EPA Set to Issue Legal "Justification" for CA Waiver Denial

Posted by Warming Law Thu, 28 Feb 2008 22:23:00 GMT

Reporting yesterday on this week’s developments in the California clean cars saga, the Wall Street Journal’s Stephen Power revealed that "the EPA is expected to fire back this week by publishing data and research to support Mr. Johnson’s decision." Today’s Philadelphia Inquirer confirmed that such a document should "be released by tomorrow" via Johnson’s response to grilling on the waiver decision during a Senate hearing on EPA’s budget. (Regular readers may recall that his December announcement of the waiver denial was notably brief, resulting in much speculation since as to whether Johnson had fully determined his legal rationale before he made his mind up.)

We’ve been anticipating EPA’s belated justification, which is expected to be placed in the Federal Register, for some time now—both in terms of Johnson’s public promises and as a legal strategy in fighting California’s lawsuit. In a move that is probably not coincidental, EPA filed a motion last week asking the 9th Circuit to dismiss the existing case. Warming Law is still working to obtain EPA’s motion, but we’ve written previously on both its likely rationale, and on the unprecedented legal argument that Johnson will likely make to claim his actions can be justified under the Clean Air Act.

If Johnson goes this route, the legal effect would be one of giving the Administrator’s judgment extremely strong deference under Section 209 of the Clean Air Act. He would be interpreting the law in a way that his staff told him is legally impossible even if they accepted the auto industry’s criteria for judging waiver requests, and doing so based on the arguments that he:

1) Is legally empowered to break with agency precedent regarding what constitutes "compelling and extraordinary" conditions—instead adopting the "exclusive and unique" argument that Tuesday’s document release shows was first advanced in March 2006 by Bill Wehrum, a political appointee with prior ties to the auto industry (Wehrum has since left the EPA, and was recently spotted testifying in favor of a pair of coal-fired plants that Kansas regulators shot down last year based on global warming concerns).

Former EPA Administrator William Riley, who served under President Bush’s father, highlighted the historic scope of Johnson’s actions when he revealed yesterday that he was the receipient of impassioned talking points that agency staff prepared for him to press with Johnson. In his conversations with Johnson, Reilly focused on the argument that legal text, congressional intent and longstanding precedent all point to extreme deference for California’s wishes, and noted that the administrator need not agree with the state in order to let it move forward (emphasis added):

[In a telephone interview, Reilly told the Times] he emphasized that when he was the administrator, he approved nine requests from California, even one that he thought would not work, electric cars, but that he thought federal law required him to let the state try.

2) Also is empowered to declare climate change an intrinsically global problem that California need not employ its own standards for. This rationale, of course, stands in contrast to the thrust of the Supreme Court’s decision in Massachusetts v. EPA, and would also need to discount the state’s strong evidence that it is exceptionally vulnerable to global warming’s impact.

The Inquirer also reported that Johnson’s also gave generally evasive responses yesterday to questions from Senator Barbara Boxer (D-CA) and Senator Sheldon Whitehouse (D-RI), regarding both his legal rationale and possible White House influence—with regards to the latter, Johnson claimed that the White House is still reviewing email communications and other documents that Boxer has yet to receive (and placed under a subpoena threat). Regarding the legal advice of his staff and Reilly, he reiterated that he has always sought out diverse opinions but the waiver decision was ultimately his alone to make.

Senator Whitehouse, for his part, later angrily compared Johnson’s testimony to that given by former Attorney General Alberto Gonzales during last year’s hearings on the dismissal of U.S. attorneys.

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