Warming Law

One Small Step: CA Waiver Bill Passes Out of Committee

This morning, the Senate Environment and Public Works Committee voted to advance S.2555, which would reverse EPA's waiver denial and allow California (along with 13 other states) to set its own tailpipe emissions standards for greenhouse gases. The bill moves to the Senate floor by a bipartisan vote of 10-9, with Senator Tom Carper (D-DE) breaking with fellow Democrats to oppose the bill, only to be cancelled out by the support of Senator John Warner (R-VA).

This is a fairly modest bill that aims to quickly fix a blatantly wrong-headed decision that likely won't hold up in court, and theoretically should garner broad support across partisan lines based on that reality and shared federalist principles. But as even Senator Barbara Boxer (D-CA) admitted while moving her bill forward, the likelihood of overcoming a potential filibuster by opponents, let alone a threatened presidential veto, is not good so long as powerful voices like automakers and the United Auto Workers remain full-throttle in their opposition.

Still, today's vote does help the measure's proponents frame the debate for the next president, whom they are optimistic will reverse course and allow California to move forward. 

Waxman v. Johnson: More of This Please

We've been tied up the last couple of days with some exciting developments that will lead to Warming Law's definite benefit and improvement, so apologies for the light posting. But we definitely wanted to acknowledge that yesterday, Rep. Henry Waxman (D-CA) released a 20-page memorandum on the White House's role in the EPA's California waiver denial, and has proceeded to angrily confront embattled EPA Administrator Stephen Johnson over this and other extra-legal actions today.

We'll have more on Waxman's findings tomorrow, but for now we wanted to note that the framing of this debate has been crystal clear, something that has been a pet peeve of Warming Law's in the recent past. Take for instance, the following from the memo's introduction/thesis:

The President has an obligation under the Constitution to take care that the laws of theUnited States are faithfully executed. In this case, the applicable law is the Clean Air Act, whichrequires that California's petition to regulate greenhouse gas emissions from motor vehicles bedecided on the merits based on specific statutory criteria. It would be a serious breach if thePresident or other White House officials directed Administrator Johnson to ignore the recordbefore the agency and deny California's petition for political or other inappropriate reasons.

That sounds about right, more or less.

Napolitano Stands Tall, Minnesota Falters, and Other State Climate News

--As predicted, Arizona Governor Janet Napolitano has vetoed legislation that would have prevented state agencies from participating in regional climate agreements and overturned the enactment of California's clean cars program. But don't expect a Kansas-style battle here: while industry groups have depserately lobbied for this and some supporters would like to attempt an override, the bill's main sponsor has stated that trying would be "an exercise in futility."

--Less good is the news from Minnesota, where a state Senate committee yesterday halted a push to enact the California auto emissions standards, at least for this year. A combination of auto industry lobbying, and the (astroturfing-driven) opposition of ethanol and agricultural interests, was responsible. Sponsors vow to try again next year, at which point California's waiver denial by EPA-- cited by some in Minnesota as a reason to stall action-- might well have been overturned by the courts, Congress, or a new administration.

--Wisconsin officials are citing climate change impacts as one of the factors they plan on scrutinizing in depth (others include cost effectiveness) before allowing an expensive coal-burning plant to be built. The consideration of similar factors in Iowa, reported on in last week's roundup, is cited as an example being followed here.

--And finally, California Attorney General Jerry Brown continues to make strides with his efforts to limit the climate-change impacts of large-scale development projects. Late last week, Brown reached an agreement with a rapidly-expanding San Diego airport.

Senator Boxer Moving Bill to Overturn California Waiver Decision

The Detroit News is reporting that as early as next Tuesday, the Senate Environment and Public Works Committee will consider Senator Barbara Boxer's bill, S.2555, that would reverse the EPA's thwarting of California's GHG emissions standards.

The looming spectre of congressional action has been a key motivator behind the auto industry's desperate lobbying of late, seeking to stop additional states from adopting the California rules. Nonetheless, Boxer's bill has been fairly dormat since it was introduced in January. So why act now?

The answer might lie in the realm of legislative support. Boxer's bill now has 27 cosponsors, and last week it earned itsfirst endorsement by a Republican member of the EPW Committee, Senator John Warner of Virginia. With his support secured, Boxer would be able to pass the bill out of committee even if she loses one member of her own party-- commitee members Max Baucus (D-MT) and Thomas Carper (D-DE) have yet to take a position on the bill.

More importantly, Warner's support could be a big help on the Senate floor, and provides strong symbolism as a major ally of Senator McCain's who has decided to actively side with California (McCain has expressed support for California, but has yet to endorse the Boxer bill).

Janet Napolitano and the Chamber of Inconvenient Truths

Yesterday, Arizona lawmakers set up a likely showdown with Governor Janet Napolitano over global warming, though they conveniently don't see it that way. In passing legislation to overturn the state's enactment of California's clean cars standards--  the result of an executive order that Napolitano issued back in 2006, and a lengthy evaluation process by state officials-- legislators claim that they're only standing up to excessive executive power. They fault Napolitano for not consulting them both on this matter and before she signed the state up for the Western Climate Initiative's regional cap-and-trade effort last summer. 

Napolitano, who is likely to veto the bill, asserts that her action is perfectly normal under state environmental law, and her allies have highlighted the suspect timing and rationale provided by their fellow legislators. The bill's proponents have been quite defensive in response:

"Maybe we are a day late and a dollar short in doing it," [Sen. Jake Flake, the bill's author] conceded. "But it's important that we do do it and don't wait forever."

[...]

"This isn't about greenhouse effect, this isn't about the environment," [House Speaker Jim Weiers] said. It's about legislative authority to review these kinds of policies, not "an agency head or a governor behind closed doors." he said.

While legislators argue that a heavy lobbying push by the auto industry and other aligned groups was irrelevant to their acting now, the Arizona Chamber of Commerce finds itself simultaneously on the defensive, though its problem simply seems to be with the truth. The organization conveniently chose yesterday to release a poll literally designed to portray public concerns over the governor's actions, and was quickly called out on it by the state media:

[T]he questions in the survey, paid for by the business community, may have influenced the answers.

For example, one question asks whether people would be willing to pay an extra $3,000 for cars and trucks to meet the new emission standards. More than 60 percent said "no."

Figures from the California Air Resources Board, which first adopted the rules Arizona is mimicking, put the cost at less than $1,100, not $3,000.

And Hamer acknowledged there is a financial benefit to buying the cars manufactured to the new standards because their higher fuel efficiency will reduce the need to buy gasoline — a point never mentioned to those questioned in the survey.

"I don't believe it really matters in terms of all the details," he said.

Auto Industry to Arnold: Let's Make Nice, At Least Outside the Courtroom

Automakers continue to doggedly pursue every legal angle they can for holding up California's clean-cars efforts, but they've decided to sit down with Governor Arnold Schwarzenegger and consider ways to work together on reducing GHG emissions. The upshot: industry leaders concede that the ground has fallen out from under them, both in legal battles and in the court of public opinion:

The auto industry executives had requested the meeting, which appeared to begin laying the groundwork to soften post-Bush regulations. On emissions, the auto companies are losing clout in Congress and face three leading presidential candidates weighing in on California's side.

“There will be a new conversation” in Washington, McCurdy conceded. However, that must include other sources of emissions, from railroads to oil refineries to utilities, he added.

[...]

Schwarzenegger suggested to reporters that automakers have known changes were coming since 2002, when the state passed the law.

“I told them ... while you're whining you should be creating new technology,” he said.

Automakers might know their legal odds are slim, but that's not stopping them from threatening new lawsuits. On Tuesday, Arizona became the latest state to formally adopt California's tailpipe emissions standards, with regulators completing a process initiated by Governor Janet Napolitano. The reaction:

Following the panel's decision, Alliance of Automobile Manufacturers lobbyist Knox Kimberly hinted at possible legal action.

"I think there's a very strong argument to be made in the courts," Kimberly said. "My guess, based on what has happened in the other states, is someone will sue."

Arizona legislators aligned with the industry's position had previously complained about not being consulted by Napolitano, and are mounting a legislative effort to overturn the regulatory process.

Mary, Mary: The EPA's Buggin'

Normally, yesterday's sudden ouster of EPA Midwest regional administrator Mary Gade-- a political appointee and active Republican who reportedly clashed with Administrator Stephen Johnson and other superiors over the cleanup of chemical pollution-- wouldn't merit a response from a blog as narrowly focused as Warming Law. But then again, most EPA regimes haven't shown the all-around disrespect for the law that might well have played out here, following the same pattern we've been seeing with regards to global warming.

Robert Sussman, a former Deputy EPA Administrator, explains this broader significance well:

If Mary stood up for her career staff and pushed for strong action to abate contamination, she was only performing her job under the environmental laws as she saw it. It is hard to believe that Mary, an astute and succesful lawyer in private practice with a long track record of implementing the federal contamination laws, would overstep legal boundaries. If her only sin was zeal in protecting the public, firing her was wrong and will send a troubling message to EPA employees all across the country who are trying to do their jobs. Clearly, it’s up to Steve Johnson to explain why he fired Mary and up to Congress to investigate the circumstances.

Therein, friends, lies the rub. The Bush EPA's legal problems transcend oft-heard (though not at all inaccurate) cries of politicization, upending traditional agency practice and creed, and bad policy choices, and boil down to an opportunistic disrespect for the rule of law. Sussman, to his credit, has been making the same point. If his present suspicions are correct, this latest move raises the stakes even more.

The Wonk Room is now reporting that next Wednesday, a furious Senator Sheldon Whitehouse (himself a former US Attorney) will be raising this matter at an oversight hearing looking at the "politicization of the EPA." From the looks of the witness list, its focus is on the undermining of science and public health. That's not to be minimized in and of itself, but in order to truly get to the heart of the matter and take it to a place beyond the sheer political scheming at work lately, the Senator and his fellow EPW committee members would do well to place some additional emphasis on damag done to the rule of law.

Yet Another Silver Lining, Courtesy of NHTSA This Time

California officials were rather steamed last week after the Bush administration announced new fuel economy rules that claim to preempt state action limiting auto emissions-- going so far as to threaten yet another lawsuit over NHTSA's efforts to rewrite the congressional record. But as per today's Clean Air Report (subscription req.), California Air Resources Board Chairwoman Mary Nichols noticed that there might be a silver lining to the rules:

Nichols said during an April 23 press conference that the state will sue NHTSA if it adopts the preemption language in the CAFE rules. However, she added that the language may actually bolster the state's lawsuit against EPA for denying the state last year a Clean Air Act waiver to implement its own vehicle GHG regulations...

Nichols said that because NHTSA and DOT appear to be claiming sole responsibility for regulating GHG emissions from vehicles through fuel economy standards, it may rebut an argument EPA is making in the lawsuit over the waiver denial that the environmental agency may still develop its own GHG regulations for vehicles.

"This is . . . certainly something we will be taking to court, in our litigation against EPA over their denial of our waiver to pursue the Pavley regulations, because part of the EPA's position in the lawsuit is that they might get around to setting emission standards," Nichols said. "Now, we have another agency . . . saying no, EPA will not set emission standards because we, the DOT, will take it all over and set fuel economy standards and that will be it."

We're absolutely SHOCKED that, in the same waiver-denial defense that inadvertently documented how global warming endangers human health and welfare, EPA may have ended up contradicting yet another administration legal position. Then again, when you're part of an administration that seems to be making this stuff up as it goes along, it's kind of hard to maintain rock-solid consistency...

California officials also told Clean Air Report that the CAFE preemption language might not have any legal effect if it ends up in an appendix to NHTSA's final regulations, citing the precedent of 2007 rules that included similar language in their preamble.

Blame California! And Other State (And International!) News

--The idea that state action in the U.S. would have reverberations beyond our borders continues to gain demonstrative weight, courtesy of British Columbia moving to adopt California's clean-cars standards. Numerous Canadian provinces had endorsed California's actions, but British Columbia-- which also intends to join several U.S. states in the Western Climate Initiative's forthcoming carbon trading program-- is the first to act on them.

--Ironically, back in California, some Republican state legislators are gearing up for budget negotiations by demanding several regulatory changes, including a one-year delay on implementing the state's landmark GHG reduction law. The Sacramento Bee notes that last year's environmentally-tinged budget standoff did result in some concessions to this crowd. It fails, however, to add that they failed to restrict Attorney General Jerry Brown's efforts-- under the aegis of a decades-old state environmental law, and in anticipation of the targets set by the aforementioned carbon-capping law-- to make land-use planning a tool for mitigating greenhouse gas emissions.

--Florida Governor Charlie Crist is now set to sign the comprehensive climate bill that we mentioned in last week's roundup. Environmental groups, while excited by much of the bill, are concerned about one provision that was tacked on at the last minute:

The Senate adopted the House version of the bill, which included a requirement that the Legislature approve any plans by a state agency to adopt California's stringent auto emission standards.

Critics of the measure, including some environmental groups, said waiting for ratification would slow Florida's efforts to aggressively curb greenhouse gas emissions, as mandated in executive orders signed by Crist at a climate change summit last summer in Miami Beach.

[...]

Sen. Burt Saunders, R-Naples, the Senate bill's sponsor, countered the measure was not ``the end of the story in terms of vehicle emissions.''

''This is an issue the Legislature will be debating down the road,'' Saunders said.

Another Governor Under Fire, and More (Better) News from the States

Busy news day today, so we're bringing you our weekly roundup of important state news a day early this week! We start in Arizona, where yet another governor is defending her executive leadership on climate change against industry allies in the legislature.

--Arizona Governor Janet Napolitano last year ordered state regulators to draft and implement auto emissions rules approximating California's landmark law; they have obliged and are still moving forward amidst the fallout from EPA's waiver denial, which state AG Terry Goddard is helping challenge in court. Now, the State Senate has belatedly stepped in to demand a role in the process, passing a bill that would stop environmental officials from implementing the rules. Napolitano will likely veto that proposal, though she has taken pains to stress her desire to work with legislators on comprehensive global warming legislation.

--On the other hand, Florida Governor Charlie Crist is experiencing smoother sailing than expected with his efforts to pass a comprehensive climate change bill. Crist, like Napolitano, had previously ordered state officials to work toward adopting California's clean-cars program.

--In our most recent post on the Kansas coal plant battle, we took note of coal companies' historic bad luck in trying to build a flurry of new plants before costs become too high and/or long-overdue federal regulation of CO2 kicks in. Nevertheless, as Sierra Club head honcho Carl Pope reports from negotiations over the Western Climate Initiative, at least one CEO hadn't gotten the memo as lobbied for weakening that regional compact.

--And last, yet certainly not least (though most of you have probably read about it by now), yesterday brought news that atomospheric levels of CO2 and methane rose sharply in 2007. Joe Romm has more over at Climate Progress, arguing passionately that "the time to act was yesterday."