The EPA has decided that you plebes don’t need to know about what they do.

Late on Friday, the EPA delivered a box of hard-copy documents about the California waiver denial from to Senator Barbara Boxer, theoretically meeting her past-deadline demand for disclosure in advance of Thursday’s Senate hearing. The catch, as per the Associated Press— many documents were either missing or contained numerous redactions. In a letter from Deputy Administrator Christopher Bliley, EPA invoked executive privilege regarding executive deliberations and attorney-client communications, claiming above all that a failure to restrict public release of the documents would have a “chilling effect” on agency decisions […]

Boxer had threatened to subpoena the agency if it did not turn over the waiver documents. She said she would continue her quest for all the information. Boxer aides said the agency’s offer to show her the redacted information privately was not satisfactory.

Apparently 16 pages of a 43-page Power Point presentation were completely blank except for the titles – one of which said “EPA likely to lose suit.”

Sen. Boxer is extremely angry about this dodging of federal oversight, calling it “an insult to the American people and a dereliction of duty.”  There’s a hearing about the EPA waiver denial in the Senate Environment Committee scheduled for Thursday, and the Chief Administrator Stephen Johnson will be there.  Insofar as Senate committee hearings are must-see TV, this will be one of them.

(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.

(always great to have DMI cross-posting their stuff here from Tort Deform. – promoted by Julia Rosen)

California is pressing on in its challenge against the EPA for turning down its proposed emissions rules, adopted by 12 other states and supported by three more as well. ( NYT, BBC) The proposed standards would provide tighter protections to the public against the harmful effects of vehicle emissions on the environment, an issue screaming in its relevancy these days.

From the New York Times:

“An analysis released by state air regulators showed their 2004 tailpipe regulation would be faster and tougher than the federal fuel economy rules… By 2016, California’s standard would reduce the amount of carbon dioxide that vehicles produce by 45.4 million metric tons a year in California and the 12 other states that have already adopted the rules. That’s nearly double the 23.4 million metric tons the report forecast would be cut under the federal fuel-efficiency standards, according to the analysis, which was based on EPA air pollution modeling.”

But the EPA said “no thanks” to this proposal, preferring its apparently looser standards to California’s plan. This is the EPA’s “first time denying California a waiver under the Clean Air Act since Congress gave the state the right to obtain such waivers in 1967,” according to the NYT.

The EPA’s decision has been described as a victory for the auto industry. Automakers opposed the California rules as too strict, saying they would “reduce their selection of vehicles and raise prices in states that adopted California’s standards.” So in other words, it’s better to have a ton of cheaper cars to choose from, regardless of how badly they’re polluting the air we breathe.



Now if that ain’t like driving off a cliff in a brand new beemer, I don’t know what is…

For formality’s sake, here are some (I hope, not too annoyingly obvious) thoughts on why this lawsuit a) is important and b) further demonstrates the importance of our civil justice system as a means for checking corporate/government cronyism and the bad policies that are produced as a result:

Tort “reformers” argue that if aggrieved individuals and groups want things to change, they should change the rules of the game through legislation. First they say, “So sue me!” But if they actually get sued, they insist that the issue is better suited for the legislature than the courtroom. They paint this picture of whiney, attention-seeking plaintiffs making an overblown fuss about corporations letting off a wee bit too much smoke for their overly sensitive, air-greedy little lungs. (Geez, people can get so dramatic about their ability to breathe.)

But here’s what’s interesting in this scenario: there are clearly no whine-bags here. Here we have a bi-partisan effort, which legitimately went through the legislative process and was signed by the Governor. We have standards that have the support of at least 15 other states. Yet this effort was obstructed by the government agency charged with protecting our environment, although in the past the EPA has granted California’s waivers to impose stricter environmental standards.

This situation demonstrates clear as day how important it is to have a strong civil court system dedicated to administering justice to the public. In addition to the legislative process, we need our civil justice system as a means of providing public oversight of the federal government when its decisions conflict with the public’s interest and/or with our cherished democratic process.

According to the NYT, Schwarzenegger said that EPA officials ”are ignoring the will of millions of people who want their government to take action in the fight against global warming.” This lawsuit is California’s way of saying “We refuse to lose something we need and treasure–a right to a healthier environment–without a good fight.” Several other states are expected to join California in its claim.

Well I say sue on, Cali. Your day in court is ours, too.

We’ll have to hold the EPA to their word:

The Environmental Protection Agency on Thursday signaled it is prepared to comply with a congressional request for all documents – including communications with the White House – concerning its decision to block California from imposing limits on greenhouse gases.

The EPA’s general counsel directed agency employees in a memo to preserve and produce all documents related to the decision including any opposing views and communications between senior EPA officials and the White House, including Vice President Dick Cheney’s office.

The documents should include “any records presenting options, recommendations, pros and cons, legal issues or risks, (or) political implications,” said the all-hands memo from EPA General Counsel Roger Martella Jr.

They’re saying that now, of course, but David Addington hasn’t gotten his hands on the memo to use his red pen.

The presiding committee in the Congress on this one is Henry Waxman’s House Oversight Committee.

Happy New Year, Fourthbranch.  We got you Henry Waxman.

This incredible rejection of California’s waiver to regulate their own greenhouse gas emissions was done contra the input of the EPA Administrator’s own staff.  

“California met every criteria . . . on the merits. The same criteria we have used for the last 40 years on all the other waivers,” said an EPA staffer. “We told him that. All the briefings we have given him laid out the facts.”

I wonder how the EPA Administrator could have been swayed to go against science, the moral imperative of mitigating the effects of global warming, the duties outlined in his job description… Fourthbranch!

On multiple occasions in October and November, Cheney and White House staff members met with industry executives, including the CEOs of Ford Motor Co. and Chrysler. At the meetings, the executives objected to California’s proposed fuel economy standards:

In meetings in October with Mr. Cheney and sessions with White House staff members, auto executives made clear that they were concerned not just about the fuel economy measures in the bill but also about the California proposal for stricter emissions standards.

The Federal Energy Bill ended up being a bait and switch.  In exchange for the increase in fuel efficiency, the automakers got their pound of flesh, the denial of that waiver.