Author: CCAN Supporter

In Virginia Attorney General Ken Cuccinelli’s first book, released today, he paints a portrait of himself crusading for the freedom of the people of Virginia against federal government overreach.  In “Weird Science,” the chapter about his lawsuit challenging the EPA’s finding that carbon dioxide and other greenhouse gases threaten public health by causing climate change, it’s clear he’s more of a crusader for the freedom of corporations to pollute.  

SPOILER ALERT: The attorney general states in the book that he intends to spend taxpayer dollars to take his crusade for polluter freedom all the way to the U.S. Supreme Court. In fact, though “Weird Science” contains quite a bit of ridiculous rhetoric, I think the most preposterous and also the most significant is the way he justifies his plan to return to court- based on huge misreprestenations of quotes from the ruling against his case.  

But before we get to that, let’s check out how we got here, starting with some background info from the book:

Just to give you a little history, in the 2007 Supreme Court case Massachusetts v. Environmental Protection Agency, twelve states brought suit against the EPA to force the agency to regulate carbon dioxide and other greenhouse gases as pollutants. The court ruled 5–4 in favor of the states, saying that the EPA was obligated under the Clean Air Act to regulate greenhouse gases if it ultimately determined they were pollutants that endangered public health.

So in December 2009, shortly after Cuccinelli won the office of attorney general, EPA issued its finding that greenhouse gases do endanger public health by causing climate change, based on the consensus of 97% of climate scientists across the globe. But Cuccinelli, who points out that he has “a great respect for science” as a former engineer, disagreed with the consensus.  The only direct argument he offers in the book against the science of climate change is…well…just read it for yourself:

The EPA was attempting to transform the entire American economy and our standard of living because it said carbon dioxide was a pollutant dangerous to public health. Let’s not confuse carbon dioxide with carbon monoxide, the odorless, poisonous gas that’s also emitted during the combustion of some materials. No, carbon dioxide, or CO2—this “dangerous” threat to America and to the world—is the gas we all exhale from our bodies every second of every day. It’s also the gas that we readily and willingly consume when we have carbonated drinks. It’s also what the trees and plants feed on so they can live and produce the oxygen we need to breathe. Yes, this important part of the “circle of life” is now suddenly a dangerous pollutant. Maybe it’s worth keeping all of this in mind when we’re trying to analyze problems carbon dioxide can cause.

Yeah…so on behalf of the people of Virginia, he teamed up with attorneys general from a number of other states as well as fossil fuel industry plaintiffs like the American Petroleum Institute and Peabody Energy to sue the EPA. While labeling those who advocate against climate change as “alarmists,” he offered his own alarming prediction of the consequences, should greenhouse gas regulations move forward:

We relied on that fossil fuel-based electricity daily to power our computers, our refrigerators, our lights, our televisions, all of our electronics, and even our electric cars! We relied on oil to heat our homes; power our cars; and power the transport trucks that brought the food to our grocery stores, the clothes to our department stores, and the packages we ordered off Amazon.com to our doors. Using greenhouse gas regulations to force Americans to replace these critical energy sources with more costly, less abundant, and technologically unproven and unreliable alternatives would undoubtedly slow the U.S. economy and potentially lead to energy shortages—with lines stretched around the block at gas stations, brownouts, and air-conditioning that wouldn’t work on the hottest days of the year because of blackouts.

While the attorney general’s argument that soda contains carbon dioxide is clearly an intentional oversimplification, I think he really may be so in the dark about clean energy that he truly thinks renewable energy sources are “more costly and less abundant” than fossil fuels and that wind and solar power are “technologically unproven and unreliable.”  For the record, he’s got it backwards.  While coal, natural gas and oil are finite resources, there’s enough free sunlight and wind on the earth to power all of our needs.  And there’s nothing unproven about technologies that have been providing power for decades.  Solar panels were providing power to Jimmy Carter’s White House more than 30 years ago, for goodness’ sake.

In the end, the court ruled against Cuccinelli and the polluters, saying “This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.”

In building the case for his intention to appeal the decision to the Supreme Court, Cuccinelli completely misrepresents quotes from the unaminous ruling against him as casting doubt on its strength. I have to assume that he’s willfully bending the truth—assuming that the typical reader won’t look at the ruling for his or herself.  The alternative—that he has actually misunderstood the ruling—seems unrealistic and would be worse in many ways. 

Here’s the first quote he uses in its full context:

State and Industry Petitioners [including Cuccinelli] insist that because statutes [like the Clean Air Act] should be interpreted to avoid absurd results, EPA should have considered at least the “absurd” consequences that would follow from an endangerment finding for greenhouse gases.

[Having found that greenhouse gases do ultimately endanger health, EPA is creating regulations for stationery sources of these emissions. However, EPA proposed exempting sources of small amounts of greenhouse gases, like bakeries and farms. Those bringing the lawsuit said this was an admission of a potential absurd result by EPA.]

However “absurd” Petitioners consider this consequence, though, it is still irrelevant to the endangerment inquiry…The plain language of… [the Clean Air]… Act does not leave room for EPA to consider as part of the endangerment inquiry the stationary-source regulation triggered by an endangerment finding, even if the degree of regulation triggered might at a later stage be characterized as “absurd.”

Here’s how Cuccinelli quoted it:

The court said it would allow the EPA to move forward with regulations “even if the degree of regulation triggered might at a later stage be characterized as ‘absurd.’”

Very obviously written with a different meaning than it was given in the court’s ruling.

Here’s the original context for another quote where much of what Cuccinelli pulls out is actually the court quoting a ruling in a precedential case from 1976:

Industry Petitioners do not find fault with much of the substantial record EPA amassed in support of the Endangerment Finding. Rather, they contend that the record evidences too much uncertainty to support that judgment. But the existence of some uncertainty does not, without more, warrant invalidation of an endangerment finding. If a statute is “precautionary in nature” and “designed to protect the public health,” and the relevant evidence is “difficult to come by, uncertain, or conflicting because it is on the frontiers of scientific knowledge,” EPA need not provide “rigorous step-by-step proo
f of cause and effect” to support an endangerment finding. Ethyl Corp. v. EPA, 541 F.2d 1, 28 (D.C. Cir. 1976). As we have stated before, “Awaiting certainty will often allow for only reactive, not preventive, regulation.” Id. at 25.

Here’s Cuccinelli’s version:

The court also upheld the EPA’s use of United Nations-generated climate data because it interpreted the Clean Air Act as permitting regulation even where “the relevant evidence is ‘difficult to come by, uncertain, or conflicting because it is on the frontiers of scientific knowledge.’ ”

Here’s Cuccinelli’s justification for pushing his crusade to the Supreme Court, in full:  

The court said it would allow the EPA to move forward with regulations “even if the degree of regulation triggered might at a later stage be characterized as ‘absurd.’”

The court also upheld the EPA’s use of United Nations-generated climate data because it interpreted the Clean Air Act as permitting regulation even where “the relevant evidence is ‘difficult to come by, uncertain, or conflicting because it is on the frontiers of scientific knowledge.’ ”

Wow, those last several parts didn’t sound like a ringing endorsement of the EPA’s work. The court seemed to have a split personality in its decision, sometimes chastising us for even bringing the suit, and at other times, pointing out how absurd and ineffective the EPA regulations might be.

Ultimately, we feel that the U.S. Supreme Court needs to clarify how far it will let the EPA take its 2007 decision, so Virginia and several of the plaintiffs will ultimately be taking the appeal to the Supreme Court.

I can only hope the Supreme Court will agree with the states and will conclude the EPA doesn’t have the authority to make “absurd” economy- and lifestyle-altering regulations using “uncertain” or “conflicting” evidence without regard for their effects on the American people, their liberty, and their economic security. While the big-government statists declared the court’s decision in this round a victory, handing over that kind of immense power to an unelected federal bureaucracy willing to shortcut its own rules and work under a veil of secrecy was a defeat for all Americans, regardless of their political persuasion.

So there you have it. Cuccinelli wants to take his crusade for corporate freedom to pollute to the Supreme Court. And the best logic he can give for this appeal is misreprestations of the court’s decision. Sounds like a solid use of taxpayer dollars!