Warming Law

More on the ANPR for the Endangerment Finding

Henry A. Waxman, chair of the House Oversight and Gov't Reform Comm., reacted to EPA's decision to undertake an Advance Notice of Proposed Rulemaking regarding the endangerment finding by saying: 

“This is a transparent delaying tactic and a major reversal of EPA’s position. In December, Administrator Johnson found that CO2 emissions endanger the environment and proposed new standards for motor vehicles. Today’s action repudiates those efforts. 

I sent a letter to Administrator Johnson on March 12, 2008, that described his December determinations and the extensive EPA effort that supported his actions. Shortly thereafter, Inside EPA reported that the Heritage Foundation circulated a memorandum to Senators urging them to call the White House. According to the memo from the Heritage Foundation, which Inside EPA released, Senators were urged to ask for ‘EPA to issue an Advance Notice of Proposed Rulemaking seeking information on the issues involved in a CO2 endangerment finding and resulting carbon dioxide regulations and not make an endangerment finding.’ This is precisely the action announced today.

“The Bush Administration is recklessly abandoning its responsibility to address the global warming crisis.”

Heritage suggested that the Senators tell the Administration to conduct the ANPR to allow for consideration of the "potential cost and burden" of the endangerment finding, notwithstanding the Clean Air Act's requirement that the finding focus exclusively on human health and public welfare.

Business Groups Intervene In EPA’s Appeals Board Utah CO2 Case

From eNewsusa

"Mar 24: The National Association of Manufacturers (NAM) joined a legal brief supporting construction of a new power plant in Utah, arguing the U.S. EPA's permitting process should not be turned into a regulatory tool to control carbon dioxide (CO2) emissions. In an amicus brief submitted to the EPA’s Environmental Appeals Board, NAM endorses the EPA’s 2007 approval of a preconstruction permit for the Bonanza coal-fired power plant sought by the Deseret Power Electric Cooperative. The Sierra Club has appealed the approval, arguing that the EPA must limit CO2 emissions in the permit. The American Petroleum Institute and U.S. Chamber of Commerce joined the NAM in filing the brief in the appeals proceeding, In re: Deseret Power Cooperative (PSD Appeal No. 07-03)."

more here

NHTSA Notice of Intent to Prepare an EIS for CAFE Standards

From our National Highway Traffic Safety Administration (with encouragement from the 9th Circuit):

Notice of Intent to Prepare an EIS for CAFE Standards 
"The purpose of this notice is to announce that NHTSA plans to prepare an Environmental Impact Statement (EIS) to address the potential environmental impacts of the agency’s Corporate Average Fuel Economy (CAFE) program for passenger cars and light trucks. The EIS will consider the potential environmental impacts of new fuel economy standards for model year 2011-2015 passenger cars and light trucks that NHTSA will be proposing pursuant to the Energy Independence and Security Act of 2007. To this end, this notice initiates the NEPA scoping process to identify the environmental issues and reasonable alternatives to be examined in the EIS, and requests comments regarding those and others matters related to the scope of NHTSA’s NEPA analysis for the new standards. NHTSA will provide further guidance for the public about the scoping process in a separate notice that will be published when the proposal itself is published."

CAFE NEPA Notice of Intent -- as issued March 21, 2008 

Silver Linings to "Procrastinational Rulemaking"

As a quick follow up to the news of EPA's latest delaying tactic and Stephen Johnson's upcoming Australian foray, we've realized there are a few silver linings here, both serious and humorous:

1) While EPA's delaying tactics here are clearly extralegal and in defiance of the Supreme Court (and its own findings regarding global climate change impacts in the California wavier denial), at least a public comment and study period can be utilized to help defend the next administration-- which hopefully will follow through with a more proper response (more on concerns otherwise soon)-- against industry forces' inevitable lawsuit.

2) Johnson's trip to Australia might not be an entirely bad thing-- after all, that nation recently elected a new Prime Minister who has reversed his predecessor's skepticism about climate change as a dire threat to human health and welfare. Prime Minister Rudd and his government just might have an extended opportunity here to impress this reality upon the EPA as it starts a new "study" period.

3) We're really looking forward to our friends at the Competitive Enterprise Institute and elsewhere-- perhaps looking to regain some momentum and credibility after their latest PR gambit was slammed by their own allies-- denouncing Johnson's carbon-emitting airplane trip halfway around the world to engage in yet another study, just as they've done for Al Gore's attempts to draw more attention to the imminent threat he won't admit to. After all, as Senator Boxer pointed out, Johnson could have at least done this much closer to home!

Look out for that new ad campaign any minute now... 

EPA Goes Tanning Down Under, Leaves a Mess Behind for President ______

Recently, Senator Barbara Boxer(D-CA) got wind of EPA Administrator Stephen Johnson's plans to bring a "substantial number of EPA staffers" on a work-related to Australia next month-- and in the process leave a whole lot of worries behind, which Boxer euphemistically refers to as "certain important matters" that he'll be unavailable to testify before Congress about. TPM Muckraker's Paul Kiel provides a useful summary of the matters (which should be familiar to Warming Law readers) on which Johnson might want to avoid Congress, adding that he was unable to get EPA to comment and that Boxer's office understands that the trip is scheduled to last at least two weeks. Boxer is clearly exasperated in the letter she wrote to Johnson yesterday, placing it in the context of EPA's already-scarce budget and noting that he ought to be looking a bit closer to home:

If your goal is to learn about actions to address global warming, I suggest that you visit California, which has moved ahead aggressively with greenhouse gas controls. I invited you to testify in January in California on global warming pollution from vehicles, but you declined.

Still, even though no one should envy Johnson's task of spinning the administration's indefensible delaying tactics during a month that will include Earth Day, the anniversary of Massachusetts v. EPA, answering Rep. Henry Waxman's (D-CA) subpoena, and other political and legal landmines, it seemed a bit too predictable that Johnson would leave the country to avoid these kinds of predictable issues alone. Something else, in other words, had to be up his sleeve.

Enter today's letter to Reps. Ed Markey (D-MA) and James Sensenbrenner (R-WI), Chairman and Ranking Member of the House Select Committee on Energy Independence and Global Warming. Johnson, following up on his most recent testimony about the aftermath of Mass. v. EPA-- and repeating its greatest-hits list of the bogus excuses it provided for refusing to issue the necessary endangerment finding for CO2 emissions-- announced that he'll be issuing an "Advanced Notice of Proposed Rulemaking" (ANPR) later this spring to study industry's concerns the issue, and will follow up with a public comment period. Rep. Markey was not pleased, to say the least:

“The ‘A’ in this document should stand for ‘absurd,’” said Rep. Markey. “This is the latest quack from a lame-duck EPA intent on running out the clock on the entire Bush Presidency without doing a thing to combat global warming. The planet is sick, and instead of rushing to provide emergency medical attention, the Bush Administration has said ‘take 2 aspirin and call me after I leave office’.”

Basically, we've just gone from not having any sort of timetable for an endangerment finding, and thus speculating that EPA will run out the clock or act at the last very minute, to having a rough timetable that confirms exactly that. The more things change, the more they remain the same...unless the courts step in quickly and recognize that this charade is an unreasonable delay, and/or that EPA's incompetent defense of California's waiver denial has actually found endangerment.  

But at least next time he faces hard questions about it, Administrator Johnson will be sporting a nice new tan to hide his red face...

Minnesota Miracle Men: The Auto Industry's New "Alliance"

Hybrid Living, passing along a local report from earlier this week, delivers the news that even as Minnesota Attorney General Lori Swanson boldly defends the state's authority to limit greenhouse gas emissions as a party to California's lawsuit against the EPA, its proposed clean cars law has stalled-- perhaps fatally for this session-- in the state legislature. Lobbying by the auto industry is playing a part, but a novel assist apparently goes to corn growers and ethanol producers, who argued that the law may harm efforts to expand ethanol markets and impair the certification of "flex-fuel" cars and trucks that run on a blend of ethanol and gasoline.

But is it really that novel? Advocates from Clean Energy Minnesota fervently deny that there's any real reason for concern, and assert that the group principally repsonsible for ginning up local opposition is essentially a mouthpiece for the auto industry:

[James Erkel of the Minnesota Center for Environmental Advocacy] said the concern is baseless, pointing to GMC's 2008 Sierra 1500 pickup that runs on a rich blend of E-85 (85-percent ethanol and 15-percent gasoline) as well as similar vehicles that would meet the more stringent California standards.  The ARB's Dimitri Stanich said California air regulators have certified 300,000 flex fuel vehicles and suggested there will be more as soon as the state increases the number of pumps offering E-85 fuel, which California is now doing.   

[...]

Erkel said that the auto industry is masquerading as an ethanol advocate as it enlists the corn growers and other farm groups to beat back legislation in Minnesota. The default "technical advisor" to the ethanol groups opposing the Marty and Hortman bills is the National Ethanol Vehicle Coalition, headquartered in Jefferson City, Mo. Its 16-member board of directors includes representatives of Chrysler, Ford, GMC and Nissan.

Color us shocked that the auto industry would employ astroturf tactics and overwrought arguments to delay clean cars legislation (though it is refreshing, in terms of looking at the industry's weakening credibility, to see a spokesman admit that the usual suspects "can't stop this bill by ourselves"). The Minn Post also notes that when it asked the Minnesota Corn Growers and the Farm Bureau to explain their position, the silence was deafening and the apparent reliance on the aforementioned "technical advisors" clear:    

Grover Norquist, Meet the Facts

Over at CAP's excellent new Wonk Room blog, Brad Johnson catches uber-regulation-foe Grover Norquist arguing that "more people will die" as a result of the increased CAFE standards signed into law by President Bush last December-- a piece of hyperbole that he summarily debunks.

Far be it from us to defend the Bush Administration's record on climate and energy issues, but in this case, a bit of legal reasoning actually stands to buttress Brad's takedown. As our own Jennifer Bradley pointed out in November after the 9th Circuit invalidated the administration's 2006 CAFE regulations for light trucks, one of the court's most significant findings dismissed NHTSA's argument that the benefits of greenhouse gas reductions would be canceled out by the safety losses from lighter, smaller (but more fuel efficient) cars. Notably, that while the administration has appealed a portion of the court's ruling, it has decidedly remained silent on the main thrust of its decision that the rules were arbitrary and capricious, including the vehicle safety canard's dismissal.

That's not to say, of course, that it's the least bit surprising that Norquist or his allies would place political talking points and their anti-regulatory policy preferences before clear scientific and legal reasoning. But it's worth noting, and recognizing that for all its (related) legal foibles in this area, the Bush administration at least gets golf claps for not caving to the most extreme and ill-informed voices. 

BREAKING: Bush Administration Signals Involvement in Vermont Clean Cars Lawsuit

UPDATE, 4:30 PM: A source close to the case informs us that DOJ's filing asking for more time indicates (as we'd suspected) that, "The Office of the Solicitor General is currently considering whether to authorize such a filing in this case, and no decision has been made yet." In other words, the Bush administration has laid down the necessary legal boilerplate to file a brief and clearly would like to get involved, but still needs a formal go-ahead from Solicitor General Paul Clement before proceeding. Clement has red-flagged questionable administration legal gambits before, including the White House's recent intervention to weaken EPA's proposed ozone limits, but it remains to be seen whether he'll put on the brakes in this instance.

While much of our focus lately has been on the fallout from EPA's decision to improperly stand in the way of California's clean cars program, the reality has always remained that other, related legal matters were still potentially ripe for the administration's obstructionist agenda. One particular case we've been following, which we noted in the immediate aftermath of the waiver denial, is the auto industry's appeal in Green Mountain Chrysler-Dodge v. Crombie-- the lawsuit against Vermont's clean cars law that was decided in the state's favor back in September 2007.

Even though the EPA's decision makes the industry's preemption lawsuits a (temporarily) moot point, as all parties agree that the states can't move forward without a waiver, the industry is still slowly moving forward with its appeal to the Second Circuit. They've indicated that they're potentially willing to take this issue to the Supreme Court. And by signaling extent to join the case via a forthcoming amicus curiae brief, the Bush administration seems to agree with the industry that the issues here are still worthy of legal debate. 

The docket isn't explicit as to which side the Department of Justice is taking. But based on the administration's past statements and actions regarding preemption of state-based efforts to combat global warming, we're prepared to let readers make an educated guess...

Warming Law has also obtained the industry's opening briefs in this appeal (the state's response is not due until June 12), and we'll certainly write more once we've given them a good read. The same goes for the administration's forthcoming brief, which DOJ asked the court for an extension on last Monday.

CAFE Society: DOJ Phones In an Appeal

Last month, the Bush Administration appealed part of its November 2007 defeat in Center for Biological Diversity v. NHTSA, asking the Ninth Circuit panel that had overturned CAFE standards for light trucks to order a re-hearing before the entire Circuit. The Department of Justice claims that the judges went too far by outright ordering them to prepare a new Environmental Impact Statement (EIS) concerning the effects of carbon emissions on global warming, and instead should have simply remanded the issue back to the National Highway Transportation Safety Administration (NHTSA). It also argues that the 9th Circuit is split on the issue of NEPA remedies, and that other federal appeals courts differ in their doctrine, generally favoring the administration's preferred view.

The administration cited a long list of precedents to advance the idea of a circuit split requiring the court's resolution, in the process making a sweeping argument that, if it won out, would effectively enable NHTSA to reach the same end result that the court had declared invalid. The environmental groups that initiated the suit recently filed a strong rebuttal rooted in a rather simple legal exercise: demonstrating that in reality, the legal issues raised in the administration's petition are entirely fictitious.

The basic arguments made by the Center for Biological Diversity (state government plaintiffs, led by California, have also filed a response) have been aptly analyzed elsewhere. Courts have the clear authority to order a new EIS under circumstances where the record clearly demonstrates need and improper agency conduct; the Ninth Circuit cases cited by DOJ to claim an intra-circuit split are factually disimilar to the current case, in so far as the record was less conclusive; cases from other circuits also offer no meaningful parallels; and NHTSA's argument that recent legislation enacting new CAFE standards make acting improper is bogus. (Astute readers have probably noticed that this is far from the first time that the Bush administration has trotted out the Energy Independence and Security Act of 2007 as supposed justification for its delaying tactics.)

But the degree of legal subterfuge that the plaintiffs allege is worth highlighting, specifically as it pertains to the theory of a split with other circuits. Plaintiffs' attorneys reserve their harshest language for this section, writing that in "attempting to manufacture a "split" of authority, NHTSA selectively quotes and confuses holdings in cases from the Second, Fifth and D.C. Circuits." They argue, for instance, that the administration's invocation of two specific Fifth Circuit cases deliberately left out "crucial language" that demonstrates consistency with the Ninth Circuit's approach. Discussion of this discrepancy includes a lengthy citation from the case O'Reilly v. U.S. Army Corps of Engineers, explicitly stating that, "If the court finds that the project may have a significant impact, the court should order the agency to prepare an EIS."

We suspect that DOJ lawyers are working on a response, as well they should if they're going to effectively counter the environmental plaintiffs' sweeping takedown. At this point, should the Ninth Circuit accept the plaintiffs' rebuttal and deny the government an en banc rehearing, the administration's efforts here will have been branded as nothing more than yet another attempt to run out the clock and leave global warming to the next President.

Little Coal Plant on the Prairie: Sebelius Administration Outshines Bush Administration

This afternoon brings word that Kansas Governor Kathleen Sebelius has vetoed legislation that would essentially overturn October's landmark decision by her Secretary of Health and the Environment, Roderick Bremby, to deny construction permits for two new coal-fired power plants based on concerns about global warming emissions. Bremby, citing scientific evidence and an opinion from the state's Attorney General, had utilized his authority under state law to deny permits. In turn, a majority (but not a veto-proof one) of legislators were seeking to strip Bremby of any authority to regulate carbon emissions, instead tying this decision and all others to the fate of the EPA's long-delayed federal action.

Wall Street Journal reporter Keith Johnson, blogging about a colleague's article on the Kansas showdown, was at least onto something when he observed potential parallels-- on the surface at least-- between Bremby's rationale and the contemporaneous anti-regulatory decisions that have made EPA Administrator Stephen Johnson a controversial figure:

You know the story: An appointed official overrules his own staff to make a controversial environmental decision affecting millions, sparking lobbying campaigns, lawsuits, and court reviews. Critics say he is kowtowing to his boss in the executive mansion; he defends his unilateral action despite a firestorm of legislative criticism. 

The Journal's Johnson couldn't have stumbled on a more inapt direct comparison though, because if anything, Bremby's decision-making process and rationale highlight everything wrong with that of the Bush administration.

Consider the two for a moment. The EPA Administrator has consistently acted in a way that ignores clear legal advice declaring that he really had no other choice under the law; shreds precedent and brushes aside a landmark Supreme Court decision; and generally claims a level of executive power-- for both his ultimate decision-making authority and the White House's role in it-- that goes way beyond what the Clean Air Act allows for.   

Bremby, by contrast, may have acted boldly, but seems to have been a good-faith actor in terms of squaring his decision. As he testified before Congress last week, his legally-cleared action grew out of expanded scientific evidence surrounding the urgency of stemming global-warming emissions, as well as the Supreme Court's ruling in Mass. v. EPA-- wherein the Clean Air Act's language surrounding greenhouse gas emissions resembles the intentionally-broad mandate included in Kansas state law. Moreover, the staff recommendation that he decided to discount had not taken these legal factors into account, and at no point did it indicate that he had no other recourse than to sign off on the permits.