Monday, 31 December 2007 17:00

California Denied EPA Waiver

Two recent political decisions – new energy legislation signed by President George Bush and the EPA’s denial of California’s tailpipe emissions waiver request – sent environmentalists on a roller coaster ride that ran smack into a wall like a crash test dummy with no seatbelts.

 

Early in December, the Bush Administration moved forward with a national solution to reduce greenhouse gas emissions from American vehicles. The new energy legislation passed by Congress and signed by President Bush provides a federal fuel economy standard that offers environmental benefits, energy security and economic certainty for the nation.


“The Bush Administration is moving forward with a clear national solution – not a confusing patchwork of state rules – to reduce America’s climate footprint from vehicles,” said U.S. EPA Administrator Stephen L. Johnson. “President Bush and Congress have set the bar high, and, when fully implemented, our federal fuel economy standard will achieve significant benefits by applying to all 50 states.”


EPA has determined that a unified federal standard of 35 miles per gallon will deliver significant reductions in greenhouse gas emissions from cars and trucks in all 50 states, which would be more effective than a partial state-by-state approach of 33.8 miles per gallon.

Rubber-stamp waiver stalled and denied

Almost lost in the hoopla over the energy bill was the EPA’s denial of California’s tailpipe emissions waiver request, which has been on the table since 2005, one day later.


Hot on the heels of what appeared to be a landmark step in reducing GHGs, the second shoe dropped as the EPA stunned the nation by denying California and 17 other states the right to proceed with regulations that would reduce global warming pollution from new automobiles.


“EPA is not following science or the law,” said Jim Tripp, general counsel for Environmental Defense, a national non-profit organization which studies serious environmental problems.


“This decision is like pulling over the fire trucks on their way to the blaze,” said Fred Krupp, president of Environmental Defense “For 40 years, EPA administrators have recognized the important role that California plays in innovating new standards to fight pollution.”

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We’re not gonna take it

California government officials slammed the decision and vowed to fight the action. Just days after California Governor Schwartzeneger applauded  the court decision in Fresno re-confirming states’ ability to set motor vehicle greenhouse gas emissions standards, modeled after California’s strict regulations, the governor declared his intention to file a lawsuit in the District of Columbia Court of Appeals to challenge the EPA’s denial of California’s tailpipe emissions waiver request. The lawsuit will be filed as soon as possible, which is expected to be within the next three weeks.


“I am extremely disappointed by EPA’s decision to block the will of millions of people in California and 16 other states who want us to take tough action against global warming,” stated the Governor. “EPA’s denial of our waiver request to enact the nation’s cleanest standards for vehicle emissions is legally indefensible and another example of the failure to treat climate change with the seriousness it demands.


“We will sue to overturn this ruling as quickly as possible. I have no doubt that we will prevail because the law, science and the public’s demand for leadership are on our side.  Anything less than aggressive action is inexcusable.”


California Attorney General Edmund G. Brown Jr. Further blasted EPA’s rejection of California’s request to impose greenhouse gas emissions limits on motor vehicles.


“It is completely absurd to assert that California does not have a compelling need to fight global warming by curbing greenhouse gas emissions from cars,” Brown said. “There is absolutely no legal justification for the Bush administration to deny this request – Governor Schwarzenegger and I are preparing to sue at the earliest possible moment.”

Law is on the states’ side

The Supreme Court ruled decisively in April 2007 that EPA does have the authority and the obligation to regulate global warming emissions. Two other federal courts – the 2nd district court in Vermont in September and the 9th district court in California in December– also enforced states’ rights to proceed with clean car rules. The federal courts also dismissed automakers’ claims that they did not have the technology to meet such standards.


EPA denied California’s waiver, saying that new CAFE standards in the recently authorized energy bill would suffice.


“The administration is putting the brakes on state action to address the global warming crisis,” said Vickie Patton, deputy general counsel for Environmental Defense and a former attorney in the EPA’s General Counsel’s office. “The Administration’s first bold act on global warming – and it’s to stop the states who are trying to do something about the problem. It is just plain shocking.”


“New CAFE standards, if they go into effect, do not fully phase in until 2020,” said Jim Marston, general counsel for Environmental Defense. “The California greenhouse gas limits will occur earlier – beginning in 2009 and fully phased in by 2016. With the mounting evidence of climate change impacts occurring now, it is imperative that we are take action immediately.”


Nationwide 17 states have awaited a decision by EPA to move forward with clean car standards modeled after California’s including: Arizona, Colorado, Connecticut, Florida, Iowa, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Utah, Vermont and Washington. Approval of California’s waiver would have afforded approval for other states automatically.


California and these states account for nearly 50% of the total U.S. population and account for approximately 45% of new automobile sales in the country. Implementation of the Clean Cars program in these states would lead to groundbreaking reductions in global warming pollution. By 2020, the program would prevent annual emissions equivalent to 100 million tons of carbon dioxide, a principal heat-trapping greenhouse gas. These savings would be equivalent to closing over thirty 500 megawatt coal-fired power plants or removing 20 million cars from the road.

Hijinks?
After almost two years, the pot began to boil in the early fall. Suspecting partisan lobbying on the part of the administration, Senator Harry Waxman, chairman, Committee on Oversight and Government Reform confronted James L. Connaughton, chairman, Council on Environmental Quality in a letter written in September. Wrote Waxman:


 “EPA has been considering the petition for nearly two years, throughout which time, the agency has consistently maintained that its decision will be based on the merits of California’s application, using the standards set by the Clean Air Act.

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In his July 26, 2007, testimony before the Senate Environment and Public Works Committee, EPA Administrator Steven Johnson stated: “The agency is performing a rigorous analysis in order to properly consider the legal and technical issues that we must address in making a decision under the Clean Air Act waiver criteria.” Neither the White House nor any other federal agencies have taken an official position on Califomia’s request for a waiver.


Continued Waxman: “Although the law entitles California to a decision on the merits, I learned in June that an official in the Department of Transportation had been making calls to congressional offices to urge members of Congress to oppose EPA approval of the California standards.”


A trail of e-mails and voice mails provide evidence that staff members of the Secretary of the Department of Transportation were “suggesting” that recipients submit comments to the EPA opposing California’s request and “reach out to your governor’s office for them to submit comments since this would greatly impact auto facilities within your district.”


The documents obtained and the interviews conducted by the Committee provide significant new information about the efforts of Administration officials to block approval of the alifornia standards, continued Waxman. “The documents and interviews show that senior Administration officials initiated an orgarized, systematic effort to lobby members of Congress and state governors to oppose California’s petition for a Clean Air Act waiver. This lobbying effort was personally directed by the Secretary of Transportation, Mary Peters, apparently approved by your Chief of Staff in the White House Council on Environmental Quality, and coordinated with the motor vehicle industry.


“Some of the documents indicate that the lobbying campaign was coordinated with the Environmental Protection Agency. Any such coordination would be especially problematic because EPA is charged with making an independent and objective decision on the California application.


“From my perspective, this debate over the reach of the Anti-Lobbying Act misses the fundamental point. The federal Clean Air Act provides that California is entitled to a decision on the merits of its application. The involvement of senior Administration officials, including Secretary Peters and your staff, in a behind-the-scenes campaign to lobby against EPA approval sends an unmistakable message: the Administration is trying to stack the deck against California’s efforts to regulate greenhouse gas emissions from motor vehicles. It suggests that political considerations – not the merits of the issue – will determine how EPA acts. That would violate the Clean Air Act.”

 

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