Last month the above brief was put on record in a case challenging the legality of the Biden Executive Order requiring the entire federal government to reduce carbon dioxide (CO2) emissions.  Excerpts of text in italics with my bolds.  H/T  WUWT Weekly Climate and Energy New Roundup

Brief of Amicus Curiae Dr. William Happer, Dr. Richard S. Lindzen, and the CO2 Coalition in Support of the Plaintiff-Appellee States.

As career physicists, it is our opinion for the scientific reasons detailed below, the District Court’s preliminary injunction should be reinstated because the SCC TSD Rule1 and Executive Order 13990 section 5 are scientifically invalid, and will be disastrous for the poor, people worldwide, future generations and the United States.

I.  Reliable scientific theories come from validating theoretical predictions with observations, not from consensus, government opinion, peer review or manipulated data.

II. The Social Cost of Carbon Rule and Executive Order 13990 are scientifically invalid and disastrous for people worldwide and the United States, and thus the preliminary injunction against them should be reinstated.

A. The SCC TSD Rule and Executive Order 13990 are Scientifically Invalid for Omitting the Enormous Social Benefits of CO2

Executive Order 13990 section 5 dictates that only the social costs of CO2 and GHGs be considered, stating “it is essential that agencies capture the full cost of [CO2 and other] greenhouse gas emissions,” and “accurately determine the social benefits of reducing [CO2 and other] greenhouse gas emissions,” violating basic scientific method by excluding the enormous social benefits of CO2 and greenhouse gases (GHGs).

The IWG estimated the social cost of carbon by combining three models, DICE, PAGE and FUND, together called Integrated Assessment Models (IAMS). However, two of the three models, DICE and PAGE, only computed the social costs of CO2 and excluded data on the enormous social benefits of CO2 (detailed in Part III below).2

This is an example of violating scientific method by omitting unfavorable data. It is like promoting the theory the world is flat by only considering observations as far as the eye can see, excluding all the evidence the world is round.

For this reason alone, the SCC TSD Rule and Executive Order 13990 section 5 mandating that the social benefits of GHGs not be considered violate scientific method and the preliminary injunction against both should be reinstated.

B. The SCC TSD Rule is Scientifically Invalid for Relying on Consensus and Peer Review

The SCC TSD Rule expressly explained it relied on peer review and consensus, not scientific method, to determine its estimates:

“In developing the SC-GHG estimates in 2010, 2013, and 2016 the IWG used consensus-based decision making, relied on peer-reviewed literature and models …. Going forward the IWG commits to maintaining a consensus driven process for making evidence-based decisions that are guided by the best available science and input from the public, stakeholders, and peer reviewers.” Id. P. 36 (emphasis added).

As explained, peer review and consensus do not determine scientific knowledge, scientific method does.

Accordingly, for this reason alone, the SCC TSD Rule is scientifically invalid and the preliminary injunction should be reinstated.

C. The SCC TSD Rule is Scientifically Invalid Because the IPCC CMIP and Other Models Fail to Reliably Predict Temperatures and Thus Should Be Scientifically Rejected

The IWG estimated the SCC as noted, using three climate models abbreviated DICE, PAGE and FUND combined with an economic model, together called Integrated Assessment Models (IAMs). The key variable in the climate model is called the Equilibrium Climate Sensitivity (ECS). The SCC TSD Rule explained the ECS numbers used in the IAM model calculations were based on models used in the IPCC’s Fourth Assessment Synthesis Report in 2007 (IPCC AR4), which were “confirm[ed] and strengthen[ed]” by recent assessments by the IPCC, US Global Change Research Program (USGCRP) and the National Academies.

IPCC AR4, in turn, to compute the ECS, used what is called the Coupled Model Inter Comparison Project Phase 4 (CMIP4). Since models are a type of scientific theory, their scientific validity is determined by comparing their predictions with observations to see if they work. If they don’t “work,” they are “wrong” and invalid as science.

The CMIP models don’t “work” and are thus invalid as science, demonstrated next.

IPCC CMIP Models. The Intergovernmental Panel on Climate Change (“IPCC”), the dominant source of models, explained that its “Assessments of climate risks … [are] based on climate model simulations [predictions] that are part of the fifth and sixth Coupled Model Intercomparison Project phase (CMIP5, CMIP6).” IPCC. Climate Change 2022: Impacts, Adaptation and Vulnerability, Summary For Policymakers (2022), p. SPM-6.

CMIP5.

John Christy, PhD, Professor of Atmospheric Science at the University of Alabama, applied the scientific method to CMIP5 102 predictions of temperatures 1979-2016 by models from 32 institutions. He explained he used “the traditional scientific method in which a claim (hypothesis) is made and is tested against independent information to see if the claim can be sustained,” and produced the following chart:3

At the bottom, the blue, purple and green lines show the actual reality temperature observations against which the models’ predictions were tested. The dotted lines are 102 temperature “simulations” (predictions) made by the models from 32 institutions for the period 1979-2016. The red line is the consensus of the models, their average. The graph clearly shows that 101 of the 102 predictions by the models (dotted lines) and their consensus average (red line) fail miserably to predict reality.4

Focusing on the consensus red line, he concluded:

“When the ‘scientific method’ is applied to the output from climate models of the IPCC AR5, specifically the bulk atmospheric temperature trends since 1979 (a key variable with a strong and obvious theoretical response to increasing GHGs in this period), I demonstrate that the consensus of the models [red line] fails the test to match the real-world observations by a significant margin. As such, the average of the models is considered to be untruthful in representing the recent decades of climate variation and change, and thus would be inappropriate for use in predicting future changes in the climate or related policy decisions.” Id., p. 13.

Thus, the models that produced the 101 predictions fail the Feynman test. They do not “work,” therefore they are “wrong.” Scientifically, they all should be abandoned. Rejecting science, the IPCC governments keep using CMIP models, including CMIP6 even though it is no better.

[Note 4: The one model that closely predicted the temperatures actually observed is a Russian model and is the only model that should be used in science. However, the IPCC did not use it but used the models that it should have rejected]

CMIP6.

Steven Koonin, Ph.D., a Cal-Tech physicist, professor at New York University and author of Unsettled (2021), concluded:

“One stunning problem is that … the later generation of [CMIP] models are actually more uncertain than the earlier one[s].” “The CMIP6 models that inform the IPCC’s upcoming AR6 [Climate Change reports] don’t perform any better than those of CMIP5.” Id. pp. 87, 90.

He elaborated CMIP6’s failure using the scientific method in detail:

“An analysis of 267 simulations run by 29 different CMIP6 models created by 19 modeling groups around the world shows that they do a very poor job [1] describing warming since 1950 and … [2] underestimate the rate of warming in the early twentieth century.” Id. p. 90 (emphasis added).  “Comparisons among the [29] models [show] … model results differed dramatically both from each other and from observations … [and] disagree wildly with each other.” Id. p. 90.

Thus, the IPCC CMIP models used by SCC TSD Rule fail the fundamental test of scientific method, they do not work. Accordingly, for this reason alone, the SCC TSD Rule is scientifically invalid and the preliminary injunction should be reinstated.

D. The SCC TSD Rule is Scientifically Invalid for Relying On IPCC Government Dictated Opinions

The SCC TSD Rule also explained that key numbers it used in its estimates were based in part, as noted, on the  IPCC’s Fourth Assessment Synthesis Report in 2007 (IPCC AR4) and that four “recent scientific assessments by the IPCC.” Id. p. 32.

However, unknown to most, two IPCC rules require that IPCC governments control what is published in its Summaries for Policymakers (“SPMs”), which in turn controls what is published in IPCC full reports.  This is not how scientific knowledge is determined. In science, as the Lysenko experience chillingly underscores, and Richard Feynman, as noted,

“No government has the right to decide on the truth of scientific principles.”

The two IPCC rules dictating IPCC governments’ control of what is written in the SPMs and IPCC reports, line by line, are:

IPCC SPM Rule No.1: All Summaries for Policymakers (SPMs) Are Approved Line by Line by Member Governments

“IPCC Fact Sheet: How does the IPCC approve reports? ‘Approval’ is the process used for IPCC Summaries for Policymakers (SPMs). Approval signifies that the material has been subject to detailed, line-by-line discussion, leading to agreement among the participating IPCC member countries, in consultation with the scientists responsible for drafting the report.”6

Since governments control the SPMs, the SPMs are merely government opinions and therefore, have no value as scientific evidence.

What about the thousands of pages in the IPCC reports? A second IPCC rule requires that everything in an IPCC published report must be consistent with what the governments agree to in the SPMs about CO2 and fossil fuels. Any drafts the independent scientists write are rewritten as necessary to be consistent with the SPM.

IPCC Reports Rule No. 2: Government SPMs Override Any Inconsistent Conclusions Scientists Write for IPCC Reports IPCC Fact Sheet:

“’Acceptance’ is the process used for the full underlying report in a Working Group Assessment Report or a Special Report after its SPM has been approved…. Changes …are limited to those necessary to ensure consistency with the Summary for Policymakers.” IPCC Fact Sheet, supra.

IPCC governments’ control of full reports using Rule No. 2 is poignantly demonstrated by the IPCC’s rewrite of the scientific conclusions reached by independent scientists in their draft of Chapter 8 of the IPCC report Climate Change 1995, The Science of Climate Change (“1995 Science Report”).

The draft by the independent scientists concluded: “No study to date has positively attributed all or part (of the climate warming observed) to (manmade) causes.” Frederick Seitz, “A Major Deception on Climate Warming,” Wall Street Journal (June 12, 1996).

However, the government written SPM proclaimed the exact opposite: “The balance of evidence suggests a discernible human influence on global climate.” 1995 Science Report SPM, p. 4.

What happened to the independent scientists’ draft? IPCC Rule No. 2 was applied, and their draft was rewritten to be consistent with the SPM in numerous ways:

Their draft language was deleted; the SPM’s opposite language was inserted in the published version of Chapter 8 in the 1995 Science Report, on page 439: “The body of statistical evidence in chapter 8 … now points towards a discernible human influence on global climate.”

Thus, IPCC SPM and findings used in the SCC TSD Rule have no value as scientific evidence because they are government dictated opinions, like Lysenko’s. For this reason alone, relying on IPCC government dictated publications contaminates the science in the SCC TSD Rule and renders it scientifically invalid, and therefore the preliminary injunction should be reinstated.

III.  There is overwhelming scientific evidence that fossil fuels and CO2 provide enormous social benefits for the poor, people worldwide, future generations and the United States, and therefore it would be disastrous to reduce or eliminate them.

The SCC TSD Rule, as noted, does not consider the enormous social benefits of CO2, GHGs and fossil fuels.

A. CO2 is Essential to Food, and Thus to Life on Earth.

Nearly all of the food we eat comes ultimately from photosynthesis on the land or in the oceans. The oxygen we breathe was produced by photosynthesis over the geological history of the Earth. In the process of photosynthesis, energy from sunlight forces molecules of water, H2O, and molecules of carbon dioxide and CO2 to combine to make sugars and other organic molecules. A molecule of oxygen, O2, is released to the atmosphere for every molecule of CO2 converted to sugar.

All green plants grow faster with more atmospheric CO2, including the CO2 released by the combustion of fossil fuels, which is almost identical to the CO2 respired by human beings and other living creatures.

What happens with a doubling of CO2? Many experiments and studies confirm that when CO2 is doubled, agricultural yields are increased significantly, especially in arid regions where more CO2 increases the resistance of plants to droughts. Greenhouse operators routinely pay to double or triple the concentrations of CO2 over their plants. The improved yield and quality of fruits and flowers more than pay for the cost of more CO2, with only small and beneficial warming.

Thus we owe our existence to green plants that, through photosynthesis, convert CO2 and water, H2O, to carbohydrates with the aid of sunlight, and release oxygen. Land plants get the carbon they need from the CO2 in the air. Other essential nutrients — water, nitrogen, phosphorus, potassium, etc. — come from the soil. Just as plants grow better in fertilized, well-watered soils, they grow better in air with several times higher CO2 concentrations than present values. As far as green plants are concerned, CO2 is part of their daily bread—like water, sunlight, nitrogen, phosphorus, and other essential elements.

B. Greenhouse Gases Prevent Us from Freezing to Death

Greenhouse gases hinder the escape of thermal radiation to space. We should be grateful for them. Greenhouse gases keep the Earth’s surface temperature warm enough and moderate enough to sustain life on our verdant planet. Without them, we’d freeze to death.

To quote John Tyndall, the Anglo-Irish physicist who discovered greenhouse gases in the 1850s:

“Aqueous vapor is a blanket, more necessary to the vegetable life of England than clothing is to man. Remove for a single summer-night the aqueous vapor from the air which overspreads this country, and you would assuredly destroy every plant capable of being destroyed by a freezing temperature. The warmth of our fields and gardens would pour itself unrequited into space, and the sun would rise upon an island held fast in the iron grip of frost.” John Tyndall, Heat, a Mode of Motion pp. 359-360 (5th Ed. 1875).

Tyndall identified “aqueous vapor” (water vapor) as the most important greenhouse gas. Water vapor, and clouds which condense from it, are the dominant greenhouse agents of Earth’s atmosphere. Carbon dioxide, CO2, is also a greenhouse gas, and does cause a small amount of warming of our planet. But it is far less effective than water vapor and clouds as previously explained.

Without the greenhouse warming of CO2 and its more potent partners, water vapor and clouds, the earth would be too cold to sustain its current abundance of life. We would freeze.

C. Fossil Fuels have Enormous Social Benefits

Contrary to the incessant attack on fossil fuels, affordable, abundant fossil fuels have given ordinary people the sort of freedom, prosperity and health that were reserved for kings in ages past. The following chart of the GDP per person for the last 2,000 years powerfully illustrates what has happened:8

In the mid-1800s, CO2 levels that averaged over 1,000 ppm over 600 million years were at a very low level, about 280 ppm. The great news is that CO2 emissions from nature and fossil fuels resulted in CO2 levels rising from this low level to about 415 ppm today.

As a result, crop yields have increased by more than 15% over the past century. Better crop varieties, better use of fertilizer, better water management, etc., have all contributed. But the fact remains that a substantial part of the increase is due to the increase in CO2 from about 300 ppm in 1850 to about 415 ppm from fossil fuels.

Mathematically, the growth rate of plants is approximately proportional to the square root of the CO2 concentration. Thus, the increase in CO2 concentration from about 280 ppm (300 ppm rounded) to 415 ppm over the past century increased growth rates by a factor of about √(4/3) = 1.15, or 15%.

As to temperature, CO2 is a greenhouse gas and adding CO2 to the atmosphere by burning coal, oil, and natural gas as a matter of radiation physics can only modestly increase the surface temperature of the earth. Specifically, physics proves that doubling the CO2 concentration from our current 415 ppm to 830 ppm will directly cause about 1⁰ C in warming.

In summary, the social benefits for people and life all over the world are enormous: 

• since CO2 is a plant fertilizer, agricultural and forestry yields have risen substantially over the last hundred years. 
• economies have grown substantially, so that many people have prospered, and poverty has been reduced. 
• electricity has become more affordable and available to many more people worldwide. 
• and there has been a small but beneficial warming of the planet, about 2° Fahrenheit. This warming has been caused by a combination of natural causes and CO2 increasing from its low level in 1850 and other greenhouse gases.

Science Conclusion

Contrary to what is commonly reported, CO2 is essential to life on earth. Without CO2, there would be no photosynthesis, and thus no plant food and not enough oxygen to breathe. Moreover, without fossil fuels there will be no reliable, low-cost energy worldwide and less CO2 for photosynthesis making food. Eliminating fossil fuels and reducing CO2 emissions will be disastrous for the United States and the rest of the word, especially for lower-income people.

For the scientific reasons detailed above, in Amici’ opinion the District Court’s preliminary injunction should be reinstated because the SCC TSD Rule and Executive Order 13990 section 5 are based on multiple violations of scientific method and will be disastrous for the poor, people worldwide, future generations and the United States.

Footnote:

The brief goes on to describe how the Biden order assumes legislative authority which belongs to congress, thus is unconstitutional as well.

Pamela King reports for the Green Wire Massachusetts v. EPA: Where are we now?.  Excerpts in italics with my bolds.

Environmentalist David Bookbinder:  We’re in a really good position because we’ve defined a word (“air pollutant”), and courts are reluctant to redefine a word.”

In a scathing dissent yesterday, Justice Elena Kagan rebuked her conservative colleagues for chipping away at a key 2007 finding that is foundational to environmental law.

Kagan rebuked her conservative colleagues who formed the six-member majority in West Virginia v. EPA, which said that the federal government exceeded its authority with the 2015 Clean Power Plan, which set systemwide requirements aimed at shifting the power sector from coal to renewable generation.

To reach its conclusion, the majority, led by Chief Justice John Roberts, applied the major questions doctrine, which says Congress must speak clearly when allowing agencies to decide matters of “vast economic and political significance”.

Climate activists protesting outside the Supreme Court yesterday after the court announced its decision in West Virginia v. EPA. Francis Chung/E&E News/POLITICO

Kagan punctuated her introductory sentence with a citation: Massachusetts v. EPA.

West Virginia did not overturn Massachusetts, which in 2007 recognized greenhouse gases as “air pollutants” under the Clean Air Act and that states can sue EPA if it fails to regulate them.

Kagan cites or refers to Massachusetts five times in her dissent. Neither the majority nor a concurring opinion by Justice Neil Gorsuch mentions the case at all.

But West Virginia did take off the table one regulatory option for EPA — the power to determine under Section 111(d) of the Clean Air Act that the “best system of emission reduction” was for coal-fired plants to either reduce production or shift to renewable generation sources.

The Obama administration had taken that approach in the Clean Power Plan, which was put on hold by the Supreme Court in 2016 and never actually took effect. The Supreme Court’s ruling yesterday invalidated the regulation.

“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” Roberts wrote for the majority.

Lisa Heinzerling, a Georgetown University law professor who crafted the winning argument for states and environmentalists in Massachusetts, said she is “struck by how far we’ve come” since the 2007 case. “And I don’t mean that in a good way,” she added.

Heinzerling said that while she doesn’t expect the Supreme Court to overturn Massachusetts, the conservative wing seems willing to strip away meaningful avenues for EPA to regulate emissions from the power sector, the second-biggest contributor of U.S. greenhouse gases.

And the implications go far beyond EPA, she said.

“Any agency rule right now that takes on a new problem in a creative way has a bull’s-eye on it,” she said.

Paul Seby, a shareholder at the firm Greenberg Traurig who represented North Dakota in the West Virginia case, said the Peace Garden State and other challengers have “no bone to pick” with Massachusetts.

It is well-established that greenhouse gas emissions are air pollutants subject to regulation by EPA and the states, he said. The question in this case, he added, concerned states’ role under Clean Air Act Section 111(d) in making greenhouse gas regulatory decisions for existing sources within their borders.

EPA’s role, Seby said, is to issue guidelines for emissions control by the states and provide support and information about tools to achieve the Clean Air Act’s aims — not act as a national energy regulator.

“We accept the premise of Massachusetts v. EPA,” Seby said. “It’s just a question of who implements that in the provisions of the statute.”

‘Hard look’ at EPA

The Supreme Court has taken on other EPA climate cases in the years since Massachusetts.

In the 2011 case American Electric Power Co. v. Connecticut, the Supreme Court said EPA authority’s climate authority preempted a litany of public nuisance lawsuits against corporations for greenhouse gas emissions. And in 2014’s Utility Air Regulatory Group v. EPA, the Supreme Court cabined the agency’s authority by finding that its regulation of vehicle emissions did not automatically trigger permitting requirements for stationary sources.

Yesterday’s ruling in West Virginia is in keeping with the trajectory of these cases, said Allison Wood, a partner at the firm McGuireWoods who was involved in Massachusetts, AEP and UARG.

“The court is willing to allow the regulation of greenhouse gases under the Clean Air Act — that’s Massachusetts — but it’s going to take a hard look at what EPA tries to do under the Clean Air Act and make sure that it hews closely to the statute,” she said. “And here in the West Virginia case, they found that what the Obama EPA was trying to do in the Clean Power Plan went too far.”

But environmental lawyers have expressed concern that the Supreme Court’s six-justice conservative majority could find ways in future cases to upend the Massachusetts decision.

Jeffrey Bossert Clark, the lawyer whose lower court victory in Massachusetts was later overturned by the Supreme Court, wrote on Twitter yesterday that West Virginia was “a July 4th birthday present” for the nation.

As head of the Justice Department’s environment division under former President Donald Trump, Clark oversaw the defense of the Affordable Clean Energy rule, which gutted the Clean Power Plan and was later struck down by a federal appeals court, paving the way for the West Virginia case.

He now faces allegations that he worked with the former president to pursue baseless fraud claims in the 2020 election (E&E Daily, June 24).

[Baseless?  Take your heads out of the sand!]

Clark added on Twitter yesterday that the Supreme Court’s ruling in Massachusetts might have “come out the other way” under the major questions doctrine and called for the case to be “reconsidered.”

Concerns about the stability of settled law were heightened last week after the court in Dobbs v. Jackson Women’s Health Organization overturned nearly 50 years of legal precedent recognizing the constitutional right to an abortion (Greenwire, June 24).

Massachusetts is “slowly becoming insulated as precedent, but we’ve seen what this court thinks about precedent,” said David Bookbinder, chief counsel at the Niskanen Center. “I’d be more confident about that if Dobbs hadn’t been decided last week.”

But Bookbinder, who represented environmentalists in Massachusetts, drew a distinction between constitutional issues in cases like Dobbs and fights over the definitions of terms in statutes — such as “air pollutant” in the Clean Air Act.

“Dobbs makes me uneasy because they’re really cavalier about precedent,” he said, “but we’re in a really good position because we’ve defined a word, and courts are reluctant to redefine a word.”

Postscript

So CO2, the stuff of life for plants and animals, including humans, lawyers now term an “air pollutant.”  Add it to the list of things that have been turned upside down by progressive would-be tyrants playing word games.

Progressive, instead of Socialist or Marxist

Woke, instead of Brainwashed

They, instead of Gender Confused

Mansplain, instead of Point Taken

Latinx, instead of Hispanic

Antifa, instead of Leftist Hoodlums

Inclusive, instead of Tolerant

Social Justice, instead of Endless Conflict

Top Surgery and Bottom Surgery, instead of Sexual Mutilation

Unvaccinated, instead of Herd Immunity

Racist, instead of Color Blind

Birthing Person, instead of Mother

And so on, and so on. . .