As EPA Administrator Stephen Johnson tries to dodge his statutory obligations at both the federal and state levels, it has become crystal clear that his official pronouncements on global warming emissions are simply clumsy attempts (emphasis on "clumsy") to give cover for the Bush administration's legal and scientific policy preferences. Investigative interviews by Rep. Henry Waxman (D-CA) and public and private correspondence discussed yesterday by Rep. Ed Markey (D-MA) both demonstrate that EPA was prepared follow the Supreme Court's Mass. v. EPA ruling to its only logical end last year-- only to be overruled and postponed inevitably by Johnson, acting outside of his statutory guidelines and probably at the White House's behest. The chorus of criticism has grown so loud that even the renowned international science journal Nature has weighed in on his statutory charge to follow the science, writing that Johnson's ensuing treatment of EPA staff is "sabotaging both himself and his agency."
It's hard to blame him for not being able to adequately justify the unjustifiable, but a spade's a spade, and even some powerful voices on his "side" of the question are starting to acknowledge that the EPA has twisted itself in legal knots. Today's Wall Street Journal includes an editorial that (predictably) continues to essentially re-argue Mass. v. EPA, but in the process echoes Professor Lisa Heinzerling's point that Johnson's meandering California waiver denial boxed him in on a national endangerment finding for greenhouse gas emissions:
The EPA avoided a bad precedent, but conceded a lot. Legally, Mr. Johnson concludes that "warming of the climate system is unequivocal . . . very likely due to the observed increase in anthropogenic GHG concentrations" and refers to climate change as "a fundamentally global air pollution problem" and CO2 as "a global pollutant." These assumptions matter as the agency lurches toward the larger "endangerment finding." If CO2 is classified as a "pollutant," it triggers a long sequence of regulatory booby traps, and the EPA staff, by law, is granted limited discretion as to enforcement or cost.
In an interview last week, Mr. Johnson assured us that his decision was "not a determination of endangerment" and was "based on the facts and the law." But the real issue is his interpretation of the law, and his mistake was thinking he could appease the anticarbon lobby by accepting its premises while still denying the California waiver.
Johnson really had no legal choice but to try "appeasing the anticarbon lobby" (actually, its the federal judiciary he was probably concerned about), but the Journal is dead right that he overplayed his hand.
As Professor Heinzerling argued at yesterday's hearing (and her excellent written submission backs up with detailed precedent) Johnson's protests that Congress is trying to "rush" him into "prejudging" a decision and force him to release "pre-decisional" documents are simply untenable in light of his actions. Even if one casts aside that he has no legal basis for rebuffing Congress' document requests short of trying to invoke executive privilege (which he has not done yet), nor for not issuing an endangerment finding given the Court's clear statutory directions, it still remains that he can't "prejudge" a judgment that's essentially been made.
Last month, EPA issued a legal judgment, rooted in science, that found that CO2 emissions clearly endanger human health and welfare on a national scale. That it claimed not to really mean it is irrelevant, as is the scorching irony that this scientific judgment was made whilst ignoring clear scientific evidence (and legal precedent) of said endangerment's "compelling and extraordinary" impacts on the people of California. Clear precedent dictates that it's findings, however inadvertent and incompetent, are legally binding.