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Federal Denial of the Right to Cleaner Air: A Look Under the Hood
By Simona Perry
t r u t h o u t | Report
Tuesday 22 January 2008
On January 2, Sen. Dianne Feinstein (D-California) sent a letter to the Office
of the Inspector General of the Environmental Protection Agency asking for an
investigation into the decision-making process leading to denial of a Clean
Air Act preemptive waiver to the State of California. The senator specifically
called on the inspector general's office to investigate meetings and correspondence
between White House officials, industry representatives, EPA Administrator Stephen
L. Johnson and his staff, prior to the decision.
Technical or legal analysis supporting the EPA's decision to deny the Clean
Air Act waiver has yet to be produced. The decision undercuts state and local
efforts to improve local air quality and respond to the immediate threat of
climate change in a timely manner. And, the gravity of EPA's decision lies not
just in the denial of California's right to implement stricter air quality standards
via more stringent control of greenhouse gas emissions, but in the fact this
also denies a Clean Air Act waiver in 14 other states - Arizona, Connecticut,
Florida, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon,
Pennsylvania, Rhode Island, Vermont and Washington. All of these states have
adopted regulations identical to California's in an effort to improve local
air quality and reduce the health consequences and global warming impacts of
carbon dioxide emissions. The EPA's decision denies the right to cleaner air
across the US, and stalls efforts to combat global warming.
State and regional efforts to regulate greenhouse gas emissions, particularly
carbon dioxide, were first called a "patchwork of regulations" by
automobile, energy and business interests, and later referred to as "patchwork"
by the White House in statements supporting a nationwide energy bill. This rhetoric
of "patchwork regulations" versus national regulations is now being
used by the EPA in its refusal to grant states the right to regulate carbon
dioxide emissions.
Clearly not a "patchwork," these state regulations and regional strategies
would apply the same standards to new automobiles, and would serve as the only
means of curbing local air pollution and stopping global warming in the absence
of political will at the federal level. A working group of EPA's own Clean Air
Act Advisory Council recommended, in a July 2007 report on air quality management,
"a one-size-fits-all requirement" for improving air quality cannot
be justified and "multiple programs should be pursued simultaneously."
A lack of technical and legal analysis and clear privileging of corporate rhetoric
raises suspicions that politics, not science, has been the determining factor
in EPA's latest decision. Since 2000, EPA decisions have repeatedly been called
into question by members of Congress, environmental groups, ethics watchdogs
and former agency officials for being unduly influenced by corporate interests
and White House officials.
"Different Programs, Different Purposes"
Auto industry interests are clearly implicated in the EPA's denial of California's
request to implement its own greenhouse gas emission standards. In a Congressional
Research Service report on California's waiver request from October of last
year, both the auto industry and the Department of Transportation were singled
out as opposing the granting of the Clean Air Act waiver to California.
The Alliance of Automobile Manufacturers told the EPA, during a public hearing
on the waiver request in May 2007, that there would be effectively no difference
between California and federal emission standards in their impact on criteria
air pollutants, and that the benefits of the greenhouse gas regulations would
be "zero." Contrary to this, the California Air Resources Board issued
a technical assessment comparing the proposed California standards to the new
federal standards set in the 2007 Energy Bill. This analysis shows that by 2016
the state standards would reduce California's greenhouse gas emissions by 17
million metric tons (MMT) of carbon dioxide, 77 percent more than the 8 MMT
reduction produced by the federal standards in the 2007 Energy Bill. In addition,
the state standards would yield an equivalent fuel economy of 44 mpg by 2020
as compared to the new federal standard of 35 mpg by 2020. If adopted by all
50 states, the cumulative benefits of the reductions in greenhouse gas emissions
from these more stringent emission standards would also be greater than those
of the new federal standards.
The Bush administration has touted Executive Order 13432 and the "Twenty
in Ten" plan as the way forward in reducing domestic gasoline consumption
by 20 percent over the next ten years, thus ensuring energy independence and
security for the nation. The White House proposes to do this through increased
cooperation between the Department of Transportation, Department of Energy and
the EPA on regulating greenhouse gas emissions from motor vehicles, tax incentives
for research and development on alternative fuels, and greater reliance on domestic
fossil fuel reserves coupled with a gradual reduction in fossil fuel consumption.
E.O. 13432 ensures the Department of Transportation has joint decision-making
power in regulating automobile emissions. The goals of both E.O. 13432 and "Twenty
in Ten" are to reduce fuel consumption while securing domestic energy independence.
The goal is not to reduce carbon dioxide emissions.
In November of last year, Administrator Johnson testified before the Congressional
Oversight Committee, that "Twenty in Ten" and recent court rulings
finding the EPA responsible for regulating carbon dioxide will guide the EPA
in the development of new regulations for automobiles, or "mobile sources,"
in late 2007. However, in this same testimony Johnson said because the EPA has
not yet established ambient air quality standards for carbon dioxide, classified
carbon dioxide, or otherwise regulated carbon dioxide to date, it is still not
considered a "regulated pollutant" under the Clean Air Act. This testimony
was given at a hearing on the climate change impacts of new coal-fired power
plants, not specifically on new automobile emissions, making the similarities
between the regulation of stationary sources of carbon dioxide and "mobile
sources" very clear. And, the EPA's refusal to regulate either source was
also made clear. The EPA never delivered on Johnson's statement that proposed
regulations for automobile emissions would be published in late 2007.
Instead, the 2007 Energy Independence and Security Act was signed into law
on December 19. It sets a new national target for fleet average fuel economy
standards (CAFE standards) on new passenger cars and light trucks at 35 mpg
no sooner than 2011 and no later than 2020. The bill directs the Department
of Transportation, not EPA, to set this target and determine the appropriate
phase-in schedule to achieve this goal. As with the White House "Twenty
in Ten" plan, the purpose is to reduce fuel consumption and increase energy
independence, not to explicitly reduce greenhouse gas emissions. EPA's role
is to monitor the industry and ensure compliance with the Clean Air Act. However,
in the absence of federal regulations on carbon dioxide, carbon dioxide emissions
will remain unregulated and unmonitored by EPA under the 2007 Energy Bill.
In contrast to the Energy Bill, the California standards that are the subject
of the EPA's waiver denial are not for the sole purpose of fuel economy and
energy independence. Instead, the standards California proposes, and which 17
other states are set to adopt, sets greenhouse gas emission standards not only
on automobiles but also on air conditioning systems. In testimony during the
Senate field hearing in Los Angeles last Friday, Mary Wright, chair of California's
Air Resources Board, emphasized this difference: "The California standards
regulate greenhouse gas emissions; federal CAFE standards are aimed at reducing
the nation's fuel consumption. These are different programs addressing different
problems."
Possible White House Involvement
In July 2007, before the Senate's Environment and Public Works Committee, Johnson
had said, "The Agency is performing a rigorous analysis in order to properly
consider the legal and technical issues that we must address in making a decision
under the Clean Air Act waiver criteria."
In his December 19 letter to California Gov. Arnold Schwarzenegger denying
the waiver, Administrator Johnson cited no legal or technical analysis as the
basis for the denial. Instead, he cited the Energy Independence and Security
Act that had been signed that same day, and "the global nature of the problem
of climate change" in making the need for California regulations unnecessary.
The letter said, "I have found that California does not have a 'need to
meet compelling and extraordinary conditions.' Accordingly, I have decided that
EPA will be denying the waiver and have instructed my staff to draft appropriate
documents setting forth the rationale for this denial in further detail and
to have them ready for my signature as soon as possible."
The day following Administrator Johnson's announcement California's waiver
request had been denied, both Sen. Barbara Boxer (D-California), chair of the
Senate Environment and Public Works Committee, and Rep. Henry Waxman (D-California),
chair of the Committee on Oversight and Government Reform, opened investigations
into the EPA decision. The EPA was to respond to these requests for internal
documents no later than January 7 and January 10.
Two weeks ago, Senator Boxer informed state officials and attendees at a Senate
field hearing on the matter that the requested date for receipt of the decision
documents had passed, and still no documents had arrived from the EPA. The documents
requested included all communications between EPA and White House staff and
EPA and automobile industry representatives. In his testimony, California Attorney
General Jerry Brown, called on Congress to subpoena federal officials to speed
up the release of legal and technical documents related to the decision and
"uncover real corruption," stemming from what he referred to as "a
bunch of scofflaws in the White House."
Congress is now calling on the EPA to develop a schedule for submitting all
documents and for producing seven EPA officials for interviews. Specifically,
these EPA officials, from the Offices of the Administrator, Air and Radiation,
Transportation and Air Quality, Atmospheric Programs and Program Analysis and
Review, are requested for interview without agency counsel. The conduct by the
Administrator is under investigation, so only private counsel will be allowed.
Let the Courts Decide
On January 2, in the Ninth Circuit Court of Appeals, two separate petitions
against the EPA and Administrator Johnson were filed. One by the state of California
and the 14 other states that have adopted the new greenhouse gas emission standards,
and another by the Sierra Club, Natural Resources Defense Council, Environmental
Defense Fund, Conservation Law Foundation and International Center for Technology
Assessment. Both of these appeals not only ask for the court to compel a reversal
of the EPA decision, but they also ask for close scrutiny into the decision-making
process used by the EPA in denying the waiver. The states, environmental groups
and most observers believe the court will reverse the EPA decision and pave
the way for states to more stringently and broadly regulate greenhouse gas emissions.
However, it remains to be seen how far the court will pursue, how much the inspector
general will uncover, or how courageous Congress will be, in investigating executive
pressure and malfeasance in placing politics and corporate interests above science,
law and the nation's right to cleaner air.
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Simona Perry is currently finishing her PhD research into the politics and sociology of environmental restoration and hazardous waste clean-ups. She previously served as a biologist and policy analyst with the federal government, conducting research and writing regulations and policy documents on endangered species. She is an assistant editor at Truthout.
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