Hill Heat

From the Wonk Room.

Lisa Jackson, President-elect Barack Obama’s co-chair of his energy and natural resources transition team, has emerged as the top candidate to be administrator of the Environmental Protection Agency. Jackson, a 46-year-old African American engineer, left her job as administrator of the New Jersey Department of Environmental Protection to become Gov. Jon Corzine’s chief of staff on December 1. Jackson has a mixed record at the New Jersey DEP, earning praise for her work ethic but criticism for difficulties achieving the department’s mission.

In an exclusive interview with the ThinkProgress Wonk Room, Gov. Corzine says Jackson has been “remarkably successful” despite a limited budget and competing state priorities:

Lisa Jackson is, without question in my mind, someone who has overwhelmingly been successful as an environmentalist, but also she has also been a person who understands that we have to move in a disciplined thoughtful manner. We can’t do everything at once. . . I think Lisa has done a remarkable job of trying to move the environmental agenda forward within a constrained world.

Watch it:

Corzine’s view is shared by local environmentalists like the Association of New Jersey Environmental Commissions’ Sandy Batty, and Environment New Jersey’s Dena Mottola Jaborska, who told Environment and Energy News that Jackson is “a skilled administrator who’s willing to listen” and the “best DEP commissioner that New Jersey had for a long time.” Jackson’s agency “has suffered from a slate of budget cuts by Democratic and Republican governors alike, and thousands of staff positions have been lost over the years.” Struggling to reduce a multi-billion-dollar state debt, Corzine himself has slashed the DEP budget even as the department’s responsibilities have expanded to handle global warming.

The list of problems at the underfunded agency is long. The Public Employees for Environmental Responsibility has been the most critical of Jackson’s potential appointment, claiming “Jackson embraced policies at DEP echoing the very practices at the Bush EPA which Senator Barack Obama condemned during the presidential campaign,” including “suppression of scientific information, issuance of gag orders,” and “closed-door deal-making with regulated industry executives and lobbyists.” PEER’s Jeff Ruch describes Jackson as “a pliant technocrat who will follow orders”:

While Ms. Jackson has a compelling biography, little of what occurred during her 31-month tenure commends her for promotion. Under her watch, New Jersey’s environment only got dirtier, incredible as that may seem.

PEER, which exposed many of the EPA’s worst practices under Stephen Johnson, notes that “Jackson appointed the lobbyist for the New Jersey Builders Association as her Assistant Commissioner to oversee critical water quality and land use permits,” and “failed to warn parents or workers for months about mercury contamination” at a day-care center in a former thermometer factory.

Transcript:

The permits for a 800-megawatt, $2.4 billion Duke Energy Cliffside coal-fired power plant granted by the North Carolina Department of Air Quality in February have been struck down by a federal court. This case in part stems from a 2005 decision by the Bush administration EPA to remove these kinds of plants from the hazardous air pollutant provisions of the Clean Air Act. Shortly after the permits were granted, the District of Columbia Circuit Court of Appeals found that the 2005 EPA decision was illegal, and environmental groups used that ruling to challenge the Cliffside project. Duke’s argument was that the permit was granted before the circuit court decision, and should stand.

Lacy Thornburg, for the Western North Carolina District Court, found that the DAQ permit failed to comply with the Clean Air Act, notwithstanding EPA’s illegal maneuvers. Thornburg determined that the permitting process ignored critical provisions of the Clean Air Act, and that “Duke is simply refusing to comply with controlling law.”

The Cliffside plant “has the potential to emit in excess of ten tons per year” of hydrochloric acid and “over 25 tons of a combination of” other hazardous air pollutants. Section 112 of the Clean Air Act governs the federal control program for hazardous air pollutants.

Thornburg’s judgment found that the facts of the case were simple:

As of this date, neither the EPA or DAQ (North Carolina’s authority delegated with enforcing § 112) has issued to Duke an Air Quality Permit recognizing compliance with § 112. The material facts herein are not in dispute. Duke is simply refusing to comply with controlling law.

The Cliffside expansion project was launched in June 2006.

From the Wonk Room.

The Bush administration, though in the shadows of President-elect Barack Obama’s transition effort, continues to subvert the rule of law and impede action on global warming. Last week, the White House emailed mayors asking them to oppose the Environmental Protection Agency’s draft proposal for greenhouse gas regulations. According to the Washington Post, the email by Jeremy J. Broggi, associate director of the White House Office of Intergovernmental Affairs reminded mayors to formally submit complaints to the EPA:

At the time, President Bush warned that this was the wrong way to regulate emissions. Chairman John D. Dingell called it “a glorious mess.” And many of you contacted us to let us know how harmful this rule would be to the economies of the cities and counties you serve.

Broggi, a young Dick Cheney protegé, also linked to a November 20 U.S. Chamber of Commerce blog post by Bill Kovacs that makes the absurd claim regulation of carbon dioxide under the Clean Air Act “will operate as a de facto moratorium on major construction and infrastructure projects.” Broggi’s lobbying against his own government is nothing new—last year the Department of Transportation lobbied Congress to oppose global warming regulations.

To avoid action on global warming despite a direct order from the Supreme Court, Bush’s people have brazenly flouted their Constitutional obligation to faithfully execute the law, ignoring science, ignoring Congressional subpoenas, even ignoring emails from the EPA. Just as former attorney general Alberto Gonzales claimed the Geneva Convention’s ban on torture was “quaint,” EPA Administrator Stephen Johnson called the Clean Air Act “outdated” and “ill-suited” to the task of regulating greenhouse gas emissions.

However, it is the approach of the likes of George Bush, Stephen Johnson, Bill Kovacs, and John Dingell to the climate crisis that is “outdated,” “ill-suited,” and “a glorious mess”—not laws like the Clean Air Act. Robert Sussman, a Senior Fellow at the Center for American Progress Action Fund and co-chairman of Obama’s EPA transition team, explained last month:

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.

Come January, Dingell will have been replaced as chairman of the House Energy and Commerce Committee by Rep. Henry Waxman (D-CA), and the Bush administration by Obama’s team. Sadly, Kovacs will continue plugging his dangerous message of inaction, although major companies are starting to abandon the Chamber’s reactionary rhetoric.

Broggi’s email reminded Bush’s allies in “bold, underlined text” that the public comment period for these proposed regulations closes this Friday, November 28. You can join the We Campaign in sending the message that the EPA can and should take immediate action to control global warming and to help repower America.

The text of the email follows.

From the Wonk Room.

Yesterday, the Environmental Protection Agency’s Environmental Appeals Board ruled today that the EPA has no valid reason for refusing to place limits on the global warming emissions from Desert Power’s proposed 110-megawatt coal-fired power plant in Vernal, Utah.

Deseret Power’s Bonanza Generating Station would have emitted 3.37 million tons of carbon dioxide each year. In July 2007, the EPA issued a permit for the plant, ignoring the Clean Air Act’s stipulation that all such permits must include a “best-available control technology” emissions limit for each pollutant “subject to regulation under the Act.” Before the Sierra Club brought suit, Rep. Henry Waxman (D-CA), chair of the House Committee on Oversight and Government Reform opened an investigation into the EPA’s decision, saying:

It is reckless to approve a huge coal-fired power plant with no global warming emission controls. This one massive plant will negate the emissions reductions being implemented by the Northeastern states in the first mandatory regional program to cut global warming pollution. The Administration’s shameful decision rewards polluters, flouts the Clean Air Act, and fails the American people.

Joanna Spalding, the Sierra Club attorney who successfully argued the case, delivered this statement:

Today’s decision opens the way for meaningful action to fight global warming and is a major step in bringing about a clean energy economy. This is one more sign that we must begin repowering, refueling and rebuilding America. The EAB rejected every Bush Administration excuse for failing to regulate the largest source of greenhouse gases in the United States. This decision gives the Obama Administration a clean slate to begin building our clean energy economy for the 21st century.

The 69-page decision described the Bush administration’s arguments as “weak,” “questionable,” “not sustainable,” and “not sufficient,” and rebuked EPA Administrator Stephen Johnson for failing to issue CO2 regulations, repeatedly recommending an “action of nationwide scope.”

The House Committee on Global Warming and Energy Independence has issued a report, Past is Prologue, listing many of the energy and environmental regulations, rulemakings, and notices the Bush administration is expected to issue (or in some cases, illegally avoid issuing) in its final months in office. As R. Jeffrey Smith writes in the Washington Post, “The new rules would be among the most controversial deregulatory steps of the Bush era and could be difficult for his successor to undo.” Here’s a partial list:

• The Environmental Protection Agency (EPA) plans to finalize an NSR rule before the end of the administration that would essentially exempt all existing power plants from having to install new pollution control technology when these plants are updated.
• In a separate NSR rule, EPA plans to exempt so-called “fugitive” emissions – meaning emissions that don’t come out of the end of a stack such as volatile organic compounds emitted from leaking pipes and fittings at petroleum refineries – from consideration in determining whether NSR is triggered.
• EPA is also set to finalize a third rule weakening the NSR program, by allowing so-called “batch process facilities” – like oil refineries and chemical plants – to artificially ignore certain emissions when determining when NSR is triggered.
• EPA is also working towards weakening air pollution regulations on power plants and other emissions sources adjacent to national parks and other pristine, so-called “Class I” areas. By changing the modeling of new power plants’ impact on air quality in national parks – using annual emissions averages as opposed to shorter daily or monthly periods – the EPA rule will make it easier for such plants to be built close to parks.
• The National Highway Traffic Safety Administration (NHTSA) issued proposed regulations to implement the EISA fuel economy standards (increase by the maximum feasible amount each year, such that it reaches at least 35 miles per gallon by 2020) in April 2008, and final regulations are expected soon. If NHTSA used EIA’s higher gasoline price scenario—a range of $3.14/gallon in 2016 to $3.74/gallon in 2030—the technology is available to cost-effectively achieve a much higher fleet wide fuel economy of nearly 35 mpg in 2015 – instead of the 31.6 mpg in 2015 under the lower gas prices used in NHTSA’s proposed rule.
• EPA is expected to issue proposed regulations soon on the renewable fuels provisions passed in EISA that required America’s fuel supply to include 36 billion gallons of renewable fuels by 2022 – together with more specific volumetric requirements and lifecycle greenhouse gas benchmarks for “advanced” renewable fuels, cellulosic ethanol, and biodiesel.
• The Department of the Interior (DOI) has already telegraphed its intention to gut the Endangered Species Act by rushing through 300,000 comments on proposed rules in 32 hours, then providing a mere 10-day public comment period on the Environmental Assessment of the proposed rules change. The proposed rules would take expert scientific review out of many Endangered Species Act (ESA) processes, and could exempt the effects of global warming pollution on threatened or endangered species.
• DOI intends to finalize new regulations governing commercial development of oil shale on more than 2 million acres of public lands in the West.
• DOI’s Office of Surface Mining is expected before the end of the administration to issue a final rule that would extend the current rule (which requires a 100-foot buffer zone around streams to protect them from mining practices) so that it also applies to all other bodies of water, such as lakes, ponds and wetlands. But the rule would also exempt many harmful practices – such as permanent coal waste disposal facilities – and could even allow for changing a waterway’s flow.
• EPA has already missed several deadlines to finalize a rule addressing whether concentrated animal feeding operations (CAFOs) are required to obtain permits under the Clean Water Act.
• EPA and the Army Corps of Engineers may issue a revised guidance memo on how to interpret the phrase “waters of the United States” in the Clean Water Act, which determines what water bodies are subject to regulation under the Act.
• Under the Omnibus appropriations bill for FY 2008, EPA was directed to establish a mandatory reporting rule for greenhouse gas emissions, using its existing authority under the Clean Air Act, by September 2008. EPA has been working on a proposed rule, which may or may not be issued before the end of the Bush administration. EPA will not issue a final rule before the end of the administration.

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.

In a letter addressed to EPA Administrator Stephen Johnson, the presidents of four unions representing career EPA scientists write of their collective dismay at Johnson’s handling of the Advance Notice of Proposed Rulemaking on greenhouse gas emissions. Johnson criticized his own agency’s work, calling the Clean Air Act “ill-suited for the task of regulating global greenhouse gases.” In addition, letters of comment criticizing the rulemaking draft were attached from the White House Office of Management and Budget, the White House Council on Environmental Quality, the White House Council of Economic Advisers, the White House Office of Science and Technology Policy, the Department of Transportation, the U.S. Small Business Administration, the Department of Agriculture, the Department of Commerce, and the Department of Energy.

This July 30 letter, published by Publice Employees for Environmental Responsibility, reveals that the EPA staff were not allowed to review these letters of criticism before they were prepended to the ANPR. The union presidents write:

“The way in which you subverted the work of EPA staff in your preamble statement on the merits of the supporting rationale for the ANPRM was as unprecedented as it was stunning to your staff and damaging to EPA’s reputation for sound science and policy.”

They conclude: “We hope that in your final days in office you will try to rectify some of this damage and remove some of the tarnish from your legacy.”

Full text:

From the Progress Report.

A coalition of states and environmental groups intends to sue the Environmental Protection Agency (EPA) “if it does not act soon to reduce pollution from ships, aircraft and off-road vehicles.” California Attorney General Jerry Brown is set to send a letter to the EPA in which he will “accuse the Bush administration of ignoring their requests to set restrictions” on greenhouse gas emissions. The EPA will have 180 days to respond. Under the Clean Air Act, “a U.S. district court can compel the EPA to take action to protect the public’s welfare if the agency delays doing so for an unreasonably long time.”

“It’s a necessary pressure to get the job done,” Brown said of the lawsuit. “The issue of reducing our energy dependence and greenhouse gas emissions is so challenging and so important that we have to follow this judicial pathway.”

In the last year, states have also sued the EPA for dragging its heels in regulating carbon dioxide and for having lax smog standards.

This week, lawmakers called on EPA Administrator Stephen Johnson to resign because he has become “a secretive and dangerous ally of polluters.”

From the Wonk Room.

Following a press conference with senators Amy Klobuchar (D-Minn.) and Barbara Boxer (D-Calif.), Sen. Sheldon Whitehouse (D-R.I.) formally announced on the Senate floor their request for a Department of Justice investigation into the potential criminal conduct of EPA Administrator Stephen Johnson, whom he called “a man after Spiro Agnew’s own heart.”

Whitehouse listed five charges of “putting the interests of corporate polluters before science and the law” in ozone, lead, soot, tailpipe emissions, and global warming pollution; and four charges of degrading “the procedures and institutional safeguards that sustain the agency;” before discussing his apparent dishonesty in testimony before Congress>

And in what is perhaps the gravest matter of all, I believe the Administrator deliberately and repeatedly lied to Congress, creating a false picture of the process that led to EPA’s denial of the California waiver, in order to obscure the role of the White House in influencing his decision.

Today, Senator Boxer and I have sent a letter to Attorney General Mukasey, asking him to investigate whether Administrator Johnson gave false and misleading statements, whether he lied to Congress, whether he committed perjury, and whether he obstructed Congress’s investigation into the process that led to the denial of the California waiver request.

Watch it:

After listing yet more “signs of an agency corrupted in every place the shadowy influence of the Bush White House can reach,” Sen. Whitehouse concluded:

Administrator Johnson suggests a man who has every intention of driving his agency onto the rocks, of undermining and despoiling it, of leaving America’s environment and America’s people without an honest advocate in their federal government.

This behavior not only degrades his once-great agency – it drives the dagger of dishonesty deep in the very vitals of American democracy.

The American people cannot accept such a person in a position of such great responsibility. I am sorry it has come to this, but I call on Administrator Johnson to resign his position.

I yield the floor.

Watch it:

Join Sen. Whitehouse in calling for Johnson’s resignation here.

Full text of Sen. Whitehouse’s speech:

Last Tuesday, EPA whistleblower Jason Burnett testified before a Senate committee about the Bush administration’s efforts to influence EPA’s decision-making process in 2007—interference that ended with Administrator Stephen Johnson being ordered, contrary to the Clean Air Act, to delay regulating carbon dioxide as a pollutant and block California’s landmark efforts to fight global warming. Burnett’s most noteworthy new revelations came through several detailed anecdotes of White House interference. One of the most laughable, as related by the Washington Independent:

While Burnett charitably described it as a “robust interagency process” he was taken aback by OMB general counsel Jeff Rosen’s ignorance about global warming-causing carbon dioxide molecules. Rosen requested that EPA only count carbon dioxide molecules in the air that came from automobiles, not ones from power plants. “It was sometimes embarrassing,” Burnett said, “For me to return to EPA and say that I had to explain to OMB that carbon dioxide is a molecule and you can’t differentiate in the air where a molecule came from.”

Burnett’s exasperation with Rosen was, unsurprisingly, not shared at the White House. In fact, the exact opposite seems to be the case. It turns out that about a month ago, President Bush nominated Rosen for a lifetime appointment to the U.S. District Court for the District of Columbia.

Rosen was also recently involved OMB’s efforts to resist a subpoena from the House Oversight and Government Reform Committee, ending with the invocation of executive privilege in order to avoid a contempt of Congress vote for Deputy Administrator Susan Dudley. Prior to joining OMB in June 2006, he served as General Counsel for the Department of Transportation. During that time, DOT promulgated fuel economy standards for light trucks that were later invalidated by the 9th Circuit Court of Appeals, which ruled that their biases toward the auto industry and failure to account for climate-change impacts represented an “arbitrary and capricious” violation of the Energy Policy Conservation Act (EPCA) and National Environmental Policy Act (EPCA).

This nomination is particularly noteworthy given the D.C. District Court’s special powers to hear environmental cases—including some cases brought under the Clean Air Act. But with mere months to go in President Bush’s term and the obvious, serious concerns that Rosen would need to address before meriting confirmation, it’s somehow doubtful that the Senate Judiciary Committee will hasten to act on his nomination.