Warming Law

More Preemptive War (and More to Come)

The energy bill saga is nearing it's conclusion, but the battle over greenhouse gas emissions and preemption is just heating up, as the headline in this morning's Christian Science Monitor aptly sums up. And if the last couple of days are any indicator, things will remain at quite a high pitch for some time to come.

Now that the Senate has finally passed a weakened energy bill, with the House's agreement to raise fleet-wide CAFE standards to 35 MPG by 2020 preserved, President Bush has signaled he'll sign the bill even though it lacks language limiting the authority of the EPA and states like California over auto emissions. Basically, the White House backed down-- for now- and Senator Carl Levin (D-MI) failed at last-ditch legislative efforts to do the auto industry's bidding.

Levin did get something, however-- a "colloquoy" in the congressional record in which Levin, bill co-author Sen. Dianne Feinstein (D-CA), and Senate Commerce Committee Chairman Daniel Inouye (D-HI) state their agreement that the bill's standards won't be "undercut" by any future EPA auto emissions standards. Press reports indicate that Levin threatened to vote against moving the bill forward if he didn't at least get this concession, which industry lawyers could (desperately, in our opinion) attempt to use in future legal and regulatory proceedings.

The legal effect of the colloquy, even on its own, is ultimately minimal. And even as Levin tried to assert NHTSA's supremacy (and thus contradict both the Supreme Court and Wednesday's ruling in California), he did pay lip service to Mass v. EPA. Still, it was puzzling that Senator Feinstein, after vigorously defending her state's authority, would agree to something that even slightly muddies the legal waters and provides California's lawyers with an extra headache.

Her office certainly heard similar complaints, and as Clean Air Watch reports, Feinstein and Inouye later inserted an additional colloquy into the record. Their agreement clarifies that the bill maintains co-equal status between EPA and NHTSA, fully preserves EPA's authority to protect human health and the environment, and in no way preempts California.

The Power of Mass v. EPA

Above all else, Judge Ishii's carefully reasoned opinion in Central Valley Chrylser-Jeep v. Goldstone shows how the Supreme Court has dramatically changed the debate over greenhouse gas regulation in this country, and made protection of public health a greater priority than the convenience of the auto industry. Put as bluntly as possible, Mass v. EPA made Judge Ishii change his mind about the strength of California's case. 

In a prior order in the case, from September 2006, Judge Ishii seemed quite skeptical of California's claims.  He wrote, "[b]ecause nothing before the court evinces Congress' intent to permit California regulations that stand as an obstacle to the EPCA's objectives, Plaintiffs [i.e. the auto industry] have stated a claim for EPCA preemption and the court will not grant judgment on the pleadings on this cause of action."  Legal terminology aside, Ishii was essentially saying that the state's case against preemption didn't look good. 

But then came Mass v. EPA, specifically this statement: "That DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities.  EPA has been charged with protecting the public's 'health' and 'welfare' ... a statutory obligation wholly independent of DOT's mandate to promote energy efficiency.... The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency." 

That caused Ishii to rethink his prior approach (something observers picked up on at oral argument).  This kind of thorough-going rethinking is, to put it mildly, rare.  And the turning point in Ishii's opinion is clear (more on that after the jump).

About That Veto Threat...

UPDATE: Looks like the White House isn't the only political actor here engaging in "the very definition of folly." CongressNow (subscription only) reports that Senator Carl Levin-- who was present to endorse last week's House deal on CAFE standards-- is still trying to insert "poison pill" language; sources tell Warming Law that Senator Ted Stevens (R-Alaska) might also be involved:

Sen. Carl Levin (D-Mich.) is continuing to press for the insertion of language in the Senate energy bill that would clarify the role of two key federal agencies in setting corporate average fuel economy, or CAFE, standards.

"I'm trying to clarify it to make sure there's no conflict," Levin told reporters this afternoon, of the role of the Environmental Protection Agency and the National Highway Transportation Safety Administration, or NHTSA.

[...]

Levin declined to say whether he would withhold support for the larger energy bill over the matter

More reaction to Judge Ishii's ruling from Friends of the Earth and Environmental Defense, while our friend David Bookbinder, who litigated the case for the Sierra Club, provided a statement to Gristmill. While the focus of reaction is on the EPA's waiver decision, Environmental Defense brings up a statement from the opinion's text worth spotlighting in the wake of debate over the energy  bill:

Judge Ishii wrote: “Given the level of impairment of human health and welfare that current climate science indicates may occur if human-generated greenhouse gas emissions continue unabated, it would be the very definition of folly if EPA were precluded from action….”

As Calitics' David Dayyen notes and we conveyed earlier today via the same NY Times article, that's exactly what the White House is demanding in its veto threat. And now that Senate leaders have agreed to eliminate other provisions in order to get cloture and put a bill on the President's desk, the spotlight on its obstinance is glaring.

BREAKING: The Auto Industry Loses in Court. Again.

Federal Judge Anthony W. Ishii of California's Eastern District Court in Fresno, has just issued a 57-page ruling in the auto industry's preemption lawsuit against California's so-called Pavley law, which set the standard for efforts to limit greenhouse gas emissions from cars that are being pursued by 17 states.

According to Ishii's order, which hands yet another victory to the state and environmental groups, if the EPA grants California's waiver application this month, the state can begin enforcing its standards and other states can start following suit. More from the LA Times, and from Gristmill's David Roberts.

As always, you can check back later and tomorrow for more detailed analysis of the ruling and its implications as we read through it. For now though, we'd like to echo Gristmill in highlighting a passage from the ruling's conclusion that weighs in firmly on whether regulations from the EPA and states interfere with federal fuel economy rules (emphasis added):

Pursuant to the foregoing discussion, the court concludes that both EPA and California, through the waiver process of section 209, are equally empowered through the Clean Air Act to promulgate regulations that limit the emission of greenhouse gasses, principally carbon dioxide, from motor vehicles. The court further concludes that the promulgation of such regulations does not interfere or conflict with NHTSA's duty to set maximum feasible average mileage standards under EPCA. The court finds EPCA's preemption of state laws that regulate vehicle fuel efficiency does not expressly preempt California's effort to reduce greenhouse gas emissions through AB 1493. Because Congress intended there should be no conflict between EPA's duty to protect public health and welfare and NHTSA's duty to set fuel efficiency standards through EPCA, the doctrine of conflict preemption does not apply. To the extent the enforcement of California's AB 1493 Regulations may be inconsistent with existing CAFE standards, EPCA provides that NHTSA has authority to reformulate CAFE standards to harmonize with the AB 1493 Regulations if, and when, such standards are granted waiver of preemption by EPA.

How to Greenwash, by Rodney Slater

Right now, chatter around the energy bill revolves around the idea that the Senate, having failed to move forward House legislation, should pass a bill focused only on raising CAFE standards and hope that the White House caves on its veto threat. This is what the Washington Post' advocated in its Sunday lecture to congressional leaders-- in the process ignoring that the administration and others continue insist on limiting (or removing) the EPA's authority over auto emissions, and thus also threatening state efforts to limit global warming pollution.

The media also continues to ignore the prospect that this all might be one elaborate greenwash by the auto industry, caving to a bold CAFE increase sans preemption with the foreknowledge that it stands no chance of becoming law, and all the while working through allies and the White House to make sure that's the case. Some damning evidence comes, quite indirectly, via the Detroit Free Press and the AP wires, which report that two former Secretaries of Transportation-- at least one of whom is definitely on the industry's payroll, although he doesn't bother to mention it-- have written Congress in the industry's defense while essentially backing up the White House's veto threat:

In a joint letter Monday, former transportation secretaries Rodney Slater and Norman Mineta told Congress that letting EPA "pursue its own separate, unharmonized rulemaking track could negate Congress' finely balanced legislation -- not to mention jeopardize the auto industry."

Slater's role in particular gives us insight into what the auto industry is really aiming for. Presently an attorney/lobbyist for power law firm Patton Boggs, Slater is the chairman of Driving America's Future, an astroturf campaign created by the auto industry to support weaker CAFE legislation such as the Hill-Terry bill that would have preempted state emissions standards. Indeed, after the House's deal on a CAFE standard of 35 MPG was reached, Slater, speaking in his capacity with Driving America's Future, told sympathetic columnist David Nicklaus that he supported the compromise becoming law.

Unfortunately, media reports have failed to note his obvious conflict of interest-- literally, it took two minutes to uncover on Google!-- thus letting Slater cast himself as a sagacious former Transportation Secretary urging his fellow Democrats to proceed with caution, rather than in his role as an active auto industry mouthpiece. We don't think its asking too much for reporters to note that fact, and to recognize that his avowed support for the energy bill is thrown into question by advocating for a change that is at the heart of the White House's veto threat, and which would rightly be considered a poison pill by numerous key members of Congress.

What They Want, And What It Will Cost Us

This morning, the world woke up to the headline that a record decline of Arctic summer sea ice has left scientists worried that we may have reached a new tipping point in global warming, with one scientist going so far as to plead that "the Arctic is screaming." It's not clear whether this year is an aberration or really is the dangerous acceleration of a long and well-documented warming trend, but needless to say, it kind of makes you want to immediately start dealing with the issue on a broader scale.

That is, unless you're the current occupants of the White House. Others have quite aptly expressed outrage at the United States' role in the Bali climate talks going on this week. But closer to home, White House sources have chosen this morning's New York Times as their venue to clarify exactly what kind of a solution they'll agree to on a national scale:

A senior White House policy adviser, speaking on the condition of anonymity because confidential discussions with Congress are continuing, said the administration’s concern was that Congress would specify [in the energy bill] a 35 m.p.g. standard that would later be overtaken by aggressive new rule-making by the E.P.A. as it seeks to reduce greenhouse gas emissions. Some of the Democratic presidential candidates have called for even stricter mileage mandates, and California and 14 other states have petitioned the E.P.A. for permission to impose stringent carbon dioxide emissions limits on cars and trucks.

“What we are saying is that we’d like to have D.O.T. and E.P.A. consult on both vehicle economy and greenhouse gases and set a standard and that should be it,” the White House official said. “Not that should be it until something or someone else comes along.”

In other words, after twenty years of the federal government doing next to nothing to deal with auto emissions while the climate sufferred-- with some advances along the way, many of them spread thanks to state innovation-- their solution is to set a single national standard, then lock it in under the auspices of the federal agency that's generally friendliest to the industry. Period, end of story for the foreseeable future, and tough luck if the consensus otherwise is that this action should only be a down payment on solving the problem and moving us toward a clean-energy economy.

This is exactly what industry sources tried (and failed) to do with regards to the Clean Air Act decades ago, and its a big part of why they are so gung-ho to gut Mass. v. EPA and preempt state action. Except this time, we're not only dealing with the problem of air pollution, but a global catastrophe that isn't waiting around for next time the Congress decides to act.

"Grandstanding" on Climate Change

In reporting on the White House's energy bill veto threat last week, we noted that it was issued Thursday evening and thus didn't influence Friday morning news articles suggesting that a pared-down bill focused on CAFE standards might stand a chance of becoming law. Sunday's Washington Post editorial on the energy bill, which chides "grandstanding lately on climate change from both ends of Pennsylvania Avenue" and encourages the Senate to strip contentious House provisions on renewable electricity standards and rolling back oil-industry tax breaks, has no such excuse.

The editors conclude that "The CAFE reform has the votes. It should become law." Yet they should have  realized by press time-- and noted in print-- that unless it is further altered to contain a poision pill undermining Mass v. EPA and endangering bolder state-based efforts, no such law stands a real chance of making it past the President's veto pen. Their decision to instead focus on condemning House leaders is even more disturbing because they have passionately and convincingly editorialized in favor of California's clean cars program (and its resulting lawsuit against the EPA), and against previous attempts at preemption. 

The idea that Congress should pass a weaker bill even in the face of a veto threat, and draw a broad contrast with the White House, is worthy of debate. But that debate should recognize that such a futile vote would essentially give scores of lawmakers license to cast a vote for "progress" that they know upfront will have no legal meaning, as well as abetting the auto industry's efforts to greenwash its continued intransigence by supporting the ill-destined deal. 

At the very least, the Post should have recognized that the only "grandstanding" here is coming from a White House (and industry allies) that continues to insist on doing things its own way or the highway, and on overturning its own landmark defeat before the Supreme Court.

Tea Leaves: An Endangered EPA Finding

Fallout continues from the White House's veto threat regarding the energy bill passed by the House of Representatives last week. Rep. Ed Markey (D-MA) came out with a strong statement late Friday blasting the administration for essentially seeking to undo Mass. v. EPA and undercut state efforts, while Environmental Defense offered a strong analysis documenting the legal victories recently bolstering the Clean Cars program. Meanwhile, David Roberts catches business groups being a lot more upfront than the White House about their desire to have the Supreme Court's ruling gutted, and picks up on the idea that this might all add up to an auto industry effort at greenwashing its position.

The policy document outlining the White House's rationale is useful for a bit more than discerning the industry's motives in this debate. The White House's assertion that it will soon propose a "significant" fuel economy increase that parallels the "20 in 10" plan through "administrative rulemaking," combined with EPA Administrator Stephen Johnson's repeated use of the plan as a talking point during an online forum last month, helps give us an emerging picture of what EPA's Supreme-Court-directed GHG regulations might look like. And it's not a pretty one.

On its own, the "20 in 10" plan pales in comparison to what California and other states have enacted, and in its original form called for preempting the states. Take into account that its invocation comes as the administration continues to blast the House for not significantly limiting the scope of EPA's jurisdiction, and any hope for a truly significant proposal begins to dissipate.

Even more directly discouraging are reports indicating that EPA's endangerment finding regarding CO2 might be quite narrow in scope. According to a subscription-only Inside the EPA article published on Friday, titled "Despite EPA Hedging, Activists Fear Narrow Climate Finding," both activists and EPA's own advisory committee on children's health fear that the ruling will focus only on environmental damage from global warming:

The Plane Truth

As reported by multiple outlets, yesterday California joined with other states, cities, and environmental groups in asking the EPA to regulate airplane emissions under the Clean Air Act, in keeping with the Supreme Court's ruling that CO2 is a pollutant. The San Francisco Chronicle notes that while the aviation industry is responding by claiming it's going as fast as it can (sound familiar?) on the issue of cleaner-emitting jets, environmental groups aren't buying it:

"Aviation greenhouse gas emissions are increasing faster than voluntary improvements in fuel efficiency," said Alice Thomas, an attorney with Earthjustice, the San Francisco legal group that filed the petition on behalf of the environmental groups.

Some changes in aircraft operations that could occur now include reducing how long planes are allowed to idle, using only one engine when taxiing and better controlling engine thrusts during takeoffs and landings.

Airlines could use improved technology and design to reduce the weight and drag of their planes, which would reduce the use of fuel. Airplanes could be lightened and streamlined if they were made using lightweight composite materials and differently designed wings and propellers, the environmentalists' petition said.

That petition cites strides in aeronautic research, including the new Boeing 787 Dreamliner that will be in the air beginning next year. The plane is made of lightweight carbon composite, uses some new engine technologies and is 20 percent more fuel efficient than aircraft of similar size, the petition said.

The petitions, which can be found here (the state's petition) and here (environmental groups), are the second such effort spearheaded by California in recent months; a similar coalition has also asked EPA to limit the emissions originating from international shipping in U.S. ports.

And while we're on the subject of countering industry distortions, readers should note that the California Attorney General's office also just revitalized its global warming homepage. It comes complete with not only user-friendly guides to understanding key environmental laws at the heart of current litigation, but a page dedicated to "Debunking Myths of the Auto Industry."

Riegel Post-Argument Diagnosis

Riegel v. Medtronic, the medical device case that we've been following for some time, was the subject of intense questioning during oral arguments on Tuesday. By and large, though, we're in agreement with the NY Times' Linda Greenhouse that there weren't any solid tea leaves to indicate how the Supreme Court might rule.

We just posted additional analysis of the case over at Gristmill, noting how it plays out against the backdrop of the energy bill (which just passed the House minutes ago, 235-181, its margin buttressed by the visibly exhausted and oh-so-enthusiastic Rep. Dingell's endorsement). Readers coming to us from Grist who want to delve into the case a bit more might want to check out the Court's official transcript.