Hill Heat

EPA Administrator Stephen Johnson seems unable to step foot on Capitol Hill to talk about his 2008 budget without getting a ton of questions about California’s waiver denial and EPA’s much-delayed response to Massachusetts v. EPA. Today’s NY Times carries an editorial explaining how the two are linked, citing and drawing out Georgetown Professor Lisa Heinzerling’s observation that EPA’s waiver denial may have inadvertently committed it to an endangerment finding) 

The barrage of questions continued yesterday, courtesy of Senator Dianne Feinstein (D-CA) and her Appropriations subcommittee. Hill Heat live-blogged the hearing and revealed that Johnson isn’t just personally overwhelmed by all the legal pressure and questioning—he’s explicitly citing it to justify his delayed reaction to the Supreme Court’s remand. To wit, Johnson repeated the claim—previously made when he announced to a House subcommittee that he’d be “taking a step back” from the enandgerment finding to weigh industry’s “concerns”—that his delay is partly justified by a series of petitions and appeals that California and environmental groups have filed in the last several months, seeking the regulation of CO2 emissions from ships, aircraft, off-road vehicles, and new coal-burning power plants under federal jurisdiction.

Each of these actions was largely motivated by EPA’s delay in making an endangerment ruling, and each covers areas that would be affected by such a determination. In other words, Johnson is claiming that in order to respond to legal maneuvers motivated by his hesitancy to act…he must delay action even longer. While this deflection doesn’t carry any legal consequences, another part of Johnson’s insistence that this decision requires an expansive amount of time—perhaps until the end of the Bush administration, as advised by the Heritage Foundation, which also takes credit for inspiring Johnson’s rationale—actually highlights the imminent possibility of yet another lawsuit against EPA.

At issue: Johnson flat-out refused to set a target date yesterday for completing the decision-making process, and would not answer whether any of his staff was even working on the enandgerment evaluation (as opposed to a “myriad of issues” that they are tackling). The latter answer led Senator Feinstein to argue, based on what she’d  evidently been hearing from other sources, that no one other than Johnson himself is weighing the issue.

The legal coalition responsible for initiating Mass. v. EPA will likely beg to differ with this exhaustive process, having notified the Administrator last month that it was prepared to sue over unreasonable delay if Johnson didn’t provide a firm target date by February 27—last Wednesday. Stay tuned…

Upon the House passage of the oft-stymied oil-for-renewable tax package as a standalone bill (H.R. 5351) last week, Ben Geman of E&E News reported on a possible mechanism for moving the bill through the Senate with a simple majority:

Senate Democrats are eyeing a filibuster-proof budget bill as a vehicle for energy tax provisions that have narrowly failed to win the 60 votes needed to cut off debate, several lawmakers said yesterday.

Energy taxes are a “candidate to be considered in [budget] reconciliation,” Budget Chairman Kent Conrad (D-N.D.) told reporters. “I think we have to look at things that reduce our dependence on energy.”

The oil-for-renewables package, which faces the threat of a Bush veto, received resounding support from a broad coalition of industry, investors, and environmental organizations in a press conference today on the first day of the Washington International Renewable Energy Conference. President Bush is scheduled to offer the keynote address to the convention tomorrow.

At last week’s House Appropriations hearing on the FY 2009 Fish and Wildlife Service budget, FWS chief Dale Hall was grilled on the service’s implementation of the Endangered Species Act. The Bush administration has listed dramatically fewer species than previous administrations after dramatically reinterpreting the Act under Secretary Gale Norton’s “New Environmentalism” initiative to limit its protections for critical habitats. Further, Deputy Secretary Julie MacDonald was found to have interfered with a series of listing decisions (such as the prairie dog and sage grouse) until her dismissal in 2006.

Hall stated that he finally submitted his decision on the endangerment of polar bears due to climate change to Dirk Kempthorne, the Secretary of the Interior, saying that he expected a final decision to come in a few weeks. Hall justified the further delay to reporters: “It needs to be reviewed and explained to Interior, it can take a while to understand.”

On February 27, the Center for Biological Diversity announced a lawsuit protesting the FWS’s illegal delay on considering the endangerment of ten species of penguins:

The legal deadline at issue in today’s suit was triggered by a scientific petition the Center filed in November 2006 seeking Endangered Species Act protection for many of the world’s most threatened penguin species, including the emperor penguin in Antarctica. In July 2007, the U.S. Fish and Wildlife Service took the first of the three steps in the listing process when it found that 10 penguin species may deserve protection and began status reviews for those species. The Fish and Wildlife Service’s finding for the 10 penguin species triggered the duty to decide by November 29, 2007, whether the penguins qualify for listing under the Endangered Species Act, and if so, to propose them for listing. That decision is now more than two months overdue.

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.”

The coal-industry lobbying entity Americans for Better Energy Choices has launched a full campaign in the primary battleground state of Ohio as part of its $40 million-plus election-year PR effort, castigated by a recent NBC report for “trying to cloak itself in green”.

The Ohio effort includes a series of print and radio advertisements, one of which asks:

It’s no secret – access to affordable energy is one of the leading reasons why businesses come to Ohio. In fact, a recent university study shows that there are more than 700,000 jobs here in Ohio because of access to affordable, reliable electricity produced by coal. . . Green collar jobs might sound good to some people, but what does that mean for Ohio jobs … what does it mean for your job?

The “recent university study” is one paid for by ABEC’s parent organization, the industry trade group Center for Energy and Economic Development.

Green Energy Ohio has a series of studies and reports that attempt to answer that very question, looking at both the present and the future impact of the renewable energy/energy efficiency (RE/EE) industry in Ohio.

ABEC Ohio outreach also includes on-site visits to campaign rallies where they give out promotional material and the targeted URL EnergyForOhio.org. A WHOIS review shows that ABEC registered the “EnergyFor” domains for all fifty states in November 2007. DeSmogBlog has posted ABEC’s call for public relations work in Pennsylvania, another significant coal state whose primary is April 22.

The “America’s Power” website (which includes an Ask the Experts section and the “Behind the Plug” blog) lists the ABEC tour locations and the radio spot run in Ohio. Full text of the “jobs” ad, a transcript of the radio spot, and the tour locations are listed after the jump.

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):

The Democratic House leadership sent a letter today challenging Bush to sign the House oil-for-renewables tax package (H.R. 5351) passed by their chamber yesterday.

Promotion of the renewable energy industry is the goal of the Washington International Renewable Energy Conference, which your Administration hosts next week. The conference offers a remarkable world platform to support a fiscally responsible commitment to these industries and technologies and the jobs they will produce. We urge you to reconsider your previous opposition to fiscally sound incentives for American renewable energy, and lend your support to this historic legislation in time for this occasion.

At today’s press conference, President Bush parried a question about his threatened veto of bill (after admitting ignorance about the likely $4 gallon gas this spring).

He claimed the cost-neutral bill would “cost the consumers more money and we need more oil and gas being explored for, we need more drilling, we need less dependence on foreign oil.” With respect to renewable energy, he discussed cellulosic ethanol and other biofuels, nuclear energy, and carbon sequestration, but not solar, wind, or energy efficiency.

Former Massey Energy executive Stanley Suboleski, who was nominated by the president to be the Department of Energy assistant secretary for fossil energy, was scheduled for his nomination hearing before the Senate today. The Office of Fossil Energy funds advanced coal technology efforts and recently received fire for discontinuing the FutureGen coal-tech initiative.

E&E News reports that the White House withdrew his nomination last night, saying that Suboleski asked to be withdrawn “for personal reasons” Monday afternoon.

JW Randolph, Appalachian Voices Legislative Associate, made the following statement before his withdrawal was made public:

In 2000 in Martin County Kentucky, despite repeated warnings about the serious violations where the impoudment broke, Massey Energy was responsible for a slurry spill that was 30 times larger than the Exxon Valdez disaster. The EPA called it the “worst environmental disaster in the history of the Southeast.” Massey called it “an Act of God.”

Now, President Bush wants to promote a Massey Executive to “Assistant Secretary of Energy (fossil energy).” While we are extremely disappointed, we can’t act as though we are surprised. The promotion of Stanley Suboeski is consistent with the Bush Administration’s vigorous efforts to remove every shred of responsibility and decency from the process of extracting coal, ignoring the human cost at every turn.

By promoting mountaintop removal mining, the Bush Administration and Massey Energy have transferred the dangers inherent in coal-mining from the professional miners doing the work onto the surrounding civilian communnities who now have to deal daily with fly rock, poisoned water, and toxic coal waste. Putting Stan Suboleski at the top of the fossil energy food chain is yet another reckless example of the President rewarding his friends and contributors in the fossil fuel industry, and ignoring the true cost of coal to the people in the Appalachian region.

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.

From the beginning of her tenure, Speaker Nancy Pelosi (D-Calif.) has attempted to pass legislation cutting billions in tax breaks and royalty payments to oil and gas companies to invest in renewable energy and energy efficiency. The legislation has died twice by a single vote in the Senate – in December as part of the energy bill (H.R. 6), and three weeks ago as part of the economic stimulus legislation (H.R. 5140).

House leadership announced plans to immediately reintroduce the legislation as a standalone bill, named the Renewable Energy and Energy Conservation Tax Act of 2008 (H.R. 5351).

Debate on the bill is now taking place, with a final vote scheduled for some time after 3 PM EST.

Update: HR 5351 passed by a roll call vote of 236-182. 17 Republicans joined the Democratic majority; 8 Democrats (Barrow, Boren, Cuellar, Gene Green, Lampson, Melancon, Ortiz, Rodriguez) voted against passage.