To be completely honest, while we expected a long hearing today, we didn't quite realize it was going to entail over four hours of testimony and four distinct liveblogging threads. A lot of stuff there to process, and Hill Heat (which also live-blogged part of the hearing over at Daily Kos), Calitics, Think Progress, and TPM Muckraker all spotlight key highlights (the latter two with the assistance of somewhat-hillarious video clips).
At the end of the day, though, EPA Administrator Johnson's rationale was best summed up in one of his exchanges, a little after noon, with Senator Sheldon Whitehouse (D-RI). Observing that Johnson had responded to a prior question by saying that California's vehicle emissions standards were not needed "in my opinion," Whitehouse flatly stated that the law is pretty clear that he can't substitute his preferences for California's policy judgment. A bit flummoxed, Johnson fell back once again on the argument that the Clean Air Act lets him decide whether California has met its conditions.
In other words, Johnson was saying that yes, he can essentially do as he pleases in terms of interpreting Section 209 of the Clean Air Act. We stand by our earlier post on this subject, stating that while he may have some amount of deference provided, it has to be within reason:
This argument for strong deference to the Administrator's reading of the act (usually we'd say "agency deference," but it's now clear that the rest of the agency isn't at all with him) is right along the lines that our own Tim Dowling anticipated-- and debunked as unlikely to stand up in court in this case-- after the waiver was denied. EPA staff seem to have convincingly laid out why, under the law, the waiver should be granted and anything to the contrary wouldn't fly. Johnson's assertion that the Clean Air Act lets him instead impose his
policy preferencesentirely novel reading of the Act is simply shaky.
Sure, Johnson said today, things like precedent, 99% supportive public comments and his staff's unanimous opinions weigh on him (though by the way, many of those public comments looked to him like a "card-writing campaign" designed to draw him into a "popularity contest"-- the nerve of those people, and the tens of thousands we're told have already emailed to protest his decision!). But at the end of the day, in his incomplete legal judgment, it's his independent decision to decide that there weren't "compelling and extraordinary circumstances" for a waiver because global warming is different and is a worldwide pheonomenon, and that's all there is to it.
Well, Johnson did promise more of a rationale down the line, including why the "compelling and extraordinary" conditions that his staff briefed him on weren't enough, but he still wasn't forthcoming with that scientific and legal analysis. It should be out by the end of February in the form of a formal decision document in the Federal Register-- as we noted earlier, he now says (via his submitted testimony) that the waiver hasn't officially been denied yet, and all litigation should have to wait until then and take place in the DC Circuit. Even that's not a sure thing, however-- Johnson said he "expects" to meet the end-of-Feburary goal.
The good news is that despite this clear strategy of delay, and the clear reliance on a broad and legally-sketchy view of the Administrator's perogative, Senator Boxer introduced legislation today to essentially overturn Johnson's decision. While its dozen original cosponsors all seem to hail from the Democratic conference, her staff is encouraged by the reception it has received (apparently other cosponsors may join on soon), and the fact that Senator Inhofe was the only Republican there to defend Johnson bodes well for the theoretically bipartisan appeal of the issue.
This issue needs to be resolved, and but soon. Simply put, the rule of law, EPA's dangerously-low staff morale, and well as the future of the planet, are at stake.