Hill Heat: EPA Admin Denies California WaiverScience Policy Legislation Actiontag:www.hillheat.org,2005:TypoTypo2007-12-20T10:18:41-05:00Brad Johnsonurn:uuid:9b747a26-000c-40bf-9fb2-9ac752a36b872007-12-20T09:37:00-05:002007-12-20T10:18:41-05:00EPA Admin Denies California Waiver<p><span class="caps">EPA</span> administrator Stephen Johnson’s <a href="http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/41b4663d8d3807c5852573b6008141e5!OpenDocument">denial</a> of California’s petition to regulate tailpipe greenhouse gas emissions following the White House <a href="http://www.hillheat.com/articles/2007/12/19/nyt-praises-dingell-slams-landrieu">energy bill signing ceremony</a> was deservedly front page news from <a href="http://www.mercurynews.com/politics/ci_7767600?nclick_check=1">coast</a> to <a href="http://www.nytimes.com/2007/12/20/washington/20epa.html">coast</a>. The Supreme Court forced the <span class="caps">EPA</span> to consider California’s December 2005 Clean Air Act waiver request in April 2007 (<a href="http://www.law.cornell.edu/supct/html/05-1120.ZS.html">Massachusetts v. <span class="caps">EPA</span></a>). In <a href="http://www.hillheat.com/events/2007/07/26/the-case-for-the-california-waiver-including-an-update-from-the-environmental-protection-agency">testimony before the Senate</a> and <a href="http://www.hillheat.com/articles/2007/11/12/mass-v-epa-and-coal-johnson-gets-grilled">the House</a> earlier this year, Johnson signaled his lack of desire to grant the waiver. Now that decision has come in, with justifications even <span class="caps">EPA</span>’s own laywers and policy staff don’t believe. This is the first time in the history of the Clean Air Act that the <span class="caps">EPA</span> has denied a section 209 California waiver request.</p>
<p><i>[Ed.—<a href="http://warminglaw.blogspot.com/">Warming Law</a> has superior analysis of the decision, from which I’ll steal some key insights.]</i></p>
The <span class="caps">EPA</span>, which is yet to release the formal denial, announced in its <a href="http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/41b4663d8d3807c5852573b6008141e5!OpenDocument">press release</a> that the increased <span class="caps">CAFE</span> standards in the new energy law to justify its denial of the California waiver:
<blockquote><span class="caps">EPA</span> 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.</blockquote>
<p><a href="http://warminglaw.typepad.com/my_weblog/2007/12/when-you-change.html">Warming Law</a> says “EPA appears to be attempting to add a new test to the Clean Air Act” in requiring that California prove a local interest in addition to the “compelling” and “extraordinary” standards the Supreme Court said this problem meets.</p>
<p>Warming Law’s <a href="http://warminglaw.typepad.com/my_weblog/2007/12/shame-mr-presid.html">Tim Dowling</a> notes that Johnson’s claim the waiver would create a “confusing patchwork of state rules” is <a href="http://www.autosafety.org/article.php?did=1162&scid=7">typical</a> industry <a href="http://online.wsj.com/public/article/SB118962083956625280.html">rhetoric</a> that is specious—only two sets of standards, national and California, would apply. “Johnson failed to explain how <span class="caps">EPA</span> has been able to grant <span class="caps">EVERY</span> other 209 waiver request in history without creating a confusing patchwork, but can’t do so here.”</p>
Juliet Eilperin of the Washington Post <a href="http://www.washingtonpost.com/wp-dyn/content/article/2007/12/19/AR2007121902012_pf.html">reveals</a> that Johnson overrode his staff.
<blockquote>In a PowerPoint presentation prepared for the administrator, aides wrote that if Johnson denied the waiver and California sued, “EPA likely to lose suit.”
<p>If he allowed California to proceed and automakers sued, the staff wrote, “EPA is almost certain to win.”</p>
<p>The technical and legal staffs cautioned Johnson against blocking California’s tailpipe standards, the sources said, and recommended that he either grant the waiver or authorize it for a three-year period before reassessing it.</p>
<p>“Nobody told the administration they support [a denial], and it has the most significant legal challenges associated with it,” said one source, in an interview several hours before Johnson’s announcement, who spoke on the condition of anonymity because the official is not authorized to speak for the agency. “The most appropriate action is to approve the waiver.”</blockquote></p><p><span class="caps">EPA</span> administrator Stephen Johnson’s <a href="http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/41b4663d8d3807c5852573b6008141e5!OpenDocument">denial</a> of California’s petition to regulate tailpipe greenhouse gas emissions following the White House <a href="http://www.hillheat.com/articles/2007/12/19/nyt-praises-dingell-slams-landrieu">energy bill signing ceremony</a> was deservedly front page news from <a href="http://www.mercurynews.com/politics/ci_7767600?nclick_check=1">coast</a> to <a href="http://www.nytimes.com/2007/12/20/washington/20epa.html">coast</a>. The Supreme Court forced the <span class="caps">EPA</span> to consider California’s December 2005 Clean Air Act waiver request in April 2007 (<a href="http://www.law.cornell.edu/supct/html/05-1120.ZS.html">Massachusetts v. <span class="caps">EPA</span></a>). In <a href="http://www.hillheat.com/events/2007/07/26/the-case-for-the-california-waiver-including-an-update-from-the-environmental-protection-agency">testimony before the Senate</a> and <a href="http://www.hillheat.com/articles/2007/11/12/mass-v-epa-and-coal-johnson-gets-grilled">the House</a> earlier this year, Johnson signaled his lack of desire to grant the waiver. Now that decision has come in, with justifications even <span class="caps">EPA</span>’s own laywers and policy staff don’t believe. This is the first time in the history of the Clean Air Act that the <span class="caps">EPA</span> has denied a section 209 California waiver request.</p>
<p><i>[Ed.—<a href="http://warminglaw.blogspot.com/">Warming Law</a> has superior analysis of the decision, from which I’ll steal some key insights.]</i></p>
The <span class="caps">EPA</span>, which is yet to release the formal denial, announced in its <a href="http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/41b4663d8d3807c5852573b6008141e5!OpenDocument">press release</a> that the increased <span class="caps">CAFE</span> standards in the new energy law to justify its denial of the California waiver:
<blockquote><span class="caps">EPA</span> 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.</blockquote>
<p><a href="http://warminglaw.typepad.com/my_weblog/2007/12/when-you-change.html">Warming Law</a> says “EPA appears to be attempting to add a new test to the Clean Air Act” in requiring that California prove a local interest in addition to the “compelling” and “extraordinary” standards the Supreme Court said this problem meets.</p>
<p>Warming Law’s <a href="http://warminglaw.typepad.com/my_weblog/2007/12/shame-mr-presid.html">Tim Dowling</a> notes that Johnson’s claim the waiver would create a “confusing patchwork of state rules” is <a href="http://www.autosafety.org/article.php?did=1162&scid=7">typical</a> industry <a href="http://online.wsj.com/public/article/SB118962083956625280.html">rhetoric</a> that is specious—only two sets of standards, national and California, would apply. “Johnson failed to explain how <span class="caps">EPA</span> has been able to grant <span class="caps">EVERY</span> other 209 waiver request in history without creating a confusing patchwork, but can’t do so here.”</p>
Juliet Eilperin of the Washington Post <a href="http://www.washingtonpost.com/wp-dyn/content/article/2007/12/19/AR2007121902012_pf.html">reveals</a> that Johnson overrode his staff.
<blockquote>In a PowerPoint presentation prepared for the administrator, aides wrote that if Johnson denied the waiver and California sued, “EPA likely to lose suit.”
<p>If he allowed California to proceed and automakers sued, the staff wrote, “EPA is almost certain to win.”</p>
<p>The technical and legal staffs cautioned Johnson against blocking California’s tailpipe standards, the sources said, and recommended that he either grant the waiver or authorize it for a three-year period before reassessing it.</p>
<p>“Nobody told the administration they support [a denial], and it has the most significant legal challenges associated with it,” said one source, in an interview several hours before Johnson’s announcement, who spoke on the condition of anonymity because the official is not authorized to speak for the agency. “The most appropriate action is to approve the waiver.”</blockquote></p>