While our hopes to live-blog today's Senate hearing on the California waiver denial seem to be coming to fruition (it starts at 10 AM EST; we'll post again once set up in the hearing room, and readers can watch from home via webcast), the tack that EPA Administrator Stephen Johnson might take in his testimony is becoming increasingly clear. Responding to the San Francisco Chronicle's inquiry on yesterday's confirmation that Johnson did indeed go against his legal and technical staff, spokesman Jonathan Shradar argued that Johnson had broad authority to do as he pleases:
EPA spokesman Jonathan Shradar insisted Wednesday that Johnson had not overruled his staff, saying the EPA chief is not bound by the opinions of his staff.
"The Clean Air Act laid out that the decision is the administrator's alone," Shradar said. "The staff provides for the administrator a wide range of options for his decision. He took those options, public comments and others into account. ... He felt it was the right decision."
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 preferences entirely novel reading of the Act is simply shaky. Moreover, California's legal team tells the Chronicle that it might well backfire in court:
"The point is that the folks under Johnson take the same point of view as the state of California," California Attorney General Jerry Brown said. "We can allege there is abuse of discretion. Abuse of discretion occurs certainly when (Johnson) just decides on a whim and doesn't have the support of the professional opinion of his own agency."
Sierra Club attorney David Bookbinder, who has been involved in recent climate cases in the states and at the U.S. Supreme Court, said the revelations could prove a crucial advantage in California's case.
"Judges are intelligent people and they're going to look at this and they're going to understand that Stephen Johnson had absolutely no basis for overturning the carefully considered opinion of his staff," Bookbinder said.