Waxman Subpoenas EPA Docs; Congressional Pressure Continues to Build

Posted by Warming Law Mon, 11 Feb 2008 15:45:00 GMT

In a move that has been discussed for some time on both sides of Capitol Hill, Rep. Henry Waxman (D-CA) has grown tired of waiting around for EPA to fully cooperate with his investigation of California’s EPA waiver denial:
Escalating the fight over the decision, Rep. Henry A. Waxman (D-Beverly Hills), chairman of the House Oversight and Government Reform Committee, directed the EPA to provide uncensored copies of its staff recommendation to agency Administrator Stephen L. Johnson before he rejected California’s request to enact tailpipe emission standards stricter than the federal government’s. The EPA was told to respond by noon Tuesday.

“The committee is simply trying to understand if the decision to reject California’s plan was made on the merits, so I’m especially disappointed that EPA is refusing to provide the relevant documents voluntarily,” Waxman said. “But we will to try to get to the bottom of this.”


The EPA has also turned over some documents, but they were heavily redacted, so much so that some pages were largely blank. The agency has resisted turning over nonredacted documents to Congress, contending that they are protected under attorney-client privilege. California and more than a dozen other states that want to enact similar laws have sued to overturn Johnson’s decision.

The agency has also argued that releasing the documents could have a “chilling effect” on candid discussions within the EPA. Vice President Dick Cheney also cited the need to keep internal deliberations private in fighting congressional efforts to force him to disclose details of private meetings he held as the White House drafted its energy policy, an initiative sparked in part by another California issue – the 2000-01 electricity crisis.

Waxman’s deadline isn’t the only one EPA must meet this week. Senator Barbara Boxer (D-CA) has given it until Friday to turn over documents related to potential White House involvement, and she has now spearheaded a call for the Government Accountability Office to look into factors influencing the waiver decision.

Johnson’s spokesman stood by the decision and said he wouldn’t be changing his mind anytime soon, but that hardly seems to be the California delegation’s point here. They’re building a careful case for congressional intervention via Senator Boxer’s legislative remedy overturning the decision, and both the slow pace of legal proceedings (which California is trying to hasten)and EPA’s foot-dragging play right into their hands.

Florida and Iowa Join EPA Lawsuit; California Seeks to Expedite Hearing

Posted by Warming Law Mon, 04 Feb 2008 19:05:00 GMT

Last week, California’s lawsuit to overturn EPA’s waiver decision continued to gain support despite the automobile industry’s best efforts to prevent more states from stepping up to the plate on global warming emissions. While this preemptive lobbying campaign did temporarily stop a California legislative proposal to limit emissions through a “feebate” program, it has failed to convince states to hold back on supporting the Pavley clean cars program. Late Friday, the Florida Department of Environmental Protection and the state of Iowa joined the lawsuit, filing a 24-page motion to intervene in the case:

The motion presented by Iowa and Florida on Friday stated that the two states "recognize that motor vehicles are one of the most significant sources of greenhouse gases that cause global warming. Global warming is already seriously and negatively impacting the public health, economies, and environments of (the two states), and its effects are expected to worsen in the absence of effective abatement prompted by immediate governmental action.”

The Iowa Office of Energy Independence recommended in December that Iowa join with other states considering the adoption of California’s vehicle emissions standards.

Warming Law has written previously just how important it is that states that haven’t yet moved to adopt the California standards are getting involved here, and its likewise critical that states in the process of enacting regulations – such as Florida and Arizona—are still moving forward in every way that they can. It does, however, continue to bear highlighting that Florida’s environmental regulators had to bring its case rather than the state itself, a likely product of state AG Bill McCollum’s well-documented climate-change skepticism.

Meanwhile, the automobile industry has now formally acted on its support for EPA’s decision, as the Association of Automobile Manufacturers and the National Automobile Dealers Association have requested leave to intervene in its defense. On the flip side, the South Coast Air Quality Management District—the regulatory board in charge of overseeing Southern California’s heavily polluted air—the Washington Environmental Council, and the Chesapeake Bay Foundation were among additional petitioners seeking to intervene on California’s behalf.

Also last week, the state filed a motion to expedite the 9th Circuit’s hearing of the case. Warming Law is working to obtain the motion and we’ll have more analysis thereafter, but this is definitely not an unexpected move. The current briefing schedule drags out initial filings over the next few months, and California, which would like to start implementing its regulations in early 2009, has always indicated that it would like to see legal proceedings speed up. A lack of judicial haste, or possible delaying tactics by EPA that might include efforts to have the case moved or dismissed, would likely increase pressure on Congress to intervene.

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.


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.