CA Waiver Lawsuit Transferred to DC Circuit
In a terse, two-page order issued yesterday, the Ninth Circuit Court of Appeals has granted the EPA’s motion to reconsider its earlier denial of a motion to dismiss California’s waiver-denial lawsuit. A three-judge panel agreed that EPA Administrator Stephen Johnson’s December, 19 2007 letter to CA Governor Arnold Schwarzenegger—which was the basis for the January 2008 lawsuit—does not constitute a reviewable “final action” under the Clean Air Act.
The court’s decision means that the case will now move to the DC Circuit Court of Appeals, and will be based on the 47-page denial document that EPA placed in the Federal Register this February (complete with its utterly contradictory logic). Unless the DC Circuit sets an aggressive briefing schedule, the case may end up not being argued by year’s end—in which case, the petition would hopefully become moot as the result of a new President overturning the waiver decision.
Senate GOP Prevents EPA Document Subpoena; Contents Discussed
A vote on the issuance of a subpoena for the draft endangerment finding on global warming emissions rejected at the highest levels in the White House was stymied when Republican members boycotted the Senate Committee on Environment and Public Works business meeting, preventing a quorum.
Ironically, the committee’s ranking minority member, James Inhofe (R-Okla.), put out a press release complaining about the “Democratic Party’s Obstruction,” with respect to acceding to Republican demands for voting on their terms on increased drilling and development of unconventional fuels.
White House counsel Fred Fielding, in a July 21 letter to Boxer, refused to voluntarily turn over the document, explaining:
Your letter, by its very terms, calls for pre-decisional and deliberative communications of White House advisors and Executive Branch officials. For these reasons, the request plainly implicates well-established separation of powers concerns and Executive Branch confidentiality interests.The committee’s chair, Sen. Barbara Boxer (D-Calif.), was reduced to issuing a statement on the humiliating treatment she and fellow Senators have received in investigating the EPA decision:
Picture this:Three Senators huddled around one document – an EPA document that concludes that global warming endangers the American people, a document kept from the public by the White House. United States Senators compelled to take whatever notes they can, from a document only revealed to us under the watchful eyes of two White House lawyers.
Boxer did reveal excerpts of the draft endangerment finding, which has been made public in redacted and altered form as the “Draft Technical Support Document – Endangerment Analysis for Greenhouse Gas Emissions under the Clean Air Act” to the “Advance Notice of Proposed Rulemaking: Regulating Greenhouse Gas Emissions under the Clean Air Act.”
The draft finding, which reflected EPA Administrator Stephen Johnson’s decision to recognize the threat of global warming, includes the following excerpt:
In sum, the Administrator is proposing to find that elevated levels of GHG concentrations may reasonably be anticipated to endanger public welfare.
Johnson reversed his decision under pressure from the White House.
An Update on the Science of Global Warming and its Implications
- Jason Burnett, Former Associate Deputy Administrator, U.S. Environmental Protection Agency
- Dr. Kevin E. Trenberth, Head of the Climate Analysis Section, National Center for Atmospheric Research, Climate and Global Dynamics Division
- Dr. Roy Spencer, Principal Research Scientist, Earth System Science Center, University of Alabama in Huntsville
10 Boxer The evidence has been overwhelming that global warming poses a serious threat to the American people.
Bond Workers are suffering as jobs go to countries with cheaper energy and weaker environmental laws. I would share the goal that we are going to reduce carbon, we are going to promote energy efficiency. What is the real threat to the people of America? The real threat is higher energy prices and more lost jobs.
Under the W-L bill $6.7 billion would be taken away from workers. Calpers had invested in the high future cost of energy. As long as we keep all the land out of production the price will continue to go up.
Boxer We’ll respond to his misstatement in the record.
10:15 Lautenberg My grandson has asthma.
10:22 Craig yields.
10:22 Cardin We haven’t had an energy policy and we’ve seen the consequences. The L-W bill will allow us to take the necessary steps to deal with global warming. I’ve urged we have a robust provision to have the best science available to achieve the objectives we set out to do. We all know about corn ethanol.
10:26 Klobuchar I met yesterday with a 14-year-old who biked 1500 miles with a petition signed by 1200 kids for greater fuel efficiency. It appears this administration has been living in an evidence-free zone. One of the redacted facts was that climate change would increase wildfires.
10:29 Whitehouse I yield.
10:30 Boxer swears in the witnesses.
10:31 Burnett I recently resigned my position as associate deputy administrator. The scientific information I present is not my opinion. The April 2 Supreme Court decision permanently changed the landscape. Severe heat waves are expected to increase. The science is clear. A Cabinet-level meeting in November reached the agreement greenhouse gases did endanger the public and needed to be regulated. The only way to avoid making a positive endangerment finding was to make any finding at all.
10:37 Trenberth The IPCC is inherently conservative. Climate change is a real problem today. The problem is accelerating. Changes could happen much larger and sooner than the IPCC suggests. The oceans and land ice have a lot of inertia. Long lead times are essential for action to address climate change. Globally the past 7 years are among the eight warmest on record. Sea level rise continues at a rate of a foot a century. In the first six months of 2008, record rains point to the increases of rain that have been observed in association with more water vapor in the atmosphere due to global warming. Longer dry spells are also associated with global warming. The risk of wildfire increases dramatically. In 2007 two Cat 5 hurricanes made landfall for the first time in Central America. Hurricane Bertha has broken records. We should not be misled by short-term climate changes such as La Nina. Our predictions at NCAR are for substantial changes. I believe there is a crisis of inaction in addressing climate change.
10:43 Spencer There’s two issues I’d like to talk about. As a NASA employee during the Clinton-Gore administration, I was told what I could or could not say. It seemed entirely appropriate to me to abide by the limits of my superiors. I’d like to present the latest research. There remains considerable uncertainty just how sensitive the climate is to human influence. We have attained the holy grail of climate research—a true measure of climate uncertainty. They have been contaminated by cloud variability. In my written testimony, I show how cloud variations and La Nina-El Nino might explain 70 percent of the warming we’ve measured. These results are not yet published, but I presented them at a seminar. The IPCC process has been guided by desired policy outcomes. I am predicting today that the theory mankind is mostly responsible for global warming will fade away.
10:51 Boxer Spencer has been named by Rush Limbaugh as his official climatologist. I’m going to ask Mr. Burnett a few questions about the waiver. Did Johnson discuss in December his plan to move forward with at least a partial waiver?
10:52 Burnett If the Clean Air Act was not amended by Congress, we would move forward with the waiver.
Boxer Did Johnson indicate that the compelling and extraordinary conditions had been met?
Burnett All three criteria were met.
Boxer Did you prepare Johnson for a meeting with the White House on the waiver?
Burnett Materials from our general counsel indicating the legal vulnerability of denying the waiver was communicated to the administrator in multiple fora.
Burnett Pres. Bush had made it clear of his policy preference for a single standard.
10:57 Craig Climate change conferences are a thriving cottage industry.
Spencer There’s more like me out there.
Craig You gave passing comment on climate change and wildfires. The skies of Idaho were filled with smoke from California. In 1991 forestry scientists met and determined that there were millions of acres of forest that were dead and dying. Because of the tremendous population and fuel buildup and a slight change of temperature we’re seeing those fires. Very little is said by scientists about natural emissions of carbon. I accept warming. Why aren’t scientists dealing more with the vegetative consequences and advocating reduced fuel loads?
Trenberth The major factor recently is the major drought that allowed the lodgepole pines to be infected by the pinebark beetle. In recent times we haven’t had the cold spells that kill the beetles.
Craig You’re right about the bug itself. If you take out those bug kill areas, we’re being denied that.
11:03 Lautenberg Mr. Spencer, since you ascribe the problems with changing climate to natural causes, that we then throw up our hands and wait?
Spencer I’m of the professional opinion that people have some influence. We already spend billions of dollars on alternative energy research.
Lautenberg You told the House Global Warming Committee that ExxonMobil thought regulations would taint the Bush legacy.
Burnett There were those in the administration who wanted to be the ones who took action and those who didn’t want to do anything.
Lautenberg Are we approaching the point of no return?
Trenberth What used to be a 500-year flood is now a 30-year flood.
11:10 Cardin Were you present at the Cabinet-level meeting?
Burnett I worked with other officials to prepare for the meeting.
Cardin How were you apprised of the findings of the meeting?
Burnett I prepared briefing materials and Johnson and Peacock asked us when they returned for us to draft findings that reflected the decisions of the meeting.
Cardin Do you know who was in the meeting?
Burnett I’m familiar with the agencies involved. We had meetings three times a week at the OMB. Administrator Johnson said he took the extra step of checking with the President’s chief of staff office and Joel Kaplan whether that meeting was sufficient to tell the staff a decision had been made.
Cardin What happened?
Burnett The sequence of events was strange. I had checked with my colleagues at EPA that the document was ready to be sent to OMB. I sent it over, and then received a phone call from deputy chief of staff Joel Kaplan asking us not to send the document over.
11:19 Klobuchar
Burnett The regulation we were developing would have raised fuel economy standards.
Klobuchar You went back and forth with OMB on the definition of carbon dioxide molecules.
Burnett I was at almost all of the meetings hosted by OMB. There was interest in defining CO2 from automobiles as different from CO2 from power plants. Jeff Rosen raised that question multiple times. It was sometimes embarassing for me to return to my colleagues to have them explain again that CO2 is a molecule.
Klobuchar What can we expect in the future?
Trenberth Rainfall is up about 7 percent, mainly east of the Rockies. Heavy rains are up 14%, very heavy rains up 21%. The reason is well understood. The warmer air can hold more water vapor.
11:25 Boxer Washington is under a severe weather alert.
Whitehouse Were you at the EPA long enough to get a sense what the routine meetings and conversations were between the administrator and the White House?
Burnett My focus was on air quality policy.
Whitehouse Would you characterize they were routine?
Burnett This was my first vehicle waiver process.
Whitehouse Were there specific meetings on the California waiver?
Burnett Yes.
Whitehouse Did the White House understand that the responsibility for making a decision on the waiver rest with the administrator?
Burnett In the ozone decision the president’s policy was ultimately followed.
Whitehouse Did the White House respond to the notice that you intended to partially grant the waiver?
Burnett The response was clearly made that the White House wanted a single standard inconsistent with the California waiver.
11:32 Sanders Talk about human health and global warming.
Trenberth We see events like Katrina, that our infrastructure isn’t adequate. These things happen from time to time but don’t all happen all at once. Natural variability plays a role. In Europe in 2003, the magnitude of the heatwaves, over 30,000 people died, you cannot account for it natural variability or global warming alone.
Sanders If you see increased drought, people won’t be able to grow food.
Trenberth There are various diseases that flourish in warmer climates. Everyone will be affected one way or another. In Europe and Asia it’s gotten much warmer. In the US, it’s gotten wetter. I personally think the biggest pressure point on society will be water and water resources.
In Draft of Greenhouse Gases Regulations, Bush Administration Attacks Clean Air Act
From the Wonk Room.
After over a year of battles with the White House and other federal agencies, the Environmental Protection Agency has published its response to the April 2007 Supreme Court ruling in Massachusetts v. EPA, which mandated that the agency determine whether greenhouse gases pose a threat to our health and welfare and take action in response. With today’s publication of an “Advance Notice of Proposed Rulemaking,” EPA Administrator Stephen Johnson ignores the threat and attacks the rule of law.
Johnson published his staff’s document – after extensive cuts from the White House – with complaints attached from the White House Office of Management and Budget, the White House Council on Environmental Quality, the White House Council of Economic Advisers, the White House Office of Science and Technology Policy, the Department of Transportation, the U.S. Small Business Administration, the Department of Agriculture, the Department of Commerce, and the Department of Energy.
In one voice, the other agencies attack the use of the Clean Air Act to regulate greenhouse gases as “deeply flawed and unsuitable,” “fundamentally ill-suited,” “extraordinarily intrusive and burdensome,” “unilateral and extraordinarily burdensome,” “drastic,” “dramatic,” “excessive,” “extremely expensive,” and “costly and burdensome.” The clear and present threat of global warming is dismissed as a “complex” issue that hinges on “interpretation of statutory terms.”
Sadly, Johnson decided to join them, attacking the immense work done by his staff to address the catastrophic threat of climate change:I believe the ANPR demonstrates the Clean Air Act, an outdated law originally enacted to control regional pollutants that cause direct health effects, is ill-suited for the task of regulating global greenhouse gases.
In his press conference announcing the release of today’s decision, Johnson reiterated his opinion that the Clean Air Act is the “wrong tool” for the task, “trying to fit a square peg in a round hole.”
This is yet another case where Johnson is following the example of the likes of disgraced former Attorney General Alberto Gonzales, who made similar statements about the Geneva Conventions’ ban on torture as White House Counsel:As you have said, the war against terrorism is a new kind of war. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians. In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.Similarly, the White House’s arguments in defense of ignoring the Foreign Intelligence Surveillance Act’s ban on warrantless wiretapping:
Reverting to the outdated FISA statute risks our national security. FISA’s outdated provisions created dangerous intelligence gaps, which is why Congress passed the Protect America Act in the first place.
George W. Bush, Stephen Johnson, and the other officers of the executive branch swore an oath to “faithfully execute” their office and defend the Constitution. They have evidently decided to break that vow, time and again. In the Alice-in-Wonderland world of the Bush administration, it’s always the “quaint,” “outdated,” “burdensome,” and “ill-suited” laws that are the problem—never their reckless abandonment of principle and duty.
Office of Vice President Censored Testimony on Global Warming Endangerment
From the Wonk Room.
Last fall, as the Environmental Protection Agency worked to satisfy its Supreme Court mandate to protect the American public from the threat of greenhouse gases, White House officials took steps to prevent such action. In a letter responding to questions by Sen. Barbara Boxer (D-CA), chair of the Committee on Environment and Public Works, former EPA official Jason K. Burnett implicated the Office of the Vice President, Dick Cheney, as well as the White House Council on Environmental Quality for censoring “any discussion of the human health consequences of climate change” in testimony to Congress.
Although Burnett refused to assist in the efforts, the October testimony of Dr. Julie Geberding, director of the Centers for Disease Control and Prevention, was “eviscerated,” with ten pages detailing the specific health threats of global warming – ranging from heat waves to floods – eliminated. After initial denials of White House interference, White House Press Secretary Dana Perino later claimed that the Office of Management and Budget had redacted testimony that contained “broad characterizations about climate change science that didn’t align with the IPCC.”
In fact, Burnett tells Sen. Boxer that the reason for the cuts was to “keep options open” for the EPA to avoid making an endangerment finding for global warming pollution, which would trigger immediate consequences for polluters. He writes:
On December 5th, under the direction of EPA Administrator Stephen Johnson, Burnett emailed a formal endangerment finding to the White House Office of Management and Budget, but received a “phone call from the White House” that asked Burnett “to send a follow-up note saying that the email had been sent in error.” He declined to retract the email, which remained unread. Two weeks later, on December 19, Johnson put an end to EPA’s work on global warming regulations and rejected California’s petition to regulate tailpipe greenhouse gas emissions.
This May, Burnett resigned from the EPA. In June, President Bush asserted executive privilege to block investigation of his involvement. Boxer has called Burnett to testify before her committee on July 22, in a hearing on “the most recent evidence of the serious danger posed by global warming.” In a statement today, Boxer said:
History will judge this Bush Administration harshly for recklessly covering up a real threat to the people they are supposed to protect.
Read Dr. Gerberding’s unredacted testimony here.
Read Sen. Boxer’s letter to Jason Burnett, and his letter in response.
Appeals Court Rejects Petition to Order EPA to Make Global Warming Endangerment Finding
The U.S. District Court of Appeals has unanimously rejected a petition requesting it require the Environmental Protection Agency to issue its long-delayed finding as to whether greenhouse gas emissions endanger human health and welfare. The petition had been filed by officials of 18 states exactly a year after the Supreme Court issued its decision in Massachusetts v. EPA, which ordered the EPA to issue an endangerment finding.
Since that time, Congressional and journalistic investigations have discovered that Administrator Stephen Johnson, with assistant deputy administrator Jason K. Burnett, worked to obey the Supreme Court decision and completed its work for submission to the White House on December 5, 2007. But the White House refused to accept the work, literally keeping Burnett’s email unopened and ordering him to retract the message. He refused to do so, and has since resigned.
The White House overrode the EPA decision to make the endangerment finding, to grant California a waiver to issue its own greenhouse tailpipe emissions regulations, and to recommend federal standards. Instead, Johnson denied California’s waiver and is expected to issue an Advance Notice of Proposed Rulemaking sometime soon with draft emissions standards (he has missed his self-imposed deadline of the end of spring).
EPA's New Ozone Standards
The hearing, originally scheduled for May 8, will examine the new ozone national ambient air quality standards (NAAQS) and the process the Environmental Protection Agency used in setting them.
On March 12, 2008, EPA Administrator Stephen L. Johnson finalized updated NAAQS for ozone, a primary component of smog. The new ozone NAAQS are comprised of a revised primary standard to protect health and a revised secondary standard to protect the environment. In setting both standards, EPA Administrator Johnson did not accept the recommendations provided to him by EPA’s independent scientific review committee, the Clean Air Scientific Advisory Committee (CASAC). With regard to the secondary standard, Administrator Johnson’s efforts to set a new standard were overruled by the White House.
In light of new information obtained by the Committee, questions are also expected regarding the White House’s role in EPA’s action to block California’s program to regulate greenhouse gases from automobiles.
Witnesses
Panel I- Stephen L. Johnson, Administrator of the Environmental Protection Agency
- Susan E. Dudley, Administrator of OMB’s Office of Information and Regulatory Affairs
- Dr. Rogene Henderson, Chair, Clean Air Scientific Advisory Committee
- Dr. Francesca Grifo, Senior Scientist, Union Of Concerned Scientists
- Michael Goo, Climate Legislative Director, Natural Resources Defense Council
- Dr. Roger O. McClellan, Advisor, Toxicology and Human Heath Risk Analysis
- Alan Charles Raul, Partner, Sidley Austin, LLP
1:50 Waxman We have seen White House interference with federal agencies in the run-up to the Iraq War, torture, and US Attorneys. The record is overwhelming that EPA’s experts all supported grating the waiver petition.
EPA’s expert advisory committee unanimously recommended a new standard for protecting the environment. Johnson supported the new seasonal standard. He said there was ‘no evidence’ for a different standard.
Our investigation has not been able to find any evidence President Bush based his decision on the science or the law. I support the broad powers the Constitution vests with the President, but he does not have unlimited powers and he is not above the law.
1:55 Issa We’re all entitled to our opinions, not our facts. The appropriate role of the President was established by the Constitution. President Clinton offered a prime example of an executive involved in regulatory actions. We know that on March 12, Susan Dudley sent a memo to the EPA indicating President Bush’s decision on the ozone standard. It does not reflect any unusual or improper action. The Clinton executive order makes it clear that the President will decide disputes between OIRA and the EPA. The President agreed with OIRA’s conclusions.
Claiming that science dictates a certain outcome is contrary to science and law.
2:05 Waxman It’s the policy to swear in the witnesses. Your prepared statements have been submitted. Please keep your oral opening statements within five minutes.
Johnson I’m pleased to discuss EPA’s decision to significantly increase ozone standards. Since 1980, ozone levels have been cut by 20 percent. I concluded the 1997 no longer protected public health with an adequate level of safety. I chose 0.075 ppm as the 8-hour standard. I proposed a three-month standard to address plants’ cumulative exposure to ozone. As required by Executive Order 12866, I coordinated with other agencies. I believe it is time to modernize the Clean Air Act. Congress has adopted these principles in the Safe Drinking Water Act. The Clean Air Act is not a relic, but a living document.
2:10 Dudley Pursuant to Executive Order 12866, OIRA coordinates interagency review. Both OMB and EPA have been forthright on the ozone standards. No changes were made to the level or form of the health-based standard. Discussions of the secondary standard were exclusively on the form.
2:15 Henderson I’m testifying as the current chair of EPA’s CASAC. Dudley’s first memo was clearly disputed by Marcus Peacock. So the next memo she wrote said Bush made the decision. CASAC has been accused from wandering from scientific issues into policy. In this case policymakers have wandered into science. If the Administrator sets a standard outside the range outside the CASAC’s recommendations, one should ask whose advice he based his decision on. I would like to quote from Dr. Paul Gilman, “Setting the standards by fiat, behind closed doors, is not in our best interest.”
2:23 Waxman You’re the chair of the Clean Air Scientific Advisory Committee. Are the standards EPA Administrator Johnson set consistent with the science?
Henderson It is not consistent with the CASAC recommendations, which are based on the science.
Henderson We always recommend a range.
Waxman Did he select a number within the range?
Henderson No.
Johnson I would respectfully disagree with the characterization. I did agree with CASAC that the current standard was insufficient.
Waxman You think that you set the standard within the science. Your professional views may be scientific and legally correct. You recommended the secondary standard be set on cumulative exposure?
Johnson More correctly there were two options. Other agencies preferred a different option. The President provided input. Ultimately I made the decision.
Waxman As the head of the EPA you recommended a proposal. OMB didn’t like that proposal. You ultimately agreed with their proposal.
Johnson More accurately, I agreed with CASAC that a cumulative standard is most biologically accurate.
Waxman I want a direct answer.
Johnson I don’t believe it’s a yes or no question. There was one preferred by EPA, and one preferred by OMB. I think it’s good government.
Waxman Your staff said it was pure politics. And this isn’t the only time you were reversed by the White House. Jason Burnett said you recommended that you grant the California waiver. After talking to the White House, you changed your mind.
Johnson If you look through the 1000s of pages, it shows a very deliberative process where I considered all options.
Waxman Burnett told us under oath that you recommended a partial grant. Your staff also told us you recommended emissions standards.
Johnson It’s true there was a draft endangerment finding before the Energy Independence and Security Act was passed.
Waxman We interviewed 7 senior career EPA officials and they told us the same thing. The recommendation was submitted in the first week of December, and then all work stopped. You’ve become a figurehead. Three times you recommended to deal with climate change and protect the environment, three times you back down. Congress passes the law, the Executive Branch is supposed to faithfully execute them. The President seems to think he can do what he pleases. Let’s go to this ozone decision.
Johnson There were many uncertainties. That’s why I chose the primary form. It’s a very transparent process. I think that’s good government.
2:36 Issa You’re a career professional.
Johnson I came to EPA in 1980.
Issa You’re not a political appointee.
Johnson I’m a career professional and a political appointee.
Issa Today we’re talking about a reduction and trying to go through what good deed goes unpunished. Is Mr. Waxman’s district in compliance with the ozone standard? Has it ever been?
Johnson No. The law prohibits me from considering costs. I believe there’s an opportunity to improve the Clean Air Act. I think it’s unconscionable to have communities not in compliance with the standard for twenty years.
Issa For CO2, it’s time for Congress to act.
Johnson I wholeheartedly agree. Dealing with a global air pollutant, my experience is that a legislative fix is correct. I believe global climate change, greenhouse emissions need to be addressed. I’m issuing an advanced notice of a rulemaking process this spring.
Issa Today we appear to be having a hearing about whether a 11% reduction is worse than a 16% reduction.
Johnson That’s certainly a view. I wholeheartedly agreed with CASAC that it needs to be reduced.
Issa Basically, if 2,3,4 years from now we’ve achieved a portion of this reduction, there’s nothing to stop this from happening at any time.
Johnson We’re required every five years to review each and every one of these standards. The Agency has never met the five-year requirement. We’re required to make these evaluations.
2:44 Bilbray I don’t come from a business background. I come from a regulatory background. Sheer population has been ignored from the environmental impact. Doctor, you serve on one of the most critical bodies. Back in the 90s, when California petitioned for a waiver for MTBE, were you involved?
Henderson My chairmanship began in 2004.
Bilbray What was the Clinton justification for requiring us to put MTBE and ethanol in our fuel?
Johnson It was before my time.
Bilbray Mr. Chairman, I was outraged at the time that the Clinton administration was bowing to political pressure. For us to point fingers at one administration when we waited for a decade is wrong.
2:45 Tierney What did you mean by “willful ignorance”?
Henderson I don’t believe OMB actually read our documents. It bothers me that when all the hard work went in for a secondary standard, someone can just say, “Nope, can’t do that.”
Tierney You want to respond?
Johnson The record clearly indicates it was a difficult decision.
Tierney An EPA lawyer wrote, “We could be exposed to a contempt proceeding.” Mr. Johnson, I think what’s happening is pretty unacceptable. By your own words, it was “necessary” and “compelling” to set this secondary standards. Nearly 1000 scientists said they experienced at least one instance of political interference.
Johnson I’d like to quote to you, if I may, Dr. Paul Gilman, “EPA has become too politicized in its actions.” That was the Clinton administration.
Tierney Are you proud of what’s going on now?
Johnson I’m proud. My role as Administrator is to evaluate the science.
Bilbray UCS Survey?
Johnson I am aware the survey was received by political appointees and non-scientists.
Bilbray For this to be used as some kind of scientific document. No pollster would accept this. Doctor, in your analysis, was their a consideration of economic impact?
Henderson We are not allowed to consider costs. We did consider what was biologically relevant. I have a concern for the affect of ozone on vegetation as well as people. We are neglecting the rural areas.
Bilbray How long have you been chairman?
Henderson Four years.
Bilbray You didn’t talk about economic value of crops that could have been destroyed.
3:00 Johnson I’m not allowed to consider costs or whether it can be implemented or not. With all science there are uncertainties. Judgment needs to be exercised.
Henderson Welfare includes but is not limited to … economic well-being.
3:02 Higgins I’d like to focus on the primary standard and health impacts. Did you find the primary standard to be sufficient?
Henderson No.
Johnson I disagree.
Higgins EPA estimated 350 more deaths, 10,000 asthma attacks, 750 emergency hospital visits, at your standard.
Johnson The Clean Air Act does not require zero risk. It is the most health-protective standard of our nation’s history. I’m very proud of that.
Higgins I have a letter from the American Lung Association strongly critiquing this decision. Your decision seems to be inconsistent with mainstream thinking. It’s just not credible to argue your decision is based on science.
Johnson I disagree. It is the most health-protective standard of our nation’s history. Ultimately, I need to make the tough decision.
3:08 Platts I yield to Issa.
Issa Could we put the map up on the board. My understanding that everywhere that’s dark – which unfortunately includes most of California – there’s no effective difference between primary and secondary standard.
3:18 Hodes With all due respect I’m asking the questions. Do you recall or not recall discussing costs with the White House?
Johnson Even if I recall, I don’t want to answer the question.
Hodes Are you asserting privilege?
Johnson I’m not asserting privilege.
Hodes Do you or don’t you recall?
Johnson Even if I recall, I don’t believe if it is appropriate to answer the question.
3:20 Sarbanes Explain your memo.
Dudley The air quality based on the secondary standard is the same. What we care about is air quality. The two standards would have the same effect.
Sarbanes I’m incredulous. The administrator said he found “compelling” evidence that a cumulative index is the best way to measure effects on vegetation. I could see you asserting inadequate evidence, but that there was no evidence doesn’t seem to jive with all the other testimony and documentation.
Dudley There are two different issues here. The form of the standard won’t affect the air quality of those counties.
Sarbanes What you’re saying strikes me as doubletalk. Did the President or the White House indicate to you that there would be times when the science would be overriden by political purposes?
Johnson My charge and oath of office was to carry out the laws. The President said he wanted me to accelerate the environmental protection. I carried this out to the best of my ability, based on sound science. Science isn’t pure.
Sarbanes I can’t think of a clearer example of where your charge came into conflict with the Presidential edict.
3:26 Welch Jason Burnett is a senior member of the EPA. He’s been deposed. He testified you favored granting this waiver in full in August and September.
Johnson Over time…
Welch Let’s keep it simple. Is he correct in his recollection?
Johnson I don’t recall the August and September timeline. I was considering all options.
Welch Mr. Burnett said that in August and September you were favoring granting a waiver in full.
Johnson As I said, I considered all the options.
Welch It’s obvious you did. Is he right that you considered a partial grant?
Johnson Yes.
Welch Did you have a meeting with the President about this?
Johnson I have routine meetings with the President and the executive branch.
Welch Did you have a meeting with the President about this?
Johnson When and where…
Welch Does “transparent” mean we can’t know whether you met with the President?
Johnson I believe as Administrator I need to have private meetings with the President.
Welch Did I ask the content of the meeting? Did your staff present you a slide stating that the most legally defensible option was granting the waiver?
Johnson I don’t recall that particular slide.
Welch Did the EPA staff make it clear the statutory
Johnson There were a wide range of options.
Welch It’s a little frustrating.
Johnson It shouldn’t be frustrating.
Waxman You admitted you have a conversation with the President on the California waiver.
Johnson I have routine conversations.
Waxman You are being awfully evasive.
Johnson I have routine conversations.
Waxman Did you have any conversation with the President on any of these three rules?
Issa Regular order! I want a copy of the rules!
Waxman I will have the gentleman physically removed if he does not desist.
Waxman Did you have any conversation with the President on any of these three rules?
Johnson I have routine conversations, I don’t believe it is appropriate for me to discuss the content of these conversations.
Waxman Are you asserting privilege?
Johnson Not at this time.
3:36 Watson Was the Vice President’s office involved the California waiver?
Johnson Not to my knowledge.
Watson According to press accounts, the CEO of Ford and GM met with the Vice President’s office.
Johnson It’s not a problem unique to California.
Watson Was there any input from the White House that influenced your final decision?
Johnson My decision was based on the science and the law.
Watson Was there any input from the White House that influenced your final decision?
Johnson I have routine conversations…
Watson Yes or no.
Johnson The answer is, no, they did not make the decision.
Watson That was not my question. Maybe my English was not clear. In your routine conversations, was there any input from the Vice President?
Johnson I don’t recall any.
3:43 Issa Our deliberations are protected from discovery by the executive branch. It’s no surprise that you might wish the same privilege. You serve at the pleasure of the president, but he does not have authority over your actions. Is that correct?
Johnson Yes.
Issa Chairman Dingell declared regulation of CO2 a “glorious mess.”
Johnson I believe there are many intricacies with the Clean Air Act. My personal opinion is that given the years and years of litigation is to prefer a legislative approach.
3:46 Cummings This stuff is personal for me, because I have asthma. In my district in Baltimore my constituents have a high rate of asthma. We’re curious as to how our administrator, our man in the EPA makes his decisions. You’ve said “it’s not a popularity contest.” Do you remember saying that?
Johnson I do, and I agree with it.
Cummings All too frequently the courts have decided your decisions do not conform to the law. Did you know your decisions before the DC Circuit Court have been overturned over two thirds of the time?
Johnson Yes.
3:59 Waxman You were required to produce documents by April 19. Has the President asserted executive privilege with regards to these documents?
Johnson I’m not making an assertion of executive privilege, instead I’m making my staff available to you.
Dudley Our lawyers are discussing the documents. I have a letter from OMB General Counsel.
Waxman We’ve made reasonable accomodations to Executive Branch interests. You’re trying to shield the White House from oversight. Unless there’s a valid claim of executive privilege, you have to turn over the documents. There’s been no assertion of executive privilege. This is a serious issue, and your defiance of the subpoena is a serious matter.
4:02 Waxman The record shows this committee spared no effort in oversight of the Clinton administration.
Issa We have a long tradition of looking into it and recognizing the President has a role to play.
Johnson The challenge we have as a nation is to move forward. 50% of our electricity comes from coal. France is much less.
Issa You have a responsibility as a federal officer to all Americans. My understanding is protecting our commerce against arbitrary standards.
Johnson Again, I have three criteria. Acceleration of temperatures, other parts of the country make it worse. In my judgment, it did not meet the “compelling and extraordinary” standard.
4:09 Bilbray The standard that we’re complaining with the ozone standard. The science panel recommended a max of .07.
Henderson It was a range from .06 to .07.
Cannon
4:15 Johnson I have to say for the record those are not the criteria.
4:16 Waxman You’re willing to make a mockery of the rulemaking process. The record tells us what happened. Your testimony pretends none of this happened. I can’t adequate how deeply this saddens me and how poorly it reflects on the EPA.
Energy and Related Economic Effects of Global Climate Change Legislation
Representatives from CRS, EIA, EPA, and CBO discuss their economic analyses of Lieberman-Warner (S. 2191) and other emissions-controlling climate legislative proposals.
Witnesses- Brent Yacobucci, Congressional Research Service
- Dr. Larry Parker, Congressional Research Service
- Dr. Howard Gruenspecht, Deputy Administrator, Energy Information Administration
- Dr. Brian McLean, U.S. Environmental Protection Agency
- Dr. Peter Orszag, Congressional Budget Office
10:03 Domenici: The more of these hearings we can do the better off this country will be. We have five cap-and-trade bills in the Senate. Every single day, 11 out of 11 studies have concluded that these bills will result in higher energy costs, lower economic growth. The analyses of L-W don’t agree on much. Addressing global climate change is one of the greatest challenges of our time. I remain concerned about the dire consequences L-W could have for our nation. The best estimates of our capable minds often prove inaccurate. The EIA projection for oil prices in 2010 was $25. Even the projected environmental impacts of climate change have varied. IPCC’s assessment of sea level rise was reduced from three feet to 27 inches. Very few will have been able to provide input on the manager’s amendment. We’re all working on a bill that will be irrelevant. It is critical to look at what other countries have tried to do.
Assume the president signs L-W. What will we have achieved for the environment? Close to nothing. Without international participation, L-W will have reduced greenhouse gases by 1% by 2050.
China has surpassed us in global warming emissions. Addressing climate change is a great challenge, but not the only challenge we face.
Rather than choosing among cap-and-trade programs, we could look at promoting nuclear power and other tax incentives.
10:16 Bingaman Orzag recently testified before the Finance Committee.
10:17 Yacobucci explains a cap-and-trade system.
10:22 Parker CRS has conducted a review and synthesis of models projecting costs of S. 2191. Long-term cost projections are at best speculative.
10:30 Gruenspecht The projected impacts of L-W are highly sensitive to assumptions about availability of low and no-carbon energy sources and access to international offsets. Costs are roughly three times larger under least favorable assumptions than under most favorable assumptions. 80-90% of emissions reductions are in the electricity production sector. Over 90% of coal, the main emissions source impacted by a cap, goes into electricity production.
10:37 McLean discusses EPA report.
10:43 Orzag Addressing climate change will involve short-term economic costs. Timing is important. An inflexible cap is bad. Giving the permits away is equivalent to auctioning the permits and giving the money to the polluters. Two key factors of a cap-and-trade system include timing flexibility and auction revenue.
10:49 Bingaman A NAM/ACCF study envisions 75% higher allowance costs than the EIA study but economic impact three times higher. Can you explain why?
Gruenspecht The allowance price difference reflect some of the assumptions, like the absence of banking. We were surprised by the size of macroeconomic losses done for NAM. We asked to look at some of their modeling results and met with their contractor. They used EIA’s high-priced oil policy scenario but compared it to the low-price scenario. We think there are some abnormal results in their report.
Bingaman Basically there’s double-counting?
Gruenspecht They’re mixing the impact of two different things.
Bingaman A price ceiling and floor is the best mechanism?
Orzag I don’t want to say best, but yes.
10:55 Barrasso Effect on gas prices?
Gruenspecht If electricity sector can’t reduce emissions, gas price effect can range from $0.40 to $1.00.
Barrasso I want Americans to be aware of the effects on their pocketbook. You talk about uncertainties. The uncertainties are one of magnitude, not direction: how many jobs will be lost. Will a safety valve help?
Parker A safety valve – putting an upper limit on price – is a very effective of limiting economic impact.
Barrasso There’s going to be lower wages and lower returns for retirement plans no matter what you do.
Parker Prices will go up but whether or not bills will go up depends on individual action. We found bills may go down.
Barrasso Nuclear energy.
Gruenspecht Public acceptance is important.
11:07 Sanders What happens if you don’t act?
Orzag I think climate change is among the nation’s and world’s highest long-term risk. There is some danger of catastrophic change. The question is one of timing. It’s like paying an insurance premium.
Sanders We’re paying $10 billion more for Katrina. What will flooding, drought, war cost? That’s really what we’re debating. It’s disaster if we don’t go forward. I believe you’re underestimating efficiency and renewable energy. Of course there going to be economic dislocation.
McLean On the impacts. I think this is an area that concerns us greatly. It’s a very hard area to quantify and monetize. We’re working on that. On energy efficiency and renewables, there’s a lot we can say about that. We show a huge increase in renewable energy.
Corker The bill that came out is not just a cap-and-trade bill. It’s a huge spending bill. It spends every penny in a non-discretionary way. I think the whole issue of allowances because we’re passing out what is like public shares in a public company. I know the romance of this is interesting. There’s a lot underneath this that is going to affect us. Transfering trillions of dollars of wealth. $7.2 trillion, maybe $23 trillion. I think that’s important. I don’t understand why we would be allocating credits out to middlemen.
In essence this bill transfers out hundreds of billions of dollars to states for no reason.
Orzag It is a key insight that much of this money represents a windfall.
Corker It makes absolutely no sense to give allowances to people not involved in emissions. This bill provides for us to provide international credits. What it does do is transfer out, when we have a trade deficit, hundreds of billions of dollars to projects that are often wracked with fraud.
McLean What would states do with money? I’m not defending the amount of money or the policy decision. A lot of efficiency programs are run at the state level.
Corker I hope this is a dry run.
11:24 Salazar What we’re doing is defining a new energy future for America. There’s a lot of learning yet to be had. On the allocation of the auction revenues. Is this the right allocation?
Orzag It depends what your objective is. Low-income households, minimize macroeconomic costs, spur innovation. A more effective approach to cushion macroeconomic costs would be to auction the permits and use that to reduce payroll taxes.
Salazar A lot of people have talked about a Manhattan-style project. Would it be better to put the money into that pot than to lower costs on low-income consumers?
Orzag It’s big, but there is a given size. You can’t do all things for all people at all times. The price signal will do some things. You can auction revenue and explicitly fund R&D. Or allocate permits to entities that do the work, but that would be more opaque.
Gruenspecht There are issues of economic efficiency and fairness.
Salazar We have these great thoughts and great programs. We talk about hybrids and clean-coal technology. This is an opportunity to marry our work to deal with climate change to make our vision a reality.
11:32 Domenici You’re talking about this as if it is another huge Federal Reserve System. You have made it eminently clear. I think people are going to be very quizzical about what we’re doing. I believe is what we really need to do is develop new technology as rapidly as possible to clean up what we need to clean up, and then clean things up.
Murkowski Is it fair?
Parker None of the models will give you the answer reliably what the cost will be. What the models can do is whether we’ve designed the bill to hold the price down. How can they be modified to bring these reductions at the most economic level.
Murkowski Most useful, but for whose end? If I’m opposed to cap-and-trade, I’ll look at NAM’s model. We can use these models as we use statistics to support our particular situation.
Gruenspecht The different studies start from different baselines. They analyze different provisions. CRA gets a large impact from the low-carbon fuel standard. I already had a long discussion with NAM may have wrapped up two different scenarios. It’s technology and technology acceptance.
12:00 Craig I don’t know if I’m willing to risk Idahoans on the environmental or economic models of climate change. We spent years shaping energy legislation. You’re all over the field, as is the country. I’m not quite sure I can remember, have we as a Congress ever tried to micromanage the market. And I think the answer is no, never before. We’re averaging about 1.9 hurricanes in the United States. An average of $5 billion. The impact of this bill is between three to nine hundred hurricanes. We’ve spread the hurricane hit nationwide. It isn’t just Florida and the Gulf Coast and the East Coast. Now the whole country gets hit, from an economic point of view. Old speak, new speak or green speak, I don’t know where we are. But I suspect no speak is the best way for us to go.
12:08 Bingaman Second-order impacts like employment?
Parker Once you move from first-order to second-order impacts you lose even more certainty. You’re making a whole host of assumptions about a quality of life of a generation that doesn’t even now work. My concerns would be increased when talking about employment numbers.
Orzag The main effect will be on the type of jobs, not the number of jobs.
Bingaman There’s no effort to adjust for dynamic effects.
Orzag I tend not to focus on the job numbers that come out of these assessments.
Gruenspecht I too tend to be very skeptical of job numbers.
Corker Right now 52% of auction proceeds go into technology development. A five-person board, not the Congress, decides how this money is spent. Would this distinguished, mind-numbing panel agree that upstream is a direct tax, pretty much?
Orzag In economics, direct and indirect taxes have a specific meaning. But consumers will bear pretty much all of the cost no matter what.
Corker Upstream is easier to monitor. This is in essence a tax. It is in fact a carbon tax. What’s happened is interest groups have gathered around the table and have made what could have been very simple with a carbon tax very complicated. I’d like you to address the efficacy of a carbon tax that increased over time.
Orzag Economic analysis generally suggest that a carbon tax is more efficient. You can make the cap-and-trade similarly efficient by auctioning all the permits and offering significant flexibility in timing.
Corker And we’re allocating about 70% up front.
Orzag At the very start it’s even greater.
Yacobucci You’d still have to decide where that money goes if it’s a tax.
Corker We’re going to be offering an amendment to return all the revenues to consumers. We’re going to be debating on the floor a tax. Two candidates for president advocated a gas-tax holiday. I think we need to be very transparent about this. Citizens need to know we’re driving up the price of petroleum.
Murkowski Is there something we can do to get the technology in place first?
Orzag Pricing carbon will create a strong incentive for technologies to be developed and diffused throughout the economy.
Murkowski And the impact might be higher in certain areas.
McLean A price signal and investment in R&D both have impact. I think we need to do both.
Waxman: 'White House Involved in California Waiver Denial'
From the Wonk Room.
House Oversight and Government Reform Committee chairman Henry Waxman (D-CA) has today released documents and testimony that show White House involvement in the Environmental Protection Agency’s (EPA) decision to deny California’s request for a waiver to enforce its greenhouse gas emissions standards for cars and trucks.
According to testimony by former EPA Associate Deputy Administrator Jason Burnett, EPA Administrator Stephen Johnson’s “preference for a full or partial grant of the waiver did not change until after he communicated with the White House” :
When asked by Committee staff “whether the Administrator communicated with the White House in between his preference to do a partial grant and the ultimate decision” to deny the waiver, Mr. Burnett responded: “I believe the answer is yes.” When asked “after his communications with the White House, did he still support granting the waiver in part,” Mr. Burnett answered: “He ultimately decided to deny the waiver.” Mr. Burnett also affirmed that there was “White House input into the rationale in the December 19th letter” announcing the denial of the waiver and in the formal decision document issued in March 2008.
Burnett refused to testify on any further specifics, telling the investigators “that he had been directed not to answer any questions about the involvement of the White House in the decision to reject California’s petition.” Burnett, who was involved in a series of questionable EPA decisions during his tenure, resigned from the EPA on May 6.
On December 19, 2007, the date President Bush signed the Energy Independence and Security Act, EPA Administrator Stephen Johnson announced that his agency would deny California’s waiver request. This request, made in 2005, set off a series of legal battles that culminated in the 2007 Supreme Court ruling in Massachusetts vs. EPA that ordered the EPA to take action on greenhouse gases. Since then, the EPA has failed to obey the Supreme Court mandate, despite the efforts of career staff.
Waxman’s memo concludes:It would be a serious breach if the President or other White House officials directed Administrator Johnson to ignore the record before the agency and deny California’s petition for political or other inappropriate reasons. Further investigation will be required to assess the legality of the White House role in the rejection of the California motor vehicle standards.
Johnson is expected to testify before Waxman’s committee tomorrow at 1 PM.
Frank O’Donnell of Clean Air Watch writes:This is an incredibly sordid story. Steve Johnson should come out and finally tell the truth about this situation. And he should resign for agreeing not only to be a White House pawn but for trying to deceive the public about what happened.
EPA Seeking Comments on Renewable Fuel Standard Waiver Request
On May 16, 2008 the U.S. Environmental Protection Agency (EPA) announced that it is seeking comments regarding a recent petition to reduce the volume of renewable fuels required under the Renewable Fuel Standard (RFS). In a letter sent to EPA on April 25, 2008, Governor Rick Perry of Texas requested that the EPA cut the RFS mandate for ethanol production in half (RFS mandate for 2008 is 9 billion gallons), citing recent economic impacts in Texas. In response, EPA will soon publish a Federal Register Notice opening a 30-day comment period on the request.
In the Energy Policy Act of 2005, which established the RFS program, provisions were included enabling the EPA Administrator to suspend part of the RFS if its implementation would severely harm the economy or environment of a state, region, or the entire country. EPA must make a decision on a waiver request within 90 days of receiving it.
EPA Renewable Fuel Standard Program
EPA Notice (PDF)
The Effects of Ethanol on Texas Food and Feed (PDF) — Study from Texas A&M University (April 2008)
If you have questions, please email or call Jetta Wong at jwong [at] eesi.org or (202) 662-1885.