"A Conservative Legal Group Is Petioning The Energy Department To Rethink The Social Cost Of Carbon"
The latest dust-up in the fight over the social cost of carbon (SCC) just arrived via a petition by the conservative Landmark Legal Foundation that challenges the legitimacy of the revised number. As The Hill reports, the petition for reconsideration was filed with the Department of Energy (DOE), and published today in the Federal Register to allow for comment. It denounces the SCC as “unannounced, dramatically increased, and improperly altered.”
Backing up for a moment: the SCC is an attempt to estimate the damage carbon emissions will do to the economy by driving climate change. That number can then be used by any agency when a rule its putting together involves consideration of those costs. The first estimate of the SCC came out in 2010 after a long interagency process, pegging the cost at roughly $26 per ton of carbon dioxide. A revised estimate earlier this year raised it to $43 per ton. The updated number was first released in a new set of efficiency standards for microwaves, though it has been used in numerous agency rule-makings since.
Also, the SCC’s actually put together by scientists working outside the government, using three of the most rigorously peer-reviewed models of the climate and the economy. In fact, the government’s only inputs in the modeling process — estimates of future population and economic growth and the like — remained unchanged from 2010 to 2013. The increase was due purely to the scientists’ ongoing revisions to their own models.
The objection raised by the Landmark Legal Foundation is essentially two-fold.
One, that DOE violated the Administrative Procedure Act (APA) by not allowing a period of public comment on the revised SCC value. The APA requires agencies to “give interested persons an opportunity to participate in the rule-making through submission of written data, views, or arguments.” It also argues DOE violated Executive Order 13563, which essentially requires that comment process be accessible online and last at least 60 days.
Two, that DOE also violated the APA and the executive order by dropping the revised SCC in after the microwave rulemaking was opened for public scrutiny, meaning the only version on which comments were solicited was the one with the old SCC estimate.
On the second point, the Foundation may have a case. Though if they do, it would seem to merely require pulling and reconsidering the microwave rule, rather than the SCC as a whole. That the revised estimate came out in the middle of the public comment process for the microwave rule appears to just be a matter of poor scheduling or timing.
The legitimacy of the first claim — that the SCC estimate itself violated procedure — is considerably hazier, largely because it’s not clear the SCC is actually a rulemaking. It’s more a value input that is then used in rulemakings, but produced by a parallel, ongoing and cyclical process of cooperation between government agencies and outside scientists. As Howard Shelanski, the White House Office of Management Budget’s Administrator for the Office of Information and Regulatory Affairs, told a Congressional hearing, every new rule that uses the SCC goes through the usual public commentary process. And any critic participating in that process may opine on the merits of any aspect of the rule, including the merits of the SCC estimate, to their heart’s content. In fact, critics have already done so — the 2013 revision came about largely because of a massive influx of public complaints from scientists that the initial 2010 estimate was too low.
The public is now perfectly free to comment on the revised number. So the Landmark Legal Foundation’s claim that “by inserting a new estimate for SCC values, DOE denied interested parties the opportunity to comment on DOE’s motivations, methodologies and conclusions in reaching said values” is not particularly accurate.
At any rate, whether the SCC estimate is itself a rulemaking, and thus subject to an initial public comment period, will be determined by the review of the petition.