'Carbon Ultimatum' Is Just Respect For The Law
By Robert M. Sussman, a Senior Fellow at the Center for American Progress Action Fund and former Deputy Administrator of the Environmental Protection Agency, for the Wonk Room.
The Wall Street Journal’s opinion piece, The Carbon Ultimatum, accuses Barack Obama of planning to unleash the bureaucracy of the Environmental Protection Agency in an effort to “bludgeon” Congress into enacting climate change legislation:
He plans to issue an ultimatum to Congress: Either impose new taxes and limits on carbon that he finds amenable, or the EPA carbon police will be let loose to ravage the countryside.
To support this charge, the Journal points to recent comments by Jason Grumet, an Obama energy advisor: “The EPA is obligated to move forward in the absence of Congressional action. If there’s no action by Congress in those 18 months, I think any responsible president would want to have the regulatory approach.’‘
This opinion piece, which uses the time-honored ploy of opponents of environmental progress of demonizing the EPA and ascribing sinister motives to its political overseers, has two fatal flaws. One, the specter of bureaucrats running amok and strangling the economy – by intruding into small businesses and individual households and banning fuels on which millions of Americans depend – is a fantasy of die-hard free-market zealots. In fact, a new administration could enforce new global warming regulations with common sense, focusing on large emitters of greenhouse gases to achieve reasonable reductions while spurring trillions of dollars worth of economic growth and green-collar jobs.
Second, in its zeal to accuse the EPA workforce of a naked power grab, the Journal ignores the central reason why EPA is part of the climate equation, as even the conservative law professor Jonathan Adler recognizes:The problem with the WSJ’s narrative is that Grumet is describing nothing more than what is legally required as a consequence of the Supreme Court’s decision in Massachusetts v. EPA. Under that decision, the EPA is effectively obligated to begin the regulation of greenhouse gas emissions under the Clean Air Act. If the law is not amended, and the next Administration fails to act, environmentalist groups will file suit to force their hand – and win.
The Court’s decision came after years of evading climate change by the Bush Administration despite the mounting evidence of rising temperatures and their consequences for our ecosystems and economy. Unfortunately, the EPA remains in default on its fundamental legal responsibilities. EPA’s July Advance Notice of Proposed Rulemaking – which the Journal describes as as a “roadmap” for blanketing the US economy with onerous regulation – was in fact a further Bush delay. Instead of a scientific “endangerment” analysis, the White House directed EPA to prepare a neutral and non-committal discussion of its legal authority – a stick in the eye of the Supreme Court. They then went further by taking the unprecedented step of belittling and disowning EPA’s technical and legal analysis to score points with its allies in industry and the Republican base.
If anything, allowing EPA to move ahead under the Clean Air Act would be “non-political” because it would honor the terms of a Supreme Court ruling that the outgoing Administration has chosen to defy. How simple respect for the nation’s highest court and the law of the land equates to issuing an “ultimatum” to Congress is baffling.
Boxer Threatens EPA Subpoena; State Previews Legal Arguments
(Cross-posted from Warming Law)
Anticipation has been high that Senator Barbara Boxer (D-CA) would use her platform running the Senate Environment and Public Works Commitee to pressure the EPA regarding its denial of California’s waiver application, and a committee field hearing yesterday did not disappoint. Responding to Administrator Stephen Johnson’s no-show and failure to provide documentation of how he reached his decision, Boxer threatened to use the committee’s subpoena power and generally pledged to step up congressional pressure:“This outrageous decision . . . is completely contrary to the law and science,” Boxer said in a briefing with state officials at Los Angeles City Hall. She held up an empty cardboard box as a symbol of the Environmental Protection Agency’s refusal so far to provide the hefty technical and legal backup that normally accompanies air pollution waiver decisions and are usually published in the Federal Register.[...]
Johnson is scheduled to testify before the Senate committee in Washington on Jan. 24. An EPA spokesman said, “The official decision documents are being prepared, and they will be released soon.”
California Attorney General Jerry Brown praised Boxer’s subpoena threat, at one point calling Johnson a “stooge in a really pathetic drama that hopefully will not play out much longer.” Brown used his written testimony to document the state’s legal case against the waiver decision, and specifically honed in on EPA’s central assertion that the waiver request did not meet “compelling and extraordinary” conditions due to global warming’s wide-ranging impact.
In addition to reiterating this logic’s departure from the text of the law and the Supreme Court’s rejection of a similar argument in Mass. v. EPA, various testimony directly cited the way in which past waiver decisions have interpreted the law. Former Assembleywoman Fran Pavley—who authored the clean cars law—pointed to a 1984 waiver determination by then-EPA-Administrator William Ruckelshaus deeming that California’s plight need not be “unique” in order to be "compelling and extraordinary." Brown, meanwhile, cited a 1975 waiver determination’s assessment of the Clean Air Act, which noted that:[I]n the light of their unusually detailed and explicit legislative history. . .Congress meant to ensure by the language it adopted that the Federal government would not second-guess the wisdom of state policy here. . . . Sponsors of the language eventually adopted referred repeatedly to their intent to make sure that no “Federal bureaucrat” would be able to tell the people of California what auto emission standards were good for them, as long as they were stricter than Federal standards.
Forthcoming in Geophysical Research Letters, research by engineering professor Mark Jakobson finds a direct causal link between increased CO2 in the atmosphere and increased morbidity from air pollution.In other words: CO2 makes traditional air pollution – ozone, particulates, carcinogens – more deadly. It follows that states with the worst air pollution have more to fear from climate change.
California Sues EPA Over Waiver Denial
As California Attorney General Jerry Brown announced upon the EPA denial of the California waiver request to regulate tailpipe greenhouse emissions, California has filed a petition for review of the decision in the Ninth Circuit Court of Appeals. Fifteen other states – Massachusetts, Arizona, Connecticut, Delaware, Illinois, Maine, Maryland, New Jersey, New Mexico, New York, Oregon, Pennsylvania Department of Environmental Protection, Rhode Island, Vermont, and Washington – joined the suit.
Warming Law notes:
One interesting legal wrinkle is that the case has been filed in the 9th Circuit—not in the DC Circuit, as many (including ourselves) had suggested. In the wake of EPA’s decision, LA Times writer David Savage presciently noted that the DC Circuit might not be naturally inclined to California’s arguments. While the state’s case for a waiver was undoubtedly strengthened by the Supreme Court’s decision on standing in Massachusetts v EPA, it was the DC Circuit that had previously sided with the EPA’s position (this rationale is strongly mirrored in the EPA’s current claim that global warming doesn’t pose a unique threat to California). The state’s arguments based on statutory text and the weight of Supreme Court precedent would probably have held up in any court, but its tactical filing move certainly seems, on the surface, to bolster its odds.
Major Court Ruling Against NHTSA on SUV CAFE Standards
Last week the 9th Court of Appeals issued a 90-page decision in Center for Biological Diversity v. National Highway Transportation Safety Administration/California v. NHTSA in favor of the plaintiffs. The suit was brought against NHTSA’s corporate average fuel economy (CAFE) standards for light trucks – i.e., SUVs – issued in April 2006, in part for NHTSA claiming that the value of reduced greenhouse gases would be zero. NRDC, ED, Sierra Club, Public Citizen, and 11 states and the District of the Columbia joined as plaintiffs.
The NHTSA is tasked by the Energy Policy and Conservation Act (EPCA) to set CAFE standards. Its April 2006 ruling raised the light truck standard from 22 to 23.5 miles per gallon by 2010.
The court agreed with the states that NHTSA must take into account greenhouse gases, as required by the National Environment Protection Act (NEPA) following the Massachusetts v EPA Supreme Court decision: “There is no evidence to support NHTSA’s conclusion that the apppropriate course was not to monetize or quantify the value of carbon emissions reduction at all.”
In addition to agreeing that the agency conducted an inadequate environmental assessment under NEPA, the court found that NHTSA’s regulations violated EPCA in four key areas, including the “SUV loophole” (“failure to revise the passenger automobile/light truck classifications”):NHTSA’s failure to monetize the value of carbon emissions in its determination of the MY 2008-2011 light truck CAFE standards, failure to set a backstop, failure to revise the passenger automobile/light truck classifications, and failure to set fuel economy standards for all vehicles in the 8,500 to 10,000 lb. GWR class, was arbitrary and capricious and contrary to the EPCA. We therefore remand to NHTSA to promulgate new standards consistent with this opinion as expeditiously as possible and for the earliest model year practicable.Warming Law’s comprehensive coverage: