Hill Heat

(Cross-posted from Warming Law, which focuses on covering and analyzing the fight against global warming from a legal perspective. My name is Sean Siperstein, and I run Warming Law as part of my work for Community Rights Counsel, a non-profit, public interest law firm that assists communities in protecting their health and welfare. Follow the links for more info. about Warming Law; about CRC’s work and history; and for those truly curious, about me. Thanks for the opportunity to join the discussion; I really look forward to it!)

On Thursday, Rep. Henry Waxman (D-CA) convened the House Oversight and Government Reform Committee to delve into whether the EPA acted properly in approving a permit for a coal-fired power on tribal land in Utah—its first such decision since the Supreme Court’s determination that CO2 is an air pollutant—despite the continued opposition of several environmental groups. Readers can check out the committee’s website for complete video of the fireworks-filled hearing and all testimony.

The hearing’s central witness was EPA Administrator Stephen Johnson, who testified that because EPA is still in the process of formulating regulations in response to Mass. v. EPA, CO2 is, for the time being, still not a “regulated pollutant” under the Clean Air Act—and thus, EPA “simply lacks the legal authority…to impose emissions limitations for greenhouse gas emissions on power plants.”

Under intense questioning, Johnson continued to stand by his basic talking points, arguing again that EPA’s failure to regulate CO2 keeps it from even beginning to consider it in assessing proposed power plants. Reporting on the hearing, Ryan Grim of the Politico parses Johnson’s testimony and sees something beyond legal reasoning possibly at play here:

Johnson has a tight line to walk: He has to show that he’s in compliance with the Supreme Court ruling while not committing to doing too much. “I have to abide by the law as it’s written today,” Johnson says.

He also thinks that “we must continue to improve our knowledge of the science,” but promises that the EPA is “developing regulations to pursue it from a regulatory standpoint” using a “deliberative and thoughtful process.”

Democrats aren’t buying. “No, you’re not,” Rep. John Tierney (D-Mass.) tells him flatly. “You’re looking for any avenue you can to avoid doing it.” Several Democrats bring up the EPA’s long-running refusal to approve a waiver for California to enact its own carbon regulation scheme.

The primary argument against Johnson’s take was provided by David Doniger of the National Resources Defense Council (NRDC), who asserted that EPA does have a mandate to move forward, and in doing so should have quickly concluded that new coal-fired plants ought not be approved without significant mitigation strategies. In doing so, Doniger cites several decisions by businesses and state regulators  indicating that concrete action is possible, and summarizes the four main arguments of environmental organizations’ latest formal comments objecting to EPA’s decision:   

As discussed by Sean Siperstein at Warming Law, Washington governor Christine Gregoire announced last week that her state would join California when it files suit against the EPA for delay on the waiver petition to allow California and 11 other states to regulate CO2 emissions from automobiles (“clean car” regulations). This week the New York Times reported that New York and the other states intend to join the lawsuit as well.

California intended to file suit against the EPA on Monday, 181 days after its request for action following the U.S. Supreme Court decision in Massachusetts vs. EPA:

We provided 180-day notice on April 26, 2007, of our intent to sue under the Clean Air Act and Administrative Procedure Act, which provide mechanisms for compelling delayed agency action. However, we had frankly held out hope that this dispute would be resolved without the time and expense of a lengthy court battle. Given your comments in front of the Special Committee and the work of the U.S. Department of Transportation, a lawsuit on the 181st day now appears to be inevitable.

The filing of the lawsuit has been delayed by the raging wildfires in California.

This hearing has been postponed.

10/17/2007 at 10:00AM

Internal e-mails show that Transportation Secretary Mary Peters personally directed a behind-the-scenes lobbying campaign approved by the White House to oppose EPA approval of California’s landmark standards reducing greenhouse gas emissions from motor vehicles.

• Oversight Committee Chair Henry Waxman’s Letter to CEQ Chairman Connaughton
• E-mails Referenced in Letter

09/25/2007 at 10:00AM

Judge William Sessions III issued his ruling in 2:05-CV-302 Green Mountain Chrysler-Plymouth-Dodge et al v. Crombie et al, a case in which the American Automobile Manufacturers sued the state of Vermont to block regulations adopted by Vermont in the fall of 2005 that follow’s California’s Pavley Law greenhouse gas emissions standards for new automobiles. Following the Supreme Court’s Massachusetts vs EPA decision that made it clear EPA has authority to regulate greenhouse gases, Sessions ruled in full for Vermont, stating:

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.)

Vermont was supported by the Conservation Law Foundation, Sierra Club, Natural Resources Defense Council, Environmental Defense, Vermont PIRG, and the state of New York.

The AAM has suits pending in California and Rhode Island as well.

Read the full opinion and order (PDF)

In this morning’s markup, the Senate Environment and Public Works Committee approved S. 1785, which has the following straightforward text:

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-

1. 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—
   1. has been submitted by the State; and
   2. is pending as of the date of enactment of this subsection.
2. 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.

_Witness_

• 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.

07/26/2007 at 10:00AM

Tuesday, May 22

2:30 PM: House Energy Independence and Global Warming Green Collar Jobs 2318 Rayburn LIVE WEBCAST Witnesses: Jerome Ringo, President, Apollo Alliance Van Jones, President and Co-Founder Ella Baker Center Elsa Barboza, Campaign Coordinator for Green Industries at the Strategic Concepts in Organizing and Policy Education (SCOPE; Los Angeles, CA) Bob Thelen, Chief Training Officer, Capital Area Michigan Works! 2:30 PM: Senate EPW The Case for the California Waiver 406 Dirksen LIVE C-SPAN3 Witnesses: Jerry Brown, Attorney General, Cal. Professor Jonathan H. Adler, Director, Center for Business Law and Regulation, Case Western Reserve University School of Law Honorable Alexander B. Grannis, Commissioner, NY Dept of Environmental Conservation