(Cross-posted from Warming Law) 

Hoping to further ratchet up pressure on EPA Adminstrator Stephen Johnson regarding California's waiver denial, Senator Barbara Boxer (D-CA) has now released additional transcriptions of internal agency documents her EPW committee staff was able to view. David Roberts has posted some initial thoughts on the highlighted contents– including a plea from EPA staff to Johnson indicating that if he couldn't grant the waiver at least temporarily, “…you will face a pretty big personal decision about whether you are able to stay in the job under those circumstances.”

Even more interesting to us, from a legal perspective, is the following excerpt from that same set of talking points, which is played out repeatedly in the 27 pages of documents transcribed and released by Boxer (added emphasis ours):

• [It is obvious] that there is no legal or technical justification for denying this. The law is very specific about what you are allowed to consider, and even if you adopt the alternative interpretations that have been suggested by the automakers, you still wind up in the same place.

That last sentence is critical, as it bears out the reality that Johnson lacks the administrative authority and legal justification to reintepret the law as he has here. Internal emails and presentations consistently indicate that Johnson's ultimate ruling was wrong and unprecedented along three key lines of argument:

1)  The Clean Air Act, by design and legal precedent, indicates that “the burden of proof is on parties opposing a waiver, not on CA or EPA.” In other words, to deny the waiver, EPA essentially must rule that the auto industry (which was almost alone in submitting comments to oppose the waiver) proved its case.

2)  Historically, EPA has judged waiver requests while giving California broad discretion to enact its own standards, with the main criterion being related to the continued necessity of CA standards. Declaring that GHG emissions standards were different and required a more stringent standard, as the auto inudstry argued and Johnson ultimately agreed, would clearly not jibe with Congressional intent and intrinsically narrow the nature of CA's discretion under the Clean Air Act. Moreover, according to an April 30, 2007 PowerPoint presentation:

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  • Justification would need to explain why the alternative interpretation is a better way to meet the goals of [Section] 209–providing broad discretion to CA, get benefits for country from a “pioneer,” limit burden on industry by only having two programs, etc.

To date, EPA has provided no such explanation for its new GHG-specific interpretation.

3) Even allowing for the aforementioned change in EPA's deliberative process, the burden of proof would remain on EPA to affirmatively rule that “compelling and extraordinary conditions” specific to GHGs have not been proved by California. This determination, the same April 30 presentation indicates, would need to somehow gel with the specific warming impacts demonstrated by the California Air Resources Board.

Also, in addition to discounting California's ongoing concerns, “EPA would have to find that we know enough about GCC and its impacts to determine now that in the future CA will not face compelling or extraordinary conditions from GCC, including impacts on ozone.” Obviously, that's a rather strong statement, and one that EPA would probably have a hard time proving in the legal proceedings potentially ahead of it

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All said, nothing has changed since yesterday– the EPA's decision was clearly a troubling one from a legal perspective and in so far as expert recommendations were cast aside. But today's disclosures shine further light on just how clear it ought to have been to Administrator Johnson that he had no real choice besides granting the waiver.

So, let’s see.  You’re the New York Times.  You’re a national paper, but you have a significant readership in California, so you want to cover the Left Coast every now and again.  You’re not on the ground in California, but you have a few reporters hither and yon, and press releases a go-go from the Governor’s office.  There’s a space in the paper for a California story, something that can show to the world the innovation and forward-thinking at work in the nation’s largest state.  So you look over what they’ve done for the last few days.

On the one hand, the Governor, just months from failing in a quest to massively expand health care to millions of uninsured Californians, has decided to go in the complete opposite direction and force Medi-Cal enrollees to fill out all kinds of paperwork in the hopes of knocking thousands off the rolls to save money.

Administration officials expect the rule will result in 122,000 people being dropped from the rolls next year, saving the state $92 million – money that the governor’s staff has already counted against the state’s deficit.

The plan calls for about 4.5 million of the 6.5 million enrollees of the Medi-Cal program to file eligibility forms with the state four times a year. Under existing law, children, some disabled people and pregnant women must reapply once a year, while parents are required to report twice annually.

The chore of filling out a form and sending it to regulators might sound simple enough, but for Medi-Cal recipients such as Ernie Campbell of Novato, who has hemophilia, the danger of losing coverage because of an unanticipated problem, such as a form being lost or delayed in the mail, is a serious one.

“The renewal process is already a lot of paperwork and they warn you if you don’t get everything in on time you could lose your coverage,” said Campbell, 31. “I think this could probably affect me pretty negatively.”

Sounds like something you’d want to cover.  You know, the story has an arc and some drama, with a callous Governor claiming the mantle of universal health care in public and trying to cast off the sick and the poor in private.  

On the other hand, there’s this somewhat meaningless move to create a cabinet-level position for volunteerism, an effort to outsource normal government functions, and let them rise and fall on volunteer efforts.  Seems like not much of a program at all, and certainly of less importance to everyday Californians than this plan to purge the Medi-Cal rolls.  Anyway there are plenty of volunteer organizations that perform these functions all the time.

Of course, The Times went ahead with the volunteer story.

Under the change, the governor’s commission for volunteerism, California Volunteers, will maintain its staffing and budget. But its executive director will gain expanded duties as a cabinet secretary, playing a role in disaster-related planning and response efforts and coordinating volunteers at disaster sites.

The office will also manage donations that flow into the state for disaster relief, a responsibility now held by the state’s Office of Emergency Response. It is the first time a governor’s commission overseeing federal money to manage volunteers – panels required by law since 1993 – has been elevated to a cabinet role.

Really no change at all, aside from a change in the faceplate on somebody’s office door.

But that fit the narrative of the “Governator is teh awesome” much, much better.  So off it goes to the front porches of all the Grey Lady’s readers.

And some people blame the 2006 election loss on Phil Angelides.  Ho-kay.

I know I’m a sinner in the eyes of many, many evangelicals. But it turns out that there are lots of sinning legislators too. Sweet! From Ralph Dollinger, a Capitol “chaplain”, in today’s Capitol Morning Report:

The leading legislator and his associates continue to mislead and provide an “alternative” spiritual experience in the California Capitol. Although they are pleasant men in their personal demeanor, their group is more than disgusting to our Lord and Savior.

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What the fellowship group offers is Jesus of Nazareth, a good moral teacher who loves everyone without distinction. This is a deadly lie. There is no true fellowship without first being reconciled to God (i.e. repentance from sin and faith in God through the work of Jesus Christ the Messiah). Then, and only then, can people experience fellowship with God and the blessing of fellowship one to another that is satisfying and God-glorifying.

Apparently there’s even a JEW who is proud of his Judaism. I know, shocking! It’s quite the divisive fight for the religious extremists in the Capitol.  

It may be hard to remember, but last fall the state had not one but two special sessions. The first, on health care, ended with the rejection of the flawed mandate proposal ABX1 1. The second, on water, appeared to have also ended in acrimony, as Republicans insisted on $3 billion for new dams that Democrats were unwilling to support.

But even though the issue slipped below most of our radar screens, supporters of dams and canals have been hard at work promoting these obsolete 20th century technologies as some sort of “solution” to a 21st century crisis. The Planning and Conservation League reports on the California Chamber of Commerce’s efforts to enlist Arnold and DiFi to promote an $11 billion water bond – with $3 billion for dams:

PCL has recently gotten an Insider scoop that the California Chamber of Commerce is pressuring both U.S. Senator Dianne Feinstein and Governor Arnold Schwarzenegger to endorse its environmentally-devastating $11.69 billion water bond initiative.

The bond, which the Chamber hopes to place on the November 2008 ballot, is strongly opposed by environmental groups throughout California for its potential effects on the state’s natural resources. The bond would:

   –Include $3.5 billion explicitly for dam construction, plus billions more that could be used for dams on California rivers.

   –Establish a dangerous new “water commission” empowered to fund and build a peripheral canal and divert massive amounts of water from the Sacramento River around the imperiled California Bay-Delta Estuary for large-scale corporate agriculture in the San Joaquin Valley and sprawl development in Southern California. (Over-pumping of water from the Delta during the past eight years has already contributed to the collapse of the Delta ecosystem, including plummeting salmon and other fish populations.)

   –Eliminate public and legislative oversight and leave the fate of the Delta and Northern California rivers in the hands of politically appointed bureaucrats likely to have strong ties to special interests in the San Joaquin Valley and Southern California.

The Chamber’s push is seen by many as an end-run around the Governor’s own Delta Vision process, which has brought together stakeholders from the environmental, business, water, agricultural, and Delta communities.

That plan, which would eliminate badly needed oversight protections and saddle the state with $760 million a year in bond service costs, is bad enough. But over the weekend the PCL reported at the California Progress Report that bond supporters are now trying to do an end run around  voters, as the state Department of Water Resources is now arguing that it is not bound by the 1982 rejection of the Peripheral Canal by voters:

According to a recent budget change proposal submitted to the state Legislature, DWR intends to start preparing to build a new “Alternative Delta Conveyance” facility, which would divert water directly from the Sacramento River before it enters the Delta, sending it directly to the San Joaquin Valley and Southern California….

Under its proposal, DWR would revive studies and update construction plans that it abandoned in 1982 after voters overwhelmingly rejected its “Peripheral Canal” proposal in a statewide referendum due to fears that such a facility would result in more Northern California water exported to the ever-growing south state, and that the Delta would be left as a saltwater lake rather than a true estuary.

The budget request from DWR follows a recent letter sent to Assemblywoman Wolk (D-Davis) by DWR Director Lester Snow, stating that according to DWR’s analysis, DWR has the authority to build a peripheral canal without legislative or voter approval.

More analysis below…

As the PCL explained, the Peripheral Canal would be a catastrophe for the Delta. The main environmental threat to the Delta is increased salinity due to export of fresh water for farmers and residential users further south. The Peripheral Canal is designed to bypass the delta altogether – finishing off the Delta as a freshwater system. The result would be ruinous for water quality, fishing, and stressed levee systems. It would be sacrificing the Delta once and for all in order to continue allowing California users to overuse what they already have.

It’s worth reminding ourselves why dams and canals are such a bad idea. First, they simply are not necessary. The Planning and Conservation League has weighed in with its own plan that emphasizes conservation programs, watershed restoration, and groundwater retention (in other words, pumping the water back into aquifers to be stored underground, a more environmentally friendly and sustainable solution than dams). If properly funded, they note, several million acre feet of water could be produced through these more sustainable methods. One acre foot typically equals the annual water usage by a family of four. The state’s own water assessment plan shows that conservation can eliminate the “need” for these new dams.

Second, and perhaps more importantly, we face a changing climate that is likely to leave us with less water to go around – making these dams even more unnecessary, a waste of precious money that should go instead toward global warming appropriate solutions. California is a very drought-prone climate. Climate change in California is expected to produce a hotter and drier climate, with a reduced snowpack. Precipitation in the Sierra is expected to fall as rain more often than snow, forcing significant shifts in how water is stored.

But the problem isn’t just that the Sierra will see less snow and more rain, but that it will see less water, period. And the problem isn’t limited to the Sierra – as anyone who’s been to the Southwest recently knows, the whole region is suffering from reduced rainfall. Some experts suggest we may be on the verge of a 90 year drought in the US Southwest, and that Lakes Powell and Mead may never return to their previous levels.

Faced with the prospect of prolonged drought, it seems foolish for California to assume it can solve its problem merely through added storage – why build more storage for less rain?

Senator Feinstein should not agree to this reckless and unnecessary plan, and should instead use her considerable influence to help put a better, less expensive, more sustainable and environmentally sensible water bond on the ballot this November. Water is our most precious commodity, and it should not be left in the hands of far-right zealots who cannot bring themselves to admit the need to abandon the failed ways of the past and instead construct sensible solutions for a new climate.