"EPA Likely to Lose Suit"
(Cross-posted from Warming Law, which focuses on covering and analyzing the fight against global warming from a legal perspective.)
by Tim Dowling
“EPA Likely To Lose Suit.”
So said EPA, or at least EPA’s legal staff, when it briefed Administrator Johnson on the legal ramifications of a waiver denial. The quoted language comes from a powerpoint slide used during that briefing. As the Washington Post reports, Johnson’s waiver denial flew in the face of “the unanimous recommendation of the agency’s legal and technical staff.”
California’s legal challenge to the waiver denial will be filed in the U.S. Court of Appeals for the D.C. Circuit, and one large reason for believing EPA will lose can be found in the D.C. Circuit’s opinions in previous waiver cases. Unlike Administrator Johnson, the D.C. Circuit clearly recognizes the special, leading role California plays under the Clean Air Act with respect to controls on tailpipe emissions.
For example, in Motor & Equipment Mfrs. Ass’n v. Nichols, 142 F.3d 449, 543 (D.C. Cir. 1998), the D.C. Circuit ruled that waiver process is designed “to afford California the broadest possible discretion in selecting the best means to protect the health of its citizens and the public welfare.” (quoting the House Report).
In a more comprehensive discussion in Engine Mfrs. Ass’n v. U.S. EPA, 88 F.3d 1075 (D.C. Cir. 1996), the court explained:Congress recognized that California was already the “lead[er] in the establishment of standards for regulation of automotive pollutant emissions” at a time when the federal government had yet to promulgate any regulations of its own. California’s Senator Murphy convinced his colleagues that the entire country would benefit from his state’s continuing its pioneering efforts, California serving as “a kind of laboratory for innovation.” This function was enhanced by the 1977 amendments, which permitted other states to “opt in” to the California standards by adopting identical standards as their own. Thus, motor vehicles must be either “federal cars” designed to meet the EPA’s standards or “California cars” designed to meet California’s standards. Rather than being faced with 51 different standards, as they had feared, or with only one, as they had sought, manufacturers must cope with two regulatory standards under the legislative compromise embodied in § 209(a). Id. at 1079-80 (citations and footnotes omitted).
The D.C. Circuit also examined the waiver process in Motor & Equipment Mfrs. Ass’n v. EPA, 627 F.2d 1095 (D.C. Cir. 1979), an unsuccessful industry challenge to EPA’s waiver grant for California rules concerning in-use maintenance of motor vehicles. Tracking the language of the statute, the court observed that EPA must grant a waiver request unless it makes one of the three findings set forth in Section 209(b)(1)(A)-(C). Id. at 1106. The issue is emphatically NOT whether the California rules are a good idea as a matter of policy, but whether EPA discharged its duties under the CAA. Id. at 1105.
Johnson’s bogus concern that a waiver grant here would create a “confusing patchwork” simply cannot be reconciled with the Clean Air Act and the applicable precedents that construe the waiver provisions in Section 209. Expect the D.C. Circuit to make short work of it.
Waxman Opens Investigation into EPA Decision
House Oversight Committee chairman Henry Waxman has just launched an investigation into EPA administrator Stephen Johnson’s decision to deny the California waiver to implement its Clean Cars Campaign.
In his letter to the EPA, Waxman writes:Yesterday, you announced a decision to reject California’s efforts to reduce greenhouse gas emissions from automobiles. Prior to making this decision you assured the House Oversight and Government Reform Committee, as well as the state of Califomia and many others, that you would make this decision on the merits.It does not appear that you fulfilled that commitment. Your decision appears to have ignored the evidence before the agency and the requirements of the Clean Air Act. In fact, reports indicate that you overuled the unanimous recommendations of EPA’s legal and technical staffs in rejecting California’s petition.
Your decision not only has important consequences to our nation, but it raises serious questions about the integrity of the decision-making process. Accordingly, the Committee has begun an investigation into this matter. To assist our Committee in this inquiry, I request that you provide us with all documents relating to the California waiver request, other than those that are available on the public record. This request includes all communications within the agency and all communications between the agency and persons outside the agency, including persons in the White House, related to the California waiver request. And all agency staff should be notified immediately to preserve all documents relating to the California waiver request.
You should produce to the Committee all responsive documents from your office by January 10, 2008. All responsive documents from the Office of Transportation and Air Quality and the Office of General Counsel should be produced by January 17,2008, and all other responsive documents should be produced by January 23,2008.
Further California Waiver Denial Responses
Further responses (see California responses) to the waiver denial, including praise from Detroit’s lobby group.
EPA is not following science or the law . . . This decision is like pulling over the fire trucks on their way to the blaze . . . The Administration’s first bold act on global warming – and it’s to stop the states who are trying to do something about the problem. It is just plain shocking. . . New CAFE standards, if they go into effect, do not fully phase in until 2020. The California greenhouse gas limits will occur earlier – beginning in 2009 and fully phased in by 2016. With the mounting evidence of climate change impacts occurring now, it is imperative that we are take action immediately.
NRDC:
This rejection represents bald-faced political interference with California’s decades-long authority to enforce its own clean air rules . . . The California standards are the single most effective step yet taken in the United States to curb global warming. By blocking the California standards, the administration has stuck a thumb in the eye of 18 governors from both red and blue states who have led the way on global warming by adopting these landmark rules.
There is absolutely no reason for the Bush administration to block California’s effort to fight global warming. Today’s EPA decision is a major setback in the global warming fight and a slap in the face to all of the states that have moved forward when the federal government would not. This decision cements the United States’ reputation as the nation that is holding the rest of the world back at a time when our leadership is desperately needed. One can only hope that the next administration will play a more constructive role.Sen. Sheldon Whitehouse (D-R.I.):
The EPA’s ruling is disgraceful. The Bush administration’s refusal to carry out the duties imposed on it by the Clean Air Act have polluted our air and water, further endangered the health of millions of Americans, and cost us precious time in our fight to address the looming threat of global warming. We can’t afford to delay strong steps to address global climate change. We will keep fighting to pressure this administration to do the right thing and allow states like Rhode Island to take action.
Alliance of Automobile Manufacturers:
We commend EPA for protecting a national, 50-state program. Enhancing energy security and improving fuel economy are priorities to all automakers, but a patchwork quilt of inconsistent and competing fuel economy programs at the state level would only have created confusion, inefficiency, and uncertainty for automakers and consumers. . . Under the new national fuel economy law, automakers will make dramatic, 30-percent reductions in carbon dioxide.
California Reponses to California Waiver Denial
Selected responses from the California congressional delegation and executive branch to EPA’s denial of the California waiver yesterday.
Rep. Henry Waxman (D-Calif.), chairman of the Committee on Oversight and Government Reform:EPA’s decision ignores the law, science, and commonsense. This is a policy dictated by politics and ideology, not facts. The Committee will be investigating how and why this decision was made.Sen. Dianne Feinstein (D-Calif.):
Candidly I find this disgraceful. The passage of the Energy Bill does not give the EPA a green light to shirk its responsibility to protect the health and safety of the American people from air pollution.Gov. Arnold Schwarzenegger (R-Calif.):
While the federal energy bill is a good step toward reducing dependence on foreign oil, the President’s approval of it does not constitute grounds for denying our waiver. The energy bill does not reflect a vision, beyond 2020, to address climate change, while California’s vehicle greenhouse gas standards are part of a carefully designed, comprehensive program to fight climate change through 2050 . . . California sued to compel the agency to act on our waiver, and now we will sue to overturn today’s decision and allow Californians to protect our environment.Sen. Barbara Boxer (D-Calif.), chair of the Committee on Environment and Public Works:
With Members of Congress leaving town, and with the news on global warming getting worse with each passing day, EPA Administrator Stephen Johnson has delivered the worst possible news to the good people of California and the 12 other states who have proven they are leaders in fighting for the survival of the planet.Calif. Attorney General Jerry Brown (D):It is ironic that this waiver denial comes during the season when we are supposed to work to make our country and the world a better place. And to hide behind the newly-passed Energy Bill as an excuse flies in the face of the Supreme Court’s findings and the Energy Bill itself.
This ill-advised denial turns its back on science, turns its back on fairness, turns its back on states’ rights, and turns its back on precedent.
I have informed the state of California that I am prepared to take all measures to overturn this harmful decision.
It is completely absurd to assert that California does not have a compelling need to fight global warming by curbing greenhouse gas emissions from cars. There is absolutely no legal justification for the Bush administration to deny this request – Governor Schwarzenegger and I are preparing to sue at the earliest possible moment.
EPA Admin Denies California Waiver
EPA administrator Stephen Johnson’s denial of California’s petition to regulate tailpipe greenhouse gas emissions following the White House energy bill signing ceremony was deservedly front page news from coast to coast. The Supreme Court forced the EPA to consider California’s December 2005 Clean Air Act waiver request in April 2007 (Massachusetts v. EPA). In testimony before the Senate and the House earlier this year, Johnson signaled his lack of desire to grant the waiver. Now that decision has come in, with justifications even EPA’s own laywers and policy staff don’t believe. This is the first time in the history of the Clean Air Act that the EPA has denied a section 209 California waiver request.
[Ed.—Warming Law has superior analysis of the decision, from which I’ll steal some key insights.]
The EPA, which is yet to release the formal denial, announced in its press release that the increased CAFE standards in the new energy law to justify its denial of the California waiver:EPA has determined that a unified federal standard of 35 miles per gallon will deliver significant reductions in greenhouse gas emissions from cars and trucks in all 50 states, which would be more effective than a partial state-by-state approach of 33.8 miles per gallon.
Warming Law says “EPA appears to be attempting to add a new test to the Clean Air Act” in requiring that California prove a local interest in addition to the “compelling” and “extraordinary” standards the Supreme Court said this problem meets.
Warming Law’s Tim Dowling notes that Johnson’s claim the waiver would create a “confusing patchwork of state rules” is typical industry rhetoric that is specious—only two sets of standards, national and California, would apply. “Johnson failed to explain how EPA has been able to grant EVERY other 209 waiver request in history without creating a confusing patchwork, but can’t do so here.”
Juliet Eilperin of the Washington Post reveals that Johnson overrode his staff.In a PowerPoint presentation prepared for the administrator, aides wrote that if Johnson denied the waiver and California sued, “EPA likely to lose suit.”If he allowed California to proceed and automakers sued, the staff wrote, “EPA is almost certain to win.”
The technical and legal staffs cautioned Johnson against blocking California’s tailpipe standards, the sources said, and recommended that he either grant the waiver or authorize it for a three-year period before reassessing it.
“Nobody told the administration they support [a denial], and it has the most significant legal challenges associated with it,” said one source, in an interview several hours before Johnson’s announcement, who spoke on the condition of anonymity because the official is not authorized to speak for the agency. “The most appropriate action is to approve the waiver.”
After Bali – the UN Conference and the Impact on International Climate Change Policy
Chairman Edward J. Markey (D-Mass.) of the Select Committee on Energy Independence and Global Warming will hold a hearing next week on the international climate negotiations now wrapping up in Bali, Indonesia.
Chairman Markey and other members of the Select Committee will host climate experts returning from Bali to discuss the climate conference and suggest an effective path forward on global warming for the United States and the international community.
Witnesses- Philip Clapp, President, National Environmental Trust
- Myron Ebell, Director, Energy and Global Warming Policy, Competitive Enterprise Institute
- Alden Meyer, Director of Strategy and Policy, Union of Concerned Scientists
- Ned Helme, President, Center for Clean Air Policy
- Christiana Figueres, Former Official Negotiator, U.N. Framework Convention on Climate Change and the Kyoto Protocol, Costa Rica
The Road from Bali
- Senator John Kerry (D – MA)
- Melody Barnes, Executive Vice President for Policy, Center for American Progress Action Fund
After years of denial, delay, distraction and distortion, climate change is changing the political climate. Australia’s John Howard recently became the first national leader voted out of office in large measure because of his failure to respond to citizens’ concerns about global warming. Newly elected Prime Minister Kevin Rudd has made global warming his first priority in office. Australia’s awakening is not an isolated example. Eighty-three percent of Chinese support action on climate change. Between 2006 and 2010 China plans to improve energy efficiency by 20 percent. The dialogue in the United States is also shifting, albeit too slowly. Fifty-nine percent of Americans now endorse taking major steps soon to combat global warming, and 33 percent more think we need modest steps. Unfortunately this 92 percent of the American public is still looking to President Bush for action on this key issue.
Just last week representatives of more than 180 nations met in Bali to chart a course toward a new global agreement to control climate change that will succeed the Kyoto Protocol. Together – in spite of American obstruction – they produced a roadmap for the new climate negotiations that set a target date of 2009 for the next treaty. How do we avoid the missteps that plagued the Kyoto Treaty? How do we create a framework that includes industrialized nations as well as the developing world? Sen. Kerry – who attended the Bali conference and led the U.S. Senate delegation – will lay out a strategy to follow the Bali roadmap and expand the existing emissions trading market, promote an efficient and effective technology development and implementation program, launch an aggressive effort to protect the world’s remaining forests, and embrace technology transfer. This will require innovative financing and investment – and, if properly implemented, will create major new opportunities for American industry to create the jobs of the future.
Center for American Progress Action Fund
1333 H St. NW, 10th Floor
Washington, DC 20005
The Frame and Scale of the Climate/Energy Challenge: Issues and Implications
“Does the current framing and scaling of the climate/energy issue adequately capture the challenge posed? If not, what might be a more appropriate frame and scale?”
Speakers- Dr. James G. Anderson, Philip S. Weld Professor, Department of Chemistry and Chemical Biology and Department of Earth and Planetary Sciences, School of Engineering and Applied Sciences, Harvard University
- Dr. Daniel Schrag, Professor of Earth and Planetary Sciences and the Director of the Harvard University Center for the Environment, Harvard University
The issues of global energy demand and climate response are, at one level, complex and contentious. However, they are joined by simple but important considerations. While the flow of energy is important to the global economic infrastructure, the flow of energy within the Earth’s climate system reveals simple but compelling conclusions. These will be explored in this briefing.
Biographies
Dr. James B. Anderson joined the faculty of Harvard University in 1978 as the Robert P. Burden Professor of Atmospheric Chemistry. In 1982 he was appointed the Philip S. Weld Professor of Atmospheric Chemistry. Professor Anderson served as Chairman of the Department of Chemistry and Chemical Biology at Harvard from July 1998 through June 2001. He is a member of the National Academy of Sciences, the American Philosophical Society and the American Academy of Arts and Sciences, and a frequent contributor to National Research Council activities. He is a Fellow of the American Geophysical Union and the American Association for the Advancement of Science. He is a recipient of two United Nations Environment Programme Ozone Awards (1997, 2005); the National Academy of Sciences Arthur L. Day Prize and Lectureship; the E. O. Lawrence Award in Environmental Science and Technology; the American Chemical Society’s Gustavus John Esselen Award for Chemistry in the Public Interest; and the University of Washington’s Arts and Sciences Distinguished Alumnus Achievement Award. In addition, he received the United Nations Earth Day International Award; Harvard University’s 1989 Ledley Prize for Most Valuable Contribution to Science by a Member of the Faculty; and the American Chemical Society’s National Award for Creative Advances in Environmental Science and Technology.
Dr. Anderson’s research group addresses three domains at the interface of chemistry and Earth Sciences: (1) mechanistic links between chemistry, radiation, and dynamics in the atmosphere that control climate (2) chemical catalysis sustained by free radical chain reactions that dictate the macroscopic rate of chemical transformation in Earth’s stratosphere and troposphere; and (3) chemical reactivity viewed from the microscopic perspective of electron structure, molecular orbitals and reactivities of radical-radical and radical-molecule systems. Research addressing Earth’s climate focuses on establishing the primary mechanisms that couple chemistry, dynamics, and radiation in the climate system, the establishment of a high-accuracy record of climate change using interferometry from low Earth orbit, and strategies for testing long-term climate forecasts using absolute spectrally resolved radiance in the infrared.
Dr. Daniel Schrag is Professor of Earth and Planetary Sciences at Harvard University and the Director of the Harvard University Center for the Environment. Dr. Schrag studies climate and climate change over the broadest range of Earth history. He has examined changes in ocean circulation over the last several decades, with particular attention to El Niño and the tropical Pacific. He has also worked on theories for Pleistocene ice-age cycles including a better determination of ocean temperatures during the Last Glacial Maximum, 20,000 years ago. He also helped develop the Snowball Earth hypothesis, proposing that a series of global glaciations occurred between 750 and 580 million years ago that may have led to the evolution of multicellular animals. He is currently working with economists and engineers on technological approaches to mitigating future climate change. Among various honors, Dr. Schrag was awarded a MacArthur Fellowship in 2000. Dr. Schrag came to Harvard in 1997 after teaching at Princeton, and studying at Berkeley and Yale.
Energy Security, Energy Urgency: Key Issues Facing the Next President
On December 18, the Brookings Institution will host Senator Richard G. Lugar, the ranking Republican on the Senate Foreign Relations Committee, for a conversation on the lack of action on U.S. energy security and the challenges the next president will face on this issue. Indiana’s longest-serving senator, Lugar was first elected in 1976, and is recognized as one of the nation’s leading voices on foreign relations and national security.
U.S. dependence on increasingly scarce fossil fuels threatens U.S. security while also undermining international stability. Absent revolutionary changes in energy policy, U.S. foreign policy goals may be undermined, living standards may erode, and the U.S. may become highly vulnerable to the machinations of rogue states. These are the urgent security questions facing the next U.S. president.
In his address, Senator Lugar will discuss the need for leadership by the next president in combating energy threats to U.S. national security. Brookings Vice President and Director of Foreign Policy Carlos Pascual will provide introductory remarks and moderate the discussion. After the program, Senator Lugar will take audience questions.
Participants
Introduction and Moderator- Carlos Pascual, Vice President and Director
- Sen. Richard G. Lugar (R-Ind.)
Location
Falk Auditorium The Brookings Institution 1775 Massachusetts Ave., NW
Contact: Brookings Office of Communications
E-mail: [email protected]
Phone: 202.797.6105
Gore, Congress, Europe Assail U.S. Stance in Bali
The United States delegation to the UN Climate Change Conference in Bali has led Japan, Canada, and Russia in rejecting the nonbinding EU proposed roadmap of reducing greenhouse-gas emissions by wealthy countries 25 to 40 per cent by 2020. (By way of comparison, Lieberman-Warner (S. 2191) proposes a four percent cut from 1990 emissions levels by 2020.) The U.S. team is also opposing including references to the IPCC’s conclusions on the emissions reductions needed to avoid dangerous global warming.
In a speech today at the conference, Nobel Peace Prize laureate Al Gore said “My own country, the United States, is principally responsible for obstructing progress here in Bali . . . One year and 40 days from today, there will be a new inauguration in the United States. I must tell you candidly that I cannot promise that the person who is elected will have the position I expect they will have, but I can tell you I believe it is quite likely.”
In a letter to the President, 52 members of Congress, including a handful of Republicans, criticized the U.S. negotiating stance:The clear implication is that the United States will refuse to agree to any language putting the United States on an established path toward scientifically-based emission limits. . . We write to express our strong disagreement with these positions and to urge you to direct the U.S. negotiating team to work together with other countries to complete a roadmap with a clear objective sufficient to combat global warming. The United States must adopt negotiating positions at the Bali Conference of the Parties that are designed to propel further progress – not fuel additional delay.E&E News reports on EU threats to boycott a U.S.-led climate meeting:
Upset with the U.S.-led stance, senior officials from the European Union, France and Germany have threatened to boycott Bush’s plans to hold climate talks Jan. 30-31 in Honolulu.“Without a roadmap and without a destination, it would be senseless,” said Stavros Dimas, the top environmental official for the European Commission. Dimas told reporters he made the same statement earlier today to Paula Dobrianksy, the lead U.S. negotiator at the climate meetings on the Indonesian island of Bali.
Karsten Sach of Germany’s environmental department and French negotiator Brice Lalonde both confirmed their countries also would stay away from Bush’s “Major Economies Meeting” if there is no agreement in Bali.
White House spokeswoman Kristen Hellmer didn’t take well to the E.U. threats. “Such comments are not very constructive when we are working so hard to find common ground on a way forward,” she said.