The Competitive Enterprise Institute (CEI) submitted a data quality petition Feb. 10 to the Environmental Protection Agency (EPA)challenging global climate change information. The CEI petition seeks withdrawal of the Climate Action Report 2002 (CAR) which relies on the National Assessment on Climate Change (NACC), the inter-agency technical document that underlies most of the federal government's recent statements about global climate change.

In the same month, CEI filed similar data quality challenges on the NACC report with the National Oceanic & Atmospheric Administration (NOAA), and the Office of Science and Technology Policy (OSTP). All of the challenges use the same information and arguments. The EPA petition actually represents a resubmission of CEI’s previous data quality challenge submitted June 4, 2002, about four months prior to finalization of EPA’s data quality guidelines. The subsequent data quality petitions to NOAA and OSTP seem to be directly derived from the original EPA comments.

The global warming petition questions the objectivity, utility and reproducibility of the NACC. The CEI claims in the petition that the NACC draws on data from improperly used computer models, selecting extreme models that violate the data quality guideline of objectivity. The petition also asserts that due to political pressure, the NACC was not authentically peer reviewed and that a congressionally requested scientific review went unperformed. CEI believes CAR relies on the NACC data and therefore challenges EPA’s ability to disseminate the CAR.

Much of the evidence CEI presents in the petition seems to rest on the comments and opinions of individuals. While the comments are interesting and certainly support the CEI’s position, it seems that they have not fulfilled their burden of proving the information does not meet the data quality guidelines. The fact that some peer reviewers believed that the document needed major changes, does not make their views valid. CEI neither establishes that this was a majority view of reviewers or even a significant percentage. In any peer review process there is a wide variety of feedback, often contradictory. The feedback is considered and then incorporated or addressed to the extent possible.

A troubling aspect of this data quality challenge is that CEI seeks to “correct” this information by prohibiting the government from disseminating the NACC. Under EPA’s data quality guidelines, the petitioner is required to submit the corrected information. CEI is not fulfilling this burden with its claim that the information is so “fatally flawed” that it cannot be corrected. The petition represents the first of the data quality challenges that public interest groups warned would be filed. During the development of the data quality guidelines, numerous public interest groups voiced their concern that the well intentioned principles of improving data quality would be misused to de-publish information, gag agencies and prevent the free discussion of information.

EPA responded to the challenge in a May 16 letter stating that EPA was not the author of the CAR publication and therefore the wrong agency to consider the data quality challenge. The publication is the U.S. Third National Communication pursuant to obligations under the United Nations Framework Convention on Climate Change (UNFCCC). The State Department is responsible for developing and submitting communications under UNFCCC, and EPA asserts the State Department submitted the publication being challenged to the UNFCCC Secretariat May 28, 2002. EPA forwarded the request to the State Department, therefore denying CEI’s request.

CEI submitted a request for reconsideration to EPA May 21 arguing that EPA is the “sole governmental office disseminating CAR.” CEI asserts the State Department’s role in distribution is limited to transmission of the report to the UN and that the DQA applies to EPA even if the State Department wrote the report because EPA disseminates the document. However, the petition contests EPA’s claim, stating that both the White House and the State Department have acknowledged EPA as the report’s author, and EPA published notice of the report’s preparation in the Federal Register.

In response to CEI’s appeal, EPA presented the request reconsideration to an executive panel of three agency officials, in accordance with the agency’s data quality guidelines. The panel reaffirmed EPA’s earlier denial of the request, again contending the State Department is responsible for the report and the challenge should be submitted to that department. Under UNFCC, the State Department responded to a treaty obligation and in doing so, the panel asserts that the State Department asked EPA and other agencies only to coordinate the interagency drafting process and lead workgroups in drafting several chapters. Additionally, the panel notes that nothing in the Data Quality Act or EPA or OMB guidelines restricts how the government can determine which is the appropriate agency to consider a request for correction. Although EPA does distribute the CAR report on its website, other agencies were given copies for distribution and both the State Department and the Government Printing Office provide electronic and paper copies. EPA has clarified on its site that the CAR is a State Department report. Due to all of these factors, the panel denied the request for reconsideration.

CEI has expanded its efforts to de-publish the NACC beyond the administrative procedures under the data quality guidelines by filing the first lawsuit filed under the Data Quality Act (DQA). CEI challenged OSTP’s the dissemination of NACC. The Aug. suit was not filed against EPA or NOAA, suggesting that OSTP rejected CEI’s initial challenge and a request for reconsideration, therefore exhausting all administrative avenues. Though EPA has denied CEI’s final administrative request under data quality, CEI has neither added EPA to the existing lawsuit nor filed a separate suit against the agency. Since the promulgation and implementation of the data quality guidelines at all federal agencies, it has been debated whether it is judicially reviewable. Several agencies stress their DQA guidelines are not rules nor are they legally binding. CEI’s lawsuit could have been the first test of whether the guidelines are enforceable by the courts. However, CEI and OSTP reached an out of court settlement on Nov. 6 in which the agency continued to disseminate the NACC but posted a notice stating that the report was not “subjected to OSTP’s Information Quality Act Guidelines.” The notice appears on the where NACC is available. See the OMB Watch Analysis on the lawsuit for more information.