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…

Congressional Democrats are now trying to move legislation that would overturn the EPA’s anti-scientific decision which denied California a waiver to regulate their own tailpipe emissions.  Arnold Schwarzenegger is suing the EPA.  It seems that the only group of people who aren’t on board with this policy are Republican members of Congress.

Most GOP members of the state’s congressional delegation are siding with the Bush administration in trying to keep states from imposing stricter regulations on greenhouse gas emissions than the federal government. Without bipartisan support from the state’s representatives, the bill’s proponents say, the measure’s prospects are dim.

“I don’t support California thinking that it can act alone effectively,” said Rep. Darrell Issa (R-Vista), noting that climate change is a problem that extends beyond state lines.

A House bill to allow California and other states to implement their own tailpipe regulations was introduced last week, with the support of 27 of the 33 California Democrats, including House Speaker Nancy Pelosi of San Francisco. Only two of the 19 Republicans — Rep. David Dreier of San Dimas, who is perhaps Schwarzenegger’s closest ally in the delegation, and Rep. Mary Bono Mack of Palm Springs — signed on as cosponsors.

In addition to Issa, John Campbell, Kevin McCarthy, George Radanovich, Devin Nunes and Wally Herger are quoted, all saying a variation of how global warming is a big problem and we have to have a unified solution.  Of course, 18 other states are signing on to California’s lawsuit, representing a majority of the population who actually wants to do something abut climate change.  

I really think this has the potential of politically isolating the GOP.  It’s notable that Dreier and Bono Mack understand that their districts are becoming more purplish, and that they need to stay out in front of them.  But the combination of hypocrisy among the state’s rights crowd and being on the wrong side of popular opinion (most California Republicans favor granting the waiver) and scientific rationality could make for a powerful wedge.  We know that people are finally starting to drive less.  Utilities are starting to block production of any and all coal-fired power plants.  And there’s a growing recognition that this is a public health issue as much as it is an environmental issue.  Those who are standing in the way of renewable projects, alternative energy solutions, and yes, government mandates to solve the problem are dinosaurs.  At the Congressional level, I believe this vote will resonate in November.

Incidentally, if you want to see some of that post-partisan leadership in action, check it out:

Schwarzenegger spokesman Bill Maile said the governor supports the legislation. By allowing California to implement “the nation’s toughest tailpipe regulations,” he said, “it will help us achieve our aggressive goals to reduce greenhouse gases.” But a number of California Republicans in Congress say that they have yet to hear from Schwarzenegger or his office.

Way to put the pressure on, Guv.

Just a few things to get you through the weekend:

• If you’re interested in helping Barack Obama but aren’t flying to Ohio or Texas like Brian and Julia, the Obama campaign is urging supporters in California to make phone calls into Texas this weekend.  MoveOn is also running Yes We Can parties on Saturday and Sunday.

• Let’s not give the Governor a heap of credit just yet for accepting the Legislative Analyst’s suggestions to close billions of dollars in tax loopholes.  According to the Sacramento Bee he ran away from this proposal within a matter of hours.

Gov. Arnold Schwarzenegger told business leaders Thursday he supports a proposal by nonpartisan Legislative Analyst Elizabeth Hill to rescind $2.7 billion in tax credits, but he later softened that stance and said he doesn’t necessarily support all of her recommendations.

The Governor will be in Columbus this weekend for the Arnold Classic, an annual bodybuilding and fitness event, so if you get a minute, Juls, you can go ask him about this yourself!

• Tired of being bashed with the facts over the past several weeks, EPA Administrator Stephen Johnson has come out swinging, defending his decision to deny the California waiver to regulate tailpipe emissions on the grounds that global warming is a global problem.  Which means, of course, we need to do less to fight it.  Also today the EPA turned over documents related to their decision, months after they were requested.

• On a somewhat different note, I’m interested in this protest by the environmental justice community against cap-and-trade solutions such as what is promised in California as unfair to low-income communities, which are disproportionately affected by polluting industries that would be able to buy their way into continuing to pollute those areas.  

EJ groups, long overlooked in the more mainstream environmental movement, fear that climate legislation will once again disregard the concerns of the communities who are already most affected by the factories and refineries responsible for global warming. In a cap-and-trade system, poor communities, where polluting plants are most often sited, will still bear the brunt of impacts if industries are allowed to trade for rights to pollute there. Instead of this system, they’re advocating a carbon tax, direct emissions reductions, and meaningful measures to move America to clean, renewable energy sources.

“[C]arbon trading is undemocratic because it allows entrenched polluters, market designers, and commodity traders to determine whether and where to reduce greenhouse gases and co-pollutant emissions without allowing impacted communities or governments to participate in those decisions,” says the statement.

I think it’s a powerful argument, and something the environmental movement has to seriously consider.  If we’re going to allow polluting industries to pollute, there will be an adverse affect.  How do we deal with that?

• In yet another reason why we should not allow the continued consolidation of media, new LA Times owner Sam Zell has now taken to the airwaves, blaming the coming recession on… Hillary Clinton and Barack Obama talking about the coming recession.  Yeah, shut up already!  This is the owner of the largest paper in California requesting what amounts to censorship, incidentally.

• Finally, a federal judge in San Francisco today lifted the injunction on the Wikileaks website, which allowed whistleblowers to post documents and anonymous information about government and corporate malfeasance.  A win for the First Amendment and the public interest.

Add your own links in the comments.  

Sen. Barbara Boxer’s digging into documents on the decision by the EPA not to issue a waiver to California so we can regulate tailpipe emissions is bearing some serious fruit.  The EPA staff went to great lengths to try and persuade the Bush lacky Steven L. Johnson not to overrule them and precedent and deny California the right to reduce greenhouse gases in our state.  LAT:

Some officials at the Environmental Protection Agency were so worried their boss would deny California permission to implement its own global-warming law that they worked with a former EPA chief to try to persuade the current administrator to grant the state’s request.

That unusual effort was revealed by documents released Tuesday by congressional investigators probing whether EPA Administrator Stephen L. Johnson was swayed by political pressure when he decided not to allow California to enact vehicle emission standards stricter than the federal government’s.

They actually even supplied him with talking points to lobby Johnson with. (flip it)

One of the newly released documents features “talking points” prepared by an agency staff member for former EPA Administrator William K. Reilly to help him build the case for granting California’s request. In the October 2007 memo, the staffer said there was “no legal or technical justification” for the EPA to deny the request. If the agency refused California permission to implement its tailpipe law, the document said, “the credibility of the agency . . . will be irreparably damaged.”

Johnson acted as the Bush Administration’s lapdog.  He dragged out the process as long as possible and then overruled his own staff to deny California the waiver.  Both his legal and scientific advisors urged him to grant our waiver.  The denial was first time the EPA has ever denied a state a waiver under the Clean Air Act.

Unfortunately, we have little recourse until there is a Democrat in the White House.  Court cases to the best of my knowledge are proceeding, but that is a long term process, given the likelihood of appeals.

(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.

Several developing developments to close out your week today.

The Dump Denham folks are turning in 50,000 signatures in support of the effort.  Just over 31,000 valid signatures are required to qualify.  Seems that we should start getting geared up for this one.

Rep. Waxman is continuing the agitation on the California EPA waiver, dropping subpoenas for documents reviewed by the EPA before rejecting California emission regulations.

Sacramento Bee’s Ed Board weighs in on the double bubble trouble and is none too pleased with Los Angeles County’s screwy ballots or acting Registrar Dean Logan. (full disclosure: I work for the Courage Campaign)

55 people were indicted over welfare fraud that snagged millions in a scheme centered around fake child care facilities in and around Los Angeles.

Speaking of Los Angeles, I’ll be there tomorrow for no particular reason and with nothing particular to do.  Or as Bran Van 3000 says

But we did nothing, absolutely nothing that day, and I say:

What the hell am I doing drinking in L.A. at 26?

I got the fever for the flavor, the payback will be later, still I need a fix.

So Barbara Boxer is not sitting on her heels waiting for a new President, she’s acting boldly to reverse Stephen Johnson’s horrible EPA decision blocking California from regulating tailpipe emissions.

Senate environmental committee Chair Barbara Boxer (D-CA) has introduced a bill that would overrule EPA Administrator Stephen Johnson and instruct him to grant California’s waiver.

Right out of the gate, it’s got bipartisan support. Cosponsors include Senators Dianne Feinstein (D-CA), Joseph Lieberman (ID, CT), Hillary Clinton (D-NY), Frank Lautenberg (D-NJ), Benjamin Cardin (D-MD), Bernie Sanders (I-VT), Sheldon Whitehouse (D-RI), Edward Kennedy (D-MA), Patrick Leahy (D-VT), Christopher Dodd (D-CT), John Kerry (D-MA), Barbara A. Mikulski (D-MD), Olympia Snowe (R-ME), Susan Collins (R-ME), Bill Nelson (D-FL), Barack Obama (D-IL), and Robert Menendez (D-NJ).

It was fairly certain that litigation would reach the same result, or that a Democratic President would order the EPA to reverse the decision.  But that would take quite a while, and in the interim, the climate deteriorates even further.

By the way, this Johnson character is a first-class nutter:

Shortly before Stephen L. Johnson was sworn in by President Bush as administrator of the Environmental Protection Agency, he gave the president a towel symbolizing a New Testament passage in which Jesus washes his disciples’ feet. The towel, given to graduates of Johnson’s alma mater, a small evangelical college, symbolizes a life of Christian service.

Like the president, Johnson is a deeply religious man who says he relies on his faith in his work. Johnson prayed and spoke gratefully of early-morning prayer sessions held in his government office in a promotional video filmed there for an offshoot of a worldwide Christian ministry.

We’ll see if Boxer can get what would be a needed 67 votes to overcome a Bush veto.  But good for her for trying to accelerate the process.