Warming Law

Court Tells EPA "No Funny Business," But Maintains Current Schedule

Important news out of the 9th Circuit, where the state of California recently moved to have an expedited hearing of its lawsuit seeking to overturn the EPA's Clean Air Act waiver denial (EPA opposed this action). On Friday afternoon, the court ruled to grant the state's request in part, allowing the case to move forward at its current pace but constraining EPA's ability to delay the process. 

Under the current briefing schedule, the state's opening brief is due on March 24, with EPA's response due at the end of April and the state having the option of countering within a month. In other words, the earliest the court might hear arguments is this summer.

The good news for California was that the court declared that Circuit rule 31-2.2(b, rather than 31-2.2(a), would apply to this case-- meaning that any requests to extend briefing deadlines must be made in writing, follow strict procedures, and be received at least a week prior to an approaching deadline. This determination was added to by the court's apparent warning that it intends to be judicious in granting extensions ("Any motion...must demonstrate extraordinary circumstances exist to warrant additional time to file the brief") indicating that any attempts to drag the matter out will face an uphill climb.

Still, anyone hoping for a hasty resolution of this legal matter and the swift enactment of California's global warming emissions standards should certainly realize that short of legislative intervention, nothing is likely to happen this year. 

Bush Administration Seeks to Soften CAFE Ruling

Last week, the Justice Department filed a motion with the 9th Circuit Court of Appeals asking for an en banc re-hearing of November's decision in Center for Biological Diversity v. NHTSA. In that case, a three-judge panel determined that proposed federal fuel economy standards for light trucks violated both the Energy Policy Conservation Act (EPCA) and the National Environmental Policy Act (NEPA), on the grounds that the National Highway Transportation Safety Administration (NHTSA) failed to account for the impacts of carbon emissions on global warming.

However, rather than fully defending its decisions and potentially setting up a Supreme Court showdown (as notorious climate change "skeptic" S. Fred Singer advised last month), the administration's appeal focuses on asking the full court to overturn the court's under-publicized, but extremely significant order that NHTSA must prepare a new Environmental Impact Statement regarding the effects of CO2. The administration's petition appears to be motivated by two interrelated factors: a desire to forestall the NEPA ruling's potential long-range impacts, and a legal position of strong deference to agencies when it comes to regulatory decisions affecting global warming (for more discussion of administrative deference, see our prior analyses of its relationship to the EPA's recent denial of California's waiver application).

The administration claims that in ordering a new EIS outright, rather than remanding the matter to NHTSA, the judges contradicted "governing principles of administrative law," and set up a conflict with both other rulings within the 9th Circuit and the interpretation of other appeals courts. Should the full court validate this position, NHTSA would essentially have the option of recalibrating its initially-flawed Environmental Assessment (EA) to reach the same conclusion-- that an EIS for global warming impacts is unncessary and would have "minimal impact." The petition implies this much, stating that "This is the type of case that should be remanded to the agency to reconsider the issue whether an EIS is required, since the panel concluded that NHTSA failed to provide a convincing statement of reasons to support its conclusion that the impact of the rule might not be significant."

The successful plaintiffs in the original lawsuit-- a coalition of environmental groups and states led by the Center for Biological Diversity and California Attorney General Jerry Brown, the latter of whom has referred to the petition as "a frivolous appeal...intended for delay, to help the automakers to continue for a little longer making unacceptable gas guzzlers-- are not required to respond to DOJ's arguments before the 9th Circuit decides whether to grant a rehearing. State officials are weighing whether to respond, while the court has given no indication as to when it might reach a decision.

"It Depends On What You Mean By 'Junket'"

Over at the Manhtattan Institute's Point of Law, George Mason University law professor Michael Krauss has posted a rather urgent-sounding piece, "S.1638 and the fight for judicial education," that seeks to defend the sorts of "legal seminars" that we've criticized as ethically troubling. He asserts that programs like his school's Law & Economics Center (LEC) are the "principal target of Senator Feingold's wrath;" and claims that they are not junkets, but dispassionate, unbiased academic retreats integral to the Center's intellectual mission.

Krauss may be technically correct that none of these programs have been held "at the Ritz," but its not insignifcant that they have been held at luxurious resorts where judges spend good chunks of their "workdays" swimming and playing golf. One judge, approached by ABC News' 20/20 at the Omni Tuscon Resort and asked whether his presence was really nothing more than a "junket," responded that, "it depends on what you mean by 'junket.'" Another judge, approached playing golf by the same investigative team, called the retreat his well-deserved "vacation."

The claim that Mason's programs have no motivations other than stimulating discussion also doesn't hold up well against the following:

• In that same 20/20 report, George Mason's law school dean flat-out admitted that the junkets are aimed at influencing decisions, declaring that, "Yes we are out to influence minds...if court cases are changed, then that's something we are proud of as well."
• Documents uncovered by public-interest attorney Lucy Friedman revealed that not only did cigarette manufacturer Phillip Morris help subsidize the LEC's programs, but an internal presentation identified the Center as a "key ally" in the realm of litigation and policy strategy. LEC has also been funded by the likes of ExxonMobil and the ideologically-driven foundation run by billionaire Richard Mellon Scaife.

What Is the Auto Industry Talking About? Congressional Lobbying Gone Awry

UPDATE: We're somehow betting that industry executives aren't going around the Capitol building touting GM head honco Bob Lutz' behind-the-scenes thoughts on global warming...

As per the Detroit Free Press, auto industry executives have grown increasingly concerned about Senator Barbara Boxer's legislation overturning the EPA's California waiver decision. Industry's stepped-up lobbying campaign included a strong presence at the national car dealers' convention last week, and most recently has taken the form of a letter to senators that makes a rather audacious claim about state auto emissions standards:

The Alliance of Automobile Manufacturers, which includes General Motors Corp., Ford Motor Co. and Chrysler, said in a letter to senators Tuesday that Boxer's bill would break the compromise hammered out last year between environmental groups and the industry for a national standard of 35 m.p.g. by 2020.

"It is unreasonable for Congress to move the goalposts when the ink on this historic energy bill, with its aggressive increase in fuel economy requirements, is barely dry," the alliance said in its letter.

The Alliance employee who drafted that letter might not have had much of a straight face at the time. Industry knows perfectly well that the energy bill said absolutely nothing that ruled out state auto emissions standards (and yes, as two federal judges have agreed, they are in fact emissions standards, not fuel economy requirements). Auto executives might also recall that their repeated attempts at enshrining the CAFE increase as a pre-emptive national standard failed, forcing them to cave in and accept the aforementioned compromise.

AAM also can't be referring to the legislative record-- which has no legal impact but at least could signify a vague understanding with Congress-- because, as we reported at the time, they tried and failed there as well. In the end, the congressional record ended up containing a clear statement that the bill in no way, shape or form should be seen as preempting California's efforts.

Waxman Subpoenas EPA Docs; Congressional Pressure Continues to Build

This move has been discussed for some time on both sides of Capitol Hill, but Rep. Henry Waxman (D-CA) finally got tired of waiting around for EPA to fully cooperate:

Escalating the fight over the decision, Rep. Henry A. Waxman (D-Beverly Hills), chairman of the House Oversight and Government Reform Committee, directed the EPA to provide uncensored copies of its staff recommendation to agency Administrator Stephen L. Johnson before he rejected California's request to enact tailpipe emission standards stricter than the federal government's. The EPA was told to respond by noon Tuesday.

"The committee is simply trying to understand if the decision to reject California's plan was made on the merits, so I'm especially disappointed that EPA is refusing to provide the relevant documents voluntarily," Waxman said. "But we will to try to get to the bottom of this."

[...]

The EPA has also turned over some documents, but they were heavily redacted, so much so that some pages were largely blank. The agency has resisted turning over nonredacted documents to Congress, contending that they are protected under attorney-client privilege. California and more than a dozen other states that want to enact similar laws have sued to overturn Johnson's decision.

The agency has also argued that releasing the documents could have a "chilling effect" on candid discussions within the EPA. Vice President Dick Cheney also cited the need to keep internal deliberations private in fighting congressional efforts to force him to disclose details of private meetings he held as the White House drafted its energy policy, an initiative sparked in part by another California issue -- the 2000-01 electricity crisis.

Waxman's deadline isn't the only one EPA must meet this week-- Senator Barbara Boxer (D-CA) has given it until Friday to turn over documents related to potential White House involvement, and she has now spearheaded a call for the Government Accountability Office to look into factors influencing the waiver decision.

Johnson's spokesman stood by the decision and said he wouldn't be changing his mind anytime soon, but that hardly seems to be the California delegation's point here. They're building a careful case for congressional intervention via Senator Boxer's legislative remedy overturning the decision, and both the slow pace of legal proceedings (which California is trying to hasten) and EPA's foot-dragging play right into their hands. 

EPA's "Transparent" Communications: In Need of "Rehab?"

Warming Law readers should be interested to know that the Union of Concerned Scientists (UCS) has launched an e-campaign inviting readers to comment regarding the California waiver denial on Deputy EPA Administrator Marcus Peacock's blog. UCS' effort to open a dialogue comes in response to Peacock's musings following a less-than-complimentary Washington Post column by Al Kamen-- which knocked him for glossing over substantive issues like GHG emissions standards, and instead riffing on his daily life and the travails of Grammy-nominated singer Amy Winehouse:

But the riff allowed Peacock to muse on the benefits of early intervention. "A good management system . . . forces people to consider how they are doing" and rewards those who "bring bad news early."

That may be why EPA chief Stephen Johnson announced Dec. 20 that he would not grant California, Maryland and a dozen other states a waiver so they could impose tougher mileage standards than automakers want.

EPA staff and lawyers are working feverishly -- at least when they're not reading Peacock's blog -- to justify that decision to Congress by Feb. 15. But at least Johnson got the bad news out early.

Johnson might explain the decision-making rationale by simply paraphrasing Winehouse's hit song about people trying to force her into rehab: "They tried to make me grant a waiver, I said no, no, no."

Kamen was actually rather astute there-- in addition to having indeed released his decision before he had worked up a complete legal rationale, Johnson effectively is now arguing that despite all the factors aligning to compel the waiver, he had the legal authority to re-interpret the law and say "no." But references to Amy Winehouse aside, we are definitely interested to see how this turns out. We attempted something similar regarding this matter during Johnson's "Ask the EPA" online chat this fall, and only heard talking points in return, but perhaps UCS can have better luck; they'll be posting on the results over at their Hybrid Blog in the coming days.

Emissions vs. Efficiency: Industry Can't Have it Both Ways

Add the Association of International Automobile Manufacturers (AIAM) to the list of industry heavyweights lending support to EPA's legal defense in the California waiver dispute. AIAM issued the following statement today, and in the process revealed some glaring flaws in their reasoning:

"This is not a lawsuit to resist greenhouse gas emissions regulation. Rather, our intervention is focused on only one issue -- who should set those standards," said Michael J. Stanton, President and CEO of AIAM. "We believe that for important policy and legal reasons, it is the federal government that should set those standards."

Stanton added, "In fact, AIAM was one of the most vocal supporters of the Energy Independence and Security Act of 2007, which requires an overall interim fleet standard of at least 35 mpg by 2020 - an increase in fuel economy of 40% or more - and the 'maximum feasible' level fuel economy by 2030.”

Leaving behind the reality that legal text and precedent-- not any legal and policy rationales AIAM might have for wanting a different regulatory regime-- are at stake here, Stanton is also wrong when he says that the industry isn't resisting greenhouse gas emissions regulation. That's because CAFE standards, which he cites the industry's (grudging) support for, are, by definition, auto efficiency standards that aren't directly related to emissions regulation.

To be sure, increased efficiency does have the secondary result of producing cleaner-emitting cars, and regulators charged with implementing CAFE do have to consult with EPA and take environmental impacts into account (note: they were recently found to be doing a poor job of this). But its not an emissions standard, explicitly focused on the environmental and public health impacts of CO2 emissions, by any stretch of the imagination. And no spin-driven attempt to substitute CAFE for California's GHG emissions program can change that.

The funny thing is, the industry is already on record arguing in court (incorrectly and unsuccessfully) that the Pavley standards are essentially a fuel efficiency program. Now, they're claiming that its the other way around, and CAFE is essentially a means to address emissions concerns. Both are in support of the same overarching preference for a single national standard, focused on efficiency and set by the Department of Transportation, but the rhetorical acrobatics engaged to make that case are worth noting.

Daily Waiver Digest: Waxman, Florida, and ABA

--Following up on yesterday's news that Florida and Iowa have joined California's lawsuit against the EPA, a look at the former's news release reveals that-- like Arizona before them-- state regulators are confident enough in an eventual victory that they're pushing ahead full-steam with the rulemaking process:

At his event, “Serve to Preserve: A Florida Summit on Global Climate Change” held last July in Miami, Governor Crist directed DEP to initiate rule-making to adopt the California motor vehicle emission standards. Since that time, DEP has held two rule-making workshops and accepted public comment to help draft rule language. While the waiver issue is currently in litigation, the rule-making process will continue to move forward, with the third workshop planned for March 2008.

--Rep. Henry Waxman (D-CA) continues his efforts to investigate EPA's waiver decision, having sent Administrator Stephen Johnson a letter requesting his staff's briefing slides concerning the California waiver. His staff, like Senator Barbara Boxer's, has been permitted to view the unredacted documents, but has thus far been denied hard copies. Waxman's Friday request, which singled out a limited number of key documents, asked for a response by a Monday close-of-business deadline that would appear to have gone unmet.

--And finally, the National Law Journal is reporting that the California waiver denial will be among the topics debated at the American Bar Association's mid-year meeting next week in Los Angeles.

Florida and Iowa, Unbowed by Industry Lobbying, Join EPA Lawsuit; CA Seeks to Expedite Hearing

Late last week, California's lawsuit to overturn EPA's waiver decision continued to gain support despite the automobile industry's best efforts to scare states out of stepping up to the plate on global warming emissions. While this preemptive disinformation campaign did temporarily stop a California legislative proposal to limit emissions through a "feebate" program, it has failed to convince states to hold back on supporting the Pavley clean cars program. Late Friday, the Florida Department of Environmental Protection and the state of Iowa joined the lawsuit, filing a 24-page motion to intervene in the case:

The motion presented by Iowa and Florida on Friday stated that the two states "recognize that motor vehicles are one of the most significant sources of greenhouse gases that cause global warming. Global warming is already seriously and negatively impacting the public health, economies, and environments of (the two states), and its effects are expected to worsen in the absence of effective abatement prompted by immediate governmental action."

The Iowa Office of Energy Independence recommended in December that Iowa join with other states considering the adoption of California's vehicle emissions standards.

We've written previously just how important it is that states that haven't yet moved to adopt the California standards are getting involved here, and its likewise excellent news to see that states in the process of enacting regulations-- such as Florida and Arizona-- are still moving forward in every way that they can. It does, however, continue to bear highlighting that Florida's environmental regulators had to bring its case rather than the state itself, a likely product of state AG Bill McCollum's well-documented climate-change skepticism. Industry can take comfort that its arguments are getting through at least to some outliers in the states...

Feingold's Judicial Ethics Proposal Passes...

...out of the Senate Judiciary Committee. Late yesterday, the committee passed the first judicial pay raise in years, adding on Senator Feingold's amendment to attach a ban on most judicial junkets.

Feingold's success in making the case-- and ability to get the proposal through without significant loopholes being opened up-- clears a significant hurdle in this legislative fight. Still, it's not over yet; stay tuned for updates as this matter progresses...