Richard Sieg

January 12, 2008

On December 19, 2007, U.S. Environmental Protection Agency (EPA) head, Stephen Johnson, announced his decision to reject California's efforts to curb global warming. California requested a waiver to allow it to adopt stricter standards on vehicle emissions. Congress gave California the right to waivers in 1967 and this is the first time such a waiver was denied under the Clean Air Act (CAA). The Washington Post reported that anonymous sources within EPA claimed that Johnson disregarded agency technical, scientific and legal experts who argued that a waiver denial would not survive judicial scrutiny. California leaders, members of Congress and environmental advocates strongly criticized Johnson's decision.

Shortly after EPA's decision, California Governor Arnold Schwarzenegger issued a press release stating that "[i]t is disappointing that the federal government is standing in our way and ignoring the will of tens of millions of people across the nation." California sued EPA in November 2007 to force swifter action on its requested waiver to regulate greenhouse gas (GHG) emissions. The Governor vowed to continue the battle: "California sued to compel the agency to act on our waiver, and now we will sue to overturn today's decision and allow Californians to protect our environment."

According to the Los Angeles Times, "Rep. Henry A. Waxman (D-Beverly Hills), chairman of the House Oversight and Government Reform Committee [(hereinafter, "Oversight Committee")], condemned the decision as dictated by 'politics . . . not facts' and promised to launch an investigation into how the decision was reached. Sen. Dianne Feinstein (D. Calif.) called the decision 'disgraceful.'"

Meanwhile, Congress initiated two investigations targeting the decision. In addition to the Oversight Committee, the Senate Environment and Public Works Committee, headed by Sen. Barbara Boxer (D-CA), requested all documents relating to the decision. The Senate committee held a "field briefing" in Los Angeles on January 10, 2008, where California leaders vented their frustrations. Johnson's seat was noticeably empty during the Senate committee's "field briefing," but an EPA spokesman stated that the EPA head was preparing for a full hearing before Boxer's committee in Washington scheduled for January 25, 2008.

Johnson based his decision in part on the belief that the GHG problem requires a national solution, not a patchwork of state solutions. However, California's Attorney General Gerry Brown flatly disagreed with this premise. According to OMB Watch, Brown stated that the CAA provided states two choices in regulating such air issues: "to stick with federal standards or adopt California's standards 'identically.'" Furthermore, Mary Nichols, a California Air Resources Board Chairwoman, told the Los Angeles Times "[t]here is a California greenhouse gas standard . . . which 16 other states would adopt, whereas there is no federal greenhouse gas standard." In other words, where was the "patchwork" of state solutions and where was the federal solution?

Additionally, a Congressional Research Service (CRS) report stated that the EPA head distinguished this denied waiver from the past waivers granted by EPA (quoting Johnson): "In light of the global nature of the problem of climate change, I have found that California does not have a 'need to meet compelling and extraordinary conditions.'" Yet, this report acknowledged that similarities exist between the California GHG regulations subject to this denied waiver request and the fifty-three prior sets of California regulations that received waivers from EPA. "Like the GHG standards, each of the previous sets of regulations were incremental steps that reduced emissions, but in themselves were insufficient to solve the pollution problem they addressed: large portions of the state are still in nonattainment of the ozone air quality standard nearly [forty] years after the first of these waivers, despite these incremental steps to reduce emissions." As stated in this report, the Court in Massachusetts v. EPA dealt with this very issue in the context of redressability – "would a favorable decision . . . redress the injury caused by global warming. The Court concluded both that 'the harms associated with climate change are serious and well recognized,' and that a state need not show that the government actions it is seeking would completely remedy the injury. . . ."

According to OMB Watch and as supported by the CRS report, the Bush administration may still succeed at delaying greenhouse gas emission regulation, despite a potential loss in court and congressional oversight: "Legislation granting the states the authority to regulate would likely be vetoed by Bush and have difficulty garnering the necessary two-thirds majority in both chambers." Finally, the CRS report stated, "It is unlikely that EPA could be forced to grant a waiver through judicial means before the swearing in of a new Administration in 2009." In addition to affecting California, this delay affects fourteen states that already adopted California's regulations and four other states that are currently working toward adoption. However, as Reuters reported yesterday, the South Coast Air Quality Management District, a Los Angeles-area agency, applied additional heat on the EPA this past Thursday, petitioning the federal agency to "set tougher standards on global-warming for ocean vessels calling on U.S. ports." Barbara Baird, an attorney for the air quality district, threatened to sue EPA if it does not act within six months to curb global warming pollutants.

Sources:

Richard Simon and Janet Wilson, EPA Denies California's Right to Mandate Emissions, L.A. Times, Dec. 20, 2007, available at http://www.latimes.com/news/local/la-me-epa20dec20,1,2287845.story?track=rss.

Juliet Eilperin, EPA Chief Denies Calif. Limit on Auto Emissions Rules Would Target Greenhouse Gases, Wash. Post, Dec. 20, 2007, at A1, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/12/19/AR2007121902012.html?nav=rss_print/asection.

Associated Press, Judge Rejects Automakers' Emissions Suit, CBSNews.com, Dec. 12, 2007, http://www.cbsnews.com/stories/2007/12/12/national/printable3610940.shtml.

EPA Rejects California's Greenhouse Gas Tailpipe Law, Environmental News Service, Dec. 19, 2007, http://www.ens-newswire.com/ens/dec2007/2007-12-19-04.asp.

Press Release, Governor Arnold Schwarzenegger, Governor Schwarzenegger Issues Statement after U.S. EPA Rejects California's Tailpipe Emissions Waiver Request (Dec. 19, 2007), available at http://gov.ca.gov/index.php?/print-version/press-release/8353/.

Noaki Schwartz, California Leaders Vent Frustrations at Greenhouse-Gas Briefing, Monterey County Herald, Jan. 10, 2008, available at http://www.montereyherald.com/ci_7935317?nclick_check=1.

OMB Watch, EPA Denies State Efforts to Curb Global Warming, Jan. 8, 2008, http://www.ombwatch.org/article/articleview/4130/1/524.

Freddie Mooche, Brown Blasts EPA Before Sen. Boxer's Senate Commission Thursday, AXcess News, Jan. 11, 2008, http://axcessnews.com/index.php/articles/print/id/13670.

Bernie Woodall, California Agency Presses EPA on Ship Exhaust, Reuters, Jan. 11, 2008, http://www.reuters.com/article/environmentNews/idUSN1022427520080111?feedType=RSS&feedName=environmentNews.

James E. McCarthy and Robert Meltz, CRS Report for Congress California's Waiver Request to Control Greenhouse Gases under the Clean Air Act (Congressional Research Service Dec. 27, 2007), available at http://pub.bna.com/ptcj/CalWaiver.pdf.