EPA Chief Overruled Staff on California Greenhouse Gas Rules (CQ Today)

By Avery Palmer, CQ Staff

Environmental Protection Agency Administrator Stephen Johnson was urged by his staff to allow California to set greenhouse gas emission standards for vehicles, even though he ultimately decided to block the regulations, according to documents obtained by the chairwoman of the Senate Environment and Public Works Committee.

Sen. Barbara Boxer, D-Calif., said she plans to grill Johnson about his decision at a hearing Wednesday on the EPA's proposed fiscal 2009 budget.

"The people in the agency who were charged with advising administrator Johnson were very, very clear that this waiver should be signed," Boxer said.

Johnson announced late last year that he would not grant a waiver to allow California to implement a state-level global warming program. California's regulations would set fuel economy standards for vehicles stricter than those in force at the federal level. Numerous other states have indicated they would adopt identical regulations if California were allowed to move forward.

Boxer has introduced legislation (S 2555) to require the EPA to allow the state emission standards. She plans to move the bill if she can obtain 60 votes to overcome a filibuster on the floor. States have also filed a lawsuit against the EPA.

In the meantime, Boxer is requesting documents from the agency on the background behind Johnson's decision. One presentation from October is a strong recommendation from EPA staff that the waiver should be granted. The document was prepared by Christopher Grundler, deputy director at the Office of Transportation and Air Quality.

"From what I have read and the people I have talked to, it is obvious to me that there is no legal or technical justification for denying this," the document said. "The law is very specific about what you are allowed to consider, and even if you adopt the alternative interpretations that have been suggested by the automakers, you still wind up in the same place."

Under the Clean Air Act (PL 101-549), the EPA must allow California to set its own pollution standards for vehicles unless the state standards are found to be arbitrary and capricious, are unnecessary to meet "compelling and extraordinary" environmental conditions, or are otherwise inconsistent with the federal anti-pollution law.

As a compromise, the staffer suggested the EPA could grant the waiver for three years and then defer it for subsequent years. This was described as a "grand bargain" that would put the EPA "in the driver's seat to craft a national solution."

"You have to find a way to get this done," the presentation concluded. "If you cannot, you will face a pretty big personal decision about whether you are able to stay in the job under these circumstances. . . . If you are asked to deny this waiver, I fear the credibility of the agency that we both love will be irreparably damaged."

While career agency officials were pressing Johnson to grant the waiver, at least one political appointee had different ideas. William Wehrum, then acting administrator of the office of air and radiation, made the case for denying the waiver in a March 2006 e-mail to staff.

"I think we should assert the existence of preemption and propose to deny the waiver based on the absence of compelling and extraordinary conditions," he said.

Johnson ultimately said he would deny the waiver because climate change is a global problem best handled on the national level. He also cited the new energy law (PL 110-140) that will gradually increase nationwide fuel economy standards, but not to the same level the state greenhouse gas rules would have required.

The EPA is soon expected to publish a formal justification of its decision to deny the waiver.

Boxer wrote the EPA asking the agency to provide correspondence with the White House and Vice President Dick Cheney's office. EPA staffers have told the senator they have withheld these documents while they are under review by other executive agencies and the White House counsel's office.

An agency spokesman could not immediately be reached for comment.