Boxer Threatens EPA Subpoena; State Previews Legal Arguments

Posted by Warming Law Fri, 11 Jan 2008 22:22:00 GMT

(Cross-posted from Warming Law)

Anticipation has been high that Senator Barbara Boxer (D-CA) would use her platform running the Senate Environment and Public Works Commitee to pressure the EPA regarding its denial of California’s waiver application, and a committee field hearing yesterday did not disappoint. Responding to Administrator Stephen Johnson’s no-show and failure to provide documentation of how he reached his decision, Boxer threatened to use the committee’s subpoena power and generally pledged to step up congressional pressure:
“This outrageous decision . . . is completely contrary to the law and science,” Boxer said in a briefing with state officials at Los Angeles City Hall. She held up an empty cardboard box as a symbol of the Environmental Protection Agency’s refusal so far to provide the hefty technical and legal backup that normally accompanies air pollution waiver decisions and are usually published in the Federal Register.

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Johnson is scheduled to testify before the Senate committee in Washington on Jan. 24. An EPA spokesman said, “The official decision documents are being prepared, and they will be released soon.”

California Attorney General Jerry Brown praised Boxer’s subpoena threat, at one point calling Johnson a “stooge in a really pathetic drama that hopefully will not play out much longer.” Brown used his written testimony to document the state’s legal case against the waiver decision, and specifically honed in on EPA’s central assertion that the waiver request did not meet “compelling and extraordinary” conditions due to global warming’s wide-ranging impact.

In addition to reiterating this logic’s departure from the text of the law and the Supreme Court’s rejection of a similar argument in Mass. v. EPA, various testimony directly cited the way in which past waiver decisions have interpreted the law. Former Assembleywoman Fran Pavley—who authored the clean cars law—pointed to a 1984 waiver determination by then-EPA-Administrator William Ruckelshaus deeming that California’s plight need not be “unique” in order to be "compelling and extraordinary." Brown, meanwhile, cited a 1975 waiver determination’s assessment of the Clean Air Act, which noted that:
[I]n the light of their unusually detailed and explicit legislative history. . .Congress meant to ensure by the language it adopted that the Federal government would not second-guess the wisdom of state policy here. . . . Sponsors of the language eventually adopted referred repeatedly to their intent to make sure that no “Federal bureaucrat” would be able to tell the people of California what auto emission standards were good for them, as long as they were stricter than Federal standards.
California Air Resources Board Chairwoman Mary Nichols used her testimony to further undermine EPA’s argument, noting a just-released Stanford study showing that global warming seems to worsen the same localized air-pollution problems in California that everyone agrees spurred Congress to enact the waiver process. David Roberts summarized that study’s impact thusly:
Forthcoming in Geophysical Research Letters, research by engineering professor Mark Jakobson finds a direct causal link between increased CO2 in the atmosphere and increased morbidity from air pollution.

In other words: CO2 makes traditional air pollution – ozone, particulates, carcinogens – more deadly. It follows that states with the worst air pollution have more to fear from climate change.

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