This afternoon brings word that Kansas Governor Kathleen Sebelius has vetoed legislation that would essentially overturn October's landmark decision by her Secretary of Health and the Environment, Roderick Bremby, to deny construction permits for two new coal-fired power plants based on concerns about global warming emissions. Bremby, citing scientific evidence and an opinion from the state's Attorney General, had utilized his authority under state law to deny permits. In turn, a majority (but not a veto-proof one) of legislators were seeking to strip Bremby of any authority to regulate carbon emissions, instead tying this decision and all others to the fate of the EPA's long-delayed federal action.
Wall Street Journal reporter Keith Johnson, blogging about a colleague's article on the Kansas showdown, was at least onto something when he observed potential parallels-- on the surface at least-- between Bremby's rationale and the contemporaneous anti-regulatory decisions that have made EPA Administrator Stephen Johnson a controversial figure:
You know the story: An appointed official overrules his own staff to make a controversial environmental decision affecting millions, sparking lobbying campaigns, lawsuits, and court reviews. Critics say he is kowtowing to his boss in the executive mansion; he defends his unilateral action despite a firestorm of legislative criticism.
The Journal's Johnson couldn't have stumbled on a more inapt direct comparison though, because if anything, Bremby's decision-making process and rationale highlight everything wrong with that of the Bush administration.
Consider the two for a moment. The EPA Administrator has consistently acted in a way that ignores clear legal advice declaring that he really had no other choice under the law; shreds precedent and brushes aside a landmark Supreme Court decision; and generally claims a level of executive power-- for both his ultimate decision-making authority and the White House's role in it-- that goes way beyond what the Clean Air Act allows for.
Bremby, by contrast, may have acted boldly, but seems to have been a good-faith actor in terms of squaring his decision. As he testified before Congress last week, his legally-cleared action grew out of expanded scientific evidence surrounding the urgency of stemming global-warming emissions, as well as the Supreme Court's ruling in Mass. v. EPA-- wherein the Clean Air Act's language surrounding greenhouse gas emissions resembles the intentionally-broad mandate included in Kansas state law. Moreover, the staff recommendation that he decided to discount had not taken these legal factors into account, and at no point did it indicate that he had no other recourse than to sign off on the permits.
Furthermore, as both Bremby and Kansas State Rep. Josh Svaty testified at last week's congressional hearing, and the NY Times reported on earlier this week, the federal government is ultimately to blame for the political fight unfolding in Kansas. Svaty was particularly strong in denouncing the EPA's inaction on the Supreme Court's Mass. v. EPA remand, noting that these situations will continue to proliferate until EPA provides the kind of overarching national guidance provided for by the law and mandated by the Court.
Simply put, Bremby seems to have a respectable legal case to argue here-- which, assuming that this bill fails to become law, he will in fact be doing before Kansas' Supreme Court-- and, if anything, federal inaction to ultimately blame for the controversy, while Johnson merits every bit of strong criticism he's received for making up the law as he goes along. Though we would note that as yet, to our knowledge, no one has tried to tie the hapless Johnson to smiling foreign dictators...