With controversy already dogging Environmental Protection Agency Administrator Stephen Johnson because of his California waiver denial, two new developments are raising disturbing questions about his ability to carry out the spirit and letter of the nation’s environmental laws and his acquiescence in a White House political agenda seemingly bent on blocking the agency from taking action compelled by court decisions and long-standing Clean Air Act precedents.
The first involves the black hole into which widely anticipated EPA standards reducing vehicle emissions of CO2 have vanished. These standards would represent a landmark step in addressing global warming. Their development was originally touted as the administration’s response to the Supreme Court’s Massachusetts v. EPA decision, which directed EPA to determine whether vehicle CO2 emissions "endanger" public health and welfare because of their contribution to global warming and, if so, to reduce these emissions using the agency’s authority under the Clean Air Act.
After President Bush established a formal interagency process to address the Supreme Court’s decision last May, Johnson promised in congressional testimony to issue a rulemaking proposal by the end of the year. Yet that deadline passed with no action by the agency and no official explanation for the delay.
Along with the waiver denial, which blocked California from issuing its own vehicle CO2 emission standards, Johnson’s foot-dragging has been under investigation by Rep. Henry Waxman (D-CA), Chairman of the House Committee on Oversight and Government Reform. The Committee interviewed several senior EPA officials, who told a remarkable story that Chairman Waxman outlined in a detailed March 12 letter to Administrator Johnson. According to the letter, after a crash effort of several months involving scores of EPA staff and contractors, the agency had completed drafting an endangerment finding by early October of last year, Johnson had signed off on this draft, and it had been forwarded to the Office of Management and Budget for White House review in early December.
In parallel, Johnson had signed off on draft standards reducing vehicle emissions. These standards were also forwarded to the Department of Transportation for review in December. Subsequently, however, all work on the endangerment finding and proposed standards had stopped, with no explanation from Johnson or the White House of when, if ever, it would resume.
The EPA professional staff, the public, the Congress and—yes—the Supreme Court all deserve answers to a troubling host of questions:
- Have the endangerment finding and vehicle emission standards been shelved for the remainder of the administration?
- Or have they merely been delayed? And if so, for how long?
- Is there any chance that the finding and standards will be finalized before the Bush administration leaves office, as Johnson promised in testimony to Congress in June and November of last year?
- Do Johnson and the White House believe that there is now no basis for an endangerment finding?
- If Johnson and the White House are backing away from an endangerment finding, then why is the exhaustive justification for that finding developed by the EPA staff, with Johnson’s apparent blessing, no longer adequate to demonstrate that CO2 emissions from vehicles contribute to global warming?
Johnson shed little light on these questions in his testimony during a fractious March 13 hearing before the House Select Committee on Energy Independence and Global Warming. Stressing the complexity of the issues, he would not say whether he would make an endangerment finding or when. He cautioned that a “rush to judgment” was unwise because an endangerment finding might trigger the application of other Clean Air Act programs to global warming, requiring EPA to understand all the consequences before it acted.
The Supreme Court’s decision, however, does not speak to other provisions of the Clean Air Act and it underscores that the scope of the endangerment finding is very narrow. Indeed, the Court chided EPA for previously declining to reduce vehicle CO2 emissions by advancing policy justifications for not addressing global warming that “rest on reasoning divorced from the statute.” It made clear EPA could only avoid reducing vehicle CO2 emissions if it found, based solely on the science, that “greenhouse gas emissions do not contribute to climate change.”
This is obviously a determination that neither Johnson nor the Bush administration could possibly make given the strong scientific evidence linking rising greenhouse gas concentrations in the atmosphere with increases in global temperatures and the connection between temperature increases and sea level rises, disturbances in weather patterns, and other serious climate consequences. These are in fact the very aspects of climate change that Johnson described in his decision denying the California waiver request, and they make an endangerment finding unavoidable.
An endangerment finding may have implications for other EPA programs but, just like the grounds for inaction rejected by the Supreme Court, these implications “have nothing to do with whether greenhouse gas emissions contribute to climate change [and] [s]till less do they amount to a reasoned justification for failing to form a scientific judgment.”
The Supreme Court decision was issued nearly a year ago and Johnson’s comments offer little hope that the administration will be fulfilling the Court’s directives any time soon. If the Bush administration won’t step up to an endangerment finding on its own, the courts will in all likelihood force it to make one —yet another instance of unnecessary judicial intervention to demand accountability from an administration looking to shirk it.
Johnson’s March 13 testimony also claimed that a delay in the endangerment finding and emission standards was necessary to consider the impact of the stronger corporate average fleet economy, or CAFE standards—the measure used to gauge fuel efficiency in vehicles—in the Energy Independence and Security Act of 2007, which the president signed on December 19. Yet nothing in that law narrows or changes EPA’s Clean Air Act obligations under the Supreme Court decision.
In fact, efforts by the administration and others to undo the decision late in the legislative process were rebuffed. The law includes express language preserving the authority of EPA and other agencies under existing programs.
It is no secret that the administration wants to avoid greater improvements in fuel efficiency than mandated by the new energy law and, in all probability, encouraged Johnson to deny a waiver for the California vehicle standards for this very reason. The CAFE program, however, does not govern EPA’s decisions under the Clean Air Act, as the Supreme Court expressly said in Massachusetts v. EPA and Johnson himself recognized last year in congressional testimony.
According to the March 12 Waxman letter, applying the emission control framework in the Act, the draft standards developed by the EPA staff would have required CO2 reductions equivalent to a 35-miles-per-gallon efficiency standard in 2018, a more aggressive approach than the new CAFE program would mandate. If this level of CO2 reduction is the outcome dictated by the Clean Air Act, then the responsibilities of another agency under a different law provide no excuse for inaction by EPA. That Johnson and the White House now have cold feet about proceeding with the emission standards drafted by the EPA under Johnson’s direction once again demonstrates a reluctance to implement the Supreme Court’s decision.
Johnson again aroused the ire of his critics when, on March 12, he announced a new ambient air quality standard for ground-level ozone under the Clean Air Act. His decision to lower the standard from the current level of 80 parts per billion to 75 ppb fell short of the unanimous recommendation of EPA’s Clean Air Scientific Advisory Committee, backed by state air pollution agencies, to reduce the standard to between 60 ppb and 70 ppb to protect public health.
The agency’s own analysis suggested that a lower standard would prevent more people from suffering lung and heart ailments and thus was compelled by the Clean Air Act, which requires air quality standards be set at a level requisite to protect public health with an adequate margin of safety. The Committee’s Chair, Rogene Henderson, welcomed the tightening of the standard but said “we can’t kid ourselves that this is as health protective as we would like.”
The day after the new ozone standard was announced, it emerged that last-minute intervention by President Bush had forced Johnson to weaken the ozone secondary (or public welfare) standard initially adopted by EPA. The Clean Air Act Scientific Advisory Committee had recommended that this standard, which is intended to protect wildlife, parks, and farmland from long-term effects, be set at a lower level than the primary health standard. EPA had originally accepted this recommendation in part, although it did not adopt a value as low as the Committee had urged. However, the president directed that the primary and secondary standards be set at the same level. According to news reports, he was influenced by concerns raised by OMB about the costs of meeting the secondary standard.
The White House desire to take into account the costs of compliance is contrary to the consistent recognition—by several EPA Administrators and the Supreme Court—that national ambient air quality standards are strictly health-based and cost plays no role in their formulation. Apparently at the White House’s behest, when he announced the new ozone standard, Johnson called on Congress to amend the Clean Air Act to inject cost into the standard-setting process in addition to health benefits. This would be a departure from the long-standing framework for air quality standards that has prevailed under the Clean Air Act since its inception in 1970.
With little hope that Congress might entertain them, Johnson’s far-reaching proposals seem gratuitous and are remarkably ill-timed given the controversy surrounding his leadership that is growing on multiple fronts.
The administrator of EPA is a member of the president’s political team but he is also charged by Congress with safeguarding the integrity of the nation’s environmental laws. It is not unusual for the president’s advisors to have views on how the agency should carry out its agenda, and the give-and-take between EPA and its political masters is a healthy if at times frustrating part of the policymaking process.
But in the end, the EPA administrator must protect the agency’s statutory mission and institutional integrity, even if that means resisting presidential advice that strays outside the bounds of law and precedent. A 27-year career EPA scientist, Stephen Johnson should understand where to draw the line between legitimate policy debate and presidential fiat, but recent events unfortunately indicate that the line has now been crossed not once but again and again on his watch.