Senate Environment and Public Works Committee

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

406 Dirksen
Thu, 24 Jan 2008 15:00:00 GMT

Sen. Barbara Boxer continues the investigation.

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

Witnesses
Panel I

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

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

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

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

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

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

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

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

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

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

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

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

Johnson Under the law I only consider California.

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

Three pages that have been completely redacted.

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

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

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

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

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

Johnson Yes, I was disappointed.

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

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

Inhofe This applies to other greenhouse gases similarly?

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

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

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

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

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

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

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

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

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

Johnson I believe so.

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

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

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

Johnson The end of February.

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

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

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

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

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

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

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

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

Lautenberg Is global warming dangerous to human health?

Johnson The agency has not made a decision on endangerment.

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

Johnson My conscience is guided by what the law says.

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

Johnson It’s a serious problem.

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

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

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

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

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

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

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

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

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

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

11:32 Klobuchar Please discuss the endangerment ruling process.

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

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

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

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

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

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

Johnson It would be more like a checkerboard.

11:38 Whitehouse Did you direct the process?

Johnson The process was the standard one.

Whitehouse Did the staff briefings include staff recommendations?

Johnson Yes.

Whitehouse How were the recommendations presented?

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

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

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

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

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

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

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

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

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

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

Johnson It’s not a popular vote.

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

Johnson I’d ask you respect the privilege.

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

Johnson I believe February 15th.

Boxer Will they include communications with the White House?

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

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

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

Johnson That’s my understanding.

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

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

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

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

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

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

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

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

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

Boxer I believe it may be earlier than that.

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

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

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

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

Sanders Was it a coincidence?

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

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

Johnson It was a unique situation.

Sanders It was a coincidence?

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

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

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

12:09 Klobuchar So it wasn’t unrelated.

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

Klobuchar This is the first waiver denied under the Act.

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

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

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

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

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

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

Johnson Let me add to that.

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

Johnson You missed evaluating the comments.

Whitehouse Was there a consolidated recommendation?

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

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

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

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

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

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

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

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

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

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

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

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

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

Boxer The witness is excused.

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