Appeals Court Rejects Petition to Order EPA to Make Global Warming Endangerment Finding

Posted by Brad Johnson Fri, 27 Jun 2008 11:46:00 GMT

The U.S. District Court of Appeals has unanimously rejected a petition requesting it require the Environmental Protection Agency to issue its long-delayed finding as to whether greenhouse gas emissions endanger human health and welfare. The petition had been filed by officials of 18 states exactly a year after the Supreme Court issued its decision in Massachusetts v. EPA, which ordered the EPA to issue an endangerment finding.

Since that time, Congressional and journalistic investigations have discovered that Administrator Stephen Johnson, with assistant deputy administrator Jason K. Burnett, worked to obey the Supreme Court decision and completed its work for submission to the White House on December 5, 2007. But the White House refused to accept the work, literally keeping Burnett’s email unopened and ordering him to retract the message. He refused to do so, and has since resigned.

The White House overrode the EPA decision to make the endangerment finding, to grant California a waiver to issue its own greenhouse tailpipe emissions regulations, and to recommend federal standards. Instead, Johnson denied California’s waiver and is expected to issue an Advance Notice of Proposed Rulemaking sometime soon with draft emissions standards (he has missed his self-imposed deadline of the end of spring).

EPA's New Ozone Standards

Posted by Wonk Room Tue, 20 May 2008 17:00:00 GMT

The hearing, originally scheduled for May 8, will examine the new ozone national ambient air quality standards (NAAQS) and the process the Environmental Protection Agency used in setting them.

On March 12, 2008, EPA Administrator Stephen L. Johnson finalized updated NAAQS for ozone, a primary component of smog. The new ozone NAAQS are comprised of a revised primary standard to protect health and a revised secondary standard to protect the environment. In setting both standards, EPA Administrator Johnson did not accept the recommendations provided to him by EPA’s independent scientific review committee, the Clean Air Scientific Advisory Committee (CASAC). With regard to the secondary standard, Administrator Johnson’s efforts to set a new standard were overruled by the White House.

In light of new information obtained by the Committee, questions are also expected regarding the White House’s role in EPA’s action to block California’s program to regulate greenhouse gases from automobiles.

Witnesses

Panel I
  • Stephen L. Johnson, Administrator of the Environmental Protection Agency
  • Susan E. Dudley, Administrator of OMB’s Office of Information and Regulatory Affairs
  • Dr. Rogene Henderson, Chair, Clean Air Scientific Advisory Committee
Panel II
  • Dr. Francesca Grifo, Senior Scientist, Union Of Concerned Scientists
  • Michael Goo, Climate Legislative Director, Natural Resources Defense Council
  • Dr. Roger O. McClellan, Advisor, Toxicology and Human Heath Risk Analysis
  • Alan Charles Raul, Partner, Sidley Austin, LLP

1:50 Waxman We have seen White House interference with federal agencies in the run-up to the Iraq War, torture, and US Attorneys. The record is overwhelming that EPA’s experts all supported grating the waiver petition.

EPA’s expert advisory committee unanimously recommended a new standard for protecting the environment. Johnson supported the new seasonal standard. He said there was ‘no evidence’ for a different standard.

Our investigation has not been able to find any evidence President Bush based his decision on the science or the law. I support the broad powers the Constitution vests with the President, but he does not have unlimited powers and he is not above the law.

1:55 Issa We’re all entitled to our opinions, not our facts. The appropriate role of the President was established by the Constitution. President Clinton offered a prime example of an executive involved in regulatory actions. We know that on March 12, Susan Dudley sent a memo to the EPA indicating President Bush’s decision on the ozone standard. It does not reflect any unusual or improper action. The Clinton executive order makes it clear that the President will decide disputes between OIRA and the EPA. The President agreed with OIRA’s conclusions.

Claiming that science dictates a certain outcome is contrary to science and law.

2:05 Waxman It’s the policy to swear in the witnesses. Your prepared statements have been submitted. Please keep your oral opening statements within five minutes.

Johnson I’m pleased to discuss EPA’s decision to significantly increase ozone standards. Since 1980, ozone levels have been cut by 20 percent. I concluded the 1997 no longer protected public health with an adequate level of safety. I chose 0.075 ppm as the 8-hour standard. I proposed a three-month standard to address plants’ cumulative exposure to ozone. As required by Executive Order 12866, I coordinated with other agencies. I believe it is time to modernize the Clean Air Act. Congress has adopted these principles in the Safe Drinking Water Act. The Clean Air Act is not a relic, but a living document.

2:10 Dudley Pursuant to Executive Order 12866, OIRA coordinates interagency review. Both OMB and EPA have been forthright on the ozone standards. No changes were made to the level or form of the health-based standard. Discussions of the secondary standard were exclusively on the form.

2:15 Henderson I’m testifying as the current chair of EPA’s CASAC. Dudley’s first memo was clearly disputed by Marcus Peacock. So the next memo she wrote said Bush made the decision. CASAC has been accused from wandering from scientific issues into policy. In this case policymakers have wandered into science. If the Administrator sets a standard outside the range outside the CASAC’s recommendations, one should ask whose advice he based his decision on. I would like to quote from Dr. Paul Gilman, “Setting the standards by fiat, behind closed doors, is not in our best interest.”

2:23 Waxman You’re the chair of the Clean Air Scientific Advisory Committee. Are the standards EPA Administrator Johnson set consistent with the science?

Henderson It is not consistent with the CASAC recommendations, which are based on the science.

Henderson We always recommend a range.

Waxman Did he select a number within the range?

Henderson No.

Johnson I would respectfully disagree with the characterization. I did agree with CASAC that the current standard was insufficient.

Waxman You think that you set the standard within the science. Your professional views may be scientific and legally correct. You recommended the secondary standard be set on cumulative exposure?

Johnson More correctly there were two options. Other agencies preferred a different option. The President provided input. Ultimately I made the decision.

Waxman As the head of the EPA you recommended a proposal. OMB didn’t like that proposal. You ultimately agreed with their proposal.

Johnson More accurately, I agreed with CASAC that a cumulative standard is most biologically accurate.

Waxman I want a direct answer.

Johnson I don’t believe it’s a yes or no question. There was one preferred by EPA, and one preferred by OMB. I think it’s good government.

Waxman Your staff said it was pure politics. And this isn’t the only time you were reversed by the White House. Jason Burnett said you recommended that you grant the California waiver. After talking to the White House, you changed your mind.

Johnson If you look through the 1000s of pages, it shows a very deliberative process where I considered all options.

Waxman Burnett told us under oath that you recommended a partial grant. Your staff also told us you recommended emissions standards.

Johnson It’s true there was a draft endangerment finding before the Energy Independence and Security Act was passed.

Waxman We interviewed 7 senior career EPA officials and they told us the same thing. The recommendation was submitted in the first week of December, and then all work stopped. You’ve become a figurehead. Three times you recommended to deal with climate change and protect the environment, three times you back down. Congress passes the law, the Executive Branch is supposed to faithfully execute them. The President seems to think he can do what he pleases. Let’s go to this ozone decision.

Johnson There were many uncertainties. That’s why I chose the primary form. It’s a very transparent process. I think that’s good government.

2:36 Issa You’re a career professional.

Johnson I came to EPA in 1980.

Issa You’re not a political appointee.

Johnson I’m a career professional and a political appointee.

Issa Today we’re talking about a reduction and trying to go through what good deed goes unpunished. Is Mr. Waxman’s district in compliance with the ozone standard? Has it ever been?

Johnson No. The law prohibits me from considering costs. I believe there’s an opportunity to improve the Clean Air Act. I think it’s unconscionable to have communities not in compliance with the standard for twenty years.

Issa For CO2, it’s time for Congress to act.

Johnson I wholeheartedly agree. Dealing with a global air pollutant, my experience is that a legislative fix is correct. I believe global climate change, greenhouse emissions need to be addressed. I’m issuing an advanced notice of a rulemaking process this spring.

Issa Today we appear to be having a hearing about whether a 11% reduction is worse than a 16% reduction.

Johnson That’s certainly a view. I wholeheartedly agreed with CASAC that it needs to be reduced.

Issa Basically, if 2,3,4 years from now we’ve achieved a portion of this reduction, there’s nothing to stop this from happening at any time.

Johnson We’re required every five years to review each and every one of these standards. The Agency has never met the five-year requirement. We’re required to make these evaluations.

2:44 Bilbray I don’t come from a business background. I come from a regulatory background. Sheer population has been ignored from the environmental impact. Doctor, you serve on one of the most critical bodies. Back in the 90s, when California petitioned for a waiver for MTBE, were you involved?

Henderson My chairmanship began in 2004.

Bilbray What was the Clinton justification for requiring us to put MTBE and ethanol in our fuel?

Johnson It was before my time.

Bilbray Mr. Chairman, I was outraged at the time that the Clinton administration was bowing to political pressure. For us to point fingers at one administration when we waited for a decade is wrong.

2:45 Tierney What did you mean by “willful ignorance”?

Henderson I don’t believe OMB actually read our documents. It bothers me that when all the hard work went in for a secondary standard, someone can just say, “Nope, can’t do that.”

Tierney You want to respond?

Johnson The record clearly indicates it was a difficult decision.

Tierney An EPA lawyer wrote, “We could be exposed to a contempt proceeding.” Mr. Johnson, I think what’s happening is pretty unacceptable. By your own words, it was “necessary” and “compelling” to set this secondary standards. Nearly 1000 scientists said they experienced at least one instance of political interference.

Johnson I’d like to quote to you, if I may, Dr. Paul Gilman, “EPA has become too politicized in its actions.” That was the Clinton administration.

Tierney Are you proud of what’s going on now?

Johnson I’m proud. My role as Administrator is to evaluate the science.

Bilbray UCS Survey?

Johnson I am aware the survey was received by political appointees and non-scientists.

Bilbray For this to be used as some kind of scientific document. No pollster would accept this. Doctor, in your analysis, was their a consideration of economic impact?

Henderson We are not allowed to consider costs. We did consider what was biologically relevant. I have a concern for the affect of ozone on vegetation as well as people. We are neglecting the rural areas.

Bilbray How long have you been chairman?

Henderson Four years.

Bilbray You didn’t talk about economic value of crops that could have been destroyed.

3:00 Johnson I’m not allowed to consider costs or whether it can be implemented or not. With all science there are uncertainties. Judgment needs to be exercised.

Henderson Welfare includes but is not limited to … economic well-being.

3:02 Higgins I’d like to focus on the primary standard and health impacts. Did you find the primary standard to be sufficient?

Henderson No.

Johnson I disagree.

Higgins EPA estimated 350 more deaths, 10,000 asthma attacks, 750 emergency hospital visits, at your standard.

Johnson The Clean Air Act does not require zero risk. It is the most health-protective standard of our nation’s history. I’m very proud of that.

Higgins I have a letter from the American Lung Association strongly critiquing this decision. Your decision seems to be inconsistent with mainstream thinking. It’s just not credible to argue your decision is based on science.

Johnson I disagree. It is the most health-protective standard of our nation’s history. Ultimately, I need to make the tough decision.

3:08 Platts I yield to Issa.

Issa Could we put the map up on the board. My understanding that everywhere that’s dark – which unfortunately includes most of California – there’s no effective difference between primary and secondary standard.

3:18 Hodes With all due respect I’m asking the questions. Do you recall or not recall discussing costs with the White House?

Johnson Even if I recall, I don’t want to answer the question.

Hodes Are you asserting privilege?

Johnson I’m not asserting privilege.

Hodes Do you or don’t you recall?

Johnson Even if I recall, I don’t believe if it is appropriate to answer the question.

3:20 Sarbanes Explain your memo.

Dudley The air quality based on the secondary standard is the same. What we care about is air quality. The two standards would have the same effect.

Sarbanes I’m incredulous. The administrator said he found “compelling” evidence that a cumulative index is the best way to measure effects on vegetation. I could see you asserting inadequate evidence, but that there was no evidence doesn’t seem to jive with all the other testimony and documentation.

Dudley There are two different issues here. The form of the standard won’t affect the air quality of those counties.

Sarbanes What you’re saying strikes me as doubletalk. Did the President or the White House indicate to you that there would be times when the science would be overriden by political purposes?

Johnson My charge and oath of office was to carry out the laws. The President said he wanted me to accelerate the environmental protection. I carried this out to the best of my ability, based on sound science. Science isn’t pure.

Sarbanes I can’t think of a clearer example of where your charge came into conflict with the Presidential edict.

3:26 Welch Jason Burnett is a senior member of the EPA. He’s been deposed. He testified you favored granting this waiver in full in August and September.

Johnson Over time…

Welch Let’s keep it simple. Is he correct in his recollection?

Johnson I don’t recall the August and September timeline. I was considering all options.

Welch Mr. Burnett said that in August and September you were favoring granting a waiver in full.

Johnson As I said, I considered all the options.

Welch It’s obvious you did. Is he right that you considered a partial grant?

Johnson Yes.

Welch Did you have a meeting with the President about this?

Johnson I have routine meetings with the President and the executive branch.

Welch Did you have a meeting with the President about this?

Johnson When and where…

Welch Does “transparent” mean we can’t know whether you met with the President?

Johnson I believe as Administrator I need to have private meetings with the President.

Welch Did I ask the content of the meeting? Did your staff present you a slide stating that the most legally defensible option was granting the waiver?

Johnson I don’t recall that particular slide.

Welch Did the EPA staff make it clear the statutory

Johnson There were a wide range of options.

Welch It’s a little frustrating.

Johnson It shouldn’t be frustrating.

Waxman You admitted you have a conversation with the President on the California waiver.

Johnson I have routine conversations.

Waxman You are being awfully evasive.

Johnson I have routine conversations.

Waxman Did you have any conversation with the President on any of these three rules?

Issa Regular order! I want a copy of the rules!

Waxman I will have the gentleman physically removed if he does not desist.

Waxman Did you have any conversation with the President on any of these three rules?

Johnson I have routine conversations, I don’t believe it is appropriate for me to discuss the content of these conversations.

Waxman Are you asserting privilege?

Johnson Not at this time.

3:36 Watson Was the Vice President’s office involved the California waiver?

Johnson Not to my knowledge.

Watson According to press accounts, the CEO of Ford and GM met with the Vice President’s office.

Johnson It’s not a problem unique to California.

Watson Was there any input from the White House that influenced your final decision?

Johnson My decision was based on the science and the law.

Watson Was there any input from the White House that influenced your final decision?

Johnson I have routine conversations…

Watson Yes or no.

Johnson The answer is, no, they did not make the decision.

Watson That was not my question. Maybe my English was not clear. In your routine conversations, was there any input from the Vice President?

Johnson I don’t recall any.

3:43 Issa Our deliberations are protected from discovery by the executive branch. It’s no surprise that you might wish the same privilege. You serve at the pleasure of the president, but he does not have authority over your actions. Is that correct?

Johnson Yes.

Issa Chairman Dingell declared regulation of CO2 a “glorious mess.”

Johnson I believe there are many intricacies with the Clean Air Act. My personal opinion is that given the years and years of litigation is to prefer a legislative approach.

3:46 Cummings This stuff is personal for me, because I have asthma. In my district in Baltimore my constituents have a high rate of asthma. We’re curious as to how our administrator, our man in the EPA makes his decisions. You’ve said “it’s not a popularity contest.” Do you remember saying that?

Johnson I do, and I agree with it.

Cummings All too frequently the courts have decided your decisions do not conform to the law. Did you know your decisions before the DC Circuit Court have been overturned over two thirds of the time?

Johnson Yes.

3:59 Waxman You were required to produce documents by April 19. Has the President asserted executive privilege with regards to these documents?

Johnson I’m not making an assertion of executive privilege, instead I’m making my staff available to you.

Dudley Our lawyers are discussing the documents. I have a letter from OMB General Counsel.

Waxman We’ve made reasonable accomodations to Executive Branch interests. You’re trying to shield the White House from oversight. Unless there’s a valid claim of executive privilege, you have to turn over the documents. There’s been no assertion of executive privilege. This is a serious issue, and your defiance of the subpoena is a serious matter.

4:02 Waxman The record shows this committee spared no effort in oversight of the Clinton administration.

Issa We have a long tradition of looking into it and recognizing the President has a role to play.

Johnson The challenge we have as a nation is to move forward. 50% of our electricity comes from coal. France is much less.

Issa You have a responsibility as a federal officer to all Americans. My understanding is protecting our commerce against arbitrary standards.

Johnson Again, I have three criteria. Acceleration of temperatures, other parts of the country make it worse. In my judgment, it did not meet the “compelling and extraordinary” standard.

4:09 Bilbray The standard that we’re complaining with the ozone standard. The science panel recommended a max of .07.

Henderson It was a range from .06 to .07.

Cannon

4:15 Johnson I have to say for the record those are not the criteria.

4:16 Waxman You’re willing to make a mockery of the rulemaking process. The record tells us what happened. Your testimony pretends none of this happened. I can’t adequate how deeply this saddens me and how poorly it reflects on the EPA.

Waxman: 'White House Involved in California Waiver Denial'

Posted by Wonk Room Mon, 19 May 2008 18:25:00 GMT

From the Wonk Room.

Henry WaxmanHouse Oversight and Government Reform Committee chairman Henry Waxman (D-CA) has today released documents and testimony that show White House involvement in the Environmental Protection Agency’s (EPA) decision to deny California’s request for a waiver to enforce its greenhouse gas emissions standards for cars and trucks.

According to testimony by former EPA Associate Deputy Administrator Jason Burnett, EPA Administrator Stephen Johnson’s “preference for a full or partial grant of the waiver did not change until after he communicated with the White House” :

When asked by Committee staff “whether the Administrator communicated with the White House in between his preference to do a partial grant and the ultimate decision” to deny the waiver, Mr. Burnett responded: “I believe the answer is yes.” When asked “after his communications with the White House, did he still support granting the waiver in part,” Mr. Burnett answered: “He ultimately decided to deny the waiver.” Mr. Burnett also affirmed that there was “White House input into the rationale in the December 19th letter” announcing the denial of the waiver and in the formal decision document issued in March 2008.

Burnett refused to testify on any further specifics, telling the investigators “that he had been directed not to answer any questions about the involvement of the White House in the decision to reject California’s petition.” Burnett, who was involved in a series of questionable EPA decisions during his tenure, resigned from the EPA on May 6.

On December 19, 2007, the date President Bush signed the Energy Independence and Security Act, EPA Administrator Stephen Johnson announced that his agency would deny California’s waiver request. This request, made in 2005, set off a series of legal battles that culminated in the 2007 Supreme Court ruling in Massachusetts vs. EPA that ordered the EPA to take action on greenhouse gases. Since then, the EPA has failed to obey the Supreme Court mandate, despite the efforts of career staff.

Waxman’s memo concludes:
It would be a serious breach if the President or other White House officials directed Administrator Johnson to ignore the record before the agency and deny California’s petition for political or other inappropriate reasons. Further investigation will be required to assess the legality of the White House role in the rejection of the California motor vehicle standards.

Johnson is expected to testify before Waxman’s committee tomorrow at 1 PM.

Frank O’Donnell of Clean Air Watch writes:
This is an incredibly sordid story. Steve Johnson should come out and finally tell the truth about this situation. And he should resign for agreeing not only to be a White House pawn but for trying to deceive the public about what happened.

Overview of EPA Investigations

Posted by Wonk Room Thu, 08 May 2008 21:10:00 GMT

From the Wonk Room.

The scheduled Oversight and Government Reform Committee hearing today on White House interference with ozone standards has been the hearing has been postponed because EPA Administrator Stephen Johnson refused to appear:
EPA officials say Johnson had a “recurrence of ongoing back issues stemming from a car accident years ago.”

Below is the current status of a number of EPA scandals Congress is expecting Administrator Johnson to answer for:

EPA SCANDALCURRENT STATUS
The denial of the California waiver petition.
  • January 8: California and 15 other states sue to overturn denial.
  • April 9: Waxman issues latest subpoena for documents involving White House.
  • April 22: NHTSA issues fuel-economy standards that it claims preempts state global warming standards; states warn of lawsuit.
Failure to obey Supreme Court mandate to make a global warming pollution endangerment finding.
  • March 27: EPA announces it will ask for a new round of comments.
  • April 2: Officials of 18 states sue to require the EPA to act within 60 days
  • April 2: EPA documents are subpoenaed by House Global Warming Committee; the documents have not been turned over.
  • April 18: Court orders EPA to file its response to the state suit by May 8.
White House interference in ozone standards.
  • April 16: Waxman subpoenas White House documents.
  • May 8: Date of scheduled Oversight Committee hearing with Administrator Johnson; postponed when Johnson refuses to appear.
Mary Gade firing.
  • May 1: EPA Region V Administrator Mary Gade resigns, saying “There’s no question this is about Dow.” Sen. Whitehouse (D-RI) and Rep. Dingell (D-MI) announce intent to investigate.
  • May 7: Citizens for Responsibility and Ethics in Washington file two Freedom of Information Act (FOIA) requests with the EPA regarding Gade’s resignation.
Politicization of the EPA.
  • April 23: Union of Concerned Scientists issues survey of 1600 staff scientists describing mass politicization and political interference.
  • April 29: Sen. Boxer (D-CA) releases Goverment Accountability Office report detailing politicization of toxic regulation.
  • May 7: Senate Environment and Public Works Oversight Subcommittee holds hearing into politicization of EPA.

Stephen Johnson, The Environment's Alberto Gonzales

Posted by Wonk Room Thu, 24 Apr 2008 20:37:00 GMT

From the Think Progress Wonk Room.

Stephen Johnson testifies before the House Select Energy Independence and Global Warming Committee

Alberto Gonzales brought disgrace to the Department of Justice as Attorney General, putting loyalty to the President above duty to the country, until the weight of numerous scandals forced his resignation in August 2007. As the New York Times described, he left “a Justice Department that has been tainted by political influence, depleted by the departures of top officials and weakened by sapped morale.”

Now all eyes are turning to Stephen L. Johnson, administrator of the Environmental Protection Agency (EPA)—set up by President Nixon in 1970 to be an independent watchdog for the health of the environment and the American people. It has become clear that Johnson has subverted that mission, in contravention of science, ethics, and the law. What Gonzales did to Justice, Johnson is doing to the EPA.

On February 27, Sen. Sheldon Whitehouse (D-RI) compared Johnson to Gonzales after a shameful performance before Congress. Two days later, unions representing more than 10,000 EPA career staff suspended their relationship with Johnson, citing his “failure to engage in good faith.” Yesterday, the Union of Concerned Scientists (UCS) released a survey of staff scientists documenting widespread political interference during his tenure.

The most prominent examples of Johnson’s malfeasance are under investigation by Congress – the blatant disregard of the Supreme Court mandate to regulate greenhouse gases and allow states to do so as well, and the overruling of scientific recommendations on smog standards at the behest of President Bush.

However, there are numerous further acts exposed by the Public Employees for Environmental Responsibility (PEER) that are running below the radar:
  • Refusing to enforce the agency’s “Principles of Scientific Integrity” involving fluoride drinking water standards, organophosphate pesticide registration, and control of mercury emissions from power plants.
  • The shuttering of EPA’s network of technical libraries without waiting for Congressional approval in 2006 – to be reopened only with documents that undergo a political review.
  • The abandonment of proposed rules protecting children and workers from lead paint in 2004 – rectified this March after years of lawsuits.
  • Violating the Endangered Species Act in failing to consider the harmful effects of pesticides on Chinook salmon.

The common thread behind all these actions is service to corporate polluters above public health. PEER has also exposed increasing corporate influence on pesticide labelling, scientific research, assessement of the health risks of new chemicals, and even the drafting of rules to allow testing pesticides on children.

In December, EPA staff privately urged Johnson to resign if he denied the California waiver petition to regulate greenhouse gases. Last month, Sierra Club president Carl Pope called for the resignation of Johnson because “he is entirely a creature of the whim of the President, the vice president, and other White House officials.” Three weeks ago, Friends of the Earth followed suit.

Yesterday, Rep. Waxman sent a letter to Johnson about the UCS report, asking him to “be prepared to respond to its findings” in an Oversight Committee hearing in May.

Rep. Markey has replied to the EPA’s refusal to obey a Global Warming Committee subpoena. In his letter, Markey says the committee is willing to keep confidential any documents turned over until June 21. If the EPA does not agree to this accomodation by 6 PM tomorrow, the “Committee is prepared to proceed with all its legal rights,” including “a vote of contempt” for Johnson.

EPA Defies Another Subpoena: 'It May Create Erroneous Impressions' 1

Posted by Wonk Room Thu, 17 Apr 2008 22:25:00 GMT

Originally posted at the Think Progress Wonk Room.

In continued defiance of Congressional oversight, the Environmental Protection Agency (EPA) has flatly declined to obey a subpoena from the House Committee on Global Warming and Energy Independence. The subpoena for documents relating to the EPA’s refusal to obey the Supreme Court mandate to regulate greenhouse gases was issued by a unanimous, bipartisan vote on April 2, a year after the Supreme Court decision.

On April 11, the EPA requested and received an extension to respond, but today the agency has decided not to turn over the documents: Grave Concerns

Whether or not the EPA has “grave concerns” about “erroneous impressions,” a “chilling effect,” and “institutional prerogatives,” these are not legally defensible reasons to defy a Congressional subpoena. In a terse response, Committee chair Ed Markey (D-MA) found the reasoning “unpersuasive.” The letter continues:

Subpoena Cloud

Of course, if the EPA simply turned over the documents, it would no longer be under such a “cloud.”

The EPA is also defying the House Oversight Committee’s subpoena for related documents on White House involvement. Both letters of refusal were written by EPA assistant administrator Christopher P. Bliley—who was OMB head Jim Nussle’s chief of staff in Congress.

Warming Law notes this defiance likely triggers contempt of Congress proceedings for EPA administrator Stephen Johnson.

View the full letter: EPA 4-16-08 Subpoena Response (PDF)

On Mass vs. EPA Anniversary, Stephen Johnson Delays and Hides

Posted by Wonk Room Wed, 02 Apr 2008 22:33:00 GMT

Originally posted at the Think Progress Wonk Room.

johnsonOne year ago today, the Supreme Court handed down an epochal decision in the global warming case Massachusetts vs. the Environmental Protection Agency, stating that the EPA had the responsibility to determine how to regulate carbon dioxide for its contribution to global warming. The EPA, led by administrator Stephen L. Johnson, has utterly failed to do so, prompting a series of Congressional investigations and new lawsuits.

Johnson’s adversaries marked the anniversary of the Supreme Court decision today by continuing to press their case. Officials of 18 states filed suit against the EPA for its continued inaction—their petition “asks the U.S. Court of Appeals for the District of Columbia Circuit to require the EPA to act within 60 days.” By a unanimous vote, the House Global Warming Committee issued subpoenas “for EPA documents showing the Agency’s progress in making the ‘endangerment’ finding and proposing national emissions standards.”

The Supreme Court decision mandated that the EPA:
  • Declare whether greenhouse gases pose a threat to human health and need to be regulated;
  • Make a decision on California’s Clean Air Act petition to regulate motor vehicle greenhouse gas emissions;
  • Propose federal regulations for motor vehicle greenhouse emissions.
In the past year, EPA Administrator Stephen L. Johnson has only completed one of those tasks, by denying California’s waiver petition following the signing of the 2007 Energy Act in December.

Investigations by Congress, though repeatedly stymied by the agency, have determined that EPA staff actually worked vigorously last year to meet the Court mandate. In late fall Johnson brought the complete package with a health endangerment finding, approval of the California waiver, and motor vehicle regulations to the White House. After that, Johnson issued his waiver denial and all work at the EPA on the issue ceased. Henry Waxman, chair of the House Oversight Committee, has vigorously pursued documents related to the California waiver denial, even as the EPA responds to his subpoenas with document requests of their own.

Johnson’s latest act was to declare last week that the EPA would release an “Advance Notice of Proposed Rulemaking” asking for new round of comments, a delaying tactic promoted by a “memo from the Heritage Foundation.”

He is now fleeing to Australia with his top staff for two weeks to discuss the “ongoing environmental collaboration” between the countries—and fortuitously delay further Congressional hearings. The $280,000 trip is taxpayer-funded.

New legal developments in the case of Mass. v. EPA

Posted by Wonk Room Wed, 02 Apr 2008 17:00:00 GMT

EPA Leaves Behind Wake of Broken Promises, Inaction as Anniversary of Landmark Global Warming Case Approaches

State Officials, Environmental Groups to Discuss Steps to Compel EPA Action

On April 2, 2007, the Supreme Court handed down a watershed decision in the case of Massachusetts v. EPA. Despite promises from EPA Administrator Johnson and even President Bush himself, EPA has willfully chosen to ignore the Supreme Court’s instructions. Indeed, EPA has instead proposed action consistent with the wishes of polluters and other special interests.

The petitioners in Mass v. EPA have repeatedly and publicly warned EPA that continued inaction on the so-called “endangerment finding” and promised regulations for global warming emissions from vehicles would force the petitioners to take steps to compel action. EPA’s brazen refusal to act has left the petitioners no choice but to take the agency back to court to force it to comply with the High Court’s decision.

This press teleconference will review developments over the past year, outline the Bush administration’s broken promises relating to this case, and outline the legal action that the petitioners are being forced to take in order to prevent EPA from continuing to ignore the Supreme Court.

  • G. Edmund Brown, Jr., Attorney General of California
  • James Milkey, Chief of Environmental Protection, Massachusetts Attorney General’s Office
  • David Bookbinder, Sierra Club Chief Climate Counsel
  • Joe Mendelson, Legal Director, International Center for Technology Assessment (ICTA)

The ICTA brought the original petition that led to this case. James Milkey argued the case before the Supreme Court.

Conference ID: 41865683

Dial-in: (888) 228 – 9795

Contact: Josh Dorner, 202.675.2384 (w), 202.679.7570 (m), josh.dorner@sierraclub.org

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.

Under Subpoena, EPA Instead Demands Docs From Oversight Committee 1

Posted by Wonk Room Thu, 20 Mar 2008 13:07:00 GMT

Originally posted at the Think Progress Wonk Room.

bush
Under subpoena by Rep. Henry Waxman (D-CA) to turn over documents involving the White House, the EPA instead requested documents from him, in a letter revealed Wednesday by E&E News.

On March 10, House Oversight Committee Chairman Henry Waxman (D-CA) kicked off a new round the latest installment in his ongoing investigation of the EPA with a letter to Environmental Protection Agency Administrator Stephen L. Johnson:
“I am writing to request that EPA provide to the Oversight Committee documents that the agency has improperly withheld from the Committee…relating to your decision to reject California’s efforts to reduce greenhouse gas emissions.”

This request includes not only specific documents that EPA eventually turned over in heavily redacted form, but also “hundreds of documents” that involve EPA and the White House that top-level EPA officials told Waxman’s committee are being withheld.

On March 12, Waxman sent a detailed timeline of events to Johnson based on the EPA interviews showing that the EPA’s efforts to regulate CO2 stopped after the White House became involved.

On March 13, Waxman issued a subpoena for 196 of the documents.

The next day, the EPA’s Christopher P. Bliley – who was White House budget director Jim Nussle’s chief of staff when Nussle was in Congress – sent a letter to Waxman, saying that the documents “raise very important Executive Branch confidentiality interests” and that “we need additional time to respond to your request.”

Then he one-upped Waxman, making a document demand of his own:
EPA would also like to request copies of the transcripts from the Committee’s interviews of seven Agency employees.
His reason?
The Agency has an interest in ensuring that the information provided to the Committee by Agency employees in their official capacity is accurate and complete, particularly here where that information appears to be the basis for a new and expansive document request.

In other words, the White House wants to make sure their stories don’t contradict what Waxman already knows.

Needless to say, the EPA does not have oversight or subpoena power over the House of Representatives.

Waxman has also opened an investigation into Bush’s manipulation of the new smog standards issued by the EPA last week.

EPA LETTER (3/14/08) EXCERPTS:

EPA respects your role as Chairman and is committed to providing the Committee information necessary to satisfy its oversight interests to the extent possible and consistent with our Constitutional and statutory obligations. The three documents you are requesting are internal EPA documents that raise very important Executive Branch confidentiality interests. Because of this concern, we need additional time to respond to your request. We plan to further respond by March 20.

[…]

EPA would also like to request copies of the transcripts from the Committee’s interviews of seven Agency employees. During the interview process, your staff noted concerns about the possible chilling effect on testimony of Agency employees if the Agency were privy to the information disclosed by the employees. In light of your March 12 letter, which contains multiple references to individual testimony and is posted on the Committee’s website, EPA believes that this concern is not longer a valid basis for withholding the transcripts from the Agency. The Agency has an interest in ensuring that the information provided to the Committee by Agency employees in their official capacity is accurate and complete, particularly here where that information appears to be the basis for a new and expansive document request.

We look forward to discussions with your staff on the scope of this request. As I have said before, this is a top priority for the Agency and we are committed to responding as expeditiously as possible. . .

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