(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.

I have the greatest respect for Barbara Boxer and the work she’s doing on the issue of global warming.  However, I think it’s a shortsighted approach for working to pass a bill that she thinks George Bush can sign, a climate change bill that would set up a cap and trade system and just give carbon credits away to polluting industries.  There’s been a simmering battle between environmental groups on this bill, and now it’s exploded into the open, with the Sierra Club coming out against the bill, known as Lieberman-Warner (which should tell you something).

Fast-forward to present day: the carbon industries are lobbying to get a deal done this year that would give away carbon permits free of charge  to existing polluters — bribing the sluggish, and slowing down innovation. And  politicians are telling us that while it would be better to auction these  permits and make polluters pay for putting carbon dioxide into our atmosphere, creating that market unfortunately gets in the way of the politics.

We are being urged to compromise — to put a system in place  quickly, even if it is the wrong system.   Given that we only have one chance to get this right before it’s too  late, our top priority must be to make sure that we do not settle prematurely  and sign a weak bill into law in the name of doing something about global warming.   With momentum for strong action and a friendlier Congress and White House building every day, it’s no coincidence that some wish to settle their accounts now.

This will tie the hands of the Presidential candidates on the Democratic side, who have far better proposals for their cap and trade system, including selling the carbon credits at a 100% auction, using the funds to promote green energy and research for renewables.  It’s the wrong bill at the wrong time.

over…

I know that Sen. Boxer wants to use her status as the head of the Environment Committee to push this compromise bill forward.  But the political calculus next year could be excellent for a real bill with real teeth, and Boxer would be leaving that on the table.  As I mentioned earlier this week on my home site, Sens. Obama and Clinton are co-sponsors of this Lieberman-Warner bill, which was initially authored by John McCain, and so this has the potential to totally take global warming as an issue off the table for the 2008 elections.  They ought to take their names off the bill, but it would be better for involved if this doesn’t pass.  As Matt Stoller writes:

…it’s the huge number of new liberal anti-carbon energy voters out there that are going to allow the public to get a sustainable deal on climate change next Congress.  There’s some evidence that Obama might make global warming his highest priority, having promised to begin negotiating a new Kyoto-style treaty even before taking office.

All of this is excellent and game-changing news that we’ve seen happen in the last week or so.  As a reminder, here’s what Boxer said just two weeks ago about Friends of the Earth, which has waged a campaign called ‘Fix it or Ditch it’ about the massive Lieberman-Warner bill to subsidize polluting industries.

“They’re sort of the defeatist group out there,” she said. “They’ve been defeatists from day one. And it’s unfortunate. They’re isolated among the environmental groups.”

This nasty slur, while not true at the time (Greenpeace was opposing the bill), is now silly.  At least one big green group has moved in response to Wynn’s loss to get a better deal, and the business right, the coal producers, the nuclear industry, and the oil guys know they will have to deal soon.  The Sierra Club and Friends of the Earth have said that we must work on global warming, but that it must be done smart and sustainably.

We’ve been down this road before.  The rising cost of gasoline and worries about peak oil led everyone to go running toward biofuels in a desire to “just do something,” and now we’re learning that the production of biofuels costs more energy than the savings from biofuels themselves.  So now we’ve created this giant windfall for agribusiness, and nobody wants to reverse the ship because it’d be politically unpopular to enact what some would see as an “anti-environmental” initiative.  

A “deal” on a bad cap and trade bill would have the same effect.  It would lock in a giveaway to polluters on the order of trillions, and make it very difficult for the next President to do anything about it.  If you care about the environment, I think you need to let Sen. Boxer know that only a real climate change bill that hits the necessary targets is sufficient.  Otherwise, she has to walk away from this.

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.

Do check out Sean Siperstein at Warming Law’s liveblog of today’s events in the Senate Environment Committee, where Barbara Boxer and others made EPA Administrator Stephen Johnson squirm for quite a while this morning.

The background, including Boxer’s finding that the EPA staff favored the granting to California of the waiver for them to regulate tailpipe emissions, is here and here.  More on today’s session is here and here, including the hilarious admission that the EPA used duct tape to redact documents about their decision-making process.

BOXER: Colleagues, this is the tape, this is the tape that was put over – finally the administration had a way to use duct tape. This administration, this is what they did to us. They put this white tape over the documents and staff had to stand here. It’s just unbelievable. […]

I mean what a waste of our time. This isn’t national security. This isn’t classified information, colleagues. This is information the people deserve to have. And this is not the way we should run the greatest government in the world. It does not befit us. So that’s why I’m worked up about it and think we have been treated in a very shabby way.

Even Lieberman was laying into Johnson on this one.  What an embarrassment.

When we last left EPA Administrator Stephen Johnson, his agency was facing a lawsuit from California and over a dozen other states over his failure to grant a waiver allowing tailpipe emission regulation.  It was fairly clear that this decision was wholly political and in no way matching the scientific studies inside the EPA; Johnson’s staff was unanimously opposed to the decision.  Last week, Sen. Boxer chaired a field hearing in Los Angeles to investigate what was behind the denial of the waiver.  Johnson failed to attend.  This is from an email:

California Attorney General Jerry Brown, California Air Resources Board Chair Mary Nichols, the Sierra Club’s Carl Pope, the NRDC’s Fran Pavley, and Congresswoman Hilda Solis all appeared as witnesses.  Unfortunately, one chair at the briefing was noticeably empty:  the seat we reserved for EPA Administrator Stephen Johnson.

Clearly, EPA Administrator Johnson does not want California and 18 other states to implement California’s higher emission standard for automobiles — a key part of our fight against global warming — but the public deserves to know why.  We can’t let Administrator Johnson hide the truth from the American people.

At the hearing, Attorney General Brown called on Boxer to subpoena Johnson and all of the relevant documents that went into the decision.  Boxer is planning a hearing on January 24th with the EPA Administrator, and she’s attempting to use public pressure to get Johnson to release the documents.  She’s asking supporters to forward Johnson this email (over):

Dear Administrator Johnson,

I urge you explain why the EPA denied a request from California and 18 other states to regulate greenhouse gas emissions from automobiles, and to release all documents surrounding how the decision was made.

You would have us believe that granting California’s waiver request would establish a complicated “patchwork” of state regulation standards. But in reality, 14 other states have joined California and would use our higher standard, and 4 more states intend to do the same.  The national government should encourage — not stymie –the efforts of nineteen states to fight global warming.  

Last year, you told Senator Boxer’s Committee that the EPA needed more time to make a decision on California’s waiver request because it was “performing a rigorous analysis.” However, according to an article in the Washington Post, you ignored the advice of your technical and legal staff and denied our waiver request anyway.

We deserve to know the truth about why, over the unanimous advice of your own technical and legal staffers, you rejected California’s legitimate waiver request — waivers which have been issued 50 times in the past and never denied.

I urge you to explain to the public why you denied California’s waiver request, and release all related documents to reveal how the decision was made.

Meanwhile, House Oversight Committee chair Henry Waxman has also demanded the documents, and is scheduling interviews with EPA employees about Johnson’s decision.  These are two ornery committee chairs that will not let up on the EPA.

Let me also commend Hillary Clinton for being the first Presidential candidate to address this issue, lauding the state’s decision to take the EPA to court.  From the comments, Barack Obama sent out a press release on the EPA decision soon after it was handed down.  And Edwards urged granting of the waiver back in the summer.  There isn’t much daylight between the major candidates on this issue.

Stay tuned.

UPDATE: Sean from Warming Law has more.