1:52 PM: Our final panel consists of Senator Boxer alone, questioning the NRDC's David Doniger and former EPA Deputy Administrator Jeffrey Holmstead (now a partner with the law firm Bracewell & Giuliani). Doniger notes that the energy bill did not provide a national standard of 35 MPG, but a regulatory floor of "at least 35 MPG." Reiterates that this is unprecedented in terms of previous waiver decisions and their logic.
They have prevailed in the Supreme Court, in two courts, and in the Congressional battle over preemption-- Johnson is just violating the law, plain and simple. He also infers from Johnson's discussion earlier of having "routine conversations" with President Bush that they likely did talk about the waiver. Thus, Boxer is justified to keep pursuing this line of investigation.
2 PM: Holmstead is up-- he understands disappointment, but this is entirely the right call, in terms of legal rationale and policy. The Clean Air Act provided for uniform national standards and CA exemption, but notes that Section 209 reads "no such waiver shall be granted unless California finds" certain criteria (legally speaking, the presence of other states doesn't matter to the decision). Historically, it was generally undisputed that this was legitimately connected to the state's unique air quality problems and their direct ties to vehicles on its roads. This is a very different kind of problem.
"Compelling and extraordinary" doesn't mean "extraordinarily important." It means something different that California might face. California lists potentially serious impacts on it, but other states face a lot of them too, and thus nothing is not extraordinary for just California. Additionally, it would raise constitutional problems for California to do this and thus impact other states' economies.
2:03 PM: Holmstead also corrects Governor Rendell and Senator Cardin that this has nothing to do with public health and cleaner air to breathe. This has nothing to do with Mass. v. EPA. Boxer interjects that this is ridiculous, that his arguments were struck down already by the Supreme Court so he doesn't exactly have credibility here, and that his opinion was knocked down by EPA's own lawyers in documenting California's "compelling and extraordinary" circumstances.
Boxer: "Not only did the Supreme Court rule against you, they lectured the EPA." They ruled that the Clean Air Act says in "plain English," in language that non-lawyers like her understand, that climate change pollution is covered. Its illegal for Johnson to substitute his own policy judgment.
2:10 PM: Boxer asks Doniger how he thinks the courts will receive Holmstead's logic. Doniger says that its very clear, historically, that "compelling and extraordinary" does not mean "unique." The courts will see right through that.
2:12 PM: Boxer closes by slamming the administration's lack of cooperation. She adds that she will be introducing her legislation overturning EPA's decision later in the afternoon, including dozens of cosponsors. Presidential candidates Clinton and Obama are among them.