All posts by WarmingLaw

Republicans Ask Waxman to Investigate EPA

Yes, you're not seeing things; the headline of this post is accurate. But there is a twist, as the WSJ's Dana Mattioli reported yesterday afternoon:

In a letter today, two senior Republicans on the House Committee on Oversight and Government Reform asked the panel’s chairman, Henry Waxman (D., Calif.), to investigate whether top EPA staffers either violated federal rules that restrict regulators from lobbying, or “misused their positions to surreptitiously influence” EPA’s decision on whether to allow California to regulate carbon-dioxide emissions from vehicles.

Reps. Tom Davis (R-VA) and Darrell Issa (R-CA) are mad at Margo Oge and Christopher Grundler, the senior EPA officials tasked with evaluating California's waiver request and (unsuccessfully) telling Administrator Stephen Johnson that he had no choice but to grant it. Congressional oversight of that decision revealed that the pair subsequently provided former EPA Administrator William Reilly– at Reilly's request– talking points for arguing the waiver's merits to Johnson. Davis and Issa argue that this deserves the same level of scrutiny that Waxman devoted to a surreptitious plan to lobby Congress and governors against the waiver– Johnson may have also been a target, but he could not recall whether that was the case– concocted last summer by Secretary of Transportation Mary Peters, White House officials, and industry lobbyists.

This actually isn't the first time that congressional Republicans have gone after Oge and Grundler. During a hearing that followed the revelation of the Reilly memo and other EPA documents, Senator James Inhofe (R-OK) asked Administrator Johnson whether his employees had violated the Hatch Act. Johnson, to his credit, defended their actions, saying that he has “always encouraged my staff to give me candid and open advice” (he just reserves the right to ignore it, even when phrased as a clear mandate and not simply advice, and the resulting fallout severely alienates staff unions).

Rep. Waxman responded to the letter by pledging to give it “careful consideration,” but noting that the Committee had “found no evidence that EPA career staff lobbied members of Congress with respect to [California’s request]” (translation: the Davis-Issa analogy to his previous investigation is bunk). For his part, Reilly, who ran EPA under the first President Bush and granted California several waivers, has said that his communications with career staff who served under him were not unprecedented, let alone improper or illegal.

EPA Goes Tanning Down Under, Leaves a Mess Behind for President ______

Recently, Senator Barbara Boxer(D-CA) got wind of EPA Administrator Stephen Johnson's plans to bring a “substantial number of EPA staffers” on a work-related to Australia next month– and in the process leave a whole lot of worries behind, which Boxer euphemistically refers to as “certain important matters” that he'll be unavailable to testify before Congress about. TPM Muckraker's Paul Kiel provides a useful summary of the matters (which should be familiar to Warming Law readers) on which Johnson might want to avoid Congress, adding that he was unable to get EPA to comment and that Boxer's office understands that the trip is scheduled to last at least two weeks. Boxer is clearly exasperated in the letter she wrote to Johnson yesterday, placing it in the context of EPA's already-scarce budget and noting that he ought to be looking a bit closer to home:

If your goal is to learn about actions to address global warming, I suggest that you visit California, which has moved ahead aggressively with greenhouse gas controls. I invited you to testify in January in California on global warming pollution from vehicles, but you declined.

Still, even though no one should envy Johnson's task of spinning the administration's indefensible delaying tactics during a month that will include Earth Day, the anniversary of Massachusetts v. EPA, answering Rep. Henry Waxman's (D-CA) subpoena, and other political and legal landmines, it seemed a bit too predictable that Johnson would leave the country to avoid these kinds of predictable issues alone. Something else, in other words, had to be up his sleeve.

Enter today's letter to Reps. Ed Markey (D-MA) and James Sensenbrenner (R-WI), Chairman and Ranking Member of the House Select Committee on Energy Independence and Global Warming. Johnson, following up on his most recent testimony about the aftermath of Mass. v. EPA— and repeating its greatest-hits list of the bogus excuses it provided for refusing to issue the necessary endangerment finding for CO2 emissions– announced that he'll be issuing an “Advanced Notice of Proposed Rulemaking” (ANPR) later this spring to study industry's concerns the issue, and will follow up with a public comment period. Rep. Markey was not pleased, to say the least:

“The ‘A’ in this document should stand for ‘absurd,’” said Rep. Markey. “This is the latest quack from a lame-duck EPA intent on running out the clock on the entire Bush Presidency without doing a thing to combat global warming. The planet is sick, and instead of rushing to provide emergency medical attention, the Bush Administration has said ‘take 2 aspirin and call me after I leave office’.”

Basically, we've just gone from not having any sort of timetable for an endangerment finding, and thus speculating that EPA will run out the clock or act at the last very minute, to having a rough timetable that confirms exactly that. The more things change, the more they remain the same…unless the courts step in quickly and recognize that this charade is an unreasonable delay, and/or that EPA's incompetent defense of California's waiver denial has actually found endangerment.  

But at least next time he faces hard questions about it, Administrator Johnson will be sporting a nice new tan to hide his red face…

Boxer: EPA Docs Show “Agency in Crisis”

(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:

    • 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


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.

Less Talk, More Action: Some GOP Warming Thoughts

(cross-posted from Warming Law)

Grist's David Roberts has posted the actual transcript of last night's GOP presidential exchange on California's clean cars standards, and a quick look reminds us of something critical that we failed to note in our excitement that the Bush administration is now isolated on this legal point.

All of the candidates did express support for California's right to take action, with varying degrees of enthusiasm (as per the Detroit News, Mitt Romney is desperately trying to reconcile his answer with earlier remarks implying that he wanted preemption language in December's energy bill). But none of them, including the front-runner in an active position to do something about it, spoke out (nor, to be fair, were they asked) about lifting a finger to overturn EPA's decision before 2009.

All things considered, Senator Barbara Boxer's bill declaring the waiver granted (which now has 21 co-sponsors, and growing each day) is a fairly modest piece of legislation– one that Senator McCain should have no problem getting behind, if he's not intending to already. It's one thing to answer a general question posed before a national television audience (and, as McCain joked in his response, with Governor Schwarzenegger's physically-imposing frame nearby), though its a great thing; it's another to really do something about it.

Senator McCain spoke passionately last night about how states like California and Arizona are getting it right on global warming, and pushing all of us forward in an appropriately urgent way. Time is indeed of the essence here, and the sooner California can move forward and potentially bring the rest of us along with it, the better. With the world watching what American states are doing, anyone who aspires to be commander-in-chief should co-sponsor, and actively work to line up votes for, Senator Boxer's critical efforts to overturn EPA's now-isolated decision sooner rather than later. 

EPA on the Hot Seat: Highlights and Reflection

To be completely honest, while I expected a long hearing today, I didn't quite realize it was going to entail over four hours of testimony and four distinct liveblogging threads. A lot of stuff there to process, and Hill Heat (which also live-blogged part of the hearing over at Daily Kos), Think Progress, and TPM Muckraker all spotlight key highlights (the latter two with the assistance of somewhat-hillarious video clips), as David noted in his earlier post here.

At the end of the day, though, EPA Administrator Johnson's rationale was best summed up in one of his exchanges, a little after noon, with Senator Sheldon Whitehouse (D-RI). Observing that Johnson had responded to a prior question by saying that California's vehicle emissions standards were not needed “in my opinion,” Whitehouse flatly stated that the law is pretty clear that he can't substitute his preferences for California's policy judgment. A bit flummoxed, Johnson fell back once again on the argument that the Clean Air Act lets him decide whether California has met its conditions.

In other words, Johnson was saying that yes, he can essentially do as he pleases in terms of interpreting Section 209 of the Clean Air Act. I point to my earlier post on this subject: while he may indeed have some amount of deference provided, it has to be within reason:

This argument for strong deference to the Administrator's reading of the act (usually we'd say “agency deference,” but it's now clear that the rest of the agency isn't at all with him) is right along the lines that our own Tim Dowling anticipated— and debunked as unlikely to stand up in court in this case– after the waiver was denied. EPA staff seem to have convincingly laid out why, under the law, the waiver should be granted and anything to the contrary wouldn't fly. Johnson's assertion that the Clean Air Act lets him instead impose his policy preferences entirely novel reading of the Act is simply shaky. 

Sure, Johnson said today, things like precedent, 99% supportive public comments and his staff's unanimous opinions weigh on him (though by the way, many of those public comments looked to him like a “card-writing campaign” designed to draw him into a “popularity contest”– the nerve of those people, and the tens of thousands we're told have already emailed to protest his decision!). But at the end of the day, in his incomplete legal judgment, it's his independent decision to decide that there weren't “compelling and extraordinary circumstances” for a waiver because global warming is different and is a worldwide pheonomenon, and that's all there is to it.

Well, Johnson did promise more of a rationale down the line, including why the “compelling and extraordinary” conditions that his staff briefed him on weren't enough, but he still wasn't forthcoming with that scientific and legal analysis. It should be out by the end of February in the form of a formal decision document in the Federal Register– as we noted earlier, he now says (via his submitted testimony) that the waiver hasn't officially been denied yet, and all litigation should have to wait until then and take place in the DC Circuit. Even that's not a sure thing, however– Johnson said he “expects” to meet the end-of-Feburary goal. — Johnson said he “expects” to meet the end-of-Feburary goal.

The good news is that despite this clear strategy of delay, and the clear reliance on a broad and legally-sketchy view of the Administrator's perogative, Senator Boxer introduced legislation today to essentially overturn Johnson's decision. While its dozen original cosponsors all seem to hail from the Democratic conference, her staff is encouraged by the reception it has received (apparently other cosponsors may join on soon), and the fact that Senator Inhofe was the only Republican there to defend Johnson bodes well for the theoretically bipartisan appeal of the issue.

This issue needs to be resolved, and but soon. Simply put, the rule of law, EPA's dangerously-low staff morale, and well as the future of the planet, are at stake.

Demanding Real EPA Accountability: Grading the Candidates

(Cross-posted from Warming Law

Buried in Friday's LA Times write-up of Barbara Boxer's California-waiver hearing is a development that bears mentioning, courtesy of California AG Jerry Brown's oral testimony:

The outcome of the tailpipe issue may be determined by the next administration, said Brown, who added that he had written the presidential candidates to ask their positions on the waiver. All the Democrats support California's position, but only one Republican, Rep. Ron Paul (R-Texas), answered Brown's letter in the affirmative.

Testifying Thursday, Carl Pope, executive director of the Sierra Club, urged Californians to focus on the Feb. 5 primary and demand that all candidates endorse the waiver.

Pope, who reiterated that point on his personal blog, is absolutely spot-on here in a way that goes beyond even his call to action (more on that after the jump). It's no coincidence that Hillary Clinton made a point of blasting EPA's decision during a campaign speech over the weekend, and that Barack Obama had previously spoken out against it. Standing up for California is a win-win-win move that allows candidates to demonstrate a commitment to mitigating climate change and growing the economy in the process (the rationale that Clinton used), fealty to the rule of law and freedom from undue corporate influence (which featured in Obama's December 20 statement responding to the waiver ruling), and respect for the states' historic roles as “laboratories of democracy.”

This shouldn't be something that requires too much pressure, either– it's more of a basic legal test for anyone, of either party, that wants to serve as our chief constitutional steward. That Ron Paul, who is not generally seen as a climate champion but has assiduously rooted his campaign in respect for the rule of law, is alone on the GOP field for now is appalling. Perhaps that will change once the Michigan primary passes and candidates don't feel an urgent need to pander to the auto industry, and as California citizens, and influential fellow Republicans weigh in. (Note that Governor Tim Pawlenty of Minnesota, which joined California's lawsuit against the EPA last week, is often mentioned as a potential running mate for leading contenders.)

We'd go Pope one better, though, regarding just what kind of a test this might be. Checking off a survey box to state that you support the waiver is worthy of some praise, but backing it with actions that don't have to wait until 2009 is a bit more meaningful. Court proceedings might drag out at length, and EPA's response to the hearing's criticism indicates that the general document release being sought (and delayed) might necessitate a time-consuming effort to dig through its results:

EPA Associate Administrator Christopher P. Bliley told Boxer that her request could entail tens of thousands of e-mails and documents and that the agency would get back to her.

Dogged oversight helps quicken the process to be sure, and Boxer ups the rhetorical ante with her statement that failure to release the documents will demonstrate “contempt for Congress and the American people.” And California's lawyers are working feverishly to grease the wheels for a quicker legal hearing, in a case that they definitely ought to win (not that it would stop the administration from appealing to the Supreme Court). At the end of the day, though, the most effective course might be having Congress try to overturn the waiver legislatively, something that (sadly) would require significant outside pressure in order to even have a real chance. 

Standing up for California should, theoretically, be the easy part, necessary to get a “satisfactory” grade; putting real legal and political pressure on the EPA is the true test, one that cuts beyond partisan politics and straight to the heart of our democracy.

The Bali Footnote and California: The World is Watching

(Cross-posted from Warming Law

As the Bush administration's environmental team returns from reluctantly endorsing a “road map” for future international climate negotiations, and prepares for a critical regulatory decision on concrete action here at home being initiated by California and other states, the expectations remain somewhat dimmed. While the Washington Post editorial board reviews the administration's history of foot-dragging and other negative machinations regarding California's key waiver request, reporter Juliet Eilperin's coverage of Bali includes one critical observation on its continued difficulty with strong emissions-reduction targets:

While the Bush administration made some concessions, it also scored a key victory by eliminating explicit language calling on industrialized countries to cut their emissions 25 to 40 percent, compared to 1990 levels, by 2020, a high priority for the European Union. Eventually the Europeans relented, settling for a footnote in the document's preamble that refers to a section in the 2007 scientific report of the U.N. Intergovernmental Panel on Climate Change (IPCC). That section suggests that cuts that deep will be required to keep Earth's average temperature from rising more than 3.6 degrees Fahrenheit above pre-industrial levels.

There are several important points to take away from this telling footnote. First and foremost is the reality that for an administration recently caught down-playing science in its climate-related efforts– including the process by which it formulated the position on mandatory carbon limits that was knocked down in Mass v. EPA–  deliberately relegating a scientific finding by a group of Nobel laureates isn't exactly a confidence-booster. (Seriously, if you haven't read through Rep. Waxman's report already, do so!)

But even more important is the simple observation, as conveyed at Bali by the likes of Al Gore and by local officials themselves– and described at Gristmill by Professor Andrew Light– that the states have been moved to action in a way that completely contradicts administration naysaying and obstruction:

In his remarks, Gore repeated the promising news that had been at the center of John Kerry's message to the conference earlier in the week: The states are on the move. Regional state compacts have been launched in the Northeast, Midwest, and West on cutting greenhouse gases, which will commit over half the U.S. economy, and just under half the population, to significant cuts, amounting to responsibility for just under 40 percent of total U.S. emissions.

Reports from Bali indicate that this reality was critical in conveying that the U.S. as a whole is prepared to go further than the current executive leadership, and in forcing the limited movement that was ultimately attained. The world is truly watching what goes on at every level here, as we can easily deduce from learning that leading denialist Sen. James Inhofe (R-OK) is somewhat of an international anaethema, and from the State Department's own attempts to spin state leadership to its diplomatic benefit. And with the EPA set to rule any day now on California's waiver, which is absolutely critical to setting state targets in motion, that spotlight could not come at a better moment.

The official grounds for granting a waiver are plain. The state's application is sound, the precedent of dozens of similar grants of authority is on California's side, and the courts have consistently undermined any rationale that might be used in a denial ruling. Still, if that's not enough, the reality that a failure to follow through on the law will have international reverberations should be an additional source of reflection.

Viewed in this light, a positive decision would be a pleasant surprise, showing that even if the current administration isn't fully sold on rapid and mandatory actions, it's at least evolving toward a position of not actively standing in the way of those who would pick up the slack.

After the Energy Bill: All Eyez on the EPA

(Cross-posted from Warming Law)  

It's a shame that Roll Call operates behind a subscription wall, because Rep. Ed Markey (D-MA), who chairs the House's special committee on global warming, has a great op-ed there today summarizing where things stand moving forward from the solid energy bill framework that congressional Democrats hope to pass, “Global Warming At the Starting Gate.” One key highlight:

Seventeen states (representing over 46 percent of Americans) have adopted or will soon adopt global warming emissions standards for vehicles. The federal district court in Vermont recently held that federal law does not prohibit such measures. What remains to be seen this year is whether the Bush EPA will grant these states the waiver they need to enforce these tailpipe standards, or spurn their ambitious action.

In addition to loving Markey's framing of Congress' movement as a launching point for so much more, we cannot stress the point he makes above with any more emphasis. Given the trends in the courts (which Markey also notes) and the rising tide of action at all levels, the spotlight is now on the EPA regardless of what happens with the energy bill. Now that Congress has smartly resisted pressure to do anything that remotely borders on preemption, it's incumbent on the administration to follow suit.

Yesterday's veto threat on the energy bill doesn't exactly inspire confidence along those lines, as White House economic advisor Allan Hubbard's letter to Speaker Pelosi pretty much reiterates the industry's ideal outcome in its language regarding auto efficiency (emphasis ours):

Unfortunately, while assigning new requirements to the Department of Transportation, the proposed legislation leaves ambiguous EPA's role in CAFE regulations, and likely creates substantial amounts of regulatory uncertainty and confusion…Legislation should clarify that there should be consultation between the agencies, while clearly establishing a single fuel economy regulatory standard.

There is a remote theoretical possibility that Hubbard is asking for something less troubling than it would appear. And some reports indicate that this may partly be bluster to try and wring out more compromises or satisfy industry-based pressure (and possibly worse still, Cheney-based-pressure) on EPA's regulatory process.

Yet quite frankly, NO ONE should give the benefit of the doubt to an administration that, even as momentum has shifted against its long-standing arguments, has delayed and blustered at best while (rather pathetically) plotting intransigence at worst. The proposed energy bill, thankfully, gives EPA no excuses to shirk its responsibilities, either to California or to its own post-Mass v. EPA deliberations on greenhouse gas emissions. That shouldn't give it license to instead come up with twisted logic of its own.

The ball is EPA Administrator Stephen Johnson's court, with rumors abounding that he'll be announcing GHG regulations in the coming weeks (hoping to give the administration something to brag about in international climate negotiations) and a vow that he'll rule on California's waiver by year's end. He'd best not drop it. 

Bush’s Environmental Obstruction: The Gang that Couldn’t Plot Straight

(Great stuff. – promoted by David Dayen)

(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. Given the blog’s focus, a lot of what I write about ends up having to do with efforts by the administration and the auto industry to hold up California’s pioneering efforts in fighting global warming (here’s our full archive of posts about the EPA waiver application), and as such I’m (belatedly) taking up a suggestion to post select items here. Thanks for the opportunity to join the discussion; I really look forward to it!)

Reacting to last week’s lawsuit challenging the EPA’s failure to produce a timely decision on California’s waiver application to enforce its own auto emissions standards, EPA Administrator Stephen Johnson cited– as he had many times before– the need to painstakingly evaluate thousands upon thousands of in-depth public comments on the waiver.

However, a quick look at Thursday’s lawsuit filing reveals that while the White House, Transportation Secretary Peters and the auto industry might have schemed to politicize that process, they nevertheless failed to significantly influence it (at least in a formal sense):

5. The comments submitted to USEPA overwhelmingly support the GHG Regulation. Of the approximately 98,000 comments referenced in the USEPA’s docket, more than 99.9% support the GHG Regulation. Only one automaker subject to the GHG Regulation [Editor’s note: General Motors] submitted any opposition to the USEPA. Two automaker trade groups submitted opposing comments.

This is noteworthy (and, frankly, laugh-inducing) because, as emails obtained by the House Oversight and Government Reform Committee indicate, a central purpose of the administration’s surreptitious lobbying effort was to encourage negative comments from governors and members of Congress. Indeed, the communications in question took place rather hurriedly over the weeks leading up to EPA’s June 15 deadline for public comment. 

In other words, if EPA does ultimately rule against California, it will actually have little analysis to stand on besides the against-the-grain rationale contained in the results of a bumbling effort to politicize the process.

And then, the conversation would inevitably turn not only to the legalistic flaws of such a decision, but the implication– as stated by Rep. Waxman in a September 24 letter to White House environmental advisor James Connaughton, citing “multiple emails that contain references to communications between EPA, the Transportation Department, and the White House”– that this lobbying campaign suggests that EPA had essentially made up its mind prior to reviewing public comments.

Johnson obviously didn’t help himself by claiming, when pressed by Waxman last week, that he didn’t know about the lobbying effort “to the best of my recollection.” He might do better, at the very least, to directly reassure the public and Congress that he’s been reading objective analysis such as the Congressional Research Service report noting the strength of California’s application. Better yet, after over two years of delay, he could just reaffirm the Clean Air Act’s embrace of federalism and grant the waiver.