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David Doniger’s Blog

The Great Galvanizer

David Doniger

Posted January 2, 2008 in Curbing Pollution, Solving Global Warming, U.S. Law and Policy

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Seven years ago, incoming President Bush brashly withdrew America from the international effort to stop global warming. Then national security advisor Condaleeza Rice told European diplomats that the Kyoto treaty was dead. That only galvanized the rest of the world to see the treaty through. By the end of Bush’s first year in office, some 180 nations overcame their differences and agreed on the final touches of Kyoto without us.

The great galvanizer is busy again, this time uniting America’s governors in common cause to defend California’s landmark clean car standards. Seventeen other states have joined California in its bid to cut the heat-trapping emissions of new cars, SUVs, and pick-ups 30 percent by 2016, making these standards the most effective step yet taken to curb U.S. global warming pollution. But just a few days before Christmas, Bush’s EPA administrator, Stephen Johnson, told Gov. Arnold Schwarzenegger that his clean car standards were dead. Hell hath no fury like governors and attorneys-general scorned.

So today, an unprecedented alliance of red and blue states, joined by NRDC and others environmental partners, is going to court to get the feds out of their way. In suits filed in San Francisco, the state and environmental coalition is asking the U.S. Court of Appeals for the Ninth Circuit to overturn the Bush administration’s attempt to veto the California standards.  (In addition to California, the states are:  Arizona, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.  In addition to NRDC, the environmental partners are:  Sierra Club, Environmental Defense Fund, Conservation Law Foundation, and the International Center for Technology Assessment.)

Blocking California’s global warming standards is a desperate final act of denial from an administration with just one year left to live. Ironically, the Bush team’s greatest legacy is to unify other leaders, at home and abroad, on the need for real action to cut global warming pollution.

So here’s the background:

After extensive testimony, the California legislature determined in 2002 that global warming is causing “compelling and extraordinary impacts” on the Golden State – melting the snowpack which serves as the state’s water supply, raising health-endangering smog levels, increasing the chances for catastrophic wildfires, and causing other serious harms. The legislature passed a landmark law directing the California Air Resources Board to set the “maximum feasible and cost-effective” standards for emissions of carbon dioxide and three other heat-trapping pollutants from new motor vehicles.

California acted under special authority it has had since 1967 as the only state allowed by the federal Clean Air Act to set its own vehicle emission standards. All California needs from the U.S. EPA is a normally-routine waiver that has been granted more than 50 times over the past four decades, and has never before been denied.

In 2004 the California Air Resources Board adopted standards that take effect in model year 2009 and ramp up to a 30 percent reduction in global warming pollution by model year 2016. California asked EPA for its waiver in 2005.

In 2006 and 2007, 17 other states adopted or set the wheels in motion to adopt the California standards. To date, 12 states are fully onboard: Connecticut, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Oregon, Vermont, Washington. In five others states, the governors have directed their environmental agencies to adopt the same standards: Arizona, Colorado, Florida, Iowa, and Utah. Together with California, these states represent nearly half of all new vehicle sales. (Even more states are considering joining up.)

NRDC experts testified on behalf of California’s waiver request, and NRDC’s members and activists submitted more than 70,000 comments in support of the waiver to EPA.

California and its allies waited for two years while the Bush EPA stalled on giving the state its answer. But things did not stand still in the meantime.

EPA’s first excuse for delay was to wait for the U.S. Supreme Court’s decision in a case called Massachusetts v. EPA. On April 2, 2007, the justices ruled that carbon dioxide and other greenhouse gases are “air pollutants” subject to regulation under the Clean Air Act. The Supreme Court rejected the Bush administration’s claim that Clean Air Act authority conflicted with the nation’s fuel economy law. Rather, the Court said the Clean Air Act and the CAFE law are “wholly independent” mandates.

In September and December, two other federal courts in Vermont and California rejected auto industry lawsuits against the states’ standards, holding that they too are not preempted by the fuel economy law.

For good measure, in November the federal appeals court in San Francisco – the same court we are appealing to today – overturned the Bush administration’s tiny increase in CAFE standards for SUVs and other light-trucks because the administration had put zero value on the effects of global warming.

And in December, Congress passed new energy legislation that raises fuel economy standards to “at least 35 miles per gallon” by 2020.  In writing this law, Congress rejected auto industry and Bush administration demands for language that would have blocked California’s standards. Quite the opposite, the new law – signed by the president on December 19th – specifically protects the California’s power under the Clean Air Act to regulate vehicles’ global warming emissions.

But these messages from the courts and Congress meant nothing to the great galvanizer. Less than 12 hours after President Bush signed the new energy law protecting California’s standards, EPA administrator Johnson rejected the California waiver in a brief letter to Gov. Schwarzenegger. In so doing, Johnson overruled his career staff’s advice that a waiver denial would be overturned as illegal.

It seems the fix was in. Two congressional committees are now investigating indications that Johnson acted under orders from Vice-President Cheney’s office, who had met with auto executives several weeks earlier.

In their lawsuits, the states and their environmental allies will ask the Ninth Circuit to overturn Johnson’s decision for three basic reasons:

First, Johnson claimed California is not suffering “compelling and extraordinary conditions” – conditions the state must have under the Clean Air Act in order to set its own motor vehicle emission standards. EPA has never before denied California a waiver on this basis. His excuse, that California’s plight is not “exclusive” or “unique” is both factually and legally wrong.

He is factually wrong because no other state can claim the same wide range of severe impacts that California faces – from the threat to our water supply, to the billions of dollars in damage from horrendous wildfires, to the adverse health effects of enhanced smog levels.

He is legally wrong because, as his predecessor William Ruckelshaus found more than 20 years ago in 1984, the Clean Air Act does not require California’s plight to be “unique” in order to be “compelling and extraordinary.”

Second, Johnson echoed the auto industry’s refrain that the California standards will lead to a “patchwork” of inconsistent standards. In fact, there is no “patchwork.” Congress long ago gave other states only two choices: to stick with federal standards or adopt California’s standards “identically.”

The decision Congress made last December confirms the one made 40 years ago: California has the right to set its own pollution standards. The automakers made their case against California’s leadership role, and they lost.

Third, Johnson claimed that it would be “better policy” to have a single mileage standard under the new national energy legislation, even though Congress rejected that view in the new energy law. The new law sets a floor, not a ceiling. It requires standards of “at least 35 miles per gallon,” giving the administration the power to go farther. It also protected existing environmental laws. It preserved California’s authority to set, and other states’ authority to adopt, more stringent emission standards to fight global warming.

This is just one more example of the Bush administration’s disrespect for law. The assertion that they know better than the law of the land is exactly the sort of behavior that the Supreme Court struck down in its landmark global warming decision last year. That is why EPA will lose again, and why the states’ leadership in the fight against global warming will prevail.

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Switchboard is the staff blog of the Natural Resources Defense Council, the nation’s most effective environmental group. For more about our work, including in-depth policy documents, action alerts and ways you can contribute, visit NRDC.org.

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