Tag Archives: Stephen Johnson

Friday Evening Open Thread

A few nuggets for you:

• A Superior Court judge in Alameda County has ruled that cell phone companies cannot charge early-termination fees, and has ordered that Sprint return $18.2 million dollars to consumers.  This will probably get fought on appeal, but right on.  The concept of fee for service has worked pretty well for most of consumer capitalism, as has being nice to your customers instead of bullying them into compliance.

• There’s been a lot of outrage at the LA City Council’s ruling banning new fast-food restaurants from breaking ground in South LA for a year.  Actually, far from being an issue of infringing on freedom, it’s a little thing called land use, and every city has them – even the one that the outraged Will Saletan lives in.  

I’m pretty skeptical that these proposed South LA regulations will do any good. But it’s not unique or unusual for land use regulations to exist. And working class people around the country suffer dramatically larger concrete harms from the sort of commonplace suburbanist regulations that Saletan’s been living with, without apparent complaint, in Chevy Chase. Those kind of regulations are bad for the environment, bad for public health, and serve to use the power of the state to redistribute upwards. So if you’re going to rail against land use regulations, maybe pick the ones that really hurt people.

• In environmental news, Senate leaders like Barbara Boxer are calling for the resignation of EPA Administrator Stephen Johnson for his preferring ideology over science, defying the advice of his own staff, evading oversight and misleading Congress, particularly about refusing the California waiver to regulate tailpipe emissions.  They’re also asking the Attorney General to investigate whether Johnson perjured himself at one of the California waiver hearings in Congress.  In addition, Jerry Brown is suing the EPA for their refusal to regulate greenhouse gas emissions at the nation’s ports.

• And this is pretty interesting, turns out the Sarah of “Sarah’s Law” (parental notification) doesn’t have the squeaky-clean image her sponsors claim:

Backers of a ballot measure that would require parents to be notified before an abortion is performed on a minor acknowledged Friday that the 15-year-old on which “Sarah’s Law” is based had a child and was in a common-law marriage before she died of complications from an abortion in 1994 […]

A lawsuit co-sponsored by Planned Parenthood Affiliates and filed Friday in Sacramento County Superior Court asks the Secretary of State to remove the girl’s story and other information it deemed misleading, including any reference to “Sarah’s Law,” from the material submitted for the official voter guide.

“If you can’t believe the Sarah story, there’s a lot in the ballot argument you can’t believe,” said Ana Sandoval, a spokeswoman for Planned Parenthood and the campaign against Proposition 4.

Using someone’s life story for political means, and wrongly at that.  Good people.

  • Don’t forget the Begich fundraiser in SF tonight.
  • The No on 6 campaign will be doing some organizing in the next few weeks against Prop 6, another Runner initiative to wastefully incarcerate more of California’s youth.  There will be meetings in SoCal (tomorrow), SF(9/9), and in the Central Valley (9/16). Full details at the No on 6 website here.
  • Ok, your turn.

    EPA Avoidance Update

    Just to update on the EPA’s denial of a waiver to California to regulate its own greenhouse gas emissions – the White House is now refusing thousands of documents on the matter to Henry Waxman’s Oversight and Government Reform Committee, citing executive privilege.

    “I don’t think we’ve had a situation like this since Richard Nixon was president,” said Rep. Henry Waxman, D-Calif., the chairman of the House Committee on Oversight and Government Reform, which is conducting the investigation.

    An EPA official, Jason Burnett, has told committee investigators that EPA Administrator Stephen Johnson had favored granting the waiver but denied it after meeting with White House officials. In testimony last month, Johnson refused to say whether he’d discussed the waiver request with Bush.

    The White House waited until the very day that the Oversight Committee was going to rule on contempt citations for failing to respond on this issue.  And the OMB and the EPA basically answered by saying “we’ve given you enough documents, no more documents for you.”

    It’s clear that the EPA and the Bush Administration will stonewall until the day they leave office on this front, and so it’s up to the next President to make a determination on the waiver.  And all you need to know about California’s chances of being able to regulate emissions is that Obama supports the waiver, and McCain has been vague and evasive about it (not to mention he’s taken more money from oil companies than any other Presidential candidate).

    Meanwhile, California is offering another regulatory solution: they’re adding a Global Warming score to the sticker of every car for sale in the state.

    The California Air Resources Board said Thursday the window sticker will give consumers the information they need to choose a cleaner-burning car or light truck.

    “This label will arm consumers with the information they need to choose a vehicle that saves gas, reduces greenhouse gas emissions and helps fight smog all at once,” board chairman Mary Nichols said in a statement. “Consumer choice is an especially powerful tool in our fight against climate change. We look forward to seeing these stickers on 2009 model cars as they start hitting the showrooms in the coming months.”

    We’ll see if this affects consumer choice in the coming months, although the fuel economy portion of the sticker is already driving demand.  To say nothing of those 5 hydrogen fuel cell cars turning up on Southern California roads.

    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.

    Boxer Seeks EPA Waiver Through Legislative Means

    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.

    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.

    Duct Tape

    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.

    Executive Privilege Is The New Black

    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.

    EPA Waiver Update: Boxer, Waxman Charging Ahead

    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.