’l Prot. Agency, Regulatory Impact Analysis for the Proposed Carbon Pollution Guides for
Existing Power Plants and Emission Standards for Modified and Reconstructed Power Plants, at 4-9 to 4-10 (2014),
online at http://www2.epa.gov/sites/production/files/2014-06/documents/20140602ria-clean-power-plan.pdf.
271

See Paul Driessen & Lawrence Kogan, Breaking EPA’s Climate Science Secrecy Barrier, Townhall, Jul.
1, 2014, available at http://townhall.com/columnists/pauldriessen/2014/07/01/breaking-epas-climate-sciencesecrecy-barrier-n1857403/page/full.
272

5 U.S.C. § 706(2)(A); see also New Mexico ex rel. Richardson, v. Bureau of Land Management, 565
F.3d 683, 704 (10th Cir. 2009) (agency decision is arbitrary and capricious if it “failed to base its decision on
consideration of the relevant factors”).
273

Roger Bezdek, Benefits of Carbon Use Far Outweigh its Costs, The Hill, Sept. 25, 2014, available at
http://thehill.com/blogs/congress-blog/energy-environment/218795-benefits-of-carbon-use-far-outweigh-its-costs.
274

See id.

275

Id.; see also Presentation by Roger Bezdek on Social Cost of Carbon (George C. Marshall Institute, Feb.
26, 2014), available at http://marshall.org/climate-change/presentation-by-roger-bezdek-on-social-cost-of-carbon/.

64

  BENEFITS FORECAST TO
CONTINUE TO GREATLY EXCEED SCC

Forecast Reference Case CO2 Benefit-Cost Ratios
(Based on 2013 IWG Report)



5% 3% 2.5%
l2020 2030 l2040

Source: US. Energy Information Administration, US. Bureau of Economic Analysis, US.
lnteragency Working Group, and Management Information Services, Inc.

 

 

300



U1
0

 

 

Benefit-Cost Rat]
8 a: 
0

U1
0

 



 

 

 

Using 2013 IWG report, forecast 602
benefits forecast SCC by 70-to-1 to 250-to-1. ,4

CO2 BENEFITS FORECAST TO
CONTINUE TO GREATLY EXCEED SCC

2010 and Forecast Reference Case 002 Bene?t-Cost Ratios
(Based on 2010 IWG Report)



2010 2020 2030 2040
I 5% 3% I 2.5%

Source: US. Energy Information Administration, US. Bureau of Economic Analysis, US.
lnteragency Working Group, and Management Information Services, Inc.

 

 

600




 

waU?l
OO
00

Benefit-Cost Ratio
0


.5



 



 

 

 

Using 2010 IWG report, forecast CO2
benefits forecast SCC by 100-to-1 to 500-to-1. 

65

Other studies have confirmed that “[t]he inclusion of the benefits of carbon dioxide
fertilization on agriculture and forestry . . . substantially reduces the social cost of carbon
dioxide.”276 When looking at the entire picture,
CO2 benefits outweigh the costs by, literally, orders of magnitude: Anywhere
from 50-to-1 to 220-to-1. Normally, [benefit-cost] ratios in the range of 2-to-1 or
3-to-1 are considered very favorable. In other words, the benefits of CO2
overwhelmingly outweigh the estimated CO2 costs. In fact, the CO2 costs are
relatively so small as to be in the statistical noise of the CO2 benefits.277
Even EPA has admitted that “[t]he limited amount of research linking climate impacts to
economic damages makes the modeling exercise even more difficult.”278 Further, it
acknowledges that the SCC will need to be revised over time: “The U.S. government has
committed to updating the current estimates as the science and economic understanding of
climate change and its impacts on society improves over time.”279
Moreover, the SCC is highly sensitive to inputs like the discount rate.280 This
arbitrariness results in a statistic that can be manipulated to say whatever the agency wants it to
say. Thus, the Office of Management and Budget (OMB) has prescribed discount rates of 3%
and 7% for administrative agencies to use.281 When the models on which the SCC draws are
recalculated using a 7% discount rate, the SCC goes to zero or even negative—showing a net
benefit to increased emissions under the SCC’s own analysis.282
Reasoned decision-making under NEPA cannot be premised on such a capricious metric.
“Without standards to cabin agency discretion, cost-benefit analysis may become mere window
dressing, providing a veneer of scientific backing for agencies’ arbitrary choices.”283
276

Waldhoff, et al., supra, p. 26.

277

Bezdek, The Hill, supra; see also generally American Coalition for Clean Coal Electricity, The Social
Costs of Carbon? No, the Social Benefits of Carbon, Jan. 2014, available at
http://www.americaspower.org/sites/default/files/Social_Cost_of_Carbon.pdf.
278

RIA at 8-10.

279

FACT SHEET: Social Cost of Carbon, U.S. ENVTL. PROT. AGENCY, available at
http://www.epa.gov/climatechange/Downloads/EPAactivities/scc-fact-sheet.pdf (last visited Oct. 16, 2014).
280

U.S. EPA REGULATORY IMPACT ANALYSIS at 4-10.

281
OFFICE OF MGMT. AND BUDGET, REGULATORY ANALYSIS, CIRCULAR A-4, (Sep. 17, 2003), available at
http://www.whitehouse.gov/omb/circulars_a004_a-4/.
282

Kevin Dayaratna and David Kreutzer, Unfounded FUND: Yet Another EPA Model Not Ready For The
Big Game 3, HERITAGE FOUNDATION (Apr. 29, 2014), available at
http://www.heritage.org/research/reports/2014/04/unfounded-fund-yet-another-epa-model-not-ready-for-the-biggame.
283

Edward R. Morrison, Comment, Judicial Review of Discount Rates Used in Regulatory Cost-Benefit
Analysis, 65 U. CHI. L. REV. 1333, 1351 (1998). Morrison quotes one EPA official as stating that “many
discounting procedures are subject to manipulation. . . . This can lead to manipulation of the outcomes by some

66

 Even CEQ acknowledges that “climate impacts are not attributable to any single
action,”284 and that the Supreme Court has held that “NEPA requires a reasonably close causal
relationship between the environmental effect and the alleged cause.”285 Thus, even though CEQ
has not identified any standard protocols and knows that the measurement it calls for is very
difficult to render - the linkage between a given project and a climate impact is diffuse and
tenuous286 - it insists on a “measure it anyway” approach, regardless of the accuracy.287 Such an
insistence on quantification violates the understanding that NEPA assessments “not be based on
misleading economic assumptions.”288
CEQ recommends use of the SCC289 without disclosing that is exactly such a “misleading
economic assumption.” To its credit, the CEQ suggests that agencies “should disclose the fact
that these estimates vary over time, are associated with different discount rates and risks, and are
intended to be updated as scientific and economic understanding improves.”290 But the Technical
Support Documents (TSDs) go even further in qualifying the utility of the SCC, describing the
inherent uncertainty in the SCC. That original TSD, issued in 2010, admitted that, “[t]he limited
amount of research linking climate impacts to economic damages makes this modeling exercise

clever (or perhaps ignorant) analyst.” Id. at 1351 n.92 (quoting Joel D. Scheraga, Perspectives on Government
Discounting Policies, 18 J ENVIR ECON & MGMT S-65, S-66 (1990)).
284

Id., 79 Fed. Reg. at 77,825.

285

Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 767 (2004) (quotation omitted). The Court analogized
the relevant causal relationship to proximate cause in tort law. Id.
286

Although CEQ does not go into the details, quantifying such an impact would require 1) quantifying the
change in emissions due to a given project with some degree of certainty, 2) quantifying the change in temperature
due to that change in emissions, and 3) quantifying the impacts (harms and benefits) that come from that change in
temperature. Such a multilayered quantification is prone to uncertainty and error at all levels.
287

CEQ refers agencies to its regulations regarding uncertainty in handling difficult measurements. See 40
C.F.R. § 1502.22 (describing how to deal with incomplete or unavailable information).
288

Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 446 (4th Cir. 1996). See also Johnston
v. Davis, 698 F.2d 1088, 1094-95 (10th Cir. 1983) (noting “misleading” information in an environmental impact
statement based on an arbitrarily low discount rate).
289

Revised Draft Guidance, 79 Fed. Reg. at 77,827.

290
Id. (citing Interagency Working Group, Technical Update of the Social Cost of Carbon for Regulatory
Impact Analysis (Nov 2013), available at http://www.whitehouse.gov/sites/
default/files/omb/assets/inforeg/technical-updatesocial- cost-of-carbon-for-regulator-impactanalysis.pdf). The
variation in discount rates is significant, however, to the point that it drives the outcome of the SCC analysis,
resulting in negative costs (i.e., benefits) at around 7%. (Kevin Dayaratna and David Kreutzer, “Unfounded FUND:
Yet Another EPA Model Not Ready For The Big Game,” Heritage Foundation (Apr. 29, 2014), available at
http://www.heritage.org/research/reports/2014/04/unfounded-fund-yet-another-epa-model-not-ready-for-thebiggame.) The arbitrary selection of a low discount rate, such as the EPA has done in its calculation (no higher than
5%), is the same form of arbitrary and capricious agency action struck down in Johnston, 698 F.2d at 1094-95.

67

 even more difficult.”291 EPA, in its recent major rulemaking regarding GHGs, conceded that
“any effort to quantify and monetize the harms associated with climate change will raise serious
questions of science, economics, and ethics and should be viewed as provisional.”292 The
inherently arbitrary nature of the SCC renders it exactly the sort of “misleading economic
assumption” the CEQ should not be suggesting that agencies use.
In any event, any consideration of costs must also include a consideration of project
benefits, and in this regard agencies must also consider the social benefits of carbon if they are to
consider the social costs of carbon. The SCC itself fails to evaluate the social benefits of carbon,
and were an agency to consider the SCC without also weighing the social benefits of carbon, the
action would be invalid. The Revised Draft Guidance itself advises that “agencies should take
into account both the short- and long-term effects and benefits based on what the agency
determines is the life of a project and the duration of the generation of emissions.”293 On these
terms, the Revised Draft Guidance demonstrates that an agency would be arbitrary and
capricious to consider the SCC without also measuring the social benefits of carbon from the
project in question. CEQ’s guidance fails to take into account this fatal flaw in the SCC.
VII.

The Revised Draft Guidance Should Not Be Applied to Federal Land Management
Decisions.

The original draft guidance, issued in February 2010, was explicitly not applied to federal
land use decisions because “CEQ was not aware of any established Federal protocols for
assessing land management techniques, including changes in land use or land management
strategies, and their effect on atmospheric carbon release and sequestration at a landscape
scale.”294 However, the Revised Draft Guidance drops this exemption and requires application
of the guidance to all federal land management decisions and projects.
But CEQ does not propose any new protocols for assessing land management techniques
or strategies,295 leaving agencies to their own devices. Even though CEQ notes “the difficulties
in attributing specific climate impacts to individual projects,”296 CEQ nevertheless suggests that
291

Interagency Working Group on Social Cost of Carbon, Technical Support Document: Social Cost of
Carbon for Regulatory Impact Analysis under Executive Order 12866, at 33 (Feb. 2010).
292

U.S. Envt’l Prot. Agency, Regulatory Impact Analysis for the Proposed Carbon Pollution Guides for
Existing Power Plants and Emission Standards for Modified and Reconstructed Power Plants, at 4-9 to 4-10 (2014),
available at http://www2.epa.gov/sites/production/files/2014-06/documents/20140602ria-clean-power-plan.pdf
(“RIA”) (emphasis added).
293

Revised Draft Guidance, 79 Fed. Reg. at 77,826 (emphasis added). See also 40 C.F.R. § 1508.8(b)
(defining “effects”).
294

Id., 79 Fed. Reg. at 77,802.

295

Id., 79 Fed. Reg. at 77,806.

296

Id., 79 Fed. Reg. at 77,825.

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 agencies use proxy measures such as projected emissions and carbon sequestration as a secondbest method for approximating GHG emissions impacts.297 As noted above, agencies are illequipped to conduct any kind of analysis of climate-related effects from land use decisions, and
the lack of any protocol or guidance instructing the agencies will lead to widely varying results,
greater uncertainty, and likely greater opportunity for litigation from those who might challenge
any particular project.
VIII. The Revised Draft Guidance Will Grind Project Development to a Halt, Resulting in
Lost Jobs and Lost Economic Opportunity.
Despite many bipartisan efforts to make the NEPA process more efficient, the NEPA
process continues to require the expenditure of significant amounts of time and money that can
hinder or ultimately prevent the development of significant projects. See Nat’l Parks &
Conservation Ass’n v. BLM, 586 F.3d 735, 754 (9th Cir. 2009) (dissenting opinion) (explaining
the arduous and costly EIS/EIR process for a mine project near Joshua Tree National Park); Mid
States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 533 (8th Cir. 2003) (“In all, the
environmental review process took nearly four years and generated roughly 8,600 public
comments.”)
For example, between January 1, 1998 and December 31, 2006, 53 Federal executive
branch entities made available to the public 2,236 final environmental impact statement (EIS)
documents; the time to prepare an EIS during this time ranged from 51 days to 6,708 days (18.4
years).298 The average time for all Federal entities to prepare an EIS was 3.4 years, but most of
the shorter EIS documents occurred in the earlier years.299
These lengthy delays result in canceled projects and withdrawn investments, which
ultimately means lost jobs and reduced economic growth. In March 2011, the U.S. Chamber of
Commerce published a study of 351 proposed energy projects (many of which would clearly be
within the ambit of the current Revised Draft Guidance) - solar, wind, wave, bio-fuel, coal, gas
and nuclear - that were delayed or cancelled altogether due to extensive delays in the Federal
permitting process.300 If these projects had been built, there would have been direct investment in
297

Id., 79 Fed. Reg. at 77,825. Agencies are instructed to use whatever tools are available. Id., 79 Fed. Reg.

at 77,827.
298

Responsibly And Professionally Invigorating Development (RAPID) Act of 2012: Hearing before the
Subcomm. on Courts, Commercial and Administrative Law of the H. Comm. on the Judiciary, 112th Cong. (Apr.
25, 2012), at 39 (Testimony of William Kovacs).
299

Id.

300

Steve Pociask & Joseph P. Fuhr, Jr., Progress Denied: A Study on the Potential Economic Impact of
Permitting Challenges Facing Proposed Energy Projects (Mar. 11, 2011), available at
http://www.projectnoproject.com/wp-content/uploads/2011/03/PNP_EconomicStudy.pdf (last accessed March 13,
2015).

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 the 2010 timeframe of $576 billion, resulting in a $1.1 trillion boost to the economy and it would
have created 1.9 million jobs through the 7 years of construction.301
In 2010, Reps. Joe Barton and Michael Burgess provided comments to CEQ on the first
version of the Revised Draft Guidance:
Given the evolving, complex, controversial, uncertain and global
nature of climate science, we have significant concerns that
layering more analyses and requirements contemplated in the draft
guidance will further delay the NEPA process, increase overall
permitting and project costs, lead to protracted litigation, and
adversely impact new energy and other infrastructure development
in the United States.302
Peabody believes those concerns are even more pronounced with the Revised Draft
Guidance. Individual federal agencies now would have to engage in speculative attempts to
quantify emissions associated with proposed actions; consider conjectural effects on climate
change; consider climate models and scenarios which have been proven to be invalid; somehow
evaluate and disclose scientific uncertainties associated with projections; and consider
mitigation measures and reasonable alternatives to reduce emissions.303 To make the process
more unpredictable and arbitrary, the agencies would have to conduct these evaluations under
the threat of litigation from anyone who wants to challenge or attempt to halt a project, forcing
courts to be the ultimate arbiter on the causes and effects of climate change, a subject that is
ultimately unsuited for judicial determination.304
Federal agencies, and the courts, are ill-equipped to make these evaluations, and the
resulting delays from the untold burdens placed on the agencies and certain litigation would
virtually eliminate the chances of any project subject to review under the Revised Draft
Guidance from ever proceeding. The Revised Draft Guidance will take an already cumbersome
and unpredictable NEPA process and turn it into an unworkable, project-killing disaster.

301

Id., at 16.

302

Letter from Rep. Joe Barton and Rep. Michael Burgess to Nancy Sutley, Chair, CEQ, March 8, 2010, at

303

See id.

2.

304

See, e.g., Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 876-77 (N.D. Cal.
2009), aff’d, 696 F.3d 849 (9th Cir. 2012), cert. denied, 133 S.Ct. 2390 (2013) (finding that weighing the benefits
against the risks of GHG emissions would require the court to determine an acceptable emissions level, as well as
“who should bear the cost of global warming,” which the court found was an initial policy determination not within
the discretion of the judiciary); Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009), reh’g en banc granted,
598 F.3d 208 (5th Cir. Feb. 26, 2010), appeal dismissed and vacated by 607 F.3d 1049 (5th Cir. May 28, 2010).

70

 CONCLUSION
Peabody appreciates the opportunity to present comments on the Revised Draft Guidance.
We urge the CEQ not to base its decision on flawed scientific data, to ignore the real-world
observational data, or to overlook the environmental and social benefits of carbon. We look
forward to meeting with CEQ and, as appropriate, the relevant agencies to discuss these
comments at the earliest convenience.
Respectfully submitted,
Peabody Energy Corporation
Alexander C. Schoch
Executive Vice President, Law
Frederick D. Palmer
Senior Vice President
Relations

of

Government

Scott T. Jarboe
Associate General Counsel - Corporate
Peabody Energy Corporation Headquarters
Peabody Plaza
701 Market Street
St. Louis, MO 63101-1826
314-342-3400
Counsel:
Tristan L. Duncan
Thomas J. Grever
Shook, Hardy & Bacon L.L.P.
2555 Grand Boulevard
Kansas City, MO 64108
816-474-6550
Jonathan Massey
Massey & Gail L.L.P.
1325 G St. NW, Suite 500
Washington, D.C. 20005
202-652-4511

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