Obama to Issue Environmental Orders Monday

Posted by Brad Johnson Mon, 26 Jan 2009 02:11:00 GMT

The New York Times (John Broder and Peter Baker) and Washington Post (Juliet Eilperin and Steven Mufson) report that President Obama “plans to instruct key federal agencies to reexamine two policies that could force automakers to produce more fuel-efficient cars that yield fewer greenhouse gas emissions” Monday morning.

Obama’s main directives relate to California’s petition for an Environmental Protection Agency waiver to regulate tailpipe greenhouse gas emissions, as well as the 2007 Energy Policy Act’s raised fuel economy standards. Under Bush, the EPA denied the California waiver and the Department of Transportation failed to issue the standards called for under the energy act.

In addition, the president will direct federal agencies to take steps to increase efficiency and reduce pollution.

From the Times:
Mr. Obama’s presidential memorandum will order the Environmental Protection Agency to reconsider the Bush administration’s past rejection of the California application. While it stops short of flatly ordering the Bush decision reversed, the agency’s regulators are now widely expected to do so after completing a formal review process. . . .

Beyond acting on the California emissions law, officials said, Mr. Obama will direct the Transportation Department to quickly finalize interim nationwide regulations requiring the automobile industry to increase fuel efficiency standards to comply with a 2007 law, rules that the Bush administration decided at the last minute not to issue.

To avoid losing another year, Mr. Obama will order temporary regulations to be completed by March so automakers have enough time to retool for vehicles sold in 2011. Final standards for later years will be determined by a separate process that under Mr. Obama’s order must take into consideration legal, scientific and technological factors.

He will also order federal departments and agencies to find new ways to save energy and be more environmentally friendly. And he will highlight the elements in his $825 billion economic stimulus plan intended to create jobs around renewable energy.

Bush Administration Rushing Through Lame-Duck Energy And Environment Actions

Posted by Brad Johnson Fri, 31 Oct 2008 21:02:00 GMT

The House Committee on Global Warming and Energy Independence has issued a report, Past is Prologue, listing many of the energy and environmental regulations, rulemakings, and notices the Bush administration is expected to issue (or in some cases, illegally avoid issuing) in its final months in office. As R. Jeffrey Smith writes in the Washington Post, “The new rules would be among the most controversial deregulatory steps of the Bush era and could be difficult for his successor to undo.” Here’s a partial list:
  • The Environmental Protection Agency (EPA) plans to finalize an NSR rule before the end of the administration that would essentially exempt all existing power plants from having to install new pollution control technology when these plants are updated.
  • In a separate NSR rule, EPA plans to exempt so-called “fugitive” emissions – meaning emissions that don’t come out of the end of a stack such as volatile organic compounds emitted from leaking pipes and fittings at petroleum refineries – from consideration in determining whether NSR is triggered.
  • EPA is also set to finalize a third rule weakening the NSR program, by allowing so-called “batch process facilities” – like oil refineries and chemical plants – to artificially ignore certain emissions when determining when NSR is triggered.
  • EPA is also working towards weakening air pollution regulations on power plants and other emissions sources adjacent to national parks and other pristine, so-called “Class I” areas. By changing the modeling of new power plants’ impact on air quality in national parks – using annual emissions averages as opposed to shorter daily or monthly periods – the EPA rule will make it easier for such plants to be built close to parks.
  • The National Highway Traffic Safety Administration (NHTSA) issued proposed regulations to implement the EISA fuel economy standards (increase by the maximum feasible amount each year, such that it reaches at least 35 miles per gallon by 2020) in April 2008, and final regulations are expected soon. If NHTSA used EIA’s higher gasoline price scenario—a range of $3.14/gallon in 2016 to $3.74/gallon in 2030—the technology is available to cost-effectively achieve a much higher fleet wide fuel economy of nearly 35 mpg in 2015 – instead of the 31.6 mpg in 2015 under the lower gas prices used in NHTSA’s proposed rule.
  • EPA is expected to issue proposed regulations soon on the renewable fuels provisions passed in EISA that required America’s fuel supply to include 36 billion gallons of renewable fuels by 2022 – together with more specific volumetric requirements and lifecycle greenhouse gas benchmarks for “advanced” renewable fuels, cellulosic ethanol, and biodiesel.
  • The Department of the Interior (DOI) has already telegraphed its intention to gut the Endangered Species Act by rushing through 300,000 comments on proposed rules in 32 hours, then providing a mere 10-day public comment period on the Environmental Assessment of the proposed rules change. The proposed rules would take expert scientific review out of many Endangered Species Act (ESA) processes, and could exempt the effects of global warming pollution on threatened or endangered species.
  • DOI intends to finalize new regulations governing commercial development of oil shale on more than 2 million acres of public lands in the West.
  • DOI’s Office of Surface Mining is expected before the end of the administration to issue a final rule that would extend the current rule (which requires a 100-foot buffer zone around streams to protect them from mining practices) so that it also applies to all other bodies of water, such as lakes, ponds and wetlands. But the rule would also exempt many harmful practices – such as permanent coal waste disposal facilities – and could even allow for changing a waterway’s flow.
  • EPA has already missed several deadlines to finalize a rule addressing whether concentrated animal feeding operations (CAFOs) are required to obtain permits under the Clean Water Act.
  • EPA and the Army Corps of Engineers may issue a revised guidance memo on how to interpret the phrase “waters of the United States” in the Clean Water Act, which determines what water bodies are subject to regulation under the Act.
  • Under the Omnibus appropriations bill for FY 2008, EPA was directed to establish a mandatory reporting rule for greenhouse gas emissions, using its existing authority under the Clean Air Act, by September 2008. EPA has been working on a proposed rule, which may or may not be issued before the end of the Bush administration. EPA will not issue a final rule before the end of the administration.

CAFE Regulation and New Vehicle Characteristics

Posted by Wonk Room Thu, 30 Oct 2008 18:00:00 GMT

Resources for the Future 1616 P St. NW 7th Floor Conference Room Washington, DC 20036

Presented By: John Linn University of Illinois, Chicago

If you have any questions, please contact Joe Aldy at aldy@rff.org and 202-328-5091.

The Auto Industry's New "Alliance"

Posted by Warming Law Thu, 27 Mar 2008 19:58:00 GMT

Hybrid Living, passing along a local report from earlier this week, delivers the news that even as Minnesota Attorney General Lori Swanson defends the state’s authority to limit greenhouse gas emissions as a party to California’s lawsuit against the EPA, its proposed clean cars law has stalled—perhaps fatally for this session—in the state legislature. Lobbying by the auto industry is playing a part, but a novel assist apparently goes to corn growers and ethanol producers, who argued that the law may harm efforts to expand ethanol markets and impair the certification of "flex-fuel" cars and trucks that run on a blend of ethanol and gasoline.

But is it really that novel? Advocates from Clean Energy Minnesota fervently deny that there’s any real reason for concern, and assert that the group principally repsonsible for ginning up local opposition is essentially a mouthpiece for the auto industry:

[James Erkel of the Minnesota Center for Environmental Advocacy] said the concern is baseless, pointing to GMC’s 2008 Sierra 1500 pickup that runs on a rich blend of E-85 (85-percent ethanol and 15-percent gasoline) as well as similar vehicles that would meet the more stringent California standards.  The ARB’s Dimitri Stanich said California air regulators have certified 300,000 flex fuel vehicles and suggested there will be more as soon as the state increases the number of pumps offering E-85 fuel, which California is now doing.   


Erkel said that the auto industry is masquerading as an ethanol advocate as it enlists the corn growers and other farm groups to beat back legislation in Minnesota. The default "technical advisor" to the ethanol groups opposing the Marty and Hortman bills is the National Ethanol Vehicle Coalition, headquartered in Jefferson City, Mo. Its 16-member board of directors includes representatives of Chrysler, Ford, GMC and Nissan.

Obviously it’s not shocking that the auto industry would employ astroturf tactics and overwrought arguments to delay clean cars legislation (though it is noteworthy, in terms of looking at the industry’s credibility, to see a spokesman admit that the usual suspects "can’t stop this bill by ourselves"). The Minn Post also notes that when it asked the Minnesota Corn Growers and the Farm Bureau to explain their position, the silence was deafening and the apparent reliance on the aforementioned "technical advisors" clear:    

Calls by MinnPost to the Corn Growers and the Farm Bureau ended with representatives saying they needed to check with their "technical people" for specific reasons for the groups’ opposition to the legislation. Neither group’s representatives called back with what they may have learned from their technical advisers.   

Hybrid Living’s Sam Abuelsamid, agreeing that there’s nothing here to justify delaying the legislation other than a slight hypothetical concern, suggests that local opponents ought to look elsewhere for solutions to their concerns:

There doesn’t actually appear to be anything in the proposed legislation that would specifically harm the E85 market….It appears that the only way that this actually affects Team Ethanol is if the CO2 limits hurt sales of larger cars and full-size trucks which comprise the bulk of currently available flex-fuel vehicles. If truck sales are limited by de facto fuel economy requirements, than at least in the short term, E85-capable vehicle sales will suffer. Perhaps the ethanol side should be pushing the auto industry to make more of their vehicles E85 ready instead of fighting clean air rules.

McCain Adviser Questions CAFE, Energy Policies Other Than Cap-and-Trade

Posted by Wonk Room Mon, 24 Mar 2008 18:19:00 GMT

In an interview with Darren Samuelson of E&E News last Thursday, Douglas Holtz-Eakin lays down significant markers for Sen. John McCain’s (R-Ariz.) climate policy.

On policies such as a low-carbon fuel standard or renewable portfolio standard:
“The basic idea is if you go with a cap and trade and do it right with appropriate implementation, you don’t need technology-specific and sectoral policies that are on the books and that others are proposing simultaneously.”
On the rise in CAFE standards in the 2007 energy act:
“He’s not proposing to eliminate those. He simply wants to check as time goes on if they become completely irrelevant. You might want to take them off the books, but we’re not there yet.”
On McCain-Lieberman:
“When he introduced that bill, the floor statement was pretty clear that this was an ongoing process. He wasn’t so much committed to the bill as to an issue.”
On Lieberman-Warner:
“The Lieberman-Warner is a good bill. It’s not his intention to suggest anything different. . . We don’t take positions on Senate legislation given it will change. He’s going to realistically need to have time to study the bill. It’s premature.”
On nuclear subsidies:
“He wants to see the use of nukes. The ultimate policy proposal will be designed to make sure that’s true.”

Holtz-Eakin, director of the Congressional Budget Office from 2003-2005 and chief economist for President Bush 2001-2002, is the top economic advisor for Sen. John McCain’s 2008 presidential campaign.

CAMPAIGN 2008: McCain adviser questions Democrats’ push for more than cap and trade (03/21/2008) Darren Samuelsohn, Greenwire senior reporter

John McCain bucks the traditional Republican establishment with his support for cap-and-trade legislation, but the Arizona senator’s presidential campaign is trying to differentiate itself from its Democratic rivals by rejecting calls for additional climate-themed restrictions.

“The basic idea is if you go with a cap and trade and do it right with appropriate implementation, you don’t need technology-specific and sectoral policies that are on the books and that others are proposing simultaneously,” Douglas Holtz-Eakin, a McCain campaign policy adviser, said in an interview yesterday.

Holtz-Eakin, a former director of the Congressional Budget Office, dismissed the presidential campaign platforms of McCain’s two remaining Democratic rivals, Sens. Barack Obama of Illinois and Hillary Rodham Clinton of New York. Specifically, he questioned the candidates’ calls for a new federal low carbon fuel limit, stronger fuel economy standards and policies to reduce U.S. oil consumption.

Cap and trade, Holtz-Eakin said, is the ideal solution by itself. “You don’t need redundant policies that interfere with the flexibility that is the key to meeting these desirable goals at low costs,” he said.

Asked if this position meant McCain would block implementation of new corporate average fuel economy requirements that President Bush signed into law last December, Holtz-Eakin replied, “He’s not proposing to eliminate those. He simply wants to check as time goes on if they become completely irrelevant. You might want to take them off the books, but we’re not there yet.”

Both Clinton and Obama support setting up a mandatory cap-and-trade program to reduce U.S. heat-trapping greenhouse gas emissions 80 percent by midcentury. They are also identical in backing a 100 percent auction of the emission credits.

Unlike McCain, the two Democratic candidates would push their climate regulations beyond cap and trade.

Clinton, for example, would increase fuel efficiency standards to 55 miles per gallon by 2030 and cut foreign oil imports by two-thirds from 2030 projected levels. Obama says he would double fuel economy standards within 18 years and supports a federal low carbon fuel standard requiring suppliers to reduce the carbon their fuel emits by 10 percent by 2020.

Campaign aides for both Clinton and Obama did not return calls or e-mails requesting comment about the McCain adviser’s efforts to contrast the candidates.

But their surrogates did defend the push for even broader climate policies beyond cap and trade during a panel discussion last week in Santa Barbara, Calif., hosted by the Wall Street Journal.

“He appreciates the problem of climate change is unlike anything we’ve ever faced before,” Obama climate adviser Jason Grumet said. “It’s going to require a kind of social commitment along the lines we’ve not seen in this country since World War II.”

Added Gene Sperling, a Clinton adviser, “It can’t be an all-or-nothing proposition. Senator Clinton has a lot of proposals about what you can do as the executive from day one going forward.”

No position on Lieberman-Warner

McCain also is not wedded to the cap-and-trade bill he introduced in January 2007 with Sen. Joe Lieberman (I-Conn.) that seeks to cut U.S. emissions 60 percent below 1990 levels by 2050. “When he introduced that bill, the floor statement was pretty clear that this was an ongoing process,” Holtz-Eakin said. “He wasn’t so much committed to the bill as to an issue.”

Several climate proposals have been introduced in Congress since Lieberman and McCain teamed up, including a more stringent Lieberman proposal that includes Sen. John Warner (R-Va.) as the lead co-sponsor. “The Lieberman-Warner is a good bill,” Holtz-Eakin said of the legislation due on the Senate floor this June. “It’s not his intention to suggest anything different.”

But Holtz-Eakin said that does not mean McCain will be a guaranteed “yes” vote.

“We don’t take positions on Senate legislation given it will change,” he said. “He’s going to realistically need to have time to study the bill. It’s premature.”

Turning to some cap-and-trade specifics, McCain does have concerns about the idea of using a complete 100 percent auction for emission credits. While McCain’s views remain static on the topic, Holtz-Eakin said the Arizona Republican wants to make sure allowance distribution takes into account international competition for U.S. businesses and also how to distribute costs across the economy.

McCain also continues to support growth in nuclear power. Pressed to explain what beyond a cap-and-trade program would be needed, Holtz-Eakin replied, “He wants to see the use of nukes. The ultimate policy proposal will be designed to make sure that’s true.”

Post-Kyoto deadlines

McCain is planning several environmentally themed speeches later this year as the general election campaign picks up steam—though no firm dates have been set.

The four-term senator also is trying to brandish his foreign policy credentials this week with visits to Iraq, Israel and Europe.

McCain, Lieberman and Sen. Lindsey Graham (R-S.C.) visited British Prime Minister Gordon Brown in London yesterday to talk about a number of issues, including international climate negotiations aimed at getting a new treaty that can succeed the Kyoto Protocol.

“I am convinced that if we work at it, we will be able to convince India and China that it is in their interest to be part of a global agreement to reduce greenhouse gas emissions,” McCain told reporters outside Brown’s 10 Downing Street office. “I believe that we can achieve a global agreement.”

Keeping the focus on climate negotiations, McCain also visited with Stavros Dimas, the top European Commission climate official. And echoing aides to Obama and Clinton, Holtz-Eakin acknowledged that McCain is considering sending staff to the annual U.N. climate conference this December in Poznan, Poland, if he wins the election.

“We have certainly contemplated it,” Holtz-Eakin said.

Climate negotiators have given themselves a 2009 deadline for completing a new post-Kyoto agreement—a schedule some see as difficult to meet given the time it will take for a new U.S. president to get his or her staff and policies in place.

Asked to comment on the post-Kyoto deadline, Holtz-Eakin replied, “Saying anything very definitive about meeting a target that is 11 months into the first term when you don’t have any control in between is really hard. We’ll certainly be interested in moving this process forward as quick as possible.”

Waxman, Markey Go After EPA's Supreme Court Avoidance

Posted by Warming Law Wed, 12 Mar 2008 21:30:00 GMT

Tomorrow morning, the House Select Committee on Global Warming and Energy Independence will be holding a hearing on the implications of Massachusetts v. EPA nearly one year later. Chairman Edward Markey (D-MA) plans to question EPA Administrator Stephen Johnson on why he’s delayedaction on the EPA’s remand (which might result in another lawsuit). Committee members will also hear from a panel that includes Kansas Secretary of Health and the Environment Roderick Bremby, who made national headlines this fall by utilizing his legal authority under state law to deny permits for two new coal-fired power plants—citing the growing scientific consensus surrounding warming-related impacts and the Court’s ruling in Mass v. EPA to justify his landmark decision. 

The hearing WILL NOT be broadcast online (though it is being videotaped), but Warming Law will be in attendance and might be able to liveblog the proceedings, and will report back later regardless. We’ll be particularly noting whether any members decide to take up the "common sense questions" proposed today as talking points by the Heritage Foundation, which hyperbolically warns that an endangerment finding for CO2 would require the EPA [to] completely de-industrialize the United States." Heritage and the Competitive Enterprise Institute—which has similarly argued that an EPA global warming program would amount to "policy terrorism"—have actively taken credit for Johnson’s recent decision to suddenly halt work on an endangerment finding.

Amidst such boasts of outside influence on EPA, Markey’s counterpart on the House Oversight and Government Reform Committee, the indomitable Rep. Henry Waxman (D-CA), has started investigating the White House’s apparent interference in short-circuiting an endangerment finding. In a letter sent to Johnson today, Waxman notes on-the-record conversations with senior EPA officials that—combined with Johnson’s public statements up through the last couple of weeks—depict a process that was suddenly halted as it neared completion:

Multiple senior EPA officials [cited directly in this letter] have told the Committee on the record that after the Supreme Court’s landmark decision in Massachusetts v. EPA, you assembled a team of 60 to 70 EPA officials to determine whether carbon diioxide emissions endanger healt hand welfare and, if so, to develop regulations reducing CO2 emissions from motor vehicles. According to these officials, you agreed with your staff’s proposal that CO2 emissions from motor vehicles should be reduced and in Decemer forwarded an endangerment finding to the White House and a proposed motor vehicle regulation to the Department of Transportation…

The senior EPA officials who spoke with the Committee did not know what transpired inside the White House of the Department of Transportation or what directions the White House may have given to you. They do know, however, that since you sent the endangerment finding to the White House, "the work on vehicle efforts has stopped." They reported to the committee that the career officials assigned ot the issue have ceased their efforts and have been "awaiting direction" since December.

As per OMB Watch, the letter also pre-emptively rebuts the suggestion that the fuel economy standards passed by Congress in December have any legal impact on EPA’s legal obligations in wake of Mass. v. EPA. Waxman is demanding that EPA provide "copies of the documents relating to the endangerment finding and GHG vehicle rule, including copies of any communications with the White house and other federal agencies about these proposals." Copies of an EPA techinical support document, the proposed endangerment finding, and the proposed vehicle GHG rule are due by this Friday, March 14; all other documents are to be provided by March 28.

It should also be noted that Waxman previously uncovered an improper lobbying effort by the same parties in question here, DOT and the White House, against California’s since-denied application for a waiver to enact its own vehicle GHG standards. Waxman’s oversight into White House influence on that decision also continues, with a letter sent to Johnson on Monday threatening to subpoena missing documents unless they were provided by close-of-business today.

GM Chief Asks Dealers to Lobby Against State-Level Greenhouse Limits

Posted by Brad Johnson Mon, 11 Feb 2008 19:03:00 GMT

From the AP:
General Motors Corp. CEO Rick Wagoner urged a group of auto dealers Saturday to lobby against individual states trying to set their own limits on greenhouse gas emissions.

Wagoner, speaking to the National Automobile Dealers Association convention in San Francisco, said several states want to go beyond requirements passed by Congress.

If that happens and automakers must focus on state regulations, they won’t be able to focus as much on alternative fuel vehicles to reduce oil consumption and pollution, he said.

“We’re not going to be able to accomplish everything that we otherwise could,” Wagoner said. . .

“We need to work together to educate policymakers at the state and local levels on the importance of tough but national standards,” Wagoner told the dealers group.

He also said dealers and automakers should push for infrastructure to handle new technologies including hydrogen and ethanol fueling stations and charging stations for electric vehicles.

GM is the official vehicle provider for the Democratic National Convention, a decision highlighted as part of the DNC’s “green” mission:
“GM’s leadership in this area will play a critical role in our event – helping us make this the ‘greenest’ political convention our country has ever seen, while providing our guests with yet another convenient option for getting around Denver.”
– Leah Daughtry, DNC CEO
Once we talked to them about how we really wanted to push the environmental piece, they were 100 percent on board.
– Cameron Moody, the DNCC’s director of operations
This will be a great showcase to change perceptions about GM and to show we are taking leadership.
– GM spokesman Greg Martin

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.

EPA Admin on the Hot Seat at EPW Hearing

Posted by Brad Johnson Thu, 24 Jan 2008 16:36:00 GMT

At today’s Committee on Environment and Public Works hearing on the EPA’s decision to deny the California waiver, EPA administrator Stephen L. Johnson defended his decision under intense questioning from the Democratic members of the EPW (the only minority member to attend was Sen. Inhofe).

Johnson repeatedly argued that because greenhouse gases are a global problem, California did not have a “unique” or “exclusive” interest; two terms which have been found to be distinct from the “compelling and extraordinary” criteria the Clean Air Act the waiver petition must meet. As NRDC advisor Fran Pavley noted in the January 10 field briefing:
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.”

The senators pressed Johnson hard on the long-delayed endangerment finding, a timeline for which he would not discuss. Under repeated questioning, he refused to concede that global warming represents a threat to public health, even when confronted with the CDC testimony from last October’s hearing. He agreed only that it is a “serious issue.”

Sen. Whitehouse (D-R.I.), displaying his prosecutorial background, leading Johnson into a discussion of how he overruled his staff, trying to parse Johnson’s description of a presentation of a “range of options” with the existence, if any, of a “consolidated recommendation.” In the end Johnson argued that the two terms could be synonymous.

Interestingly, Sen. Carper (D-Del.) favorably discussed Sen. Levin’s colloquy that implied that the Energy Act CAFE standards restrict EPA action on emissions regulation.

The Environmental Protection Agency's decision to deny the California waiver

Posted by Brad Johnson Thu, 24 Jan 2008 15:00:00 GMT

Sen. Barbara Boxer continues the investigation.

Panel I (Warming Law live-blog)
  • Stephen L. Johnson, Administrator, Environmental Protection Agency
Panel II (Warming Law live-blog)
  • Martin O’Malley, Governor of Maryland
  • Jim Douglas, Governor of Vermont
  • Edward G. Rendell, Governor of Pennsylvania
  • Mike Cox, Attorney General, State of Michigan
  • Doug Haaland, Director of Member Services, Assembly Republican Caucus, State of California
Panel III (Warming Law live-blog)
  • David D. Doniger, Policy Director, Climate Center, Natural Resources Defense Counci
  • Jeffrey R. Holmstead, Partner, Bracewell & Giuliani

Panel I

  • Stephen L. Johnson, Administrator, Environmental Protection Agency
Opening remarks from Warming Law blog:
10:10 AM: Senator Inhofe (R-OK) is on, and he’s angry at the media for saying Johnson refused to appear at a January 10th hearing in Los Angeles. It was a field hearing, and a blatant political event, and had Johnson shown up he’d have been critical of him. Today’s hearing is also theater. Where was the outrage when the Clinton EPA was repeatedly late, given far more time?

P.S. He thinks Johnson’s decision was right, in case you didn’t figure that out—carbon is “ordinary, not extraordinary” when it comes to carbon. Plus temperatures there have been DECLINING over the last 2 decades according to his chart. Also Oklahoma would lose jobs if this went into effect. 10 AM: And we’re live! Senator Boxer is speaking about this “unconscionable” decision affecting over half the population; she has “never seen such disregard and disrespect” for Congress from an agency head than in this process. Places in the record statements from CA officials, the governor of CT, and so forth. Also worth noting that Johnson’s prepared testimony, from what I can see so far, very clearly announces that EPA will be trying to have the existing lawsuit tossed and force it to have to be refiled in the DC Circuit:

“The final decision document and federal register notice are currently being prepared by agency staff. When I review and sign the decision document for publication, that will be the final agency action and that will be the time for any court challenges. As with prior waivers, I expect that decision to be a final action of national applicability, and accordingly…Federal Register’s notice of the decision will say so.”

10:12 AM: Boxer uses up the rest of her time now, and icily notes Inhofe went over his by 30 seconds. This is the first time a waiver has been denied in full; she thought the field hearing was in friendship and of benefit to the people of CA. Holds up a tray with all the tape her staff had to pull of the EPA staff documents Tuesday: this is not befitting of treatment of Congress, in the greatest nation on earth.

10:18 AM: Senator Lieberman (I-CT) is up, to be followed by Senator Carper (D-DE). No Republicans besides Inhofe are present. Lieberman state leadership’s benefits, and quotes Bob Dylan’s “The Times They Are A Changin’” regarding the federal government standing in the road. This is actually how federalism is supposed to work—.laboratories of democracy! There is no patchwork; CA analysis refutes Johnson’s assertions that federal fuel economy goes further; denial letter’s statement on lacking “compelling and extraordinary conditions” is bunk in light of Mass. v. EPA.

Carper cites the same decision re: EPA’s duty to harmonize vehicle GHG efforts with the DOT standards, not shirk it! Thinks inconsistencies/patchwork being possible is a real concern there, but EPA has done squat to address and act; instead made it an excuse for inaction, despite the Supreme Court knocking down the same excuses. Also, we need a national GHG cap-and-trade program, cites state and regional leadership. Congress must lead and not preempt, and then states won’t have to do the job for them.

10:30 AM: Lautenberg (D-NJ) says this is a step backward in a global sense, chose to protect industry over environment. Glad states are suing to overturn; he and Boxer will soon introduce legislation to do the same thing. Cardin (D-MD) reiterates public health impact, subversion of EPA’s historic role, and Lieberman’s points—this is an “affront to federalism.” He’s glad to press ahead with legislation—federal agencies should press ahead without legislative interference, but when they ignore own scientists. Congress needs to step in.

10:32 Sanders It was only last year that this administration admitted that global warming was a reality. As others have said, if you can’t do the right thing, at least get out of the way. We are an outdoor state. We want our kids to live in a world without flood, drought. The law in my mind could not be more clear. California waited on a decision for its waiver for two years. No decision document, just a press release. Unprecedented. Sen. Boxer, I’m proud to join you in your legislation.

10:35 Klobuchar To think that the Supreme Court, which is not a radically liberal court, would say that the EPA can regulate carbon dioxide as a greenhouse gas. You’d think that the EPA would have been able to do that on its own. I question the inference that the increase in the CAFE standards obviates the need for the California waiver. The U.S. District Court found that the California waiver and increased CAFE standards overlap but do not conflict.

10:39 Whitehouse I’d like to say three things. The state of Rhode Island is one of the waiver states. I’m extremely glad Chairman Boxer has held this hearing. It’s apparent that the EPA has a pattern of ignore the science, ignore the law, deliver the goods. The directors of health of the states are unanimous on this subject. For some reason we seem unable to unwind ourselves from the axle here.

10:44 Stephen Johnson: In light of the international nature of the problem, I concluded that California does not have a unique and compelling interest.

10:47 Boxer Do you understand that many other states are being impacted?

Johnson Under the law I only consider California.

Boxer Your mission is to protect the health of Americans and the environment. Many of us believe you are going against your mission. Let’s talk about a process that you promised this committee in your nomination hearings that your guiding principles would be that your decisions would be guided by the best available science and the process would be open and transparent. Let me show you the docements you sent us.

Three pages that have been completely redacted.

Is this your notion of an open and transparent way to make decisions?

Johnson When the agency is in litigation, we protect with attorney-client privilege documents so we can defend ourselves. I decided to waive my privilege to let your staff see documents. I followed the law.

Boxer You sending us blank documents, you’re so magnanimous you gave us documents covered with tape. You have no privilege vis-a-vis the Congress. You cannot assert privilege against Congress. They’re not classified, they’re not confidential. This is just the beginning of information.

I have to say, sir, when you look at was in the taped-over documents, you’re walking the American taxpayers into a lawsuit you’re going to lose.

10:54 Inhofe As you’re aware the EPA documents that are confidential and litigation-sensitive were released. Do you think this will have a chiling effect?

Johnson Yes, I was disappointed.

Inhofe Was this a staff decision or your decision to make?

Johnson I had a wide range of legally defensible options presented to me, and I made the decision.

Inhofe This applies to other greenhouse gases similarly?

Johnson Yes. They are global in nature. Therein lies the problem. It is not unique, it is not exclusive to California.

Inhofe Does the Clean Air Act require the EPA to grant waiver petitions?

Johnson No, it does not require me to rubber-stamp waivers.

Inhofe Are you the first administrator to consult with the administration, the Justice Department?

Johnson I have routine conversations with members of the administration, I think that’s good government.

Inhofe Sierra Research, NERA. They conclude the California standards would result in decades of worse air quality.

Johnson There were certainly lots of comments that were duly noted.

Johnson As you correctly point out, this is the first waiver of its type. In my opinion based on the facts presented to me, California doesn’t meet one of the criteria.

Inhofe Isn’t a national solution the best way to deal with climate change?

Johnson I believe so.

11 AM Lieberman I’d like to pick up on your preference for a national standard. I want to focus in. Last year after the Supreme Court decision the goal was set to set national transportation emission standards. You had the personal goal of issuing those standards by end of 2007. Obviously it’s 2008. Do you still intend to issue national emissions standards, and when?

Johnson We are still working on fuel and emissions standards. The new energy act impacts and provides direction. It doesn’t relieve me of responsibilities. We’re working our way through what the legislation directs us to do. So that’s all being worked on. I don’t have at this point a date. I’m certainly aware of the dates in the legislation. It’s our intent to meet those dates.

Lieberman I appreciate your answer because I believe the administration’s pledge to release standards are quite distinct from CAFE. I’m glad you’re working on it. I hope you’ll come to a conclusion soon. I want to ask you that since the EPA has already taken a fair amount of time on this, when do you expect the notice to appear in the Federal Register?

Johnson The end of February.

Lieberman In light of the recent reports by IPCC and others, on what scientific grounds did you conclude the threats to California are not compelling and extraordinary?

Johnson The documents will explain the full reasoning. Again, as we’ve discussed, it’s not unique, it’s not exclusive to California. Certainly IPCC and a number of other studies are very important.

11:06 Carper There was a colloquy with Levin and Inouye about NITSA and EPA.

Johnson Congratulations to all of you to passing the legislation. It is a significant accomplishment. Two points I’d like to make. As I was deliberating on the California waiver decision, you in Congress were debating whether to pass the Energy Act, the colloquy focused on Section 209. I didn’t know what you were going to do. Section 209 was not changed. I have to make the decision based on the law of the land of the day. Our charge is to develop regulations to implement what Congress has passed.

Carper If we’re going to pass greenhouse gas legislation at the federal level, EPA could hasten that by dealing with three issues. Compiling a greenhouse registry, safety standards for CO2 sequestration, verifying offsets.

Johnson Our staff are working on the first; second, we are now drafting a regulation which you should see this summer. We’re working with the Department of Agriculture on the third.

11:13 Lautenberg Do you believe global warming is a serious problem to human health?

Johnson It’s a serious problem. One of the issues that’s facing me is the issue of endangerment under the Clean Air Act.

Lautenberg Is global warming dangerous to human health?

Johnson The agency has not made a decision on endangerment.

Lautenberg If there was no federal law that gave you a route to follow, would your conscience have anything to say?

Johnson My conscience is guided by what the law says.

Lautenberg Do you think global warming is a hoax or a serious problem?

Johnson It’s a serious problem.

Lautenberg You say the problem is national and that regional efforts have no value, and that’s strictly dictated by law.

Johnson In the context of the California waiver I have to make decision based on particular criteria.

Lautenberg I’m going to interpret what you’re not saying and say that you would have made the same decision no matter what the law directs. . .

Johnson First of all any conversations I have with the President are between him and myself. I’m satisfied, confident, and comfortable with the decision.

11:21 Cardin How much of this decision was politically motivated?

Johnson I think it’s good government to consider comments from the public, including your committee. I made an independent decision. Ultimately it’s a judgment decision by me. I feel it’s a right decision.

Cardin How much was it based on technical information, how much was it based on personal viewpoints?

Johnson It’s a global problem, requiring a global solution, at least a national solution. I stand by my decision.

11:26 Sanders Just as a human being, do you think the impact of flooding, drought, malaria, wildfires are a serious health issue?

Johnson I consider myself a human being. Those are important problems.

11:32 Klobuchar Please discuss the endangerment ruling process.

Johnson We are working through a very deliberate process on the Supreme Court rule.

Klobuchar The CDC redacted testimony said that increased heat waves would increase mortality in the United States. Diseases, lung damage; another agency is saying it’s a public health risk.

Johnson I have not said whether we are or are not using it.

Klobuchar I know that as one of the rationales for denying would create a “patchwork” system. My understanding is that there would be a California standard or a national standard.

Johnson I tried to make it clear that the Clean Air Act criteria guided my decision.

Klobuchar I want to make clear it would be two standards.

Johnson It would be more like a checkerboard.

11:38 Whitehouse Did you direct the process?

Johnson The process was the standard one.

Whitehouse Did the staff briefings include staff recommendations?

Johnson Yes.

Whitehouse How were the recommendations presented?

Johnson They presented a range of legally defensible options, with pros and cons.

Whitehouse Is it customary for the staff to consolidate a recommendation before they come to the director?

Johnson The staff identify the available options and identify the pros and cons.

Whitehouse My understanding is there was an options analysis, a recommendation, and then your decision.

Johnson I would add a step of what past practices and foundational briefing.

Whitehouse With respect to the recommendation phase, it is customary for you to have the various elements of the agency to try to come up with a consolidated recommendation?

Johnson What is typical for me is that as the staff brief the options I have discussions with the policy advisors.

Whitehouse Is the recommendation just you asking people and they may or may not talk?

Johnson No, there’s usually either a consolidated recommendation or a range of options.

Whitehouse Why wouldn’t you always get a consolidated recommendation?

Johnson It’s not a popular vote.

11:45 Boxer I think the refusal of the EPA administrator refusal to state that global warming is a threat to human health is at best embarassing and at worst dangerous. You have stated that we told the American people what are in these documents. When can we expect the rest of the documents?

Johnson I’d ask you respect the privilege.

Boxer I’m asking a different question. My responsibility is to my state and this country. When can this committee expect the rest of the documents?

Johnson I believe February 15th.

Boxer Will they include communications with the White House?

Johnson I’ll have to get back to you on that.

Boxer I’m trying to avoid subpoenas. You said you were briefed on the law. This is what it says: the Act requires the waiver to be granted unless California has acted capriciously. We hope you won’t send the documents over with tape. These documents are important for the people of this country to see. It’s ridiculous, it’s a waste of time.

11:50 Inhofe How can California meet the consistency requirement since there are no federal greenhouse gas standards? When you talk about whether anthropogenic gases are the major cause, the science is not settled. I used the names of very authentic scientists, leaders, Claude Allegre. He said clearly the science isn’t there. David Bellamy in UK as well. There are several who showed up in Indonesia. I was the only skunk in the picnic in Milan. We have the 400 scientists, all of whom take issue with the fact that there is consensus. It is not settled. More and more scientists are coming and questioning it. You were asked if you agree with the IPCC. Do you agree with the assessment they cut the sea level rise in half?

Johnson That’s my understanding.

11:54 Carper I’d like to go back to my question about a mandatory registry.

Johnson The appropriations language directed a draft rule not later than 9 months after enactment and a final rule not later than 18 months. Our intent is to meet that.

Carper What is the status of the EPA’s proceedings to meet the Supreme Court demand?

Johnson We are working to develop our full package. As we propose draft regulations for both vehicles as well as fuels our finding of endangerment would be part of that. I don’t have a date.

Carper Are you in the position to provide the committee with documents?

Johnson We’re in the internal deliberative process. After I’ve made the decision I would be happy to.

Carper What are your views on the nationwide CO2 legislation we’re working on?

Johnson We are in the process of finishing up our analysis of Lieberman-Warner.

Carper I hope it will be a supportive analysis and timely. I believe we will bring L-W to the floor in early June.

Boxer I believe it may be earlier than that.

11:59 Lautenberg The California waiver decision took two years.

Johnson Only once the Supreme Court made the ruling it was within two weeks I began the process.

12:03 Cardin My question to you is that I hope we’ve learned from this experience that delay is unacceptable. You can do things better.

12:04 Sanders My understanding is that a technical document would usually be prepared and be ready for distribution before the decision is announced. Was it just a coincidence that you announced your decision at a press event on the evening signed the energy bill? It seems like a strange time to make that announcement.

Sanders Was it a coincidence?

Johnson Let me explain the decision. That afternoon the press office began receiving calls that papers had been leaked that would allow things to be misinterpreted. So I made the decision to make the announcement.

Sanders The average American would find it strange that the head of the agency would make this announcement in a press release on the evening of the signing.

Johnson It was a unique situation.

Sanders It was a coincidence?

Johnson I would be happy to explain the situation further for the record.

Sanders Are you able to understand why the average American would be dubious? The circumstances had nothing to do with the signing of the energy bill?

Johnson As I tried to say, I was aware Congress was debating the issue. I wanted to take advantage of the knowledge that the President did indeed sign the legislation.

12:09 Klobuchar So it wasn’t unrelated.

Johnson The decision to make the announcement that day was based on leaks. I had already made my announcement to the staff.

Klobuchar This is the first waiver denied under the Act.

Johnson That’s correct. This is the first one dealing with greenhouse gases.

Klobuchar You’ve backed off the patchwork. I want to make clear that the California standards don’t require the emissions reductions come from fuel efficiency alone. At what do we see extraordinary conditions?

Johnson As you’re pointing out, it’s not exclusive, it’s not unique to California. It is not exclusive. There is not a compelling need for that state standard.

12:15 PM Whitehouse You keep saying “In my judgment”. The legislative history says the administrator is not to substitute his judgment for the state.

Johnson It just takes one of the criteria not being met. In my mind this is requiring me to make a judgment.

Whitehouse You said there is to be typical four there to be four steps: a briefing, options analysis, consolidated recommendation, then your decision.

Johnson Let me add to that.

Whitehouse I don’t want you to slow walk that.

Johnson You missed evaluating the comments.

Whitehouse Was there a consolidated recommendation?

Johnson I don’t recall that there was one on this. Sometimes there’s a consolidated recommendation, sometimes there’s not.

Whitehouse You’re under oath. You just agreed with me the process is typical, then you said there’s not.

Johnson Sometimes there are consolidated recommendations in the form of a list of options, sometimes the consolidated recommendation is just one. I leave it up to the head of the particular office.

Whitehouse Isn’t it a matter of basic discipline to get to a consolidated recommendation?

Johnson Sometimes it’s one option, sometimes it’s three options, sometimes it’s five.

Whitehouse So the options analysis and consolidated recommendation are the same thing now? It is standard procedure to come to a consolidated recommendation. Now it seems you have manipulated the process. I’m pretty familiar with administrative law.

12:24 Boxer You said there was no connection between the President’s signing of the Energy Bill and timing of your announcement. Your announcement started with praise for the signing. Let me just say as a human being to a human being, when you say it had nothing to do with it, your entire rationale was based on this. In your statement you said there would be a patchwork, and Sen. Klobuchar corrected you.

12:27 Sanders For your good, because you are under oath. There is concern about the politicization about many aspects of the Bush administration, including the EPA. I asked if it was just a coincidence. You said there were other reasons. Sen. Boxer just made public your statement, which says it begins with stating “President Bush signed the Energy Act…” The beginning of your statement in terms with why you rejected the waiver has everything to do with the President signing the bill.

Johnson I was deliberating on Section 209 and you all were deliberating on whether you were going to change that section. When it became clear that you did not change the section then it was clear I could make the decision.

Sanders You didn’t mention the leaks in your public release.

Johnson I certainly appreciate your recommendation. It’s factually correct that the bill was passed.

12:32 Boxer I don’t deny your veracity that there were leaks. One other question about dates. When will you have the decision document ready?

Johnson As I said to Sen. Carper, we expect the end of February.

Boxer The witness is excused.

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