David Doniger's Blog: U.S. Law and Policy

See No Email

2008-06-25T18:04:36Z

So today we learned an odd new twist in the White House's refusal to let EPA regulate global warming pollution under the Clean Air Act. Felicity Barringer reports in the New York Times today that last December officials of the White House Office of Management and Budget (OMB) "refused to accept the Environmental Protection Agency's conclusion that greenhouse gases are pollutants that must be controlled, telling agency officials that an e-mail message containing the document would not be opened."

In previous blog entries, I've explained how EPA Administrator Stephen Johnson prepared last year to implement the Supreme Court's landmark decision that greenhouse gases are air pollutants under the Clean Air Act. His agency sent the White House a formal "endangerment" determination -- the step that triggers regulation -- for OMB's review and clearance.

This was no act of bravery by the hapless Administrator. He thought he was doing what President Bush had asked. Momentarily chastened by the Supreme Court's decision, in May 2007 the president directed Johnson to regulate emissions of CO2 and other heat-trapping pollutants from vehicles and fuels.

But the effect of the High Court's decision wore off quickly, and before the fall was out, the White House was back to its old ways. Barringer reports today that when EPA sent the endangerment document over to the White House, OMB officials responded (apparently with a low-tech phone call) that they would not even open the email.

What's this all about? It's about trying not to leave any "paper trail" -- any electronic records -- that EPA's proposals ever reached the White House. It's about maintaining the fiction that the Bush EPA acts with any independence. Even today, Barringer reports, the White House spokeman is still pushing the line that "It's the E.P.A. that determines what analysis it wants to make available."

Ha!

The watered-down EPA document expected to be released soon will not make the endangerment determination. It will only mark time by asking for more comments on something everyone in the real world already knows: that CO2 and the other heat-trapping pollutants are dangerous to our health and welfare and desparately need to be curbed.

The politicos at EPA just do what the puppetmasters demand. But the EPA professionals keep trying to do their job. Fortunately, the "see-no-email" era is coming to an end.

Update: see what John Stewart had to say about the email follies.

April Fools, Plus One

2008-04-02T14:51:26Z

UPDATE: A link to our filing is here.

One year ago today, on April 2, 2007, the Supreme Court slapped down the Bush administration’s legal strategy for doing nothing to curb global warming. In a landmark ruling, Massachusetts v. EPA, the High Court held that carbon dioxide and other heat-trapping emissions from motor vehicles are “air pollutants” just like any other pollutant under the Clean Air Act. The Court told the Environmental Protection Agency (EPA) that it must use that law to control these emissions unless EPA could show, based only on science, that global warming really poses no danger to public health or welfare. The Court told EPA that it could not delay actions to make cars cleaner because they preferred to deal with industries that emit global warming pollution simultaneously as some time in the future. That 'some time' of course likely to be never.

In the year that followed the Massachusetts decision, you might have expected a chastened EPA to respond to the Supreme Court, and to the science, with some sort of action. But just last week, in an early April Fools day joke, EPA announced on White House orders that it will continue to do nothing for the indefinite future.

So today, on the anniversary of the Supreme Court decision, NRDC is joining with states and other environmental organizations, going back to court to enforce the Massachusetts decision.

It didn’t have to be this way. Indeed, it didn’t start out to be this way. Last May, responding to the Supreme Court’s rebuke, President Bush entered the Rose Garden and promised action under the Clean Air Act to curb heat-trapping pollution from cars and their fuels. He and his EPA Administrator, Stephen Johnson, set a deadline of the end of 2007 for making a formal decision, based on the science, that carbon dioxide and other greenhouse gases “may reasonably be anticipated to endanger public health or welfare,” and for proposing standards to limit emissions from vehicles and fuels.

EPA actually did all its homework and late last year delivered to the White House a fully documented “endangerment” determination. The agency also prepared proposed emission standards for new vehicles.

But then, after all the promises, everything stopped.

What happened? A collection of industries, trade associations, and right-wing think tanks lobbied the White House relentlessly last fall. Don’t do it, they said. You can still run out the clock. Just sit tight, or maybe ask for yet another round of public comments. That way you can postpone anything until your term is up.

And surprise, surprise. Last week, that’s exactly what EPA did. Administrator Johnson announced that he’ll ask for more public comment on science issues that are already settled. Replaying the identical excuse that the Supreme Court rejected last year, Johnson said he’ll postpone action on motor vehicle emissions indefinitely in order to consider the “broader ramifications” of curbing global warming emissions from other sources – power plants, factories, and other industries – under the Clean Air Act.

Let’s speak plainly. This is out and out defiance of the Supreme Court and the law of the land.

But the courts are getting tired of the Bush administration’s disrespect for law. The Court of Appeals in Washington – the court we’re going back to today – has rejected EPA’s defiance of the Clean Air Act in nearly a dozen cases over the past 12 years.

Some may say, let’s just wait until the new President takes office. All three candidates still in the race are pledged to act on global warming. But we’re not going to let this administration play us for fools, run out the clock, and get out of town after eight years of successfully ducking global warming.

So we’re asking the court to find that EPA has defied the Supreme Court and unreasonably delayed its compliance with the Massachusetts decision. We want the court to order EPA to issue its endangerment determination, based on the science, within 60 days.

That’s the least we can expect from these lame ducks. And it is the place from which the next President must start.

Facts Are Stupid Things

2008-01-08T17:30:00Z

John Adams, our second president, famously said: "Facts are stubborn things." In a 1988 slip of the tongue, Ronald Reagan said: "Facts are stupid things." For the Bush administration, the slip of the tongue has been going on for seven years.

Here's the latest from the fact-free zone. Last month, when denying California the right to set its own standards for global warming pollution from new cars and SUVs (see my previous post), Bush's EPA administrator, Stephen Johnson, claimed California's global warming standards are weaker than the fuel economy standard in the newly enacted energy bill.

In his December 19th get-lost letter to Gov. Arnold Schwarzenegger, Johnson wrote: "I strongly support this national approach to this national challenge which establishes an aggressive standard of 35 miles per gallon for all 50 states, as opposed to 33.8 miles per gallon in California and a patchwork of other states."

Huh? If California's standards are weaker, then why are the car companies so opposed to them?

Well, for starters, Johnson was comparing apples and oranges. He was comparing the federal miles per gallon (mpg) standard for 2020 with the mpg level he attributed to the California emissions standards for 2016.

That might be okay in fantasy baseball. It may be fun to ask if Babe Ruth could have hit 60 home runs against today's pitching. But the EPA administrator shouldn't be playing fantasy carbon regulation.

In fact, lined up year-by-year, the California standards are always stronger. This is true whether you are comparing them on the basis of greenhouse gas reductions or mileage. And it is true whether you are looking at California alone, or the nation as a whole.

As Mary Nichols, chairwoman of the California Air Resources Board, put it: "[The] California standards start earlier, go faster ... and the end points are more stringent."

Let's look more closely at Johnson's math. The EPA administrator supplied no documentation for his calculations. (My high-school son can't get away with that when he turns in his math homework.) In contrast, the California Air Resources Board (CARB) prepared its own fully-documented comparison of the California emission standards and the federal mileage standards.

CARB's analysis compares apples to apples, matching up the California global warming standards and federal mileage standards year for year. No more comparing federal standards for 2020 with state standards for 2016.

Now the new energy law says the mileage standard must reach at least 35 miles per gallon by 2020, but doesn't spell out the mileage standards for the intervening years. The federal Department of Transportation (DOT) still has to write the miles per gallon standards for 2011 through 2019. So to fill this gap, CARB assumes that the federal DOT will increase the mileage standards proportionally each year. In that case, CARB calculates that the federal standard will be only 29.6 mpg in 2016.

Last time I checked, 33.8 was bigger than 29.6.

Ka-ching!

(CARB actually found a small difference between its estimate of the mpg value of its 2016 standards (33.1 mpg) and the number ascribed to the California standards in EPA administrator Johnson's letter (33.8 mpg). As I said earlier, because Johnson didn't "show his work," no one knows how he got his number. But whether equivalent to 33.1 or 33.8, the California global warming standards beat 29.6.)

CARB then translated the federal mileage standards into reductions in global warming pollution and compared them in the years through 2016. CARB did this first for California's vehicle fleet.

CARB found that in California, the state's standards reduce global warming pollution more than twice as much as the federal standards in 2016. Looking at cumulative reductions from 2009 through 2016, California's standards cut heat-trapping gases three times as much as the federal standards.

Ka-ching!

That's for the fleet mix in California, which has more cars than SUVs and other light trucks (70 percent cars, 30 percent light trucks). You get the same result for the national fleet mix (50 percent cars, 50 percent light trucks). If applied across the country, in 2016 the California standards would cut heat-trapping gases 75 percent more than the federal mileage standards.

Ka-ching!

California doesn't stop in 2016. CARB has announced plans to strengthen its standards through 2020 (here, p.45). CARB's current analysis shows that California's 2020 standards will vastly outperform the federal mpg standard in 2020 as well, reducing global warming pollution nearly 75 percent more based on the California fleet mix, and nearly 60 percent more if applied nationally.

Ka-ching!

For good measure, CARB converted its own global warming standards into miles per gallon. California comes out way ahead this way too:

Ka-ching!

Well, let's go back to EPA administrator Johnson's fuzzy math.

Slips of the tongue happen (even in a written letter). But even after being called on his mistakes, Johnson didn't take the opportunity to correct himself. Instead, Johnson had his spokesman repeat his bogus 2020-vs.-2016, 35-vs.-33.8 comparison when the state and environmental coalition took him to court on January 2nd.

Once is a slip. Twice is deliberate.

EPA administrator Steven Johnson is a trained scientist. Scientists are supposed to be able to count. Scientists are supposed to have a respect for facts. Facts are not supposed to be stupid things.

The Great Galvanizer

2008-01-02T18:00:00Z

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.

Beep-Beep M’ Beep-Beep, Yeah!

2007-12-02T02:02:07Z

House Speaker Nancy Pelosi, together with Senators Diane Feinstein and Daniel Inouye and other leading Senators, have pulled off agreement on the first significant increase in fuel economy standards since 1985.

Under the new fuel economy legislation hammered out on Friday, new cars, SUVs, minivans, and other light trucks will have to reach an average of 35 miles per gallon (mpg) by 2020. This is a 40 percent increase over current standards, which have remained flat for more than two decades. Real mileage actually fell over this period with the rise of the SUV.

The new legislation is a huge victory that turns this trend around. In 2020, the new standards will cut America’s oil dependence by 1.2 million barrels day, save consumers more $40 billion a year at the pump, and cut heat-trapping carbon dioxide emissions by 200 million tons. And the gains will only grow with each passing year as new cars replace old ones.

Equally important, Speaker Pelosi and the Senate leaders turned back the automakers' attempt to reverse the Supreme Court’s landmark decision last April that recognizes the Environmental Protection Agency's – and California’s – power to curb vehicle emissions of carbon dioxide and other global warming pollutants under the Clean Air Act.

The auto companies have long thumbed their noses at any increase in mileage standards, smug and secure behind the protection of Rep. John Dingell of Michigan, the powerful chairman of the energy and commerce committee. But give Mr. Dingell due credit. Earlier this year, he told the auto makers times were changing. And in the end, Mr. Dingell agreed to support the Senate-passed standard of 35 miles per gallon by 2020.

Though Mr. Dingell won several concessions for the automakers, the final language is actually stronger than the version passed by the Senate last summer, because it drops an “off ramp” provision that would have let the Transportation Department weaken the standards below 35 mpg.

The big battle was over EPA’s and California’s power to curb carbon dioxide. In addition to their defeat in the Supreme Court, the car makers lost another big case in September, when a federal judge in Vermont rejected their attempt to stop California from setting standards to cut global warming emissions from new vehicles 30 percent by 2016. Sixteen other states, including Vermont, have adopted or are poised to adopt California’s standards. (In November, a federal appeals court in San Francisco also rejected the administration’s paltry 1.5 mpg increase in SUV mileage standards, and sent them back to the Transportation Department to be strengthened.)

At the last minute, the automakers pushed for an amendment to overturn these court decisions and destroy EPA’s and California’s Clean Air Act authority. Their amendment would have blocked EPA from setting global warming pollution standards any stronger than the Transportation Department’s mileage standards. And since California is not allowed to set standards that are “not consistent” with EPA’s authority, this would have been a death blow to California’s pioneering clean car standards and to the 16 states that are following California’s lead.

The final language avoids this crippling step backwards with a “savings clause” that protects EPA’s and the states’ powers under the Clean Air Act.

The bill still has to clear the full House, where the Speaker has promised to marry it with strong mandates to increase wind, solar, and other renewable electricity, and to move towards the next generation of clean, “cellulosic” biofuels for cars and trucks. Votes are expected in the House next week.

In the Senate, the fuel economy compromise has won over Senator Carl Levin and other auto industry allies. Majority Leader Harry Reid is backing Speaker Pelosi's approach and has promised quick action. But we could be in for a tough fight, because Republican Senator Pete Domenici has declared all-out opposition to the House renewable electricity standard. Stay tuned.

Meanwhile, California awaits a final decision from EPA on its clean car standards. The only thing that stands in the way is a normally routine "waiver" that EPA has given California more than 40 times in the past. After long delay, EPA has promised to decide by the end of this year. So, soon we'll see if the White House gets the message that Congress, the states, and the American people are sending about cleaning up our cars, fighting global warming, and cutting our crippling oil dependence. Saying "no" to Governor Arnold Schwarzenegger and the leaders of 16 other red and blue states would seem to have its costs.

Beep-Beep!