EPA Releases California Waver Denial Justification

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

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

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

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

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

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

EPA Set to Issue Legal "Justification" for CA Waiver Denial

Posted by Warming Law Thu, 28 Feb 2008 22:23:00 GMT

Reporting yesterday on this week’s developments in the California clean cars saga, the Wall Street Journal’s Stephen Power revealed that "the EPA is expected to fire back this week by publishing data and research to support Mr. Johnson’s decision." Today’s Philadelphia Inquirer confirmed that such a document should "be released by tomorrow" via Johnson’s response to grilling on the waiver decision during a Senate hearing on EPA’s budget. (Regular readers may recall that his December announcement of the waiver denial was notably brief, resulting in much speculation since as to whether Johnson had fully determined his legal rationale before he made his mind up.)

We’ve been anticipating EPA’s belated justification, which is expected to be placed in the Federal Register, for some time now—both in terms of Johnson’s public promises and as a legal strategy in fighting California’s lawsuit. In a move that is probably not coincidental, EPA filed a motion last week asking the 9th Circuit to dismiss the existing case. Warming Law is still working to obtain EPA’s motion, but we’ve written previously on both its likely rationale, and on the unprecedented legal argument that Johnson will likely make to claim his actions can be justified under the Clean Air Act.

If Johnson goes this route, the legal effect would be one of giving the Administrator’s judgment extremely strong deference under Section 209 of the Clean Air Act. He would be interpreting the law in a way that his staff told him is legally impossible even if they accepted the auto industry’s criteria for judging waiver requests, and doing so based on the arguments that he:

1) Is legally empowered to break with agency precedent regarding what constitutes "compelling and extraordinary" conditions—instead adopting the "exclusive and unique" argument that Tuesday’s document release shows was first advanced in March 2006 by Bill Wehrum, a political appointee with prior ties to the auto industry (Wehrum has since left the EPA, and was recently spotted testifying in favor of a pair of coal-fired plants that Kansas regulators shot down last year based on global warming concerns).

Former EPA Administrator William Riley, who served under President Bush’s father, highlighted the historic scope of Johnson’s actions when he revealed yesterday that he was the receipient of impassioned talking points that agency staff prepared for him to press with Johnson. In his conversations with Johnson, Reilly focused on the argument that legal text, congressional intent and longstanding precedent all point to extreme deference for California’s wishes, and noted that the administrator need not agree with the state in order to let it move forward (emphasis added):

[In a telephone interview, Reilly told the Times] he emphasized that when he was the administrator, he approved nine requests from California, even one that he thought would not work, electric cars, but that he thought federal law required him to let the state try.

2) Also is empowered to declare climate change an intrinsically global problem that California need not employ its own standards for. This rationale, of course, stands in contrast to the thrust of the Supreme Court’s decision in Massachusetts v. EPA, and would also need to discount the state’s strong evidence that it is exceptionally vulnerable to global warming’s impact.

The Inquirer also reported that Johnson’s also gave generally evasive responses yesterday to questions from Senator Barbara Boxer (D-CA) and Senator Sheldon Whitehouse (D-RI), regarding both his legal rationale and possible White House influence—with regards to the latter, Johnson claimed that the White House is still reviewing email communications and other documents that Boxer has yet to receive (and placed under a subpoena threat). Regarding the legal advice of his staff and Reilly, he reiterated that he has always sought out diverse opinions but the waiver decision was ultimately his alone to make.

Senator Whitehouse, for his part, later angrily compared Johnson’s testimony to that given by former Attorney General Alberto Gonzales during last year’s hearings on the dismissal of U.S. attorneys.

Senate Investigation Finds Top EPA Officials Supported California Waiver

Posted by Brad Johnson Wed, 27 Feb 2008 20:25:00 GMT

In a press conference yesterday, Senate Environment and Public Works chair Barbara Boxer (D-Calif.) revealed internal EPA documents from the agency’s deliberations whether to grant California’s Clean Air Act waiver request to regulate tailpipe greenhouse gas emissions. Administrator Stephen Johnson denied the waiver in December, the day the president signed the energy bill into law.

The documents include a presentation prepared by Chris Grundler, deputy director at the National Vehicle and Fuel Emissions Laboratory, for Margo Oge, the director of EPA’s Transportation and Air Quality, intended to be given to Johnson. The presentation states “it is obvious to me that there is no legal or technical justification for denying” the waiver, and that in the case of a waiver denial “I fear the credibility of the agency that we both love will be irreparably damaged.”

The documents also include an itinerary for the administrator showing that on May 1, 2007, he received an internal briefing on the California waiver before attending a White House meeting.

Below are talking points prepared by staff at EPA’s Office of Transportation and Air Quality:
  • I know you are under extraordinary pressure to make the California waiver decision, and I don’t mean to add to it
  • But this likely to be among the two biggest decisions you get to make in the job (along with the greenhouse gas rule you are working on)
  • The eyes of the world are on you and the marvelous institution you and I have had the privilege of leading; clearly the stakes are huge, especially with respect to future climate work
  • I understand the history and the legal standards for this decision – I made a number of them myself while I was there, including the waiver for the LEV program, which these standards would be a part of.
  • From what I have read and the people I have talked to, it is obvious to me that there is no legal or technical justification for denying this. The law is very specific about what you are allowed to consider, and even if you adopt the alternative interpretations that have been suggested by the automakers, you still wind up in the same place
  • But I think there must be a win-win here, and you should find it and seize it…...for the sake of the environment and the integrity of the agency
  • Word is out about the option to grant the waiver for the first three years and then defer the subsequent years. I don’t have the details, but this sounds like the seed for a “grand bargain”, and would put and the agency in the driver’s seat to craft a national solution: something that my automaker contacts and California both say they want.
  • You have to find a way to get this done. If you cannot, you will face a pretty big personal decision about whether you are able to stay in the job under those circumstances. This is a choice only you can make, but I ask you to think about the history and the future of the agency in making it. If you are asked to deny this waiver, I fear the credibility of the agency that we both love will be irreparably damaged.
*

An email from EPA’s Climate Change Division Staff, to EPA Climate Change Division Staff, titled “Outcome of Yesterday’s California Waiver Meeting with Johnson,” October 31, 2007

“On compelling and extraordinary conditions, I got to chime in again. In addition to the argument that climate change may exacerbate CA’s tropospheric ozone problem – for which CA has historically demonstrated compelling and extraordinary conditions – I think Johnson now better appreciates that there are additional conditions in CA that make them vulnerable to climate change: water resources (we spent time talking about this); wildfires (the recent news I think is helping to push him); long coast line; largest population; largest economy; largest ag sector…”
*

Redacted portion of May 1, 2007 PowerPoint Briefing

Application of Waiver Criteria – Compelling and Extraordinary Conditions
  • EPA traditionally looks broadly at whether CA conditions such that it still needs its own motor vehicle emission program. We have not examined the need and conditions for specific standards or specific air pollution problem
  • Congress wanted CA to be afforded “the broadest possible discretion in selecting the best means to protect the health of its citizens and the public welfare”
  • This allowed CA’s CO standards to be less stringent than EPA standards, to facilitate NOx standards that were more stringent than the federal
  • CA has submitted an extensive record concerning the impact of climatic conditions on CA, including: coastal resources and erosion, saltwater intrusion on delta areas, levee collapse and flooding, decrease in winter snow pack reducing spring and summer runoff for municipal and agricultural uses.
  • CA has submitted justifications based on impact on high ozone.
**

An email from Bill Wehrum to staff at EPA Office of Transportation and Air Quality and the Office of Air and Radiation, titled “CA Vehicle GHG Regulations,” March 15, 2006

”... —I took another look at the briefing materials from late January. I think we should assert the existence of preemption and propose to deny the waiver based on the absence of compelling and extraordinary conditions…we will need to consult with our interagency breatheren before going forward with a Fed. Reg. notice. I’ll get this started once we’ve touched base with Marcus.”

FY 2009 U.S. Environmental Protection Agency Budget

Posted by Brad Johnson Wed, 27 Feb 2008 15:00:00 GMT

Sen. Barbara Boxer (D-Calif.) opening statement:
We are here today to review the Administration’s proposed Fiscal Year 2009 budget for the Environmental Protection Agency.

Since this is the Bush Administration’s final budget proposal, let’s ask ourselves a simple question:

Is EPA better able today to protect people and communities from serious public health and environmental problems than it was when this Administration took the reins?

The answer is a resounding “No.”

The Bush Administration’s proposed budget for 2009 represents a 26% decline in overall EPA funding since the Administration’s first budget was enacted, when adjusted for inflation. Budgets are about priorities – this shows the low priority that the Bush Administration places on environmental protection.

Witness
  • Stephen L. Johnson, Administrator, Environmental Protection Agency

FY 2009 U.S. Environmental Protection Agency Budget

Posted by Brad Johnson Tue, 26 Feb 2008 18:30:00 GMT

Witness
  • Stephen L. Johnson, Director. U.S. Environmental Protection Agency
From E&E News:
Pressed by House panel, EPA chief defends waiver decision (02/26/2008) Katherine Boyle, E&ENews PM reporter

U.S. EPA Administrator Stephen Johnson defended his rejection today of California’s waiver request that would have allowed state regulation of motor vehicles’ emissions of greenhouse gases in the wake of the release of agency documents showing that top EPA officials strongly disagreed with him.

Appearing before the House Interior and Environment Subcommittee, Johnson said climate change is not a unique California problem and the state’s petition for a Clean Air Act waiver did not meet the “compelling and extraordinary conditions” required by law.

“Every time another governor, another state representative talks about the need for their state to address global climate change, they’re actually making my very point on the California waiver,” he said.

The Senate Environment and Public Works Committee released documents showing EPA staff members strongly supported granting the waiver.

A presentation prepared for the director of EPA’s Transportation and Air Quality, Margo Oge, urged Johnson to grant the waiver and suggested he would face great outside pressure to deny it.

“If you are asked to deny this waiver, I fear the credibility of the agency that we both love will be irreparably damaged,” the presentation says. “You have to find a way to get this done. If you cannot, you will face a pretty big personal decision about whether you are able to stay in the job under those circumstances.”

It is “obvious” there is “no legal or technical justification for denying” the waiver, says the presentation prepared by Chris Grundler, Oge’s deputy director at the National Vehicle and Fuel Emissions Laboratory in Michigan.

Johnson said he only became aware of the presentation when Congress requested documents on the waiver decision.

“It was never presented to me,” he said.

Rep. Tom Udall (D-N.M.) pressed him, asking if Oge ever raised the issues in the presentation.

But Johnson again denied seeing the presentation, although he didn’t say whether Oge raised those points.

“I received a lot of comments from my professional staff, and they presented me with a wide range of options,” Johnson said. “One of the options was denial. One of the options was to grant the waiver.”

Johnson said he will issue a final decision document on the waiver by the end of the week.

Boucher Releases White Paper on "Appropriate Roles for Different Levels of Government"

Posted by Brad Johnson Tue, 26 Feb 2008 01:40:00 GMT

In the middle of September 2007, Rick Boucher (D-W.Va.), chair of the the the Energy and Air Quality Subcommittee of John Dingell’s Energy and Commerce Committee, announced he would be releasing a series of white papers “over the next six weeks” on issues related to the development of climate change legislation. The third such paper, Appropriate Roles for Different Levels of Government, has now been released.

After reviewing state, local and regional initiatives to combat global warming emissions, in its discussion of the possible costs of local regulations in addition to a federal cap-and-trade system, the 25-page white paper bores in on the question of federal preemption. This issue was highlighted in December by EPA administrator Stephen Johnson’s denial of California’s waiver request under the Clean Air Act to regulate tailpipe greenhouse gas emissions. Johnson’s decision spurred a multi-state lawsuit, an investigation by House Oversight chairman Henry Waxman (D-Calif.), and contentious Senate hearings.

The paper follows statements made previously by committee chairman John Dingell (D-Mich.) supporting Johnson’s stated justification for denying the waiver:
One key factor that distinguishes climate change from other pollution problems our country has tackled is that local greenhouse gas emissions do not cause local environmental or health problems, except to the extent that the emissions contribute to global atmospheric concentrations. This characteristic of greenhouse gases stands in contrast to most pollution problems, where emissions adversely affect people locally where the emissions occur. The global nature of climate change takes away (or at least greatly minimizes) one of the primary reasons many national environmental programs have provisions preserving State authority to adopt and enforce environmental programs that are more stringent than Federal programs: States have a responsibility to protect their own citizens.
In its concluding remarks, the paper summarizes the internal committee battle:
As the debate over whether the Federal Government should preempt California’s greenhouse gas motor vehicle standards has shown, Committee Members balance these various factors in a way that can lead to different conclusions that will need to be worked out through the legislative process. Chairman Dingell has made it very clear that he believes that motor vehicle greenhouse gas standards should be set by the Federal Government, not by State governments: greenhouse gases are global (not local) pollutants, multiple programs would be an undue burden on interstate commerce and would waste societal and governmental resources without reducing national emissions, and the competing interests of different States should be resolved at the Federal level. Other Committee Members have reached the opposite conclusion given the severity of the climate change problem, the need to push technological development, and the benefits of having States act as laboratories.

FY 2009 Environmental Protection Agency Budget

Posted by Brad Johnson Thu, 14 Feb 2008 15:00:00 GMT

Witness
  • Stephen Johnson, Administrator, U.S. Environmental Protection Agency

EPA Admin's GOP Fundraiser Appearance OK'd in Review

Posted by Brad Johnson Tue, 12 Feb 2008 22:26:00 GMT

The Office of Special Counsel has concluded its investigation into EPA administrator Stephen Johnson’s March 9, 2006 appearance at a fundraiser for Rick O’Donnell, a Republican candidate for Colorado’s 7th District. In its press release, the OSC declared that Johnson did not violate the Hatch Act.

The complaint, filed by Colorado Democratic Party chair Pat Waak, noted that an e-mail by former Colorado health department Doug Benevento had the subject line, “Fundraiser with Administrator of EPA Stephen L. Johnson for Rick O’Donnell,” with an attachment entitled “Fundraiser with Administrator of EPA.”

The act forbids fundraiser invitations that include the federal employee’s official title.

However, the OSC found:
that while Mr. Johnson’s official title was used in an e-mail invitation for the fundraiser, the invitation was sent by an organizer of the event, who was not covered by the Hatch Act. Moreover, as the individual did not consult, or receive approval from the EPA or Mr. Johnson, he was not responsible for the use of his official title in the e-mail used to distribute the invitation.

OSC also found that the EPA staff, in approving Mr. Johnson’s participation in the fundraiser, had not reviewed the list of the attendees, nor informed him of who would be attending the fundraiser, or where they were employed. Therefore, OSC found no evidence that Mr. Johnson had knowingly solicited or discouraged the political activity of persons with business before the EPA.

While Mr. Johnson did not violate the Hatch Act, OSC found deficiencies in EPA staff review processes, and recommended that EPA staff be aware of all parties and their roles in political events, including the attendees, and consider this information when advising on participation. Also, OSC advised EPA staff to review the invitation, along with its cover letter or e-mail, to ensure it complies with the Hatch Act.

Budget Briefing: EPA Clean Air and Global Climate Change Budget Cut 38%

Posted by EESI Tue, 12 Feb 2008 00:31:00 GMT

Ed. —I would like to welcome the participation of the Environmental and Energy Study Institute on Hill Heat. EESI was founded in 1984 by a bipartisan group of members of Congress concerned about energy and environmental issues. Their initial series of guest posts will be drawn from their briefings on the president’s proposed FY 2009 budget.

The President’s FY 2009 Environmental Protection Agency (EPA) budget request remains relatively flat compared to the FY 2008 request and is down slightly from FY 2008 appropriations. The FY 2009 budget request is $7.14 billion, which is $56.9 million (0.80%) less than the FY 2008 budget request and $330 million (4.4%) less than FY 2008 appropriations.

The President’s FY 2009 budget request for Clean Air and Global Climate Change (EPA Goal 1) is $939 million. This is $33 million (3.4%) less than the FY 2008 appropriations.

Looking at the EPA budget by goals, the Reduced Greenhouse Gas Intensity program within Goal 1 has a FY 2009 budget request of $121 million, which is $9.0 million (6.9%) less than the FY 2008 appropriations of $130 million and $1.7 million (1.4%) less than the FY 2008 budget request of $123 million.

Looking at the EPA budget by program and project, the FY 2009 budget request for Climate Protection programs includes a Science and Technology component, requested at $11.4 million, and an Environmental Program and Management component, requested at $87.0 million. Taken together, these were cut $10.3 million (9.5%) from FY 08 appropriations. The Climate Protection Programs include Energy Star, SmartWay Transport, the Methane to Markets Partnership and Asia-Pacific Partnership. There were a number of cuts, as well as a few increases to the programs, as illustrated below:

Climate Protection Programs

  • $10.3 million cut overall (9.5% cut from FY 08 appropriations)
  • Zeroing out the Greenhouse Gas Reporting Registry (100% cut from $3.4 million in FY 08)
  • $6.9 million cut in Climate Science and Technology program (38% cut from FY 08 appropriations)
  • $4.0 million cut in Energy STAR (8.3% cut from FY 08 appropriations)
  • $177,000 increase in Methane to Markets (4.1% increase from FY 08 appropriations)
  • $5.0 million increase in Asian Pacific Partnership (no previous FY 08 appropriation amount)

Clean Air Rules

Clean Air Rules are a major component of EPA’s Clean Air and Global Climate Change Goal, and include the Clean Air Interstate Rule, the Clean Air Mercury Rule and the Clean Air Nonroad Diesel Rule. These rules work towards the improvement of the United State’s air quality. Additionally, reductions on particulate matter from diesel engines will continue to be addressed through the Diesel Emissions Reduction Grants program of the Energy Policy Act of 2005 (P.L. 109-58), which authorizes $200 million annually (2007-2011). However, the President requests just $49.2 million for the FY 09 EPA Clean Diesel grant, 25% of the authorized amount.

A table reviewing changes in the Goal I and overall EPA budget is below the jump.

EPA Budget: FY 2007-09 Budget Requests and FY 2008 Appropriation
(dollars in thousands) FY 2007 Budget Request FY 2008 Budget Request FY 2008 Appropriation FY 2009 Budget Request
EPA Goal 1:
Clean Air & Global Climate Change Program
933,691 910,365 971,739 938,582
Total EPA Budget 7,315,475 7,199,400 7,472,324 7,142,520

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.

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