You seem to imply Mass vs EPA is set somehow in stone until Congress acts. But that was said about ROE vs Wade until Dobbs came along. The SC has the responsibility to act to overturn previous errors by the court.
The argument about water vapor is a red herring, obfuscating the real issue. Was Mass vs EPA an overreach of the CAA? And was the information provided to the court in error, whether based on information at the time or subsequent information. That’s what the SC will decide.
“It is of course conceivable that the Court might (a) decide that EPA was wrong procedurally to assume responsibility for judicial review of the CAA, but (b) substantively, the Court concurs with its de novo interpretation of the law in 2026, and thus overturns the 2008 Massachusetts vs. EPA ruling …”
While water vapor perturbs climate on a local scale, the concentration of water vapor can not be regulated. The average water vapor molecule remains in the atmosphere for only 9 days before returning to the surface as precipitation (only 5 days in the tropics). Water vapor concentrations are changed by changing temperature orders of magnitude faster than water vapor can change temperature/climate by acting as a GHG. That is why climate science treats water vapor as a feedback (something changed by temperature) rather than as a forcing (something that changes heat flows to and from space).
The atmosphere is effectively mixed even though water vapor is not homogeneously distributed. Trade winds bring in new air from about 1000 miles upwind every day. Weather systems cross the US roughly every 3.5 days in winter. The vertical transport of water vapor is what causes condensation and water to return to the surface in an average of 9 days. 70% of the surface is covered with liquid water, that replenishes water vapor at a rate that depends on the undersaturation of water vapor in the air and wind speed.
The idea that we can regulate water vapor in the air seems absurd.
In EPA v Massachusetts, the majority ruled that GHGs fit the CAA's definition of a [regulatable] air pollutant. The four dissenters admitted that the majorities reading of the definition of an air pollutant was reasonable, but favored a different reading that stress that an air pollutant must first pollute to be an air pollutant. Does the concept"pollute" (make impure or unclean) help us distinguish between CO a traditional pollutant and CO2? Both gases cause harm, which is what makes them air pollutants. CO by poisoning and CO2 by causing warming and inevitably meters of sea level rise*. Yes, CO2 is plant food, but we don't need 500 ppm of CO2 for that purpose.
Everyone seems to have forgotten the doctrine of stare decisis: Once decided, a legal precent like EPA v Massachusetts should not be overturned without considering special factors: 1) Was the original decision clearly wrong? No, even the dissenters admitting that the majority's reading was plausible. 2) Practical Consequences: Roger believes decarbonizing our economy is essential and abandoning the endangerment finding eliminates the justification for decarbonizing. 3) Reliance Interests: How much do people rely on the existing rule?
Rather than overturning the endangerment finding, the Supreme Court could find that Congress has delegated too much authority to the EPA, given all of the complications not anticipated by the CCA associated with regulating GHGs. Congress passed additional legislation to guide EPA regulation of Ozone Destroying Substances. Instead, this administration wants to DENY there is ANY scientific justification for regulating GHGs and decarbonizing our economy (something Roger appears to favor).
* At the end of the last ice age, sea level rose 120 m in response to 6 degC or warming: 20 m/degC. As ice retreats poleward, there is less ice on land to melt. The Greenland ice sheet has significantly melted during other interglacials producing something likes level about 7 m higher than today.) If 1 degC of GHG mediated warming in the past half-century hasn't already doomed the GIS and a good chunk of Florida - which it probably has since other interglacials have been warmer than today - then the next degC of GHG mediated warming almost certainly will.
I am glad you mentioned Mass vs. EPA ruling. You may recall that was circa 2007. At that time the SCOTUS was probably still believing in The "Hockey Stick" rendering and "footprint" of anthropogenic warming. In fact, Justice Stevens and other Justices were troubled as to whether Massachusetts had STANDING on the issue. They admitted that the prospect of an Ocean rise of three feet at Boston created the justification for the STANDING requirement for consideration. That three foot rise was pure fiction. Remember, Climategate didn't appear until late 2009, Robert W. Street
Read while working on our next piece (on the EF rescission) and your contribution on this WV issue is a great addition.
What's good for the goose is good for the gander. If a GHG responsible for less of the greenhouse effect has to be regulated by the just fallen EF, then sure a GHG responsible for more of the greenhouse effect can't be de minimis.
Do not tempt us to form AFDA (Americans For Drier Armpits), a human health-related ENGO, on behalf of sweaty people solely for the purpose of forcing EPA to regulate water vapor under the recently departed EF in order to force Congress to act should the present EPA approach not succeed. (You have to admit, some good theater would result from watching scientists and politicians twist themselves into pretzels with the cognitive dissonance it would require to defend the absurd here....)
;)
p.s. in literary measures, .027 C is about half a mere.
I like Roger. He reminds me that humans are far better at panicking than at thinking clearly, and that the people most certain they’re saving the world are usually the ones you should watch most carefully.
Dr. Pielke, Sr. Is effectively vindicated. His all-of-science approach cost him dearly. This shows the great nothing behind those who harried him so cruelly. The CO2 obsessed cultists stand like the naked Emperor.
Consider the possibility that the long-term reward from the approach has gained him far more than the cost, which is not to be minimized and was severe.
(Some things a man does not measure in title, tenure or money. And when the world tilts in his direction after 20 years despite the abusers and critics, the rewards are counted in a form of currency that can't be deposited in a bank account, but is an estate that lives long after he's gone...... that's what you have here...)
It was my privilege to read Dr. Pielke's blog, although late in the process of the systematic attacks in him by the extremists. He wrote with clarity and demonstrated dignity. He looked at climate as a holistic system, not a one dimension scifi drama plot.
Thanks, fascinating discussion of the elements. But Mass v EPA was a 5-4 decision and clearly the stupidest Supreme Court decision since Dred Scott. As Scalia said in his dissent:
The Massachusetts's and the court's "reading of the statute defies common sense." See his footnote 2. This is an opinion by a non-lawyer, but Scalia is a lawyer, and a damn good one.
"As the Court correctly points out, “all airborne compounds of whatever stripe,” ante, at 26, would qualify as “physical, chemical, . . . substance[s] or matter which [are] emitted into or otherwise ente[r] the ambient air,” 42 U. S. C. §7602(g). It follows that everything airborne, from Frisbees to flatulence, qualifies as an “air pollutant.” This reading of the statute defies common sense."
Most people would say that flatulence pollutes the air, making it impure or unclean (a definition of the verb "to pollute" cited by Scalia). Flatulence from livestock is a significant source of methane, the second most important GHG. "Frisbees" simply illustrates that Congress intended to write a capacious definition for "air pollutants" that included almost anything released into the air. However, IMO frisbees don't fit the CAA's definition of an air pollutant. More importantly, they wouldn't be subject to regulation unless the EPA has shown they can "reasonably be anticipated to ENDANGER PUBLIC HEALTH OR WELFARE". Any such showing about frisbees by the EPA could be challenged during public comment, in administrative courts, and then regular courts. Frisbees would never be regulated under the CCA for this reason. Scalia is fear mongering.
Scalia's main argument is that the court was required under Chevron deference to accept the Bush EPA's circular definition of what constituted an air pollutant. Courts are no longer bound by Chevron deference. The Bush EPA had argued that an air pollutant had to be first be "air pollution agent" and then meet other the law's other capacious requirement to be subject to regulation as an air pollutant. Scalia wrote that pollution is best understood from the verb pollute - to render impure or unclean. That definition doesn't help us reach the conclusion that CO is an "air pollutant agent" and CO2 is not.
Scalia wrote about the majority's opinion:
"Since greenhouse gases come within the [CCA's] capacious phrase “any physical, chemical, … substance or matter which is emitted into or otherwise enters the ambient air,” they must also be “air pollution agent[s] or combination[s] of such agents,” and therefore meet the definition of “air pollutant[s].” THAT IS CERTAINLY ON POSSIBLE INTERPRETATION OF THE STATUTORY DEFINITION. The word “including” can indeed indicate that what follows will be an “illustrative” sampling of the general category that precedes the word" ... Often, however, the examples standing alone are broader than the general category, and must be viewed as limited in light of that category...
Scalia then goes on to discuss the EPA's circular definition of an "air pollutant" being "air pollution agent", a definition that doesn't IMO distinguish between CO and CO2 and no longer needs to be deferred to by the courts. So we are left with one definition of an "air pollutant" that even Scalia thought was plausible, a plausible definition enshrined in law by the principle of stare decisis.
IMO, it would make far more sense to argue that the CCA doesn't tell the EPA how to regulate GHGs given their unique problems as global pollutants falling mostly outside the control of the EPA, their central role in our prosperity, and causing most of their harm to [likely more affluent] future generations and regulatory costs today. (This requires the use of a discount rate when doing a cost-benefit analysis such as the Social Cost of Carbon). Should the goal be to do America's fair share in keep warming below 2.0 degC of warming or a more plausible RCP 4.5 pathway (below about 3.0 degC). Relying on the CAA alone to regulate GHGs delegates too much legislative authority to the EPA and is unconstitutional under the non-delegation doctrine. This is precisely why Congress amended the CAA to include ozone-destroying substances, air pollutants unanticipated by the CAA.
Very interesting analysis. However, I prefer to consider CO2, water vapor, and methane as perfectly harmless substances that are required for life to exist on Earth. Thus, if we designated any of them as pollutants, we are being foolish in the extreme. I read Scalia's arguments from that point of view, and I think that was his intent.
Having read your posts at Climate etc., I'm fairly sure you understand that GHGs produce warming by slowing radiative cooling to space and have been responsible for significant changes in climate in the past. In particular, CO2 and other GHGs released by enormous volcanic eruptions (flood basalt events like the one that produced the Siberian traps) have been linked to mass extinction events (such as the one at the Permian-Triassic boundary.) The PETM Thermal Maximum is associated with large reduction in the C13/C12 isotope ratio and was likely was also caused by a large release of CO2. The 6 degC of warming accompanying the end of the last ice age produced 120 m of sea level rise over 10 millennia. The GIS (and much of Florida) are likely doomed, but that will likely take a millennium or so. IIRC, moving from North Dakota to Oklahoma is a 5 degC increase in mean temperature and about what one might expect from a 3 degC increase in GMST.
Justice Scalia is a great man, because he made the original meaning of the legal text itself the primary consideration when interpreting laws (not the assumed intent of the lawmakers or external factors). As Justice Kagan noted, we (all current justices) are all originalists now. We are fortunate to live in the "Age of Scalia". However, that means Scalia likely didn't believe it was his job to decide whether "CO2, water vapor and methane are perfectly harmless substances that are required for life to exist on Earth". His job was to determine whether these substances fit the definition of regulatable air pollutants in the CAA as written. If they did, he likely claimed no expertise in determining when they pose a danger to human health and welfare. You and I probably know more about that subject than he did.
GHGs can produce some warming, at least in theory, but such an effect has not been measured. The evidence is all in projections using models that have yet to be validated. Also, the resulting warming has certainly not been shown to be dangerous, as I've written.
So far, all the effects of recent warming and additional CO2 have been within natural variability and neutral or beneficial to humans according to multiple sources, including AR6. As for the PETM, I think you have it wrong, see this post I wrote some years ago:
Andy: I don't need dubious climate models to prove that rising GHGs are certain to cause significant warming in the future. The physics of calculating radiative heat fluxes traveling through an atmosphere adsorbing and emitting gas molecules is given by Schwarzschild's Equation for Radiative Transfer. (See the article in Wikipedia.) Schwarzschild's name is often skipped and climate scientists simply vaguely refer to "radiative transfer calculations". It is a differential equation that must be numerically integrated along a path, say from the surface to space. An online calculator (MODTRAN) will let you perform simplified radiative transfer calculations. The predictions of this equation have been validated by numerous experiments, including looking at the spectrum and intensity of LWR upwelling through the atmosphere from the dark side of the Earth to a spacecraft. To use the equation, you need to know the temperature, pressure and composition of the atmosphere everywhere along a path. Averaged over the globe, an "instantaneous" doubling of CO2 reduces the rate of radiative cooling to space by 3.6 W/m2. The law of conservation of energy would then demand that our planet warm until it emits an additional 3.6 W/m2 and balance is restored between incoming and outgoing radiation. More sophisticated estimates that take into account how radiative forcing will change the atmosphere and therefore estimates of forcing don't change this big picture.
When I personally plotted the IPCC estimates of forcing (except from volcanos) vs temperature, I got an shockingly linear relationship with minor deviations colder following volcanic eruptions and major La Ninas, and upward during major El Nino's. The slope of that plot is TCR: 0.4 degC per W/m2 or 1.4 degC/doubling. To get equilibrium warming, you need to correct for current heat uptake by the ocean being monitored by Argo. (Yes, there appears to have been some minor unforced warming in the 1930s to 1945, but it was only 0.3 degC at most). Most of the forcing and temperature change takes place after 1970 when our data is more reliable. When I shared my plot with Nic Lewis, he pointed to similar plots in his climate sensitivity work that used 15-year averages of temperature and forcing.
(The reason I omitted volcanic eruptions is that it is easy to calculate that the heat capacity of the mixed layer of the ocean and atmosphere is too big for GMST to reach a new steady state in a single year after a large forcing change. Since volcanic forcing goes away in about three years, omitting it doesn't change anything.)
CO2 has been rising 20-25 ppm per decade since 1970 and temperature 0.2 degC/decade. Cooling aerosols peaked in the early 2000s and have been falling since, adding to the expected warming from rising GHG's. Crudely extrapolating, without significant decarbonization, at best, in another five decades, probably only four, it will be another 1 degC warmer.
Frank, I think you need to read Schwarzschild's paper before you make such a bold assertion. And Wikipedia is not a reliable source about what he wrote. Markus Ott and I have translated it for you in case you don't read German:
"Due to a math error, they crossed out that 0.05 C change in global temperature, but before correcting, they characterized an effect of that magnitude as “mere” and thus unworthy of regulation."
Could it be that the 0.05 C was a "mere" typo and not a miscalculation, and that they did not intend to characterize it as a "mere 0.05 C"?
Roger, thank you for this very interesting explanation of what's going on. I wanted to ask what I hope is not a dumb question about the water vapor business.
Attorneys have told me that as a rule major legislation includes "escape hatch" language that lets judges, politicians, administrators, etc., exercise judgment if following the law literally and exactly gets them into ridiculous positions. In Mass vs EPA, as you note, EPA must take action on greenhouse gases--water vapor clearly being one--unless "it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do." Wouldn't "reasonable explanation" be the escape hatch here? Lawyers have told me that in environmental cases, especially WOTUS/CWA cases, judges have agreed that "doing this would be insanely expensive" can count as a reason for not following the dictates of this or that law.
It's surprising to me that EPA hasn't invoked this for water vapor. But could it simply argue that "way too expensive" is a reason it can't regulate water vapor and get out of this problem?
Dear Mr. Mann, I liked your books "1491", "1493" and "The Wizard and the Prophet". I learned a lot from them and found them very useful. I keep hoping you will favor us with another soon.
That's very kind of you. I have a book coming out in the spring of next year--the long delay between the Wizard and Prophet and this project was, in part, due to the pandemic.
At the moment, my publishers want to call it "True West." I'm worried, because it's the name of a famous Sam Shepard play. They like it for the same reason. In any case, it's a history of western North America from the beginning, >20K years ago, to the near future.
This gets us to the major questions doctrine. Of course EPA is now making a similar argument wrt to CO2.
It is perfectly understandable that the SC could not foresee the implications of Mass v EPA for regulation.
What that should have led to is a more accurate (honest?) approach by EPA in 2009. It could have included water vapor and then dealt with the implications in the CBA stage.
It sounds like you're saying this is largely a problem of their own making.
This is one of many issues that ultimately have their origin in our dysfunctional legislature. Congress has refused to act on a raft of urgent issues--modernizing our 50-year-old, Nixon-era environmental laws is a prominent example. But people nonetheless need solutions to contemporary problems, so you end up with government by executive order, judicial decisions, and administrative fiat, all of which are removed from the democratic process.
So, basically the climate alarmists in the Biden administration purposely omitted water vapor because they knew what actual alarm it would engender... and thereby scuttle their future use of alarmism to bring about the green nirvana they hope to achieve whatever the costs to the economy and the lifestyles of ordinary people. Am I missing something?
Water vapor increases with rising temperatures as hotter air can hold more water. That is a natural process and a positive feedback loop. The IPCC (2007) stated that direct anthropogenic water vapor accounts for less than 1% of observed tropospheric temperature increases. If that is the case, then the de minimis argument is valid. Is your number larger?
Water vapor released directly by human activities has a negligible impact on global climate, compared with greenhouse gases like CO₂. Water vapor is primarily a feedback, not a driver, of long-term climate change.
The 'de minimis' argument for water vapor released by human activities is valid at a GLOBAL scale therefore.
That is completely different from what the EPA is doing. Looking at individual regulations to say that has negligible impact at global level.
The US has the highest historic emissions, one of the highest per capita GHG emissions.
If I were an American I would be embarassed by what the EPA is doing and arguing.
As an American, I am supportive and proud of what the EPA is doing. It's pretty clear that the original endangerment finding was a political maneuver by American left wing bureaucrats driven by Climate Change hysteria. Until Congress legislates we are going to have to deal with it politically it seems.
As far as Europe is concerned (I assume by your name and your comment that you are European) I feel sorry for you because your economy as well as your entire society will be in perpetual decline unless you get your act together. I hope you heard Marco Rubio's talk at the MSC last week.
I don't know what a "carbon management consultant" does but I would imagine that they would advocate for the very energy policies that are ruining Europe.
Seriously, y'all need to listen to Marco's speech at the MSC and take heed before it's too late.
The effects of a pollutant do not have to be at the global level to justify regulation. In fact, the CAA was designed to focus on local and regional effects of pollution. So the case for regulating water vapor is lock solid.
I agree that effects of pollutants do not have to be at global level; indeed, it is often the opposite.
However, you are arguing that it is inconsistent that EPA did not include water vapor as a GREENHOUSE GAS in the endangerment finding.
The IPCC and many others use the term greenhouse gases only for long-lived, anthropogenic gases that act as global climate forcings. Water vapor (as emissions) does not fall in that category.
Water vapor is a greenhouse gas. The relevant legal question is not whether anthropogenic emissions influence global radiative forcing (let’s just postulate NO) but whether the emissions “may reasonably be anticipated to endanger health or welfare.”
There is no legal requirement that the effects have to involve climate change or that H2O behave like other pollutants.
Isn't that overly simplistic? Doesn't a mechanism/process need to be identified by which the emissions "may reasonably be anticipated to endanger health or welfare"? If you postulate that the emissions don't influence global radiative forcing then why regulate?
IMHO, attempts to simplify this to black and white issues is a waste of time. It's complicated, it's inherently political and past history is ugly filled with ruined careers and vendettas.
At the end of the day, it probably doesn't matter much. Until we get a functional legislative process in place, whoever is President will do whatever he/she wants to do anyway.
Most everything regulated under the CAA (well, now everything) has no effect on global radiative forcing but on local and regional air quality. So if H2O emissions have local and regional consequences it’d just be the CAA as normal. There is nothing in law that requires any pollutant to have global effects to be regulate-able. Does that make sense?
Makes sense. As you said earlier, if the EPA had been more honest back in 2009 a lot of this confusion could have been avoided and a lot of wasteful regulation prevented. But they weren't interested in honesty, they were on a mission.
I sincerely hope that the current EPA undertaking strikes a more even balance and is more rigorous in addressing the key issues. With Zeldin and Wright leading the effort I would expect no less. Am I being naive?
I think that water vapor plays a crucial role in human-induced climate change, as described by the IPCC. In laboratory experiments, doubling the CO2 concentration in the (artificial) atmosphere from 280 ppm to 560 ppm results in a temperature increase of around 1 degree Celsius. However, according to AR6, the ECS value is between 1.5° and 4.5° C. This is due to the water vapor feedback loop. I didn't find this topic, although it's fundamental, in AR6, but I did find it in AR4 WG1 Chapter. 8.6.2.3 , page 632: "In the idealized situation that the climate response to a doubling of atmospheric CO2 consisted of a uniform temperature change only, with no feedbacks operating
(but allowing for the enhanced radiative cooling resulting from the temperature increase), the global warming from GCMs would be around 1.2°C (Hansen et al., 1984; Bony et al., 2006).
The water vapor feedback, operating alone on top of this, would at least double the response.6 The water vapor feedback is, however, closely related to the lapse rate feedback (see above), and the two combined result in a feedback parameter of approximately 1 W m–2 °C–1, corresponding to an amplification of the basic temperature response by approximately 50%."
In short: without water vapor enhancement, only a slight global warming with a doubling of the CO2 content of the atmosphere.
The positive feedback water vapor loop proposed to get around the limited impact of CO2 is more like post hoc arm waving and reliance on a perpetual motion mechanism.
"The omission of water vapor in the basket of regulated greenhouse gases is the weakest part of the 2009 Endangerment Finding, as it is totally inconsistent with EPA’s arguments about the inclusion of the other six gases."
But it would be totally consistent with wanting to have your cake and eat it, too. Hoisted on their own petard.
You seem to imply Mass vs EPA is set somehow in stone until Congress acts. But that was said about ROE vs Wade until Dobbs came along. The SC has the responsibility to act to overturn previous errors by the court.
The argument about water vapor is a red herring, obfuscating the real issue. Was Mass vs EPA an overreach of the CAA? And was the information provided to the court in error, whether based on information at the time or subsequent information. That’s what the SC will decide.
Not at all.
Here is what I wrote:
“It is of course conceivable that the Court might (a) decide that EPA was wrong procedurally to assume responsibility for judicial review of the CAA, but (b) substantively, the Court concurs with its de novo interpretation of the law in 2026, and thus overturns the 2008 Massachusetts vs. EPA ruling …”
While water vapor perturbs climate on a local scale, the concentration of water vapor can not be regulated. The average water vapor molecule remains in the atmosphere for only 9 days before returning to the surface as precipitation (only 5 days in the tropics). Water vapor concentrations are changed by changing temperature orders of magnitude faster than water vapor can change temperature/climate by acting as a GHG. That is why climate science treats water vapor as a feedback (something changed by temperature) rather than as a forcing (something that changes heat flows to and from space).
The atmosphere is effectively mixed even though water vapor is not homogeneously distributed. Trade winds bring in new air from about 1000 miles upwind every day. Weather systems cross the US roughly every 3.5 days in winter. The vertical transport of water vapor is what causes condensation and water to return to the surface in an average of 9 days. 70% of the surface is covered with liquid water, that replenishes water vapor at a rate that depends on the undersaturation of water vapor in the air and wind speed.
The idea that we can regulate water vapor in the air seems absurd.
In EPA v Massachusetts, the majority ruled that GHGs fit the CAA's definition of a [regulatable] air pollutant. The four dissenters admitted that the majorities reading of the definition of an air pollutant was reasonable, but favored a different reading that stress that an air pollutant must first pollute to be an air pollutant. Does the concept"pollute" (make impure or unclean) help us distinguish between CO a traditional pollutant and CO2? Both gases cause harm, which is what makes them air pollutants. CO by poisoning and CO2 by causing warming and inevitably meters of sea level rise*. Yes, CO2 is plant food, but we don't need 500 ppm of CO2 for that purpose.
Everyone seems to have forgotten the doctrine of stare decisis: Once decided, a legal precent like EPA v Massachusetts should not be overturned without considering special factors: 1) Was the original decision clearly wrong? No, even the dissenters admitting that the majority's reading was plausible. 2) Practical Consequences: Roger believes decarbonizing our economy is essential and abandoning the endangerment finding eliminates the justification for decarbonizing. 3) Reliance Interests: How much do people rely on the existing rule?
Rather than overturning the endangerment finding, the Supreme Court could find that Congress has delegated too much authority to the EPA, given all of the complications not anticipated by the CCA associated with regulating GHGs. Congress passed additional legislation to guide EPA regulation of Ozone Destroying Substances. Instead, this administration wants to DENY there is ANY scientific justification for regulating GHGs and decarbonizing our economy (something Roger appears to favor).
* At the end of the last ice age, sea level rose 120 m in response to 6 degC or warming: 20 m/degC. As ice retreats poleward, there is less ice on land to melt. The Greenland ice sheet has significantly melted during other interglacials producing something likes level about 7 m higher than today.) If 1 degC of GHG mediated warming in the past half-century hasn't already doomed the GIS and a good chunk of Florida - which it probably has since other interglacials have been warmer than today - then the next degC of GHG mediated warming almost certainly will.
EPA’s own take on the legality of its action: https://www.epa.gov/newsreleases/president-trump-and-administrator-zeldin-deliver-single-largest-deregulatory-action-us
I am glad you mentioned Mass vs. EPA ruling. You may recall that was circa 2007. At that time the SCOTUS was probably still believing in The "Hockey Stick" rendering and "footprint" of anthropogenic warming. In fact, Justice Stevens and other Justices were troubled as to whether Massachusetts had STANDING on the issue. They admitted that the prospect of an Ocean rise of three feet at Boston created the justification for the STANDING requirement for consideration. That three foot rise was pure fiction. Remember, Climategate didn't appear until late 2009, Robert W. Street
Outstanding, Roger.
Read while working on our next piece (on the EF rescission) and your contribution on this WV issue is a great addition.
What's good for the goose is good for the gander. If a GHG responsible for less of the greenhouse effect has to be regulated by the just fallen EF, then sure a GHG responsible for more of the greenhouse effect can't be de minimis.
Do not tempt us to form AFDA (Americans For Drier Armpits), a human health-related ENGO, on behalf of sweaty people solely for the purpose of forcing EPA to regulate water vapor under the recently departed EF in order to force Congress to act should the present EPA approach not succeed. (You have to admit, some good theater would result from watching scientists and politicians twist themselves into pretzels with the cognitive dissonance it would require to defend the absurd here....)
;)
p.s. in literary measures, .027 C is about half a mere.
I like Roger. He reminds me that humans are far better at panicking than at thinking clearly, and that the people most certain they’re saving the world are usually the ones you should watch most carefully.
and your wallet while they're talking....
Dr. Pielke, Sr. Is effectively vindicated. His all-of-science approach cost him dearly. This shows the great nothing behind those who harried him so cruelly. The CO2 obsessed cultists stand like the naked Emperor.
Consider the possibility that the long-term reward from the approach has gained him far more than the cost, which is not to be minimized and was severe.
(Some things a man does not measure in title, tenure or money. And when the world tilts in his direction after 20 years despite the abusers and critics, the rewards are counted in a form of currency that can't be deposited in a bank account, but is an estate that lives long after he's gone...... that's what you have here...)
It was my privilege to read Dr. Pielke's blog, although late in the process of the systematic attacks in him by the extremists. He wrote with clarity and demonstrated dignity. He looked at climate as a holistic system, not a one dimension scifi drama plot.
Thanks, fascinating discussion of the elements. But Mass v EPA was a 5-4 decision and clearly the stupidest Supreme Court decision since Dred Scott. As Scalia said in his dissent:
The Massachusetts's and the court's "reading of the statute defies common sense." See his footnote 2. This is an opinion by a non-lawyer, but Scalia is a lawyer, and a damn good one.
In his snarky footnote 2, Scalia wrote that:
"As the Court correctly points out, “all airborne compounds of whatever stripe,” ante, at 26, would qualify as “physical, chemical, . . . substance[s] or matter which [are] emitted into or otherwise ente[r] the ambient air,” 42 U. S. C. §7602(g). It follows that everything airborne, from Frisbees to flatulence, qualifies as an “air pollutant.” This reading of the statute defies common sense."
Most people would say that flatulence pollutes the air, making it impure or unclean (a definition of the verb "to pollute" cited by Scalia). Flatulence from livestock is a significant source of methane, the second most important GHG. "Frisbees" simply illustrates that Congress intended to write a capacious definition for "air pollutants" that included almost anything released into the air. However, IMO frisbees don't fit the CAA's definition of an air pollutant. More importantly, they wouldn't be subject to regulation unless the EPA has shown they can "reasonably be anticipated to ENDANGER PUBLIC HEALTH OR WELFARE". Any such showing about frisbees by the EPA could be challenged during public comment, in administrative courts, and then regular courts. Frisbees would never be regulated under the CCA for this reason. Scalia is fear mongering.
Scalia's main argument is that the court was required under Chevron deference to accept the Bush EPA's circular definition of what constituted an air pollutant. Courts are no longer bound by Chevron deference. The Bush EPA had argued that an air pollutant had to be first be "air pollution agent" and then meet other the law's other capacious requirement to be subject to regulation as an air pollutant. Scalia wrote that pollution is best understood from the verb pollute - to render impure or unclean. That definition doesn't help us reach the conclusion that CO is an "air pollutant agent" and CO2 is not.
Scalia wrote about the majority's opinion:
"Since greenhouse gases come within the [CCA's] capacious phrase “any physical, chemical, … substance or matter which is emitted into or otherwise enters the ambient air,” they must also be “air pollution agent[s] or combination[s] of such agents,” and therefore meet the definition of “air pollutant[s].” THAT IS CERTAINLY ON POSSIBLE INTERPRETATION OF THE STATUTORY DEFINITION. The word “including” can indeed indicate that what follows will be an “illustrative” sampling of the general category that precedes the word" ... Often, however, the examples standing alone are broader than the general category, and must be viewed as limited in light of that category...
Scalia then goes on to discuss the EPA's circular definition of an "air pollutant" being "air pollution agent", a definition that doesn't IMO distinguish between CO and CO2 and no longer needs to be deferred to by the courts. So we are left with one definition of an "air pollutant" that even Scalia thought was plausible, a plausible definition enshrined in law by the principle of stare decisis.
IMO, it would make far more sense to argue that the CCA doesn't tell the EPA how to regulate GHGs given their unique problems as global pollutants falling mostly outside the control of the EPA, their central role in our prosperity, and causing most of their harm to [likely more affluent] future generations and regulatory costs today. (This requires the use of a discount rate when doing a cost-benefit analysis such as the Social Cost of Carbon). Should the goal be to do America's fair share in keep warming below 2.0 degC of warming or a more plausible RCP 4.5 pathway (below about 3.0 degC). Relying on the CAA alone to regulate GHGs delegates too much legislative authority to the EPA and is unconstitutional under the non-delegation doctrine. This is precisely why Congress amended the CAA to include ozone-destroying substances, air pollutants unanticipated by the CAA.
Very interesting analysis. However, I prefer to consider CO2, water vapor, and methane as perfectly harmless substances that are required for life to exist on Earth. Thus, if we designated any of them as pollutants, we are being foolish in the extreme. I read Scalia's arguments from that point of view, and I think that was his intent.
Having read your posts at Climate etc., I'm fairly sure you understand that GHGs produce warming by slowing radiative cooling to space and have been responsible for significant changes in climate in the past. In particular, CO2 and other GHGs released by enormous volcanic eruptions (flood basalt events like the one that produced the Siberian traps) have been linked to mass extinction events (such as the one at the Permian-Triassic boundary.) The PETM Thermal Maximum is associated with large reduction in the C13/C12 isotope ratio and was likely was also caused by a large release of CO2. The 6 degC of warming accompanying the end of the last ice age produced 120 m of sea level rise over 10 millennia. The GIS (and much of Florida) are likely doomed, but that will likely take a millennium or so. IIRC, moving from North Dakota to Oklahoma is a 5 degC increase in mean temperature and about what one might expect from a 3 degC increase in GMST.
Justice Scalia is a great man, because he made the original meaning of the legal text itself the primary consideration when interpreting laws (not the assumed intent of the lawmakers or external factors). As Justice Kagan noted, we (all current justices) are all originalists now. We are fortunate to live in the "Age of Scalia". However, that means Scalia likely didn't believe it was his job to decide whether "CO2, water vapor and methane are perfectly harmless substances that are required for life to exist on Earth". His job was to determine whether these substances fit the definition of regulatable air pollutants in the CAA as written. If they did, he likely claimed no expertise in determining when they pose a danger to human health and welfare. You and I probably know more about that subject than he did.
GHGs can produce some warming, at least in theory, but such an effect has not been measured. The evidence is all in projections using models that have yet to be validated. Also, the resulting warming has certainly not been shown to be dangerous, as I've written.
So far, all the effects of recent warming and additional CO2 have been within natural variability and neutral or beneficial to humans according to multiple sources, including AR6. As for the PETM, I think you have it wrong, see this post I wrote some years ago:
https://andymaypetrophysicist.com/2021/08/18/the-paleocene-eocene-thermal-maximum-or-petm/
Andy: I don't need dubious climate models to prove that rising GHGs are certain to cause significant warming in the future. The physics of calculating radiative heat fluxes traveling through an atmosphere adsorbing and emitting gas molecules is given by Schwarzschild's Equation for Radiative Transfer. (See the article in Wikipedia.) Schwarzschild's name is often skipped and climate scientists simply vaguely refer to "radiative transfer calculations". It is a differential equation that must be numerically integrated along a path, say from the surface to space. An online calculator (MODTRAN) will let you perform simplified radiative transfer calculations. The predictions of this equation have been validated by numerous experiments, including looking at the spectrum and intensity of LWR upwelling through the atmosphere from the dark side of the Earth to a spacecraft. To use the equation, you need to know the temperature, pressure and composition of the atmosphere everywhere along a path. Averaged over the globe, an "instantaneous" doubling of CO2 reduces the rate of radiative cooling to space by 3.6 W/m2. The law of conservation of energy would then demand that our planet warm until it emits an additional 3.6 W/m2 and balance is restored between incoming and outgoing radiation. More sophisticated estimates that take into account how radiative forcing will change the atmosphere and therefore estimates of forcing don't change this big picture.
When I personally plotted the IPCC estimates of forcing (except from volcanos) vs temperature, I got an shockingly linear relationship with minor deviations colder following volcanic eruptions and major La Ninas, and upward during major El Nino's. The slope of that plot is TCR: 0.4 degC per W/m2 or 1.4 degC/doubling. To get equilibrium warming, you need to correct for current heat uptake by the ocean being monitored by Argo. (Yes, there appears to have been some minor unforced warming in the 1930s to 1945, but it was only 0.3 degC at most). Most of the forcing and temperature change takes place after 1970 when our data is more reliable. When I shared my plot with Nic Lewis, he pointed to similar plots in his climate sensitivity work that used 15-year averages of temperature and forcing.
(The reason I omitted volcanic eruptions is that it is easy to calculate that the heat capacity of the mixed layer of the ocean and atmosphere is too big for GMST to reach a new steady state in a single year after a large forcing change. Since volcanic forcing goes away in about three years, omitting it doesn't change anything.)
CO2 has been rising 20-25 ppm per decade since 1970 and temperature 0.2 degC/decade. Cooling aerosols peaked in the early 2000s and have been falling since, adding to the expected warming from rising GHG's. Crudely extrapolating, without significant decarbonization, at best, in another five decades, probably only four, it will be another 1 degC warmer.
Frank, I think you need to read Schwarzschild's paper before you make such a bold assertion. And Wikipedia is not a reliable source about what he wrote. Markus Ott and I have translated it for you in case you don't read German:
https://andymaypetrophysicist.com/2025/02/15/schwarzschild-about-the-equilibrium-of-the-solar-atmosphere/
"Due to a math error, they crossed out that 0.05 C change in global temperature, but before correcting, they characterized an effect of that magnitude as “mere” and thus unworthy of regulation."
Could it be that the 0.05 C was a "mere" typo and not a miscalculation, and that they did not intend to characterize it as a "mere 0.05 C"?
No
They explain this in the correction to the post
Roger, thank you for this very interesting explanation of what's going on. I wanted to ask what I hope is not a dumb question about the water vapor business.
Attorneys have told me that as a rule major legislation includes "escape hatch" language that lets judges, politicians, administrators, etc., exercise judgment if following the law literally and exactly gets them into ridiculous positions. In Mass vs EPA, as you note, EPA must take action on greenhouse gases--water vapor clearly being one--unless "it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do." Wouldn't "reasonable explanation" be the escape hatch here? Lawyers have told me that in environmental cases, especially WOTUS/CWA cases, judges have agreed that "doing this would be insanely expensive" can count as a reason for not following the dictates of this or that law.
It's surprising to me that EPA hasn't invoked this for water vapor. But could it simply argue that "way too expensive" is a reason it can't regulate water vapor and get out of this problem?
Thanks again for going into this, CCM
Dear Mr. Mann, I liked your books "1491", "1493" and "The Wizard and the Prophet". I learned a lot from them and found them very useful. I keep hoping you will favor us with another soon.
That's very kind of you. I have a book coming out in the spring of next year--the long delay between the Wizard and Prophet and this project was, in part, due to the pandemic.
Awesome! Do you have a title?
At the moment, my publishers want to call it "True West." I'm worried, because it's the name of a famous Sam Shepard play. They like it for the same reason. In any case, it's a history of western North America from the beginning, >20K years ago, to the near future.
After that is a somewhat expanded version of my "How the System Works" series.
As a total aside, you received a very nice shout out for 1491 in the recent The Rest is History podcast the other day. Well deserved
This gets us to the major questions doctrine. Of course EPA is now making a similar argument wrt to CO2.
It is perfectly understandable that the SC could not foresee the implications of Mass v EPA for regulation.
What that should have led to is a more accurate (honest?) approach by EPA in 2009. It could have included water vapor and then dealt with the implications in the CBA stage.
It sounds like you're saying this is largely a problem of their own making.
This is one of many issues that ultimately have their origin in our dysfunctional legislature. Congress has refused to act on a raft of urgent issues--modernizing our 50-year-old, Nixon-era environmental laws is a prominent example. But people nonetheless need solutions to contemporary problems, so you end up with government by executive order, judicial decisions, and administrative fiat, all of which are removed from the democratic process.
Well said
So, basically the climate alarmists in the Biden administration purposely omitted water vapor because they knew what actual alarm it would engender... and thereby scuttle their future use of alarmism to bring about the green nirvana they hope to achieve whatever the costs to the economy and the lifestyles of ordinary people. Am I missing something?
Bingo!!!
Water vapor increases with rising temperatures as hotter air can hold more water. That is a natural process and a positive feedback loop. The IPCC (2007) stated that direct anthropogenic water vapor accounts for less than 1% of observed tropospheric temperature increases. If that is the case, then the de minimis argument is valid. Is your number larger?
Water vapor released directly by human activities has a negligible impact on global climate, compared with greenhouse gases like CO₂. Water vapor is primarily a feedback, not a driver, of long-term climate change.
The 'de minimis' argument for water vapor released by human activities is valid at a GLOBAL scale therefore.
That is completely different from what the EPA is doing. Looking at individual regulations to say that has negligible impact at global level.
The US has the highest historic emissions, one of the highest per capita GHG emissions.
If I were an American I would be embarassed by what the EPA is doing and arguing.
With all due respect:
As an American, I am supportive and proud of what the EPA is doing. It's pretty clear that the original endangerment finding was a political maneuver by American left wing bureaucrats driven by Climate Change hysteria. Until Congress legislates we are going to have to deal with it politically it seems.
As far as Europe is concerned (I assume by your name and your comment that you are European) I feel sorry for you because your economy as well as your entire society will be in perpetual decline unless you get your act together. I hope you heard Marco Rubio's talk at the MSC last week.
Don't feel sorry for us. On many indicators that matter most for quality of life we are doing significantly better than the US.
To name a few: life expectancy, infant mortality, people in prison, homicides, poverty rate, public debt, teenage pregnancies, etc, etc.
Save your empathy for the less well off in your own country. They need it.
With all due respect of course.
I don't know what a "carbon management consultant" does but I would imagine that they would advocate for the very energy policies that are ruining Europe.
Seriously, y'all need to listen to Marco's speech at the MSC and take heed before it's too late.
The effects of a pollutant do not have to be at the global level to justify regulation. In fact, the CAA was designed to focus on local and regional effects of pollution. So the case for regulating water vapor is lock solid.
I agree that effects of pollutants do not have to be at global level; indeed, it is often the opposite.
However, you are arguing that it is inconsistent that EPA did not include water vapor as a GREENHOUSE GAS in the endangerment finding.
The IPCC and many others use the term greenhouse gases only for long-lived, anthropogenic gases that act as global climate forcings. Water vapor (as emissions) does not fall in that category.
Water vapor is a greenhouse gas. The relevant legal question is not whether anthropogenic emissions influence global radiative forcing (let’s just postulate NO) but whether the emissions “may reasonably be anticipated to endanger health or welfare.”
There is no legal requirement that the effects have to involve climate change or that H2O behave like other pollutants.
Isn't that overly simplistic? Doesn't a mechanism/process need to be identified by which the emissions "may reasonably be anticipated to endanger health or welfare"? If you postulate that the emissions don't influence global radiative forcing then why regulate?
IMHO, attempts to simplify this to black and white issues is a waste of time. It's complicated, it's inherently political and past history is ugly filled with ruined careers and vendettas.
At the end of the day, it probably doesn't matter much. Until we get a functional legislative process in place, whoever is President will do whatever he/she wants to do anyway.
Most everything regulated under the CAA (well, now everything) has no effect on global radiative forcing but on local and regional air quality. So if H2O emissions have local and regional consequences it’d just be the CAA as normal. There is nothing in law that requires any pollutant to have global effects to be regulate-able. Does that make sense?
Makes sense. As you said earlier, if the EPA had been more honest back in 2009 a lot of this confusion could have been avoided and a lot of wasteful regulation prevented. But they weren't interested in honesty, they were on a mission.
I sincerely hope that the current EPA undertaking strikes a more even balance and is more rigorous in addressing the key issues. With Zeldin and Wright leading the effort I would expect no less. Am I being naive?
I think that water vapor plays a crucial role in human-induced climate change, as described by the IPCC. In laboratory experiments, doubling the CO2 concentration in the (artificial) atmosphere from 280 ppm to 560 ppm results in a temperature increase of around 1 degree Celsius. However, according to AR6, the ECS value is between 1.5° and 4.5° C. This is due to the water vapor feedback loop. I didn't find this topic, although it's fundamental, in AR6, but I did find it in AR4 WG1 Chapter. 8.6.2.3 , page 632: "In the idealized situation that the climate response to a doubling of atmospheric CO2 consisted of a uniform temperature change only, with no feedbacks operating
(but allowing for the enhanced radiative cooling resulting from the temperature increase), the global warming from GCMs would be around 1.2°C (Hansen et al., 1984; Bony et al., 2006).
The water vapor feedback, operating alone on top of this, would at least double the response.6 The water vapor feedback is, however, closely related to the lapse rate feedback (see above), and the two combined result in a feedback parameter of approximately 1 W m–2 °C–1, corresponding to an amplification of the basic temperature response by approximately 50%."
In short: without water vapor enhancement, only a slight global warming with a doubling of the CO2 content of the atmosphere.
The positive feedback water vapor loop proposed to get around the limited impact of CO2 is more like post hoc arm waving and reliance on a perpetual motion mechanism.
"The omission of water vapor in the basket of regulated greenhouse gases is the weakest part of the 2009 Endangerment Finding, as it is totally inconsistent with EPA’s arguments about the inclusion of the other six gases."
But it would be totally consistent with wanting to have your cake and eat it, too. Hoisted on their own petard.