Hill Heat

EPA administrator Stephen Johnson’s denial of California’s petition to regulate tailpipe greenhouse gas emissions following the White House energy bill signing ceremony was deservedly front page news from coast to coast. The Supreme Court forced the EPA to consider California’s December 2005 Clean Air Act waiver request in April 2007 (Massachusetts v. EPA). In testimony before the Senate and the House earlier this year, Johnson signaled his lack of desire to grant the waiver. Now that decision has come in, with justifications even EPA’s own laywers and policy staff don’t believe. This is the first time in the history of the Clean Air Act that the EPA has denied a section 209 California waiver request.

[Ed.—Warming Law has superior analysis of the decision, from which I’ll steal some key insights.]

The EPA, which is yet to release the formal denial, announced in its press release that the increased CAFE standards in the new energy law to justify its denial of the California waiver:

EPA has determined that a unified federal standard of 35 miles per gallon will deliver significant reductions in greenhouse gas emissions from cars and trucks in all 50 states, which would be more effective than a partial state-by-state approach of 33.8 miles per gallon.

Warming Law says “EPA appears to be attempting to add a new test to the Clean Air Act” in requiring that California prove a local interest in addition to the “compelling” and “extraordinary” standards the Supreme Court said this problem meets.

Warming Law’s Tim Dowling notes that Johnson’s claim the waiver would create a “confusing patchwork of state rules” is typical industry rhetoric that is specious—only two sets of standards, national and California, would apply. “Johnson failed to explain how EPA has been able to grant EVERY other 209 waiver request in history without creating a confusing patchwork, but can’t do so here.”

Juliet Eilperin of the Washington Post reveals that Johnson overrode his staff.

In a PowerPoint presentation prepared for the administrator, aides wrote that if Johnson denied the waiver and California sued, “EPA likely to lose suit.”

If he allowed California to proceed and automakers sued, the staff wrote, “EPA is almost certain to win.”

The technical and legal staffs cautioned Johnson against blocking California’s tailpipe standards, the sources said, and recommended that he either grant the waiver or authorize it for a three-year period before reassessing it.

“Nobody told the administration they support [a denial], and it has the most significant legal challenges associated with it,” said one source, in an interview several hours before Johnson’s announcement, who spoke on the condition of anonymity because the official is not authorized to speak for the agency. “The most appropriate action is to approve the waiver.”