EPA Releases California Waver Denial Justification

Posted by Brad Johnson Fri, 29 Feb 2008 18:03:00 GMT

As previewed by Warming Law yesterday, the EPA today released the formal justification for publication in the Federal Register to back up administrator Stephen L. Johnson’s December decision to deny California’s waiver request after months of delay. California requested the Clean Air Act waiver in 2005 to permit implementation of the state’s Global Warming Solutions Act (AB 32), which would regulate tailpipe greenhouse gas emissions.

Johnson withstood withering criticism in Wednesday’s EPW budget hearing the same day Sen. Boxer, chair of the Senate committee, released documents showing top EPA officials supported the waiver.

The formal decision document includes this thread of novel legal interpretation (supported by John Dingell (D-Mich.)):
I find that it is appropriate to review whether California needs its GHG standards to meet compelling and extraordinary conditions separately from the need for the remainder of California’s new motor vehicle program. I base this decision on the fact that California’s GHG standards are designed to address global climate change problems that are different from the local pollution problems that California has addressed previously in its new motor vehicle program. . . Given the different, and global, nature of the pollution at issue, it is reasonable to find that the conceptual basis underlying the practice of considering California’s motor vehicle program as a whole does not apply with respect to elevated atmospheric concentrations of GHGs. . . . While I find that the conditions related to global climate change in California are substantial, they are not sufficiently different from conditions in the nation as a whole to justify separate state standards.

Staff and outside assessments of this argument have consistently concluded it is not legally tenable. It was received with full condemnation by Sen. Boxer and Rep. Ed Markey (D-Mass.), Global Warming chair; Frank O’Donnell of Clean Air Watch writes that the decision “reads like something written up in the boardroom of General Motors or a law firm working for car companies.”

Johnson also argues in a footnote that this decision is not intended to weigh in on the EPA’s obligation to make a health endangerment finding for greenhouse emissions:
This document does not reflect, and nothing in this document should be construed as reflecting, my judgment regarding whether emissions of GHGs from new motor vehicles or engines cause or contribute to air pollution “which may reasonably be anticipated to endanger public health or welfare,” which is a separate question involving different statutory provisions and criteria . . .
This despite the findings section which includes (p. 41):
Severe heat waves are projected to intensify in magnitude and duration over the portions of the U.S. where these events already occur, with likely increases in mortality and morbidity, especially among the elderly, young and frail. Ranges of vector-borne and tick-borne diseases in North America may expand but with modulation by public health measures and other factors.
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