Hill Heat

EPA Administrator Stephen Johnson seems unable to step foot on Capitol Hill to talk about his 2008 budget without getting a ton of questions about California’s waiver denial and EPA’s much-delayed response to Massachusetts v. EPA. Today’s NY Times carries an editorial explaining how the two are linked, citing and drawing out Georgetown Professor Lisa Heinzerling’s observation that EPA’s waiver denial may have inadvertently committed it to an endangerment finding) 

The barrage of questions continued yesterday, courtesy of Senator Dianne Feinstein (D-CA) and her Appropriations subcommittee. Hill Heat live-blogged the hearing and revealed that Johnson isn’t just personally overwhelmed by all the legal pressure and questioning—he’s explicitly citing it to justify his delayed reaction to the Supreme Court’s remand. To wit, Johnson repeated the claim—previously made when he announced to a House subcommittee that he’d be "taking a step back" from the enandgerment finding to weigh industry’s “concerns”—that his delay is partly justified by a series of petitions and appeals that California and environmental groups have filed in the last several months, seeking the regulation of CO2 emissions from ships, aircraft, off-road vehicles, and new coal-burning power plants under federal jurisdiction.

Each of these actions was largely motivated by EPA’s delay in making an endangerment ruling, and each covers areas that would be affected by such a determination. In other words, Johnson is claiming that in order to respond to legal maneuvers motivated by his hesitancy to act…he must delay action even longer. While this deflection doesn’t carry any legal consequences, another part of Johnson’s insistence that this decision requires an expansive amount of time—perhaps until the end of the Bush administration, as advised by the Heritage Foundation, which also takes credit for inspiring Johnson’s rationale—actually highlights the imminent possibility of yet another lawsuit against EPA.

At issue: Johnson flat-out refused to set a target date yesterday for completing the decision-making process, and would not answer whether any of his staff was even working on the enandgerment evaluation (as opposed to a "myriad of issues" that they are tackling). The latter answer led Senator Feinstein to argue, based on what she’d  evidently been hearing from other sources, that no one other than Johnson himself is weighing the issue.

The legal coalition responsible for initiating Mass. v. EPA will likely beg to differ with this exhaustive process, having notified the Administrator last month that it was prepared to sue over unreasonable delay if Johnson didn’t provide a firm target date by February 27—last Wednesday. Stay tuned…

ESI’s EPA Budget Briefing

Witness

• Stephen L. Johnson, EPA Administrator

10:12 Johnson: As the administration sprints to the finish line, I believe this budget keeps it on the path to a cleaner future. With both demand and cost on the rise, innovators are pushing clean energy solutions. We estimate industry will explore thousands of oil and gas wells on tribal and national lands. The budget requests hundreds of new staff to assist our partners assess the projects.

The budget also attempts to address the serious challenge of global climate change.

The budget supports EPA’s collaborative work to protect our waterways. I’m proud of our response to hurricanes Katrina and Rita.

10:17 AM Feinstein The legal justification for your waiver rests heavily on the 1967 decision. In 1977 Congress amended the Clean Air Act, changing the language and intent of Section 209. The committee language stated that the intent was to provide California the broadest latitude possible. Your waiver justification document does not mention Congressional intent in 1977. Why?

Johnson I am bound by Section 209 and there are three very specific criteria. I only looked at one. Based on the record before me, again, affording California the broadest discretion, it does not mean that I am a rubber stamp. It is not a popularity contest.

10:49 Craig Sitting on EPW we get two bites at you. Today I won’t chew as hard.

Feinstein Even though that section allows other states to adopt California’s standards?

Johnson You raise a very good point. Section 209 and the law and the criteria does not allow me to consider what other states may or may not do. As I pointed out the more states that believe greenhouse gas emissions is a problem are making the very point that California is not unique. It is not exclusive. Rather it is a national problem requiring a national solution.

Feinstein According to the Washington Post, you overruled your legal and technical staff last October. Did a single one of your staff support a flat denial?

Johnson They presented me with a wide range of options, from approving to denying the waiver. They were all presented to me as legally defensible options. I appreciate the opportunity for their candid input, but the Clean Air Act gives me the responsibility alone.

Feinstein You are saying the technical and legal staff recommended approving the waiver. Is that correct?

Johnson They presented me with a wide range of options, from approving to denying the waiver. Generally it is my approach to ask for input, if they choose to give input, that’s fine. Routinely I seek input.

Feinstein We’ve been told that none of the staff was in favor of denying the waiver.

Johnson I received a range of options.

Feinstein I know that.

Johnson I respect the opportunity to receive candid opinions. My decision is not based on a popularity contest of opinions.

Feinstein You’re not answering the question, but there’s nothing I can do but interpret your non-answer.

10:26: Feinstein You’ve missed your 2007 deadline to make the health endangerment finding. Will you respect the direction of the highest court of the land?

Johnson I will commit to that we will make the decision. We are working on the implementation regulations. We have a number of court-ordered deadlines.

Feinstein When might we expect this?

Johnson I don’t have a date, but I assure you we will respond to Mass vs. EPA.

10:28 Allard I have some concerns about enforcement.

10:39 Leahy I’m going to divert for just a moment. I want to talk about mercury pollution. Your agency had the mercury rule. I said at the time I thought it was wrong. On February 8 the Court of Appeals for the DC Circuit, a very conservative court, agreed with my position and struck down your rule. If you had listened to my opinion you could have saved taxpayers significant fees. Does your agency plan to abide by the Clean Air Act, by the law?

Johnson Thank you for the question. Always follow the law, sir. The EPA and DOJ are currently evaluating the decision. We haven’t decided on a course of action. We also recognize because of the Clean Air Interstate Rule we have early reductions of mercury. We are disappointed the first regulation of mercury was struck down. We’re evaluating that now.

Leahy The court made their decision based on the arguments heard in the case. The AP reports officials have threatened states with disapproval for adopting more aggressive mercury regulations, despite what the EPA said in the court. If there was a misrepresentation by the government to the court that’s a serious matter. Have officials ever threatened states against instituting mercury regulations?

Johnson I don’t recall any firsthand knowledge. I don’t know if they have.

Leahy Will you go back and find out?

Johnson I’ll be happy to respond for the record.

Leahy I would like to know the answer. If the AP is correct, then the EPA gave misleading information to the courts. The courts, the Judiciary Committee would consider it a very serious matter. You adopted the Mercury Trading Rule in 2005 and committed to reducing mercury hot spots.

Johnson We haven’t decided yet.

10:50 Feinstein I believe very firmly your staff was in favor of the waiver unless you tell me otherwise. Did any other people in the administration weigh in on the waiver?

Johnson I received many opinions, the decision was my own.

Feinstein Did you discuss this with the White House?

Johnson I discuss major issues with the White House, I think that’s good government.

Feinstein I read the 48 pages. I find it not at all impressive. I think it is harmful to our state and the country. I’d like to go back to the remand. You have not given me a firm date. I find this unbelievable on what is called an Environmental Protection Agency, not an Administration Protection Agency.

Johnson I respectfully disagree that this is an easy decision. Justice Scalia set it up as a three-part test for me. If I find there is endangerment, I must regulate. If I find that there is not endangerment, I should not regulate. If there are other factors I need to consider them. The way the Clean Air Act operates, a decision in the regulation of mobile sources could have a significant impact on stationary sources. I know people are anxious for me to get on with business. Climate change is a serious issue. It’s one I’m carefully considering. Airlines, off-roads, marine, I could go on and on.

Feinstein How many personnel are working on the endangerment finding?

Johnson I don’t know exactly.

Feinstein We’ve been told noone is working on it. Is anyone working on it?

Johnson I know I am working on what are the next steps. It’s what I’m currently evaluating.

Feinstein How many of your staff are working on the endangerment finding?

Johnson I don’t know. I am currently evaluating what are the next steps to take in response to the Supreme Court, the Energy Act, the numerous petitions. I know we have staff working on a myriad issues. I know we have people working on major economies, reviewing McCain-Lieberman legislation, the Greenhouse Gas Registry. We have a lot of issues we’re working on.

Feinstein What I deduce is that none of your staff is working on it. I’ve got to believe you’re stonewalling.

Johnson I’m not stonewalling.

11:10 Feinstein Have you taken every Congressional earmark out of this budget?

Johnson I am told by our staff that the answer is yes.

11:30 Argument with Ted Stevens and Johnson over earmarks (and the definition of an earmark) and funding water and sewer facilities Alaskan villages.

11:37 Stevens I’m trying to seek re-election now. I don’t understand why it’s been reduced.

Stevens What did you ask the president for?

Johnson I support the president’s budget.

Stevens You going to answer my questions, sir?

Johnson brings in EPA water guy.

Stevens You can tell me what you requested OMB this year. What was that amount?

EPA water guy We requested the amount consistent with the 2004 request.

Stevens This is not a spending program, it’s a loan program.

Feinstein My staff says we never agreed to this.

Stevens This policy forces earmarks. It’s bureaucratic arrogance. Having served eight years in another administration, I don’t appreciate this. It sounds like your 04 was sacrosanct as far the government is concerned. It’s a crazy system. The Greenhouse Gas Registry. The White House proposed no money for this program. Sen. Klobuchar asked me about it. Why didn’t you put any money in this program?

Johnson We have $3.5 million this year. We expect by September of this year we will have a proposed regulation for the registry. I believe states are developing registries.

Stevens Is there any direction Congress would give you with regards to spending money you would follow?

Feinstein You’re right. I put in the $3.5 million. They need it for two years.

Johnson We are working on a draft regulation. I intend to make sure we obey our mandate.

Stevens Do you remember in the old days we dealt with this by bureau reclamation? We eliminated the job of the person who refused to follow our direction.

11:48 Feinstein There is no way for us to restore those cuts. I don’t even know if we want to pass this budget. Why run for the Senate? Why act as an appropriator? Why put our names on a budget that we know is going to fail to accomplish our purpose?

Stevens We’re better off on the 2008 budget. Did you ever think about that?

Johnson We believe this budget is a good budget. It balances the needs for moving forward at the same time we have to be good stewards of taxpayer money.

Stevens You should bring back the message that in all likelihood we’ll send the President a continuing resolution for 2009.

Feinstein The cuts go on and on and on. For the first time he said in so many words we’re not going to recognize any Congressional add. You’re saying the president conditions all funding. We don’t even need an Appropriations Committee!

11:51 Stevens He ought to read the Constitution. Arrogance. Pure arrogance.

Feinstein There is no jointness. We are to be a rubber stamp for the President’s request.

Stevens I don’t think the President even knows some of these items.

Feinstein Let me sum up by saying this is a very unhappy budget. The hearing is adjourned.

As previewed by Warming Law yesterday, the EPA today released the formal justification for publication in the Federal Register to back up administrator Stephen L. Johnson’s December decision to deny California’s waiver request after months of delay. California requested the Clean Air Act waiver in 2005 to permit implementation of the state’s Global Warming Solutions Act (AB 32), which would regulate tailpipe greenhouse gas emissions.

Johnson withstood withering criticism in Wednesday’s EPW budget hearing the same day Sen. Boxer, chair of the Senate committee, released documents showing top EPA officials supported the waiver.

The formal decision document includes this thread of novel legal interpretation (supported by John Dingell (D-Mich.)):

I find that it is appropriate to review whether California needs its GHG standards to meet compelling and extraordinary conditions separately from the need for the remainder of California’s new motor vehicle program. I base this decision on the fact that California’s GHG standards are designed to address global climate change problems that are different from the local pollution problems that California has addressed previously in its new motor vehicle program. . . Given the different, and global, nature of the pollution at issue, it is reasonable to find that the conceptual basis underlying the practice of considering California’s motor vehicle program as a whole does not apply with respect to elevated atmospheric concentrations of GHGs. . . . While I find that the conditions related to global climate change in California are substantial, they are not sufficiently different from conditions in the nation as a whole to justify separate state standards.

Staff and outside assessments of this argument have consistently concluded it is not legally tenable. It was received with full condemnation by Sen. Boxer and Rep. Ed Markey (D-Mass.), Global Warming chair; Frank O’Donnell of Clean Air Watch writes that the decision “reads like something written up in the boardroom of General Motors or a law firm working for car companies.”

Reporting yesterday on this week’s developments in the California clean cars saga, the Wall Street Journal’s Stephen Power revealed that "the EPA is expected to fire back this week by publishing data and research to support Mr. Johnson’s decision." Today’s Philadelphia Inquirer confirmed that such a document should "be released by tomorrow" via Johnson’s response to grilling on the waiver decision during a Senate hearing on EPA’s budget. (Regular readers may recall that his December announcement of the waiver denial was notably brief, resulting in much speculation since as to whether Johnson had fully determined his legal rationale before he made his mind up.)

We’ve been anticipating EPA’s belated justification, which is expected to be placed in the Federal Register, for some time now—both in terms of Johnson’s public promises and as a legal strategy in fighting California’s lawsuit. In a move that is probably not coincidental, EPA filed a motion last week asking the 9th Circuit to dismiss the existing case. Warming Law is still working to obtain EPA’s motion, but we’ve written previously on both its likely rationale, and on the unprecedented legal argument that Johnson will likely make to claim his actions can be justified under the Clean Air Act.

If Johnson goes this route, the legal effect would be one of giving the Administrator’s judgment extremely strong deference under Section 209 of the Clean Air Act. He would be interpreting the law in a way that his staff told him is legally impossible even if they accepted the auto industry’s criteria for judging waiver requests, and doing so based on the arguments that he:

1) Is legally empowered to break with agency precedent regarding what constitutes "compelling and extraordinary" conditions—instead adopting the "exclusive and unique" argument that Tuesday’s document release shows was first advanced in March 2006 by Bill Wehrum, a political appointee with prior ties to the auto industry (Wehrum has since left the EPA, and was recently spotted testifying in favor of a pair of coal-fired plants that Kansas regulators shot down last year based on global warming concerns).

Former EPA Administrator William Riley, who served under President Bush’s father, highlighted the historic scope of Johnson’s actions when he revealed yesterday that he was the receipient of impassioned talking points that agency staff prepared for him to press with Johnson. In his conversations with Johnson, Reilly focused on the argument that legal text, congressional intent and longstanding precedent all point to extreme deference for California’s wishes, and noted that the administrator need not agree with the state in order to let it move forward (emphasis added):

In a press conference yesterday, Senate Environment and Public Works chair Barbara Boxer (D-Calif.) revealed internal EPA documents from the agency’s deliberations whether to grant California’s Clean Air Act waiver request to regulate tailpipe greenhouse gas emissions. Administrator Stephen Johnson denied the waiver in December, the day the president signed the energy bill into law.

The documents include a presentation prepared by Chris Grundler, deputy director at the National Vehicle and Fuel Emissions Laboratory, for Margo Oge, the director of EPA’s Transportation and Air Quality, intended to be given to Johnson. The presentation states “it is obvious to me that there is no legal or technical justification for denying” the waiver, and that in the case of a waiver denial “I fear the credibility of the agency that we both love will be irreparably damaged.”

The documents also include an itinerary for the administrator showing that on May 1, 2007, he received an internal briefing on the California waiver before attending a White House meeting.

Sen. Barbara Boxer (D-Calif.) opening statement:

We are here today to review the Administration’s proposed Fiscal Year 2009 budget for the Environmental Protection Agency.

Since this is the Bush Administration’s final budget proposal, let’s ask ourselves a simple question:

Is EPA better able today to protect people and communities from serious public health and environmental problems than it was when this Administration took the reins?

The answer is a resounding “No.”

The Bush Administration’s proposed budget for 2009 represents a 26% decline in overall EPA funding since the Administration’s first budget was enacted, when adjusted for inflation. Budgets are about priorities – this shows the low priority that the Bush Administration places on environmental protection.

Witness

• Stephen L. Johnson, Administrator, Environmental Protection Agency

Witness

• Stephen L. Johnson, Director. U.S. Environmental Protection Agency

From E&E News:

Pressed by House panel, EPA chief defends waiver decision (02/26/2008) Katherine Boyle, E&ENews PM reporter

U.S. EPA Administrator Stephen Johnson defended his rejection today of California’s waiver request that would have allowed state regulation of motor vehicles’ emissions of greenhouse gases in the wake of the release of agency documents showing that top EPA officials strongly disagreed with him.

Appearing before the House Interior and Environment Subcommittee, Johnson said climate change is not a unique California problem and the state’s petition for a Clean Air Act waiver did not meet the “compelling and extraordinary conditions” required by law.

“Every time another governor, another state representative talks about the need for their state to address global climate change, they’re actually making my very point on the California waiver,” he said.

The Senate Environment and Public Works Committee released documents showing EPA staff members strongly supported granting the waiver.

A presentation prepared for the director of EPA’s Transportation and Air Quality, Margo Oge, urged Johnson to grant the waiver and suggested he would face great outside pressure to deny it.

“If you are asked to deny this waiver, I fear the credibility of the agency that we both love will be irreparably damaged,” the presentation says. “You have to find a way to get this done. If you cannot, you will face a pretty big personal decision about whether you are able to stay in the job under those circumstances.”

It is “obvious” there is “no legal or technical justification for denying” the waiver, says the presentation prepared by Chris Grundler, Oge’s deputy director at the National Vehicle and Fuel Emissions Laboratory in Michigan.

Johnson said he only became aware of the presentation when Congress requested documents on the waiver decision.

“It was never presented to me,” he said.

Rep. Tom Udall (D-N.M.) pressed him, asking if Oge ever raised the issues in the presentation.

But Johnson again denied seeing the presentation, although he didn’t say whether Oge raised those points.

“I received a lot of comments from my professional staff, and they presented me with a wide range of options,” Johnson said. “One of the options was denial. One of the options was to grant the waiver.”

Johnson said he will issue a final decision document on the waiver by the end of the week.

In the middle of September 2007, Rick Boucher (D-W.Va.), chair of the the the Energy and Air Quality Subcommittee of John Dingell’s Energy and Commerce Committee, announced he would be releasing a series of white papers “over the next six weeks” on issues related to the development of climate change legislation. The third such paper, Appropriate Roles for Different Levels of Government, has now been released.

• Oct. 3, 2007: Scope of a Cap-and-Trade Program
• Jan. 31, 2008: Competitiveness Concerns/Engaging Developing Countries

After reviewing state, local and regional initiatives to combat global warming emissions, in its discussion of the possible costs of local regulations in addition to a federal cap-and-trade system, the 25-page white paper bores in on the question of federal preemption. This issue was highlighted in December by EPA administrator Stephen Johnson’s denial of California’s waiver request under the Clean Air Act to regulate tailpipe greenhouse gas emissions. Johnson’s decision spurred a multi-state lawsuit, an investigation by House Oversight chairman Henry Waxman (D-Calif.), and contentious Senate hearings.

The paper follows statements made previously by committee chairman John Dingell (D-Mich.) supporting Johnson’s stated justification for denying the waiver:

One key factor that distinguishes climate change from other pollution problems our country has tackled is that local greenhouse gas emissions do not cause local environmental or health problems, except to the extent that the emissions contribute to global atmospheric concentrations. This characteristic of greenhouse gases stands in contrast to most pollution problems, where emissions adversely affect people locally where the emissions occur. The global nature of climate change takes away (or at least greatly minimizes) one of the primary reasons many national environmental programs have provisions preserving State authority to adopt and enforce environmental programs that are more stringent than Federal programs: States have a responsibility to protect their own citizens.

In its concluding remarks, the paper summarizes the internal committee battle:

As the debate over whether the Federal Government should preempt California’s greenhouse gas motor vehicle standards has shown, Committee Members balance these various factors in a way that can lead to different conclusions that will need to be worked out through the legislative process. Chairman Dingell has made it very clear that he believes that motor vehicle greenhouse gas standards should be set by the Federal Government, not by State governments: greenhouse gases are global (not local) pollutants, multiple programs would be an undue burden on interstate commerce and would waste societal and governmental resources without reducing national emissions, and the competing interests of different States should be resolved at the Federal level. Other Committee Members have reached the opposite conclusion given the severity of the climate change problem, the need to push technological development, and the benefits of having States act as laboratories.

Witness

• Stephen Johnson, Administrator, U.S. Environmental Protection Agency

The Office of Special Counsel has concluded its investigation into EPA administrator Stephen Johnson’s March 9, 2006 appearance at a fundraiser for Rick O’Donnell, a Republican candidate for Colorado’s 7th District. In its press release, the OSC declared that Johnson did not violate the Hatch Act.

The complaint, filed by Colorado Democratic Party chair Pat Waak, noted that an e-mail by former Colorado health department Doug Benevento had the subject line, “Fundraiser with Administrator of EPA Stephen L. Johnson for Rick O’Donnell,” with an attachment entitled “Fundraiser with Administrator of EPA.”

The act forbids fundraiser invitations that include the federal employee’s official title.

However, the OSC found:

that while Mr. Johnson’s official title was used in an e-mail invitation for the fundraiser, the invitation was sent by an organizer of the event, who was not covered by the Hatch Act. Moreover, as the individual did not consult, or receive approval from the EPA or Mr. Johnson, he was not responsible for the use of his official title in the e-mail used to distribute the invitation.

OSC also found that the EPA staff, in approving Mr. Johnson’s participation in the fundraiser, had not reviewed the list of the attendees, nor informed him of who would be attending the fundraiser, or where they were employed. Therefore, OSC found no evidence that Mr. Johnson had knowingly solicited or discouraged the political activity of persons with business before the EPA.

While Mr. Johnson did not violate the Hatch Act, OSC found deficiencies in EPA staff review processes, and recommended that EPA staff be aware of all parties and their roles in political events, including the attendees, and consider this information when advising on participation. Also, OSC advised EPA staff to review the invitation, along with its cover letter or e-mail, to ensure it complies with the Hatch Act.