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Johnson’s Latest Dodge

Despite a Court-issued directive to develop a plan for regulating greenhouse gas emissions, Johnson goes back to square one, writes Robert Sussman.

With furor mounting about the EPA’s failure to respond to the Supreme Court’s Massachusetts v. EPA decision, EPA Administrator Stephen Johnson took another step backward.

He blandly informed congressional leaders in a letter on March 27 that he would not be taking any immediate action to implement the Court’s decision. Returning to square one, he instead plans on seeking public comment on the “complex issue” of how to address global warming under the Clean Air Act. Johnson said that later this spring the EPA would be publishing an advance notice of proposed rulemaking discussing the many aspects of regulating carbon dioxide under the Act. This notice will provide a period for public comment—probably 90 days or more— and then, based on the comments, EPA will “consider how to best respond to the Supreme Court decision and its implications under the Clean Air Act.”

Conveniently, the EPA will not receive public comments until the fall (assuming the notice is published in May or June). The comments will undoubtedly be voluminous, particularly from the regulated industry, which will offer clever theories for further delays in regulating greenhouse gas emissions.

As in the case of the California waiver petition, Johnson can be expected to point to the sheer bulk of the comments and argue that considerable effort will be needed to digest them and examine the issues raised. October will turn into November, a new president will be elected, and the time-consuming process of reviewing comments will still be underway, enabling Johnson to retire from the scene in January 2009 without responding to the Supreme Court. It will be up to a new administration to pick up the pieces and restart the process.

The advance notice of proposed rulemaking is a time-honored device bureaucrats have used to create the illusion of forward movement while actually delaying meaningful progress and hard decisions. Johnson’s March 27 letter elevates this tactic to a new form of art. It shifts the focus away from the straightforward issue of scientific judgment that the Court directed the EPA to address—does global warming endanger the public health and welfare?—and conjures up myriad legal complexities that the EPA will need to confront if it makes this simple “endangerment finding.”

Johnson claims that the full panoply of climate change issues under the Clean Air Act must be fully analyzed so that the EPA does not take precipitous action on vehicles that might have harmful consequences for other emission sources. As the letter states, “implementing the Supreme Court’s decision could affect many sources beyond just the cars and trucks considered by the Court” and it is better to “examine all the potential effects of a decision with the benefit of the public’s insight … rather than rushing to judgment on a single issue.”

According to Johnson, the advance notice of proposed rulemaking will “highlight the complexity and interconnections within various sections of the Clean Air Act”—an exercise that will keep EPA staff and the regulated community busy with intricate legal analysis while the more urgent task of reducing greenhouse gas emissions is put on hold.

Johnson’s letter overlooks the inconvenient fact that the Supreme Court decision is now a year old and that, at Johnson’s direction, the EPA staff has been working on a response for months. Johnson initially told the EPA staff to do exactly what he now considers premature: draft an endangerment finding and develop regulations reducing greenhouse gas emissions from vehicles under Section 202 of the Act. With some fanfare, Johnson announced that these tasks would be complete by the end of 2007. Devoting hundreds of hours to this project, the staff complied with Johnson’s directive, producing an endangerment finding and proposed vehicle emission standards in early December that Johnson apparently blessed, but the Office of Management and Budget decided to bury.

It has been common knowledge that an endangerment finding might affect other Clean Air Act programs, but Johnson was not concerned about these “interconnections” until he and the White House got cold feet about taking the first steps under the Act to address global warming. Johnson then seized on the need to examine the “broader ramifications” of the Court’s decision as an excuse to backburner an endangerment finding that the EPA staff—and apparently Johnson himself—had essentially already made.

Johnson’s letter recognizes “EPA’s obligation to provide a response to the Supreme Court’s decision,” but the advance notice of proposed rulemaking is designed to do the exact opposite. It takes the EPA down a road that the Court’s decision not only did not require but explicitly discouraged.

The thrust of the Court’s decision was to take to task an administration that, over several years, had rebuffed calls to use its authority under the Act to reduce vehicle greenhouse gas emissions by offering policy and legal excuses for inaction that had no basis in the law. The Court made it unambiguously clear that the EPA could not delay action based on “reasoning divorced from the statute,” and that the principal (and probably only) issue the EPA could consider is “whether greenhouse gas emissions contribute to climate change.”

The advance notice of proposed rulemaking will once again create extraneous issues that divert attention from this central question, exhibiting the very evasiveness that was so troubling to the Court and caused it to explicitly narrow EPA’s discretion in coming to grips with global warming.

There is no doubt that an endangerment finding could lead to emission reductions by power plants, factories, and other sources under the Act. The Court clearly foresaw this possibility when it determined that greenhouse gases are “pollutants” subject to the EPA’s authority under the Act. Indeed, EPA and some private parties argued that greenhouse gases could not be considered “pollutants” because they did not fit within the Act’s framework for setting air quality standards, but the Court brushed this aside.

As the Court’s opinion suggests, the fact that an endangerment finding will have consequences for other emission sources is not a justification for doing nothing. It simply means that, as EPA takes the first step to reduce greenhouse gas emissions by setting standards for vehicles, it must start examining how and when to begin reducing emissions by other sources. This process is the natural consequence of the Court’s decision; if applying existing law to climate change proves problematic, Congress can correct the situation by amending the Act.

Environmental groups and states have announced that they will file suit in federal court to compel Johnson to issue the endangerment finding required by the Court’s decision. They will have a strong case, and a judicial decision holding EPA’s feet to the fire is a likely outcome. Simultaneously, congressional committees will continue to press for access to critical EPA documents, including the draft endangerment finding and notice of proposed rulemaking. The administration will continue to resist these efforts, and the rhetoric on both sides will likely escalate, leading ultimately to congressional subpoenas that will be contested in the courts.

The clock will meanwhile run out, and judicial relief will almost certainly come too late to change the administration’s course before it leaves office. Its successors (Republican or Democrat) will likely have no stomach for continuing to ignore the Supreme Court, and the machinery of the Clean Air Act will be belatedly set in motion to reduce greenhouse gas emissions.

Yet the Bush administration’s intransigence on global warming and defiance of the Supreme Court will have lasting consequences: emission reductions will be delayed by several years and the challenge of stabilizing greenhouse gas levels in the atmosphere and reducing the risk of catastrophic warming will become even more daunting.

Congress is fortunately expected to consider global warming legislation this June. The Senate will vote on the Lieberman-Warner Climate Security Act, which would establish a national carbon cap and trade program that would reduce greenhouse gases and funnel funding into low-carbon technologies. As the storm clouds of global warming continue to gather strength, we cannot wait out the Bush administration’s delaying tactics, but must look to Congress to move us forward. That’s why Congress should act swiftly to pass the Lieberman-Warner Climate Security Act before we fall even further behind.

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