Warming Law

Strong Reactions to Waiver Document Cite Federalism, Mass. v. EPA

We're still reading through Stephen Johnson's expanded new legal doctrine fine legal argument, but we've got an evolving picture of the document's clear and deliberate rejection of deference to California (and states in general) with regard to warming impacts. Frank O'Donnell of Clean Air Watch has some thoughts meanwhile on the connection with the auto industry's position and the previous EPA position rejected in Mass v. EPA, while Rep. Ed Markey (D-MA) focuses his strong response partly on the document's trampling of federalism:

“To say that California doesn’t have a ‘compelling reason’ to regulate global warming ignores the Supreme Court, it ignores the climate crisis we all face, and it ignores the rights of states to decide how pro-active they want to be on pollution control. In fact, as we have learned from internal EPA documents that have been recently released, this decision overrides the legal views of the professional staff,” continued Chairman Markey.

“This country has benefited time and again from allowing the states to go beyond minimum federal standards. The administration’s insistence on denying this waiver says that no matter what the president said when he signed our new, strong CAFE standards into law last year, he’s still stuck in first gear. This denial substitutes politics for science, fails to protect the public health, and is a sad retreat on the progress that Congress is making on combating global warming.”

UPDATE, 2 PM: Additional reaction from Senator Barbara Boxer (D-CA), emphasizing that Johnson's position will not withstand legal scrutiny and/or the next President's decision-making.

BREAKING: EPA Denial Notice Now Online

We're first starting to read through the EPA's just-released (literally, moments ago) decision notice regarding the California waiver, which focuses on California purportedly lacking "compelling and extraordinary conditions" under the Clean Air Act, and will be entered into the Federal Register later today. Once we've got a sense of the 47-page document, we'll be posting updates and our usual no-frills analysis throughout the day.

In the interim, however, Warming Law readers should certainly feel free to take a look for themselves, and chime in if desired. EPA's news advisory unsurprisingly sets the "official timeline" as follows, also linking to the original decision notices from December:

EPA sent a letter to California on Dec. 19, 2007, setting forth its intent to deny the waiver in favor of a national solution for vehicle greenhouse-gas emissions. On Feb. 29, 2008, EPA Administrator Johnson signed a Federal Register Notice Denying a Waiver of Clean Air Act Preemption for California's 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles. 

Johnson's "Unique" Reading of the CAA

Posted by Tim Dowling

Inside EPA reports on a new twist EPA Administrator Johnson is using to justify his denial of a waiver for California’s greenhouse pollution limits on new cars and trucks.  After reiterating his position that his denial was appropriate because global warming is not a problem “unique” to California, Johnson stated:  “Every time a governor or state representative talks about the need to address climate change they are actually making my very point on the California waiver.”

Actually, Mr. Johnson, the Clean Air Act expressly authorizes other states to adopt the California limits to address environmental harm within their borders.  When state officials talk about their desire to adopt the California program and other measures to address global warming, they are doing nothing other than evidencing a plain reading of their authorities under the Act. 

EPA's Johnson Gets It Exactly Backwards

Post by Tim Dowling

Inside EPA reports that EPA Administrator Johnson has postponed making a decision on whether greenhouse pollution endangers public health and welfare as the Supreme Court directed him to do in Mass. v. EPA until he can sort out the ramifications such a finding might have for industry:

EPA Administrator Stephen Johnson says he is "taking a step back" to analyze a slew of greenhouse gas (GHG) litigation, permits and petitions facing the agency in order to decide the best way to proceed given that taking one action under the Clean Air Act can impact a host of other provisions in the statute.

* * *

Johnson said he is "taking a step back to look at the impact" of the host of climate activities on the CAA because taking "one step [under the law] can and will have a dramatic effect on all other provisions."

Industry and other sources have previously said that at such time EPA regulates GHGs from one source of pollution -- such as mobile sources including automobiles -- then the air law requires the agency to regulate those same emissions from all other sources, stationary and non-stationary.

[Congressman Norman] Dicks also asked Johnson whether the agency would have to issue an endangerment finding if it issued GHG fuel or vehicles rules, and Johnson said "that's one of the issues as to whether one does have to issue an endangerment finding . . . and what that means for stationary sources."

In other words, Johnson believes he must assess the potential burden on industy before he decides whether greenhouse pollution is harmful. 

That, in a nutshell, exposes the fallacious reasoning that predominates his thinking on global warming and his duties under the federal Clean Air Act.  It is not his job to decide whether the CAA is the best vehicle for addressing global warming.  Instead, he is obliged to determine whether, in the words of section 202(a), greenhouse pollution "may reasonably be anticipated to endanger public health or welfare."  This language does not permit a balancing of human health and welfare against economic impact or inconvenience to industry.  If he determines that greenhouse pollution endangers the public (as it obviously does), he must discharge his statutory responsibilities as set forth in the Act, and at that point he can consider cost of compliance and other factors to the extent permitted by the Act. 

If Johnson thinks the Act imposes unfair burdens on industry, he should write his congressional delegation and suggest amendments.  But if he can't discharge his statutory duties under the Act as currently written, he should resign.

EPA Set to Issue Legal "Justification" for CA Waiver Denial

Reporting yesterday on this week's developments in the California clean cars saga, the Wall Street Journal's Stephen Power revealed that "the EPA is expected to fire back this week by publishing data and research to support Mr. Johnson's decision." Today's Philadelphia Inquirer confirmed that such a document should "be released by tomorrow" via Johnson's response to grilling on the waiver decision during a Senate hearing on EPA's budget. (Regular readers may recall that his December announcement of the waiver denial was notably brief, and reach their own conclusions on whether Johnson had fully figured out his legal rationale before he made his mind up.)

We've been anticipating EPA's belated justification, which is expected to be placed in the Federal Register, for some time now-- both in terms of Johnson's public promises and as a legal strategy in fighting California's lawsuit. In a move that is probably not coincidental, EPA filed a motion last week asking the 9th Circuit to dismiss the existing case. Warming Law is still working to obtain EPA's motion, but we've written previously on both its likely rationale, and on the unprecedented legal argument that Johnson will likely make to claim his actions can be justified under the Clean Air Act.

If Johnson goes this route, the legal effect would be almost akin to proclaiming "The Clean Air Act c'est moi!" He would be interpreting the law in a way that his staff told him is legally impossible even if they accepted the auto industry's criteria for judging waiver requests, and doing so based on the arguments that he:

1) Is legally empowered to break with all agency precedent regarding what constitutes "compelling and extraordinary" conditions-- instead adopting the "exclusive and unique" legal invention argument that Tuesday's document release shows was first advanced in March 2006 by Bill Wehrum, a political appointee with prior ties to the auto industry (Wehrum has since left the EPA, and was recently spotted testifying in favor of a pair of coal-fired plants that Kansas regulators shot down last year based on global warming concerns).

Former EPA Administrator William K. Reilly, who served under President Bush's father, highlighted the scope of Johnson's audacity when he revealed yesterday that he was the receipient of impassioned talking points that agency staff prepared for him to press with Johnson. In his conversations with Johnson, Reilly focused on the stark reality that legal text, congressional intent and longstanding precedent all point to extreme deference for California's wishes, and noted that the administrator need not agree with the state in order to let it move forward:

Alaska Village Sues Over Global Warming Impacts: Demands Compensation for Public Nuisance, Conspiracy

The NY Times reports on the landmark lawsuit, which is the first of its kind asserting a direct connection to global warming, and was brought by some of the lawyers involved in landmark nuisance litigation against tobacco companies:

SAN FRANCISCO — Lawyers for the Alaska Native coastal village of Kivalina, which is being forced to relocate because of flooding caused by the changing Arctic climate, filed suit in federal court here Tuesday arguing that 5 oil companies, 14 electric utilities and the country’s largest coal company were responsible for the village’s woes.

The suit is the latest effort to hold companies like BP America, Chevron, Peabody Energy, Duke Energy and the Southern Company responsible for the impact of global warming because they emit millions of tons of greenhouse gases, or, in the case of Peabody, mine and market carbon-laden coal that is burned by others. It accused the companies of creating a public nuisance.

In an unusual move, those five companies and three other defendants — the Exxon Mobil Corporation, American Electric Power and the Conoco Phillips Company — are also accused of conspiracy. “There has been a long campaign by power, coal and oil companies to mislead the public about the science of global warming,” the suit says. The campaign, it says, contributed “to the public nuisance of global warming by convincing the public at large and the victims of global warming that the process is not man-made when in fact it is.”

Kivalina asserts that its forced relocation comes about due to melting sea ice that formerly protected the village from storms, which was tied to global warming in recent reports by the Government Accountability Office (2003) and the Army Corps of Engineers (2006). As the Times notes, previous nuisance lawsuits tied to global warming emissions (including the under-appeal California case against the auto industry that Warming Law has been covering for some time) lack this critical element.

A large portion of the petition builds the conspiracy case, which also reflects the tobacco case's influence a bit more directly-- the "junk science" effort launched by Phillip Morris is directly cited as having both laid the groundwork for polluter-driven efforts at countering peer-reviewed science, and having morphed into a warming-denial outfit under the guidance of ExxonMobil's funding. Using exposes such as the Union of Concerned Scientists' Smoke, Mirrors & Hot Air  and the work of science reporter extraordinaire Chris Mooney, the plaintiffs argue that Conspiracy Defendants deliberately worked for decades to "mislead the public with respect to the science of global warming and to delay public awareness of the issue-- so that they could continue contributing to, maintaining and/or creating the nuisance without demands from the public that they change their behavior..."

Boxer: EPA Docs Show "An Agency in Crisis"

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:

Dingell-Boucher Redux: Preemption's Last Stand

Last spring, Reps. John Dingell (D-MI) and Rick Boucher (D-VA)-- respectively, the chairmen of the House Energy and Commerce Committee and of its Energy and Air Quality Subcommittee-- mounted an unsuccessful effort to preempt state efforts to combat global warming emissions. As the current winter approaches its end (and we approach the first anniversary of Massachusetts v. EPA), the background has changed-- debate over a comprehensive cap-and-trade approach to global warming-- but the goal, sadly, remains the same.

HillHeat has the scoop on the duo's white paper on "Appropriate Roles for Different Levels of Government," and how its language mirrors EPA's justification for denying California's waiver application-- particularly in the area of deeming climate change to be "a global, not local, problem, perhaps providing less need for allowing states to be more stringent." Congressional Quarterly (subscription only) also has reported on the (mostly negative) reactions to the paper's release, and notes that the authors do admit that there might be benefits to a state-friendly approach:

The discussion paper notes that "more stringent state programs could achieve additional levels of reductions, spur technology development, test new programs, or reduce the cost of achieving the level of national reductions sufficient to stabilize global atmospheric greenhouse gas concentrations."

If Dingell and Boucher were to succeed in adopting a preemption provision (something that they acknowledge even members of their own committee oppose), it would contrast with the current draft of the Lieberman-Warner cap-and-trade legislation being hashed out in the Senate, which explicitly praises and incentivizes stricter state-based efforts. In other words, things don't look good for the duo's intentions.

Still, given their dogged willingness to raise this matter again within the context of securing their support for economy-wide climate legislation, and the desire of both members of Congress and an increasing number of industry voices to pass something this year, one can never be certain... 

More on CAFE and Warming Impacts

On Thursday, Jeremy Schiffer of Akin Gump posted some additional thoughts over at Climate Intel, regarding the Bush administration's en banc petition to overturn a key portion of Center for Biologicial Diversity v. NHTSA, that Warming Law readers ought to be aware of. His analysis digs more into the Justice Department's secondary argument (not covered in our initial posting) that its case for a do-over Environmental Assessment is bolstered by NHTSA's need to respond to congressional passage of the Energy Independence and Security Act (EISA).

Moreover, Schiffer puts the potential importance of this case in sharp relief, and reveals that at least one of the original lawsuit's plaintiffs intends to weigh in as the court considers the petition:

This is a very important case moving forward. If NHTSA’s arguments are adopted by the Ninth Circuit, it will have a significant impact on the ability to challenge agency determinations that actions will not have a significant impact on the environment. By remanding the decision to the agency level, courts would be further insulating the decision-making process from public scrutiny. If agencies are routinely given multiple attempts to create an EA that finds no significant impact, it threatens to undermine the primary purpose of conducting environmental reviews under NEPA.

The Center for Biological Diversity will be filing its response to the petition within the next few weeks.

Riegel and Beyond: Preemption Down the Line

As many readers have probably learned by now, on Wednesday the Supreme Court issued a decision in Riegel v. Medtronic, the medical device liability case that we've commented on previously and filed an amicus brief in. In an 8-1 opinion written by Justice Scalia, the Court sided with Medtronic's (and the Bush administration's) assertion that federal law preempts state lawsuits like the one undertaken by the Riegels. The Drum Major Institute's Tort Deform blog has been doing a great job of covering the decision, and links to some great analyses of its broader significance.

This is obviously not an ideal result for those concerned with state and local authority to enact community protections. At best it's a missed opportunity to make a clear ruling that could have assisted states in their leadership against global warming emissions, and overall its a definite blow to the federalist system, as CRC indicated in our statement reacting to the decision (quoted here in the LA Times). That said, the majority opinion can hopefully be limited to the facts of the case, and as plaintiffs' attorney Thomas Kline told the Philadelphia Inquirer, it might not even affect other state-based consumer torts such as prescription-drug liability cases.

The estimable Linda Greenhouse-- who also has a great article summarizing how another case decided yesterday, this one in favor of state authority, fits into the Roberts Court's evolving federalism debate (as seen in cases such as Mass v EPA)-- ably summarizes the differences between the Court's reasoning and Justice Ruth Bader Ginsburg's strongly-worded dissent: