Warming Law

Janet Napolitano and the Chamber of Inconvenient Truths

Yesterday, Arizona lawmakers set up a likely showdown with Governor Janet Napolitano over global warming, though they conveniently don't see it that way. In passing legislation to overturn the state's enactment of California's clean cars standards--  the result of an executive order that Napolitano issued back in 2006, and a lengthy evaluation process by state officials-- legislators claim that they're only standing up to excessive executive power. They fault Napolitano for not consulting them both on this matter and before she signed the state up for the Western Climate Initiative's regional cap-and-trade effort last summer. 

Napolitano, who is likely to veto the bill, asserts that her action is perfectly normal under state environmental law, and her allies have highlighted the suspect timing and rationale provided by their fellow legislators. The bill's proponents have been quite defensive in response:

"Maybe we are a day late and a dollar short in doing it," [Sen. Jake Flake, the bill's author] conceded. "But it's important that we do do it and don't wait forever."

[...]

"This isn't about greenhouse effect, this isn't about the environment," [House Speaker Jim Weiers] said. It's about legislative authority to review these kinds of policies, not "an agency head or a governor behind closed doors." he said.

While legislators argue that a heavy lobbying push by the auto industry and other aligned groups was irrelevant to their acting now, the Arizona Chamber of Commerce finds itself simultaneously on the defensive, though its problem simply seems to be with the truth. The organization conveniently chose yesterday to release a poll literally designed to portray public concerns over the governor's actions, and was quickly called out on it by the state media:

[T]he questions in the survey, paid for by the business community, may have influenced the answers.

For example, one question asks whether people would be willing to pay an extra $3,000 for cars and trucks to meet the new emission standards. More than 60 percent said "no."

Figures from the California Air Resources Board, which first adopted the rules Arizona is mimicking, put the cost at less than $1,100, not $3,000.

And Hamer acknowledged there is a financial benefit to buying the cars manufactured to the new standards because their higher fuel efficiency will reduce the need to buy gasoline — a point never mentioned to those questioned in the survey.

"I don't believe it really matters in terms of all the details," he said.

Cities Deliver an Energy Smackdown! and More State Climate News

--We wish we'd had more time to blog about Juliet Eilperin's excellent feature story from last Sunday's Washington Post, which documented state and local efforts to tie growth efforts to mitigating global warming impacts. David Roberts wonders why presidential candidates don't mention these ambitious efforts more on the stump; meanwhile, the Drum Major Institute calls attention to other local government initiatives, such as a reality TV show called Energy Smackdown! being produced by several Massachusetts cities.

Also, Smart Growth America's Steve Davis, responding to a quote in Eilperin's piece from California AG Jerry Brown, waxes optimistic that the real estate market is beginning to shift in favor of more walkable, lower-emitting "places where gas prices can't hold [consumers] hostage."

--The Sierra Club has threatened to sue unless the permits for eight new coal-fired power plants are not reviewed, in the aftermath of a federal court ruling that invalidated EPA's weak mercury rules. While the threat might revolve around more traditional air pollution, coal plants are the source of 40 percent of U.S. carbon dioxide emissions and one of the plants targeted, Duke Energy's proposed Cliffside expansion in North Carolina, is also targeted in Appalachian Voices' NEPA suit against the DEpartment of Energy. On a related note, Joe Romm makes the case for a moratorium on new coal plants over at Gristmill.

--Connecticut legislators have approved a new law, mirrored on measures that have passed in California, New Jersey and other states, to cap greenhouse gas emissions.

--New Hampshire also appears set to join other northeastern states in the Regional Greenhouse Gas Initiative (RGGI), a path-breaking emissions-trading program for large power plants that will go into effect in early 2009.

Auto Industry to Arnold: Let's Make Nice, At Least Outside the Courtroom

Automakers continue to doggedly pursue every legal angle they can for holding up California's clean-cars efforts, but they've decided to sit down with Governor Arnold Schwarzenegger and consider ways to work together on reducing GHG emissions. The upshot: industry leaders concede that the ground has fallen out from under them, both in legal battles and in the court of public opinion:

The auto industry executives had requested the meeting, which appeared to begin laying the groundwork to soften post-Bush regulations. On emissions, the auto companies are losing clout in Congress and face three leading presidential candidates weighing in on California's side.

“There will be a new conversation” in Washington, McCurdy conceded. However, that must include other sources of emissions, from railroads to oil refineries to utilities, he added.

[...]

Schwarzenegger suggested to reporters that automakers have known changes were coming since 2002, when the state passed the law.

“I told them ... while you're whining you should be creating new technology,” he said.

Automakers might know their legal odds are slim, but that's not stopping them from threatening new lawsuits. On Tuesday, Arizona became the latest state to formally adopt California's tailpipe emissions standards, with regulators completing a process initiated by Governor Janet Napolitano. The reaction:

Following the panel's decision, Alliance of Automobile Manufacturers lobbyist Knox Kimberly hinted at possible legal action.

"I think there's a very strong argument to be made in the courts," Kimberly said. "My guess, based on what has happened in the other states, is someone will sue."

Arizona legislators aligned with the industry's position had previously complained about not being consulted by Napolitano, and are mounting a legislative effort to overturn the regulatory process.

They're Finally Done in Kansas...

...well, almost done. Kansas' state legislature adjourned last night, exhausted but having tucked language to authorize two new CO2-burning coal plants into an economic development package. The exhaustion, though, seems to be winning out and dooming this final industry-backed effort.

Governor Kathleen Sebelius will likely veto the bill-- which actually garnered fewer votes than previous stand alone bills, as some seconded the governor's concerns that the bill violated the state constitution. And there doesn't seem to be much appetite for overriding her when the legislature formally closes out its session with a one-day, normally ceremonial meeting later this month:

Most Republicans and Democrats agree that the new bill is veto bait for the governor.

[...]

Wichita-area Democrats said it’s time for the House Republican leadership to stop holding vote after vote on coal.

“They’re beating down a dead horse,” said Rep. Delia Garcia, D-Wichita. “Hopefully they’ll get the message and stop acting like adolescents.”

Also yesterday, the state Senate refused to vote on a House resolution that would have authorized the full legislature to sue Sebelius over the plants. In other words, if Sebelius decides to issue another veto, this battle might finally be coming toward an end.

Gingrich, McCain and the Push for Climate-Unfriendly Judges

Former U.S. House Speaker Newt Gingrich, in the midst of a campaign to cast himself as a serious voice for meeting the challenge of global warming-- see Joe Romm and David Roberts for some skepticism on this-- is wading into the climate and energy debate big time with his latest strategy memo to fellow Republicans. Several of these proposed congressional gambits relate directly to the climate crisis, and he promises that next week's newsletter will contain an alternate proposal to contrast with the climate change bill that the Senate will debate next month. But another one of today's proposals-- one that exists in a broader context-- should not go unremarked upon:

Remind Americans that judges matter. Senate Republicans should mount an ongoing fight (including a filibuster of other activities if necessary) to get the American people to realize that liberals want to block all current judicial appointments in order to maximize the number of left wing radical judges they can appoint if they win the White House...

Gingrich's proposed aggressiveness on judges isn't happening in a void. John McCain is working hard to placate internal partisan critics on the issue, while prominent activists simultaneously work to make sure that the Republican platform contains a virtual litmus test for committed judicial "conservatives." More immediately, and in line with Gingrich's sense of urgency, yesterday's Washington Post reported that the White House is dissatisfied with the Senate's moves toward approving a handful of consensus-choice judges, and antsy to get several controversial nominees onto the bench. Longtime readers should recognize one of the names immediately:

White House aides are not complaining about the apparent plan to approve Agee, White and Kethledge, but they are also not squealing with delight, either. Bush's other nominees, such as [DC Circuit nominee Peter] Keisler, have been waiting for months with no sign that the Democrats will even hold nomination hearings. The White House would almost certainly prefer the Senate approve two different conservative jurists for the 4th Circuit, Robert J. Conrad Jr. and Steve A. Matthews-- both of whom were nominated nearly a year ago.

Yes, that's the same Steve A. Matthews whose nomination raised serious questions about his views on key climate-related jurisprudence such as Mass. v. EPA. Keisler's nomination is critical simply because he is nominated for the same DC Circuit that hears many key regulatory cases, and was reversed by the Supreme Court in the aforementioned ruling. With the stakes this high-- future of the planet and all-- and the Bush administration's intransigent behavior on related matters growing worse by the day, some due diligence and serious questioning would likely have to take place before the Senate considered moving these nominees forward.

Meanwhile, be on the lookout for potential fireworks as Gingrich envisions-- particularly if judges do end up emerging, as Senator McCain put it in his remarks today, as "one of the defining issues of this presidential election."

Sebelius Wins Again...But Big Coal Blackmails a "Hail Mary"

As most readers are probably aware, Kansas Governor Kathleen Sebelius has held off a third attempt to reverse her administration's rejection of two coal-fired plants, with the Kansas House failing to override her veto of industry-backed legislation by four votes (Sebelius' previous vetoes were sustained by a slimmer margin). House leaders have now threatened to sue Sebelius-- a symbolic move admittedly aimed at countering threats that a veto override wouldn't be enough to guarantee the plants' construction-- but they haven't given up the ghost either.

The implications of this fight remain national in scope, so Sunflower Electric's allies in the House are refusing to go down without kicking and screaming, holding open the narrow possiblity of turning the tide (though the exhausted state Senate might pull the plug by ending their legislative session early this week). On Saturday, before adjourning they created "Hail Mary" legislation by attaching their bill to an economic development package for the state's most populous county.

Republican Rep. Judy Morrison, who voted against the plants, calls industry's latest gambit "the worst bill I've ever seen" and simply "blackmail;" meanwhile the Hutchison News reports that at least one previous supporter of the plants is opposed to the new legislation. Sebelius is likely to veto the bill should it ever cross her desk, and tells the Wichita Eagle that the maneuver might not even hold up in court:

Sebelius said attorneys in her administration already have told her that the latest bill would violate the constitution's one-subject rule.

"By calling the building of coal plants economic development doesn't make them economic development," she said. "Just on that basis, we will give it a very close look."

The Land Institute's Climate and Energy Project continues to be your go-to source on this issue, doing an amazing job of live-blogging the legislative session, and catching other legislative maneuvers of note (such as House Speaker Melvin Neufeld also holding hostage budget funding for Wichita-area legislators who voted against the plants). Readers looking for play-by-play updates would do well to check in with them over the next several days.

Mary, Mary: The EPA's Buggin'

Normally, yesterday's sudden ouster of EPA Midwest regional administrator Mary Gade-- a political appointee and active Republican who reportedly clashed with Administrator Stephen Johnson and other superiors over the cleanup of chemical pollution-- wouldn't merit a response from a blog as narrowly focused as Warming Law. But then again, most EPA regimes haven't shown the all-around disrespect for the law that might well have played out here, following the same pattern we've been seeing with regards to global warming.

Robert Sussman, a former Deputy EPA Administrator, explains this broader significance well:

If Mary stood up for her career staff and pushed for strong action to abate contamination, she was only performing her job under the environmental laws as she saw it. It is hard to believe that Mary, an astute and succesful lawyer in private practice with a long track record of implementing the federal contamination laws, would overstep legal boundaries. If her only sin was zeal in protecting the public, firing her was wrong and will send a troubling message to EPA employees all across the country who are trying to do their jobs. Clearly, it’s up to Steve Johnson to explain why he fired Mary and up to Congress to investigate the circumstances.

Therein, friends, lies the rub. The Bush EPA's legal problems transcend oft-heard (though not at all inaccurate) cries of politicization, upending traditional agency practice and creed, and bad policy choices, and boil down to an opportunistic disrespect for the rule of law. Sussman, to his credit, has been making the same point. If his present suspicions are correct, this latest move raises the stakes even more.

The Wonk Room is now reporting that next Wednesday, a furious Senator Sheldon Whitehouse (himself a former US Attorney) will be raising this matter at an oversight hearing looking at the "politicization of the EPA." From the looks of the witness list, its focus is on the undermining of science and public health. That's not to be minimized in and of itself, but in order to truly get to the heart of the matter and take it to a place beyond the sheer political scheming at work lately, the Senator and his fellow EPW committee members would do well to place some additional emphasis on damag done to the rule of law.

Yet Another Silver Lining, Courtesy of NHTSA This Time

California officials were rather steamed last week after the Bush administration announced new fuel economy rules that claim to preempt state action limiting auto emissions-- going so far as to threaten yet another lawsuit over NHTSA's efforts to rewrite the congressional record. But as per today's Clean Air Report (subscription req.), California Air Resources Board Chairwoman Mary Nichols noticed that there might be a silver lining to the rules:

Nichols said during an April 23 press conference that the state will sue NHTSA if it adopts the preemption language in the CAFE rules. However, she added that the language may actually bolster the state's lawsuit against EPA for denying the state last year a Clean Air Act waiver to implement its own vehicle GHG regulations...

Nichols said that because NHTSA and DOT appear to be claiming sole responsibility for regulating GHG emissions from vehicles through fuel economy standards, it may rebut an argument EPA is making in the lawsuit over the waiver denial that the environmental agency may still develop its own GHG regulations for vehicles.

"This is . . . certainly something we will be taking to court, in our litigation against EPA over their denial of our waiver to pursue the Pavley regulations, because part of the EPA's position in the lawsuit is that they might get around to setting emission standards," Nichols said. "Now, we have another agency . . . saying no, EPA will not set emission standards because we, the DOT, will take it all over and set fuel economy standards and that will be it."

We're absolutely SHOCKED that, in the same waiver-denial defense that inadvertently documented how global warming endangers human health and welfare, EPA may have ended up contradicting yet another administration legal position. Then again, when you're part of an administration that seems to be making this stuff up as it goes along, it's kind of hard to maintain rock-solid consistency...

California officials also told Clean Air Report that the CAFE preemption language might not have any legal effect if it ends up in an appendix to NHTSA's final regulations, citing the precedent of 2007 rules that included similar language in their preamble.

Blame California! And Other State (And International!) News

--The idea that state action in the U.S. would have reverberations beyond our borders continues to gain demonstrative weight, courtesy of British Columbia moving to adopt California's clean-cars standards. Numerous Canadian provinces had endorsed California's actions, but British Columbia-- which also intends to join several U.S. states in the Western Climate Initiative's forthcoming carbon trading program-- is the first to act on them.

--Ironically, back in California, some Republican state legislators are gearing up for budget negotiations by demanding several regulatory changes, including a one-year delay on implementing the state's landmark GHG reduction law. The Sacramento Bee notes that last year's environmentally-tinged budget standoff did result in some concessions to this crowd. It fails, however, to add that they failed to restrict Attorney General Jerry Brown's efforts-- under the aegis of a decades-old state environmental law, and in anticipation of the targets set by the aforementioned carbon-capping law-- to make land-use planning a tool for mitigating greenhouse gas emissions.

--Florida Governor Charlie Crist is now set to sign the comprehensive climate bill that we mentioned in last week's roundup. Environmental groups, while excited by much of the bill, are concerned about one provision that was tacked on at the last minute:

The Senate adopted the House version of the bill, which included a requirement that the Legislature approve any plans by a state agency to adopt California's stringent auto emission standards.

Critics of the measure, including some environmental groups, said waiting for ratification would slow Florida's efforts to aggressively curb greenhouse gas emissions, as mandated in executive orders signed by Crist at a climate change summit last summer in Miami Beach.

[...]

Sen. Burt Saunders, R-Naples, the Senate bill's sponsor, countered the measure was not ``the end of the story in terms of vehicle emissions.''

''This is an issue the Legislature will be debating down the road,'' Saunders said.

More on Inhofe and Science

Apropos to yesterday's item about Senator Inhofe's reaction to a federal judge's polar-bears smackdown of the Bush administration, Desmogblog catches the Senator's press blog hailing a new scientific study on weather patterns, which they claim shows that global warming will "stop." Of course, as the De-smoggers go on to explain, that's not entirely the case, and Inhofe's staff would have done well to read entire articles on the study (let alone the paper itself).

Desmogblog has also been doing a bang-up job exposing the Heartland Institute's list of "500 Scientists with Documented Doubts of Man-Made Global Warming Scares," finding that many of its "honorees" are outraged at their out-of-context inclusion, while others cannot likewise complain due to their apparent status as deceased or simply made up. Lovely.

As we've written before, the arguments advanced by the likes of Heartland, S. Fred Singer and Inhofe really have no standing left, either factually or in a court of law, with their erstwhile allies moving on to a strategy of unreasonable delay rather than outright denial. Instances like this show why.

EPA Dances Around Request to Curb Greenhouse Gases from Refineries

This afternoon, E&E News (subscription req.) is reporting that the EPA-- responding to a court order-- has issued new regulations to reduce air pollution from petroleum refineries. But there's a catch: EPA also has denied environmental groups' request to regulate greenhouse gas emissions from the refineries, and in so doing, stands accused of dramatically reinterpreting the Clean Air Act:

EPA explained that it was working on a new global warming policy in response to last year's loss in the Supreme Court in Massachusetts v. EPA -- a case that started when the Bush administration denied a petition to regulate greenhouse gas emissions from cars and trucks.

The agency also opened itself up to controversy today by saying it did not need to set any greenhouse gas limits for the industry now because it previously had opted against establishing such standards.

Environmentalists said they plan to sue EPA in federal appeals court over that reasoning. "It's enormous," said David Bookbinder, an attorney at the Sierra Club. "They're taking the position the agency has no obligation to look at or review any other pollutant."

Bookbinder said he was not surprised by EPA's decision, adding that he did not expect the issue to be resolved until after the Bush administration leaves office. "I don't want these chuckleheads writing the regulations for CO2," he said. "What scares me is the chunk of collateral damage done to the Clean Air Act." 

EPA's response to the public comments, filed by the Sierra Club and the Environmental Integrity Project, is explained between pages 92 and 104 of the new rule. We're first taking a close look at EPA's wording ourselves, and will chime in with further comments as needed.

But as a matter of simple analysis, it does behoove us to note that this is far from first time that EPA has used its own unreasonable delay on the Supreme Court's Mass. v. EPA mandate as an excuse...

James Inhofe: Defender of Science?

Courtesy of the Washington Post, Senator James Inofe (R-OK), noted climate change "skeptic" who denounces leading scientists as alarmist, on yesterday's polar bear ruling:

"It's unfortunate that the debate has become more about timelines than actual science," said Inhofe spokesman Matthew Dempsey. "What has become clear . . . is that listing the polar bear as a threatened species is not about protecting the polar bear but rather advancing a particular political agenda."

Of course, Judge Claudia Wilkins cited extensive science in declaring the administration's delay on the listing violated the law. Science like that cited by Rep. Ed Markey (D-MA, who is calling again for a halt to oil drilling plans in the Chukchi Sea that further endanger the bears' habitat, both directly and as a result of increased climate impacts:

“It is imperative that Secretary Kempthorne does not put the rig before the bear,” said Markey. “The Bush administration must suspend all actions on finalizing the Chukchi oil leases until they have determined what protections the polar bear needs in such a vital habitat.”

Polar bears are totally dependent on Arctic sea ice for survival, and the rapid warming of the Earth is destroying their ice habitat. In the most thorough study to date, Interior Department scientists, including the team leader who appeared before the Select Committee, determined that under current trends, disappearing sea ice would result in a two-thirds drop in the world population of polar bears resulting in the disappearance of polar bears from Alaska by 2050. One of the population centers considered under the “greatest” threat is the Chuckchi Sea habitat, according to the study.

Federal Judge: Interior Must Grin and (Polar) Bear It

Reuters is reporting that the Bush administration has been ordered to rule whether polar bears are a threatened species under the Endangered Species Act, with global warming impacts as the major factor, by May 15:

U.S. District Judge Claudia Wilken in Oakland, California, ruled in favor of the plaintiffs -- the Natural Resources Defense Council, the Center for Biological Diversity and Greenpeace -- finding the U.S. government broke the law by missing the deadline for a polar bear decision by four months.

The Interior Department, which has responsibility for the decision, was supposed to issue a decision in January but postponed that for a month. Most recently, it asked for a delay until June 30 so its lawyers could finish reviewing and revising the decision.

Wilken denied this request.

"Defendants offer no specific facts that would justify the existing delay, much less further delay," she said.

We've previously covered the polar bear situation, as well as the Bush administration's more recent hyperbolic claims about the Endangered Species Act-- perhaps they saw this ruling coming down the pike? At any rate, the general thrust of the Interior Department's overarching position here should, sadly, be familiar to readers by now:

Interior Department officials have acknowledged that the science on the polar bear's future is not in doubt but have said that any plan to remove the threat to the animals' existence would be complicated, since climate change is a global phenomenon rather than a particular limited area with a specific problem.

Kansas Court to Coal Industry: Check Back Later

This week, Kansas' state legislature has returned to finish its 2008 session, and the main topic-- surprise, surprise-- is coal. Supporters of Sunflower Electric's proposed plants-- having previuosly failed to override Governor Kathleen Sebelius' veto of a bill that would allow the plants and drastically curtail state officials' authority under state law to consider global warming impacts-- are floating another "compromise proposal" to build smaller plants and couple them with renewable energy provisions. The Kansas City Star also reports that while Governor Sebelius has noted that the proposal essentially differs little from those she has vetoed, at least one key swing vote might be amenable to industry's arguments.

This legislative wheeling and dealing is only more important in wake of the Kansas Supreme Court's decision last week to put Sunflower's lawsuit against the state on the backburner, pending the outcome of the company's appeals to state regulators and to a lower state court. As neither process has moved along significantly, the legislature's actions continue to be Sunflower's last chance to go forward.

And overturning state Environment and Health Secretary Roderick Bremby's ruling, which relied on the Supreme Court's Mass. v. EPA ruling and drew a parallel with the federal Clean Air Act, would certainly be a significant shift in law. Karl Brooks, a legal scholar and historian specializing in administrative law, made that cogent argument clear in a recent Wichita Eagle op-ed reposted by the Climate and Energy Project. Brooks delineates how legislative intervention would, in a strong sense, overturn the existing balance of power:

Kansas politicians of both parties have worked with Kansas attorneys to build a model administrative-law system that balances public opinion, expert enforcement and impartial justice. Sunflower’s special-interest bills erode this well-settled bipartisan balance by giving one branch of government — the Legislature — more authority.

Sunflower’s coal plant bills would interfere with the orderly enforcement of the Air Quality Act by the Kansas Department of Health and Environment and the attorney general.

Sunflower’s bills would interfere with the impartial administration of justice by short-circuiting numerous court cases testing KDHE’s interpretation of the federal Clean Air Act.

Arnold to Bush: Another Lawsuit Looms

Reaction to the Department of Transportation's Earth Day proposal of fuel economy rules, claiming to preempt state auto emissions standards, has continued to be swift and categorical. Governor Arnold Schwarzenegger, joining with 11 other governors, has petitioned the White House to reconsider before the rules become final-- adding a clear legal threat at the end:

NHTSA has no authority to preempt states from regulating greenhouse gases.  Congress and two federal district courts have rejected NHTSA's claim to such authority.  Furthermore, this attack completely undermines the cooperative federalism principles embodied in the Clean Air Act, and is an end run around 40 years of precedent under that law.

Our states intend to comment on the proposed rulemaking and, if necessary, will sue NHTSA, just as California and other states have sued the U.S. Environmental Protection Agency, to ensure that states retain the right to reduce global climate change emissions...

The group also wrote to congressional leaders in both parties, asking them to lobby against rules that clearly "would directly usurp congressional authority and patently subvert the clear intent of Congress." The administration's tacit response to that implication, expressed by DOT spokesman Brian Turmail in the Sacramento Bee, would likely have seconded that argument. Mere months after the White House threatened to veto the energy bill unless its granted DOT supremacy and preempted the states-- only to back down and sign legislation that clearly maintained California's authority under existing law-- Turmail argues that the burden to act was really on Congress:

"It's our feeling that when Congress declined to include language allowing state-specific fuel economy standards in its current bill, that it indeed wanted to have national fuel economy standards," Turmail said. "From our point of view, these efforts by states would undermine and render moot a national fuel economy standard."

The references to "our feeling" and "our point of view" don't exactly display confidence in the legal certitude of this revisionist history argument. Perhaps DOT will change its mind after all, and put off yet another easily-avoidable lawsuit.

Another Governor Under Fire, and More (Better) News from the States

Busy news day today, so we're bringing you our weekly roundup of important state news a day early this week! We start in Arizona, where yet another governor is defending her executive leadership on climate change against industry allies in the legislature.

--Arizona Governor Janet Napolitano last year ordered state regulators to draft and implement auto emissions rules approximating California's landmark law; they have obliged and are still moving forward amidst the fallout from EPA's waiver denial, which state AG Terry Goddard is helping challenge in court. Now, the State Senate has belatedly stepped in to demand a role in the process, passing a bill that would stop environmental officials from implementing the rules. Napolitano will likely veto that proposal, though she has taken pains to stress her desire to work with legislators on comprehensive global warming legislation.

--On the other hand, Florida Governor Charlie Crist is experiencing smoother sailing than expected with his efforts to pass a comprehensive climate change bill. Crist, like Napolitano, had previously ordered state officials to work toward adopting California's clean-cars program.

--In our most recent post on the Kansas coal plant battle, we took note of coal companies' historic bad luck in trying to build a flurry of new plants before costs become too high and/or long-overdue federal regulation of CO2 kicks in. Nevertheless, as Sierra Club head honcho Carl Pope reports from negotiations over the Western Climate Initiative, at least one CEO hadn't gotten the memo as lobbied for weakening that regional compact.

--And last, yet certainly not least (though most of you have probably read about it by now), yesterday brought news that atomospheric levels of CO2 and methane rose sharply in 2007. Joe Romm has more over at Climate Progress, arguing passionately that "the time to act was yesterday."   

DC Circuit Tells EPA It Means Business

While EPA Administrator Stephen Johnson contemplates an imminent congressional deadline for avoiding potential contempt proceedings, he also may want to give thought to another new deadline stemming from his intransigent response to Mass. v. EPA, this one imposed by the DC Circuit Court of Appeals.

Earlier this month, on the one-year anniversary of the Supreme Court's ruling, Massachusetts and the other plaintiffs asked the DC Circuit for a writ of mandamus that would force the EPA to issue its unreasonably-delayed endangerment finding within 60 days. Last Friday, the court issued its first direct response to that filing, ordering EPA to formally respond to the petition within 20 days.

This order should not be read as a tea leaf about the court's ultimate ruling on this matter. But the fact that the DC Circuit is expediting the case before Massachusetts could formally request it-- instead doing so "on the court's own motion"-- indicates that it's at least giving serious consideration to the petitioners' request.

An Offer He Can't Refuse

As the Wonk Room points out, yesterday's UCS survey of EPA scientists has reignited passionate calls for embattled administrator Stephen Johnson to resign. Today, Rep. Ed Markey (D-MA), formally reacting to EPA's failure to cooperate with a congressional subpoena, is giving Johnson a chance to avoid a legal clash between Congress and the Executive Branch. Not taking the deal ASAP, however, is sure to escalate Johnson's troubles.

EPA is refusing to hand over documents such as the endangerment finding for CO2 emissions that it prepared last year in response to the Supreme Court's Massachusetts v. EPA mandate-- only to improperly shelve it and begin a new regulatory process. In the press release accompanying his letter to EPA, Markey reasserts congressional prerogatives, and outright rejects the EPA's excuses and its proposed compromise for making the documents availaable. His counter-proposal:

Chairman Markey has proposed that EPA will provide the committee with the requested global warming documents immediately, but that the committee will not reveal any information included in the documents until either the EPA releases its upcoming Advanced Notice of Proposed Rulemaking (ANPR) on global warming emissions from motor vehicles and other sources of these emissions that are regulated under the Clean Air Act, or June 21, 2008, whichever is earlier.

In a response last week, the EPA said it would not be willing to allow the committee to review the documents until after the earlier of the date on which the agency releases its ANPR , or June 21, 2008. The EPA did not even commit to allowing the committee to claim possession of the documents, but nevertheless requested that the committee withdraw its subpoena before the documents were even made available for review. The EPA has not claimed executive privilege on these documents, but instead, according to the letter from Chairman Markey, has invented “a new claim of ‘chilling effects’ on the administrative process—a basis that I am not aware has ever been recognized by any Committee of Congress as lawful grounds to withhold documents within the purview of a Committee’s inquiry.”

“At this point, Administrator Johnson and the lawyers at EPA are throwing any argument they can think of against the wall, hoping one will stick,” said Chairman Markey. “None of their arguments have yet had any traction -- or legal basis, for that matter -- and therefore they must hand over these important documents immediately.”

Markey also makes crystal clear the consequences of not taking his deal, saying that he shares Johnson's "interest in resolving this matter without a vote of contempt." He has given EPA until 6 PM on April 25-- that's tomorrow night-- to respond, adding that "otherwise, the committee is prepared to proceed with all its legal rights."

On Earth Day, Sebelius Draws an Even Clearer Line In the Atmosphere

We've got two important items about the ongoing Kansas coal throwdown to pass along to readers, courtesy of the Land Institute's climate and energy blog. The first article nicely summarizes how Mass. v. EPA not only galvanized state officials to apply the Court's logic to state anti-pollution laws, but also helped mobilize the public opinion and grassroots activism that have encouraged and sustained Governor Kathleen Sebelius' efforts to stand up to intense political pressure.

The second item reveals that Sebelius is doing more than simply not backing down in the face of legislation that would overturn her decision and tether state action to currently-MIA federal regulations. Speaking at an Earth Day event, Lt. Governor Mark Parkinson revealed that even if the coal industry's legislative allies somehow find the votes to override her, that won't be the end of their legal battle:

"We're certainly going to evaluate all of our options," Parkinson said. "I assure you, there are multiple options, and if Sunflower's out there telling people that all they need to do is get this veto overridden and the plants will be built, and if they believe that, they're sadly mistaken."

[...]

Later, Sebelius spokeswoman Nicole Corcoran was more conciliatory than Parkinson. She said the governor hopes her vetoes will be sustained and is still working toward a compromise.

"But we recognize that there are numerous other barriers to the plant projects," she said. "Litigation is likely, and there is real financing uncertainty with the increased costs of the new coal plants."

Essentially, Parkinson and Sebelius are arguing that further legislative efforts to overturn her next veto would simply be a waste of time and energy. Additional legal arguments over the plants (industry has already challenged the permit denial before the Kansas Supreme Court) might drag out until the Bush administration leaves office and EPA finally is able to follow the U.S. Supreme Court's mandate.

Meanwhile, as Grist pointed out again in its annual Earth Day superlatives list (coal is declared "Year's Biggest Loser"), CO2-emitting coal plants have had a bad year ever since Mass. v. EPA, on account of both rising financial barriers and the growing inevitability of regulation.

EPA Scientists: Don't Tread On Us

Today, the Union of Concerned Scientists (UCS) has released a detailed survey of nearly 1,600 EPA scientists, the end product of an investigation-- similar to what it has conducted for seven other agencies-- of scientific manipulation by political appointees. UCS found that approximately 60 percent of the scientists "said they had personally experienced at least one instance of political interference in their work over the last five years." More troubling, from our perspective, were reports such as the following:

"[The Office of Management and Budget (OMB)] and the White House have, in some cases, compromised the integrity of EPA rules and policies; their influence, largely hidden from the public and driven by industry lobbying, has decreased the stringency of proposed regulations for non-scientific, political reasons," said a scientist from one of the agency's regional offices. "Because the real reasons can't be stated, the regulations contain a scientific rationale with little or no merit."

Now, on a purely legal level, politicized decision-making is potentially disturbing but not intrinsically improper, and pressure from OMB has long been a source of internal EPA consternation; UCS notes this much in pegging this report to a pre-existing call for stronger legislative action against the politicization of science. Rep. Henry Waxman (D-CA) will surely continue that push when he takes on embattled EPA head Stephen Johnson at an oversight hearing next month.

But aside from the disturbing frequency and scope documented by this and other investigations of the Bush administration, our main concern remains that in many key instances, EPA political staff and other administration officials have intervened not only in contravention of scientists, but in contravention of existing law.

The intrinsic problem with the EPA's most controversial global warming decisions isn't just that they were politicized, overruled staff and the normal decision-making process, and destroyed agency morale. It's that in these cases, the statute (not to mention the U.S. Supreme Court) is clear that they had no choice but to follow, or otherwise rebut, the clear scientific and legal evidence calling for strong action.

EPA spokesman Jonathan Shradar condescendingly told the Associated Press that the report simply reflected the "passion" that agency scientists brought to their work. We agree-- agency scientists do evidently have great passion for doing their legal and professional duty to follow the science in these cases. Their boss-- and those pulling his strings influencing his decisions from elsewhere in the Executive Branch--could stand to learn a thing or two from their example.