History suggests that the ingenuity of the industry, once put in gear, responds admirably to most technological challenges. In light of the public statements of industry representatives, history of compliance with previous technological challenges, and the state of the record, the Court remains unconvinced automakers cannot meet the challenges of Vermont and California’s GHG regulations.
The legality of Vermont’s regulations is pending the EPA’s decision to grant the California waiver petition under the Clean Air Act to allow California to implement the Pavley Law. (S. 1785, passed out of committee, would force the EPA to make a decision by September 30.)
The AAM has suits pending in California and Rhode Island as well.
Read the full opinion and order (PDF)
Section 209 of the Clean Air Act (42 U.S.C. 7543) is amended by adding at the end the following: (f) Waivers of Preemption-
- PENDING REQUESTS- Not later than 30 days after the date of enactment of this subsection, but in no case later than September 30, 2007, the Administrator shall issue to the Governor of each applicable State a decision on each request for a waiver of preemption under subsection (b) that—
- has been submitted by the State; and
- is pending as of the date of enactment of this subsection.
- SUBSEQUENT REQUESTS- With respect to a request for a waiver of preemption under subsection (b) (including such a request submitted by a State that has adopted and enforced certain standards as described in section 177) that is submitted by a State after the date of enactment of this subsection, not later than 180 days after the date on which the Administrator receives the request, the Administrator shall issue to the Governor of the State a decision on whether to grant the waiver.
It passed by a party-line 10-9 vote.
At today’s hearing on the California waiver, EPA administrator Stephen Johnson refused to condemn or even comment on the Department of Transportation’s lobbying against the waiver. He also refused to state whether or not the administration is opposed to the request.
In his testimony, he admitted speaking to the Secretary of the Department of Transportation, Mary E. Peters, at the beginning of the comment period, and obfuscated over what they discussed. He admitted that they discussed reaching out to her “constituency”, which when pressed by Sen. Boxer, he understood to mean governors and members “particularly interested” in transportation. He avoided saying what the Secretary’s intentions or views were and whether he recommended the “constituency” should send in comments.
His new excuse for not making a decision on the waiver request is the “voluminous” amount of comments. He was understandably accused of footdragging by the Democrats on the panel.
- Stephen Johnson, Administrator, U.S. Environmental Protection Agency
10:53 Inhofe is attacking a statement made by the president of the American Council on Renewable Energy. This is so typical of these hate-filled people. I was called a traitor by one of the extreme left. See if it’s appropriate to be a part of this organization. “It is my intention to destroy your career as a liar. I will launch a campaign against you. Go ahead guy, take me on.” The waiver request strikes me as a backdoor effort, though I need some education on this, to usurp the Congress’s role in setting CAFE standards. If a handful of states are able to come up with standards different from the United States, what will happen to CAFE standards?
Johnson There are two sections of the Clean Air Act: Section 209, for California waiver petitions. There are three conditions if any are triggered to deny the petition. Section 202 deals with mobile sources.
Inhofe It’s very elaborate what the law requires you to do. I think you have done your job. How can California assess the CAFE standards to be so radically different from the Department of Transportation’s estimation? CARB requires about 44 MPGs and 27 MPGs for trucks. Don’t you think the federal regulators know more about it than CARB? How can CARB’s mistaken feasibility assessment be corrected?
Johnson There is a case before the 9th Circuit. In the meantime we are continue to review and evaluate voluminous and unprecedented comments on the waiver.
11:01 Lautenberg I think you’re wrong on this issue. It amounts to footdragging.
Johnson I don’t believe it is legal for me to lobby any member of Congress. I think it is good for members of Congress to talk with each other. The responsibility to make a decision lies solely with me.
Lautenberg We’re talking about a forever delay here. Eighteen months while the air is pollution, despite Sen. Inhofe’s disbelief climate change is happening. He called it a hoax. We have hoax floods and hoax droughts and hoax hurricanes and hoax tornadoes. Mr. Johnson, the one thing I don’t want to see happen is the demise of our automobile industry. But it ought not be juxtaposed with the threat of climate change. This footdragging is unacceptable. Is it true that the request for the waiver has been in for eighteen months?
Johnson The waiver request came in December 2005. In February of 2007 we informed California that we were going to await the Supreme Court decision.
Lautenberg Those details are irrelevant to the urgency of climate change.
Johnson I agree that there is an urgency to deal with the voluminous comments. Climate change is a very serious issue and we have a responsibility to deal with this in a timely and deliberate fashion. There are still thousands of comments. We just received 800 pages from California. It takes time for our staff to do a thorough review.
Lautenberg Why don’t we see the urgency to do something about climate change? Can you imagine that California is trying to delay this?
Boxer California is going to sue to get action.
11:12 Lautenberg If this was a fire, action would be taken. We are facing lots of dangerous situations. Any delays put our society at risk. I urge you to try and expedite this waiver request.
11:14 Carper I want you to fully respond to my request.
Johnson Thank you for your leadership. I want to apologize for any miscommunication.
11:24 Boxer These thirteen states want to do it yesterday.
11:30 Boxer The EPA’s job is to protect the public health and welfare. Is the Bush administration opposed to granting the waiver?
Johnson We’re going through a very deliberate process.
Boxer Is the administration opposed to granting this waiver?
Johnson The administration recognizes the responsibility to make an independent decision.
Boxer The DOT was calling members of Congress attacking the waiver. Is it appropriate for the administration to lobby Congress against the waiver?
Johnson I respectfully defer to the Department of Transportation.
Boxer You are responsible for the health and welfare of the people of this country. You sit here and can’t condemn that this administration has been lobbying Congress against this waiver.
Johnson I’m not responsible for the DOT. I defer to the DOT.
Boxer If you defer you say that you think it’s okay.
Johnson I defer to the DOT.
Boxer Since we know members of DOT were actively lobbying members of Congress, were you aware this was going on?
Johnson I told the secretary of the DOT I was inclined not to grant an extension.
Boxer That’s not my question.
Johnson I described my awareness in my conversation with the secretary of the DOT.
Boxer Did you try to stop the DOT from soliciting opposition?
Johnson My responsibility is not to the DOT.
Johnson I’m good, but I’m not that good to oversee every email in the DOT. I did not see a script;
Boxer You did not know they were lobbying Congress.
Johnson I only talked with her about talking with her constituency.
Boxer Who’s her constituency? She’s not an elected official.
Johnson There are members of Congress and governors who are particularly interested in transportation issues.
Boxer Your constituency is the American people. I believe this administration has already decided not to grant this waiver. My belief is there’s going to be hiding behind this executive order. Now you’re using the comments, most of which are form letters in favor of the waiver, as an excuse. You’ve said nothing to condemn what the DOT did. Your job is to protect my constituents and the rest of the country. I couldn’t be more disappointed. We’re going to keep the pressure on. Thank you very much and we stand adjourned.
|Tuesday, May 22||
2:30 PM: House Energy Independence and Global Warming
Green Collar Jobs
2:30 PM: Senate EPW The Case for the California Waiver 406 Dirksen LIVE C-SPAN3 Witnesses:
2:30 Boxer The time to act is well overdue. This is one of the steps the president and EPA administrator to take to demonstrate they will take action to fight global warming. The administrator will appear before this committee on June 21. EPA has granted CA a waiver 40 times in the past years. It has never denied a waiver. The president signed an executive order calling for interagency coordination on any action involving global warming. It may just be an instrument of delay.
I say the California waiver is ripe for action.
2:38 Inhofe As a rule I support states' rights. Air pollution knows no boundaries. The Clean Air Act for all its imperfections has led to cleaner air. The problem is that the state has not made much progress complying with existing federal laws. It is in violation with federal particulate standards, the same with ozone. When I introduced legislation to tighten penalties for counties not in compliance with pollution laws I found that California is the only state not complying with federal law. My bill is not a climate bill, it's a serious attempt to rein in the worst polluters. It is the height of hypocrisy for California to be the tail that wags the dog. The global warming we are now experiencing is part of a natural cycle. According to the NOAA over the last two decades California has cooled by .06 C. If Russia's top scholar scientist is correct that the world is entering a cooling phase then California is leading the world.
2:43 Boxer We have asked for extensions to deal with Clean Air Act because, you may not know, we have 37 million people. I don't think the word "grandstand" has any meaning at all. I don't think our attorney general is grandstanding, nor the governor, nor the legislature.
You can look at our energy use, while we have had an amazing energy use standard. I want to make it clear here that since my state has been attacked head on that noone here is grandstanding.
2:46 Lautenberg This "hoax" is taking over place after place after place. We're here today because the EPA has once again failed to act in the face of science. Last year was the hottest year on record and this year is going to be even hotter. California has been courageous and leaderly in what their going to do with global warming and New Jersey is right there with them. If all the wiavers were granted, 14 million metric tons of carbon reduced by 2020, the equivalent of 12 million cars off the highway. The committee is working to curb global warming. Sen. Sanders is working to cut emissions by 80% by 2050. I hope I won't have to keep running in 2050. Madame Chairman, don't relent.
2:48 Inhofe I would have to say, if we're talking polar bears, the population has doubled in the last 50 years. The thing is interesting that every day, more scientists that were strongly on your side, Claude Allegre, David Bellamy that were strongly on your side are now reevaluating the science.
Lautenberg How can you face every day knowing that catastrophes are happening to children's health? The are those who will continue doubting what is in front of their eyes and what reputable scientists are finding.
2:51 Boxer There are always a few people who say that the world is flat and that HIV doesn't cause AIDS and cigarettes don't cause cancer. It isn't about winning. It's about reality. And as long as I hold the gavel reality will govern this committee.
2:53 Brown Soot and ozone are exacerbated by warming climates. This waiver was signed into law by President Nixon. We're looking at the same problem. California has unique environmental conditions. I was at the hearing this morning. The technological and legal case is overwhelming. I am hoping the EPA administrator will grant the waiver. If he doesn't we will sue him.
3:00 Grannis This morning New York State called on the administrator to grant the waiver as soon as possible. The deabte over climate change is over. Global climate change is everyone's problem.
3:04 Markey Today we will hear about economic opportunities ina green economy. We know that "green collar" jobs are growing and having an impact on the economy. Ethanol has created 155,000 jobs. That is just a fraction of the economic growth the green economy promises.
Sensenbrenner Republicans know something about creating jobs. One question I would like answered today is what exactly a green collar job is. Mr. Jones is dedicated to creating more jobs and for that he is to be commended. I think it is important to distinguish between jobs that create new technology and those which play a supporting role. I am worried that by creating big government programs for so called green-collar job training we are just duplicating the private sector's efforts. Is intalling a solar panel fundamentally different from installing a satellite dish? I am happy that Jerome Ringo of Apollo Alliance is here.
Boxer I say, Mr. Adler, your argument is very weak.
Brown I believe he misstates the law. NITSA has no authority over the Clean Air Act. In Mass. vs. EPA the Supreme Court expressly held that the Clean Air Act runs in parallel with (some other law). When we look at compelling and extraordinary some is that California has always been out in front. It is the general condition that is compelling and extraordinary. Not each individual waiver. Even if you do, greenhouse gases contribute to warming and exacerbate soot, ozone. There's another standard that even if the EPA isn't regulating a standard. If auto companies twenty years ago had made more fuel efficient cars we would have less global warming. If you look at the train of consequences you make the compelling case that by California's action or inaction we affect global warming.
Adler Because climate change is a global phenomenon California does not have distinct needs. I don't think it's an open and shut case. But I do think there are grounds for the EPA to deny the waiver. Notr do I think that if they were to grant the waiver it would ncessarily stand up in court.
It establishes that if California is to regulate greenhouse gases it must apply for a waiver. When we're looking at preemption of state law the Supreme Court decision noted that these obligations may overlap. If a federal standard overlaps with a state standard that would be grounds for preemption.
Inhofe I've always contented the IPCC is very political. On the other hand when the IPCC came out downgrading the estimates of sea level rise they cut this in half in the worst case scenario. In the same month they're downgrading the sea level rise they're downgrading the level of contribution from human activity, saying the contribution from livestock outweighs the transportation sector. Unless we're absolutely certain we're right I don't want to pass what would amount to a huge tax increase.
3:36 Grannis We don't think we're nuts. Clearly this is an issue of national importance.
Lautenberg We see it in marine ecology, we see it in the loss of coral.
Grannis The spawning seasons for striped bass are changing. It all adds up.
Brown California doesn't have to say that the compelling reason has to be unique to California. Number two as climate goes up the criteria pollutants get worse. We're on very solid ground. In the Massachusetts case the minority said that the damage to Massachusetts was so trivial Massachusetts didn't have standing to sue. The majority did. The standing will be judged by the majority. You're right. Depending on the Supreme Court. Very clearly, Scalia and Thomas said what they think, which is why it matters who will be the next president.
3:39 Whitehouse We're one of the EPA 12, logjammed by the EPA. I know Adler said two months is a fast time for the EPA to act. But the EPA has sat on its hands for years. The backside of Mr. Adler's argument is that this isn't a local problem but this is a problem for our species. The arguments that were made in our favor in Mass v. EPA were not frivolous arguments. They were not nonsensical arguments. Indeed, they prevailed. The idea that the EPA has to start from a cold-standing start, I'm not willing to give the EPA a pass on how long it takes. They could have run on parallel tracks. There is no reason for them to be hiding behind the skirts of bureaucratic delay. I can't tell you haow frustrating it is. I regret the position you're taking, Mr. Adler.
Adler That's never been EPA's practice. Congress has forced action when it feels EPA is moving too slow. At the end of day, if urgent action is needed, Congress can move much more quickly. I'm not going to defend that system. That is the norm. That is what is set up. I can give examples where EPA lost years ago and still haven't taken action.
Whitehouse I'm not comforted by the argument they could be slower.
Boxer That's a ridiculous argument. Excuse me for being so blunt. You can shake your head all your want. If the EPA were true to its mission instead of the Environmental Pollution Agency under this administration. The fact is if an agency is dedicated to its mission, what it used to be like under Republican and Democratic administrations, each day it works to help the American people.
I'm just going to close this and make a few points. Global warming is real. There's 100% agreement that it's real by the world's leading scientists. They're 90% certain humans are the cause. If a doctor told you your child had 90% chance of having cancer and an operation would cure that child you would act. And all the leading doctors agreed. This isn't a rush job. The waiver was requested in 2005. I read that Supreme Court decision. It's plain English. It's pretty clear. They chastised this administration. I will send a signal to Mr. Johnson if Mr. Johnson uses this as a platform and says he is granting the waiver I would leave this podium and give him a hug.
This is a bipartisan issue. Only here it's not. Everyone has said this is a challenge, we're not afraid of it, we're going to act in a neighborhood we call California. And for those who say they champion states' rights to block our efforts is at the very least hypocritical. I will save my stronger language for another day.
Mr. Adler, I appreciate you coming here. Even though you were wrong.
So many years ago when Mr. Brown was governor he started a solar panel initiative. In the 70s he said we have to do more to be energy independent. So thank you for your eloquence and the committee stands adjourned.