(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.