Hoping to further ratchet up pressure on EPA Adminstrator Stephen Johnson, Senator Barbara Boxer (D-CA) has now released additional transcriptions of internal agency documents her EPW committee staff was able to view. David Roberts has posted some initial thoughts on the highlighted contents-- including a plea from EPA staff to Johnson indicating that if he couldn't grant the waiver at least temporarily, "...you will face a pretty big personal decision about whether you are able to stay in the job under those circumstances."
Even more interesting to us, from a legal perspective, is the following excerpt from that same set of talking points, which is played out repeatedly in the 27 pages of documents transcribed and released by Boxer (added emphasis ours):
• [It is obvious] that there is no legal or technical justification for denying this. The law is very specific about what you are allowed to consider, and even if you adopt the alternative interpretations that have been suggested by the automakers, you still wind up in the same place.
That last sentence is critical, as it bears out the reality that Johnson lacks the administrative authority and legal justification to reintepret the law as he has here. Internal emails and presentations consistently indicate that Johnson's ultimate ruling was wrong and unprecedented along three key lines of argument:
1) The Clean Air Act, by design and legal precedent, indicates that "the burden of proof is on parties opposing a waiver, not on CA or EPA." In other words, to deny the waiver, EPA essentially must rule that the auto industry (which was almost alone in submitting comments to oppose the waiver) proved its case.
2) Historically, EPA has judged waiver requests while giving California broad discretion to enact its own standards, with the main criterion being related to the continued necessity of CA standards. Declaring that GHG emissions standards were different and required a more stringent standard, as the auto inudstry argued and Johnson ultimately agreed, would clearly not jibe with Congressional intent and intrinsically narrow the nature of CA's discretion under the Clean Air Act. Moreover, according to an April 30, 2007 PowerPoint presentation:
- Justification would need to explain why the alternative interpretation is a better way to meet the goals of [Section] 209--providing broad discretion to CA, get benefits for country from a "pioneer," limit burden on industry by only having two programs, etc.
To date, EPA has provided no such explanation for its new GHG-specific interpretation.
3) Even allowing for the aforementioned change in EPA's deliberative process, the burden of proof would remain on EPA to affirmatively rule that "compelling and extraordinary conditions" specific to GHGs have not been proved by California. This determination, the same April 30 presentation indicates, would need to somehow gel with the specific warming impacts demonstrated by the California Air Resources Board.
Also, in addition to discounting California's ongoing concerns, "EPA would have to find that we know enough about GCC and its impacts to determine now that in the future CA will not face compelling or extraordinary conditions from GCC, including impacts on ozone." Obviously, that's a rather strong statement, and one that EPA would probably have a hard time proving in the legal proceedings potentially ahead of it
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All said, nothing has changed since yesterday-- the EPA's decision was clearly a troubling one from a legal perspective and in so far as expert recommendations were cast aside. But today's disclosures shine further light on just how clear it ought to have been to Administrator Johnson that he had no real choice besides granting the waiver.
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