Warming Law

Bush and Global Warming in 2008

For anyone interested in the state of the Washington debate over responding to global warming, Peter Baker's front-page story in today's Washington Post is a must-read.  The article chronicles the evolution in President Bush's thinking (if not his policy positions) on global warming as Bush starts considering his Administration's legacy.  Here's the nutgraph:

The coming year offers a final test of whether Bush is willing to move beyond the policies of the past seven years and embrace more aggressive measures, including a mandatory limit on carbon emissions with pollution credits that can be bought and sold -- a system known as cap-and-trade. If presented such legislation by Sens. Lieberman (I-Conn.) and Warner (R-Va.), supporters hope, Bush might sign it.

We here at Warming Law would be delighted, of course, if President Bush wants to make leadership on global warming the hallmark achievement of his final year in office.  But last week's waiver decision makes us deeply skeptical that this is what's likely to happen.  Indeed, Baker notes (without fully developing) the less altruistic motivation behind Bush's "leadership" in 2007:

By 2006, though, something had begun to change. A host of governors, including Republicans such as California's Arnold Schwarzenegger, moved to impose their own plans to curb greenhouse gases. Major corporations, nervous about a patchwork-quilt approach, started agitating for a single national policy.

In other words, as we explained here, the state leadership on global warming has brought polluting industries (Bush's most loyal base) to the federal regulation table, seeking federal action that displaces state experimentation.   More from Baker's story:

Business figures, led by former Exxon Mobil executive Arthur G. "Randy" Randol III, launched what lobbyist Michael McKenna called a "soft lobbying campaign" to prod the White House to address climate change, if for no other reason than a plan from Bush would be less onerous on industry than one written by the Europeans or by House Speaker Nancy Pelosi (D-Calif.). "We couldn't fight something with nothing," said the former Bush adviser. "We had to have something."

We're happy to have industry at the table advocating for something to be done on global warming (it's better than the alternative).  The problem with the resolution of the energy bill/waiver decision last week is that industry and the Bush administration tried to get language preempting states from regulating greenhouse gas emissions from automobiles in the Energy Bill and failed.  The Bush Administration then gave preemption back to industry the same day it signed the Energy Bill by denying California's waiver request.  The problem with this roundabout gift to industry is that the Administration's own legal and policy experts (along with us here at Warming Law) believe it lacked the legal authority under the Clean Air Act to deny the waiver. 

It's a bad sign for administration leadership in 2008 that the administration was willing last week to ignore the law and it's own lawyers' advice in order to make industry happy.

Work Slowdown / Stoppage

To protest the waiver denial, Warming Law is going on strike until January 2.  Expect our post frequency to fall for the balance of the year.  We'll pick up again with our spirits recharged in 2008. 

The Waiver Denial and Chevron Deference: A "Unique" Issue

Posted by Tim Dowling

When EPA Administrator Johnson announced his decision to deny California’s waiver request, one reason he gave is that global warming is not “unique” to California.  He evidently reads section 209 of the Clean Air Act as requiring a denial where the problem addressed by the California rules is one shared by others outside of California.  When California sues EPA (and, rest assured,it will), EPA will no doubt argue that the D.C. Circuit should defer to the agency’s reading of the Act, under a two doctrines of administrative law know as Chevron deference and Skidmore deference.

There are at least three problems with this argument. 

NOTE: There is an update and correction at the end of this post.

It Could Get Worse

The LA Times' Janet Wilson is reporting that EPA Administrator Stephen Johnson might bury the agency's own greenhouse gas tailpipe emissions standards.

In response to a U.S. Supreme Court decision that the EPA could and probably should regulate greenhouse gases as a threat to public health, Johnson had promised to have his staff prepare by Dec. 31 a national proposal on how greenhouse gases from vehicles should be regulated.

Staff and other sources said the proposed standard cleared all EPA internal reviews and was forwarded to the Department of Transportation last week, before the energy bill was done.

But it is now unclear, when, if ever, such a proposed regulation will be issued.

Johnson ordered staff to stop work on the federal greenhouse gas proposal, said two sources inside and outside the agency.

Spokesmen for both the Department of Transportation and EPA said Thursday that because of the energy legislation signed by Bush on Wednesday, they were reviewing whether they still had the authority to set their own greenhouse gas standards for vehicles.

Did someone repeal the Clean Air Act while we weren't looking?  Mass v. EPA is exceedingly clear that, under the Clean Air Act, EPA has the authority to set greenhouse gas standards for vehicles.  The energy bill doesn't change that, colloquy or no colloquy.

This incredible arrogance and disdain for the law leaves us practically speechless.  Happily, editorial boards are in full voice.

From the LA Times:

Even an administration with a stunning history of ignoring science and law for the sake of ideology outdid itself Wednesday, when the Environmental Protection Agency spiked California's groundbreaking effort to reduce global warming emissions from vehicles. From the timing of the announcement to its twisted justification, this was a decision that reeked of politics, not responsible policymaking.

From the New York Times

The Bush administration’s decision to deny California permission to regulate and reduce global warming emissions from cars and trucks is an indefensible act of executive arrogance that can only be explained as the product of ideological blindness and as a political payoff to the automobile industry.

"An overwhelming voice from the states"

The Sacramento Bee reports this morning that states are rallying to California's side as it challenges the EPA's egregious waiver denial:

From Oregon to Maine, a multistate groundswell emerged on Thursday behind California's struggle to enforce its greenhouse gas emissions law.

One day after the Bush administration blocked the law, governors and other officials from at least eight states pledged to help California as it prepares to sue the administration.

"We're going to be out there on California's side," Oregon Gov. Ted Kulongoski said in an interview. "The only way we're going to get the national administration to move on this is to keep up the pressure."

Washington Gov. Chris Gregoire said the support of multiple governors, plus members of Congress, could create political pressure on the Bush administration to reconsider. "It's an overwhelming voice from the states," she said.

Meanwhile the San Francisco Chronicle has a follow-up story to Juliet Eilperin's big scoop in the Washington Post that the waiver was denied over the unanimous opinion of the agency's legal and technical staff.  When asked about the power point slide, prepared by EPA's legal staff, saying, "EPA likely to lose suit," EPA spokeswoman said the dog ate her homework that agency officials can't find the document.   

Waiver Denial Commentary

There's a ton of interesting commentary on the waiver denial. 

Here's Gristmill. 

HillHeat has several interesting posts as well (see the posts below the cross-posting from us).

"EPA Likely to Lose Suit"

Posted by Tim Dowling

"EPA Likely To Lose Suit." 

So said EPA, or at least EPA's legal staff, when it briefed Administrator Johnson on the legal ramifications of a waiver denial.  The quoted language comes from a powerpoint slide used during that briefing.  As the WashPost reports, Johnson's waiver denial flew in the face of "the unanimous recommendation of the agency's legal and technical staff."

(more after the jump)

EPA Can't Even Cheat Properly

We've already pointed out that in its lame justification of the denial of California's waiver application, EPA smuggled in a new standard: that California has to show that the problems it's addressing are not global but local in order to get a waiver. 

But even by this pulled-out-of-the-air standard, California has completely justified its waiver request.  Global warming will in fact create "compelling and extraordinary" conditions in California.  To take one example, heat is an essential ingredient in the toxic stew of ozone.  A warmer climate means more days on which ozone is likely to form.  And where are the very worst spots for ozone in the nation?  According to EPA, they are all in California, which has the nation's ONLY "severe" ozone non-attainment area (Los Angeles), and the nation's ONLY "serious" ozone non-attainment areas (Sacramento, Riverside, San Joaquin).

To give another example, global warming will have a severe impact on California's water supplies. According to research sponsored by the US Department of Energy,

In the Central Valley of California, it will be impossible to meet current water sustem performance levels; impacts will be felt in reduced reliability of water supply deliveries, hydropwer production and in-stream flows.  With less fresh water available, the Sacramento Delta could experience a dramatic increase in salinity and subsequent ecosystem disruption.

California will also suffer because global warming causes reduced snowpack levels, and the snowpack acts as a natural reservoir.  Snowpack is a major source of drinking water for San Francisco, and probably constitutes about a third of California's overall surface water supply.   

How is this not compelling and extraordinary?  Administrator Johnson's explanation only makes sense if "extraordinary" means "exclusive to California," and not "really, really bad in California and somewhat less bad elsewhere."   But that's an untenable read for two reasons (explained after the jump).

Second, Let's Kill all the Lawyers

Shakespeare, of course, famously advocated that killing the lawyers be done first, but the Bush administration realized that lawyers could actually be quite helpful in killing (ok, silencing) scientists, the first obstacle to their efforts to prevent aggressive action to combat global warming.  It was EPA General Counsel Robert Fabricant, after all who penned the famously convoluted and unpersuasive justification for EPA's refusal to make the endangerment decision, which was challenged and overturned in Mass. v. EPA.  It was only after those pesky Justices on the Supreme Court made it clear that they would have the audacity to enforce the terms of the Clean Air Act that lawyers became a problem.

In a devastating front-page story by the Post's Juliet Eilperin, we learn that EPA denied California's request for a waiver last night over the "unanimous recommendation of the agency's legal and technical staffs."  We already raised some preliminary questions about EPA's legal analysis here, but the Post's story makes it clear that the EPA itself doesn't think it's decision holds water.

Congress tried to give the Environmental Protection Agency a modicum of independence so that environmental decisions, as much as possible, would be reached based on science and the law, not political considerations.  This decision appears to represent the ultimate triumph of oil-industry politics over science and the law.   

Shame, Mr. President

Posted by Tim Dowling

Well, that didn't last long. Within hours of the signing ceremony for the new energy bill, EPA Administrator Stephen Johnson denied California's request for a preemption waiver under CAA 209 for California's rules limiting greenhouse gas emissions for new cars and trucks.  In denying the waiver, Johnson reiterated the bogus rhetoric of the auto industry, asserting that a waiver grant would result in a "confusing patchwork" of state regulations.  But as we've explained many times, there would be no "confusing patchwork" at all, but instead just two programs, the federal program and the California program, which is exactly how the Clean Air Act has worked for decades.  The act allows other states to adopt the California program (and a total of 18 states have adopted or pledged to implement the program), but those other state programs must be identical to California's.  Johnson failed to explain how EPA has been able to grant (in whole or in part) EVERY other 209 waiver request in history without creating a confusing patchwork, but can't do so here. 

But Johnson has bigger concerns than that.