Markey: On Global Warming Decision, White House Hacks Slash While Planet Burns

FOR IMMEDIATE RELEASE

Contact: Select Committee, 202-225-4081

Markey: On Global Warming Decision, White House Hacks Slash While Planet Burns

Today’s Climate Document A Shadow of Previous Drafts Reviewed by Select Committee

***Timeline and Comparison Chart Provided by Select Committee Below***

WASHINGTON (July 11, 2008) – In a shameful display of political interference with potential regulation of global warming pollution, the Bush administration has watered down findings on global warming in a rulemaking notice released today by the Environmental Protection Agency. The so-called Advanced Notice of Proposed Rulemaking released today, a response to last year’s Supreme Court’s decision in Massachusetts v. EPA, pales in comparison to earlier drafts, including a draft of findings from December of 2007 that was reviewed by staff of the Select Committee on Energy Independence and Global Warming. A draft of the ANPR from May 2008 was leaked and widely examined.

“Today’s sanitized and censored global warming proposal is a shadow of what the scientific experts say is needed to save the planet,” said Rep. Edward Markey (D-Mass.), Chairman of the Select Committee, which was the only committee to access all drafts of the documents. “The White House has taken an earnest attempt by their own climate experts to respond to the Supreme Court’s mandate to address global warming pollution, and turned it into a Frankenstein’s monster.”

“On global warming, the White House uses the slash-and-burn technique. They slash any meaningful statements or action on global warming, and allow the planet to burn,” continued Rep. Markey.

A full timeline of the ANPR process, including the Select Committee’s process to gain access to the December drafts, and a chart comparing key portions of the various drafts of the document, is available below this release.

Today’s proposal also includes an unprecedented airing of grievances by the head of the Office of Management and Budget, Susan Dudley, and other cabinet officials, sharply criticizing the very exploration of regulatory options EPA is issuing.

“This is Bush administration dysfunction on full display,” said Rep. Markey.

The proposal released today scrubs much of the significant language and decisions on global warming from the December draft findings. The December draft showed that, among other findings: EPA Administrator Stephen Johnson determined that man-made global warming is unequivocal, the evidence is both compelling and robust, and the administration must act to prevent harm rather than wait for harm to occur before acting; that global warming could harm human welfare (the so-called “endangerment finding”); and that fuel economy standards could be much higher.

“This ANPR is really the Administration’s Notice of Prior Result – the failure of President Bush to regulate global warming pollution. Even when the supreme court of climate science, the IPCC, and the actual Supreme Court agree that carbon dioxide has serious consequences for America, the president is unwilling to do his duty to protect the nation,” continued Rep. Markey.

The regulations today were created in response to the Supreme Court decision in Massachusetts v. EPA, which directed the administration to make a determination on the danger posed by global warming and to propose regulations under the Clean Air Act for reducing global warming emissions from motor vehicles and fuels.

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The Bush Administration’s Evolution on Massachusetts v EPA: From Progress to Politization

Overview

On April 2, 2007, the Supreme Court ruled that the regulation of greenhouse gas emissions from motor vehicles fall under the authority of EPA and the Clean Air Act, and directed EPA to determine whether they endanger public health or welfare (the so-called endangerment finding), and, if so, to regulate them . While EPA initially began to respond to the Supreme Court’s charge and formulated a positive endangerment finding and drafted proposed regulations in December 2007, the White House ultimately scuttled the effort in favor of an “Advanced Notice of Proposed Rulemaking” (ANPR), released on July 11, 2008 (after a May 30, 2008 version was leaked). The July 11 ANPR does not contain EPA’s finding of endangerment and regulatory recommendations, and guarantees that President Bush will leave office without acting on the Supreme Court’s charge. An analysis and timeline detailing the evolution of the EPA’s response to the Supreme Court decision is included in this document.

In addition, the July 11 ANPR demonstrates what can only be described as a bizarre and dysfunctional policy-making process — highlighting the deep conflicts within the Bush Administration on how best to respond to climate change. While all three drafts of the EPA’s response to the Massachusetts v. EPA decision (December 2007, May 30, 2008 and July 11, 2008) clearly signal that EPA legal and scientific personnel have concluded that greenhouse gas emissions endanger public welfare and therefore can and must be regulated under the Clean Air Act, the final ANPR also contains political statements to the contrary made by high-level White House officials and Bush Administration cabinet members, as exemplified below:

• Susan E. Dudley, Administrator, Office of Information and Regulatory Affairs, White House Office of Management and Budget: “The issues raised during interagency review are so significant that we have been unable to reach interagency consensus in a timely way, and as a result, this staff draft cannot be considered Administration policy or representative of the views of the Administration…. [T]he Clean Air Act is a deeply flawed and unsuitable vehicle for reducing greenhouse gas emissions. Interagency reviewers concluded upon reading the draft that trying to address greenhouse gas emissions through the existing provisions of the Clean Air Act will not only harm the U.S. economy, but will fail to provide an effective response to the global challenge of climate change.”
• EPA Administrator Stephen Johnson: “One point is clear: the potential regulation of greenhouse gases under any portion of the Clean Air Act could result in an unprecedented expansion of EPA authority that would have a profound effect on virtually every sector of the economy and touch every household in the land…. I believe the ANPR demonstrates the Clean Air Act, an outdated law originally enacted to control regional pollutants that cause direct health effects, is ill-suited for the task of regulating global greenhouse gases. Based on the analysis to date, pursuing this course of action would inevitably result in a very complicated, time-consuming and, likely, convoluted set of regulations. These rules would largely pre-empt or overlay existing programs that help control greenhouse gas emissions and would be relatively ineffective at reducing greenhouse gas concentrations given the potentially damaging effect on jobs and the U.S. economy.”
• Edward T. Schafer, Secretary, Department of Agriculture, Carlos M. Gutierrez, Secretary, Department of Commerce, Mary E. Peters, Secretary, Department of Transportation, Samuel W. Bodman, Secretary, Department of Energy: “[T]he Clean Air Act is fundamentally ill-suited to the effective regulation of GHG emissions.”
• Edward P. Lazear, Chairman, White House Council of Economic Advisors, John H. Marburger III, Director, White House Office of Science and Technology Policy: “First, the Clean Air Act would result in excessive regulation… Second, the Clean Air Act may be inadequate…. Third, regulation of GHG through the Clean Air Act will prove inordinately burdensome….Fourth, the Clean Air Act entails redundancy… Finally, any GHG regulation imposed under the Clean Air Act is almost certain to fail…. We believe that the Clean Air Act is not the appropriate statutory framework for dealing with climate change. The Clean Air Act was never intended to address issues with the global complexity of GHG emissions.”

Both the May 30, 2008 leaked draft ANPR and the draft ANPR released by EPA on July 11, 2008 contain a remarkably broad and open discussion of potential options for regulating greenhouse gas emissions from stationary sources, such as power plants, refineries, and cement plants. This discussion provides an evenhanded treatment of the pros and cons of regulation under various sections of the Clean Air Act. While acknowledging potential legal hurdles, the drafts include extensive discussion of options for overcoming such hurdles. They also include extensive discussion of technologies and policy options for increasing flexibility and reducing costs, including the use of market-based cap-and-trade mechanisms. Finally, both drafts make reference to a “technical support document” appendix that analyzes the options for reducing greenhouse gas emissions from specific source categories (such as power plants) – a precursor to moving forward with regulations targeting such categories.

However, in keeping with the White House’s view that addressing global warming pollution under the Clean Air Act is unworkable and too costly, Administrator Johnson’s introduction to the July 11, 2008 ANPR, together with the appended letters from OMB OIRA Administrator Susan Dudley and other agency heads, sharply disavow the Agency’s analysis in the December 2007, May 30 and July 11 documents, and instead amplify remarks made by President Bush on April 16, 2008 that the Clean Air Act was “never meant to regulate global climate change” and that using it to do so could “have crippling effects on our entire economy”.

The Endangerment Finding and Proposed Vehicle Regulations

After the Massachusetts v. EPA decision, EPA engaged in a lengthy and laborious inter-agency process resulting in its conclusion that greenhouse gas emissions from motor vehicles do endanger public welfare as well as an aggressive regulatory framework to reduce those emissions.

What follows is a comparison of three versions of EPA’s analysis related to its specific response to Massachusetts v. EPA: The proposed endangerment finding and greenhouse gas motor vehicle regulations approved by Stephen Johnson in December 2007, the May 30 2008 leaked draft ANPR that was submitted by EPA to OMB, and the final version of the July 11 2008 ANPR released by EPA. In addition, a timeline of events that led to today’s ANPR release is also included.

Other than the Bush Administration, only the Select Committee on Energy Independence and Global Warming has had access to all of these documents.

This comparison demonstrates that EPA Administrator Stephen Johnson determined – consistent with the views of his scientific and technical advisors – that greenhouse gas emissions are dangerous and that motor vehicle emissions should be regulated by EPA, but that the Bush Administration ultimately refused to allow these steps to be taken. Moreover, each draft of the documents that ultimately were folded into the July 11, 2008 ANPR contained fewer recommendations, weaker conclusions and less extensive analysis such that the final, publicly released version says almost nothing whatsoever.

A LANDMARK GLOBAL WARMING DECISION AT THE SUPREME COURT, AND THE BUSH ADMINISTRATION’S BEGINS TO RESPOND

April 2, 2007: The Supreme Court ruled in favor of the State of Massachusetts in Massachusetts v EPA, finding that:

• Greenhouse gases are air pollutants that can be regulated under the Clean Air Act.
• EPA's excuses for refusing to regulate greenhouse gas emissions from motor vehicles were all inadequate.
• Under the Clean Air Act, EPA must determine whether these emissions cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare, a determination often referred to as an 'endangerment finding,' and
• If the EPA does make a positive endangerment finding, it must regulate greenhouse gas emissions from motor vehicles.

May 14, 2007: President Bush directed EPA, along with other agencies, to prepare a regulatory response to the Supreme Court decision, to publish the proposal by the end of 2007 and to complete it by the end of 2008.

May – December 2007: EPA staff worked to develop both a positive endangerment finding and aggressive regulations to ensure that the fleet of cars and light trucks achieve the equivalent of 35 miles per gallon (mpg) by 2018.

July 22, 2007: EPA Administrator Johnson:“[I]n May, the President directed us to move ahead and take the first regulatory step to address greenhouse gas emissions from cars. We’re working across agencies to develop a proposed regulation under the Clean Air Act by the end of this year, with final rules due out by the end of next year.”

November 8, 2007: EPA Administrator Johnson: “In addition, since the Supreme Court decision, we have announced that we are developing a proposed regulation to regulate greenhouse gas emissions from mobile sources. That is the first time in our Nation's history, and I have committed to members of Congress and to the President that we will have that proposed regulation out for public notice and comment beginning by the end of this year and to work toward a final rule by the end of next year.”

THE WHITE HOUSE BEGINS TO TRY TO STOP EPA’S EFFORTS

December 3, 2007: Director of the National Economic Council Al Hubbard sends a letter to House Speaker Nancy Pelosi on Congress’ pending completion of the Energy Independence and Security Act (EISA), stating that “Unfortunately, while assigning new requirements to the Department of Transportation, the proposed legislation leaves ambiguous EPA’s role in CAFE regulations, and likely creates substantial amounts of regulatory uncertainty and confusion. The failure to clearly identify the relative roles of the Environmental Protection Agency and the Department of Transportation in national fuel economy regulations could greatly undermine our shared objective of reducing gasoline consumption in the United States. Legislation should clarify that there should be consultation between the agencies, while clearly establishing a single national fuel economy standard.

Early December, 2007: The positive endangerment finding and vehicle regulations were approved by EPA Administrator Stephen Johnson.  The endangerment finding was submitted by EPA to the White House Office of Management and Budget, and the draft vehicle regulations were submitted to the National Highway Traffic Safety Administration (NHTSA) for review.

December 6, 2007: The White House Office of Management and Budget (OMB) submitted a Statement of Administration Policy on EISA, stating as part of the veto threat that “Unfortunately, H.R. 6 leaves ambiguous the role of the Environmental Protection Agency (EPA) in regulating vehicle fuel economy, and as a result would likely create substantial regulatory uncertainty, confusion, and duplication of efforts. The bill could also delay effective implementation of new fuel economy requirements due to inevitable litigation. The double regulation that would result from this failure to clearly identify the relative roles of EPA and DOT in national fuel economy regulations could greatly undermine our shared objective of rapidly reducing gasoline consumption. The bill needs to clarify one agency as the sole entity, after consultation with other affected agencies, to be responsible for a single national regulatory standard for both fuel economy and tailpipe greenhouse gas emissions from vehicles.”

December 13, 2007: The White House Office of Management and Budget (OMB) submitted a Statement of Administration Policy on EISA, stating as part of the veto threat that “the Administration compliments the Senate for giving the Department of Transportation (DOT) the authority to establish a new CAFE standard, which would both improve fuel economy and reduce tailpipe greenhouse gas emissions. The bill should clarify, however, that DOT should establish this single national regulatory standard, in consultation with the Environmental Protection Agency, and that neither agency should add additional layers of regulation.”

December 19, 2007: The Energy Independence and Security Act (EISA) was signed into law, requiring NHTSA to promulgate regulations to ensure that the car and light truck fleet achieve a fuel economy average of at least 35 mpg by 2020.  Congress included a provision in EISA expressly rejecting the White House requests to remove EPA’s authority to regulate greenhouse gases from motor vehicles.

AND THEN, ALL WORK ON THE EPA REGULATORY EFFORTS STOPPED

January, 2008: White House Council on Environmental Quality Chairman James Connaughton said that the Administration was studying “the need for further regulations and additional policies on heat-trapping greenhouse gases from automobiles and industrial emitters following passage last month of a new fuel economy standard.” 

February 27, 2008: A press report indicated that “EPA Administrator Stephen Johnson says he is ‘taking a step back’ to analyze a slew of greenhouse gas (GHG) litigation, permits and petitions facing the agency in order to decide the best way to proceed given that taking one action under the Clean Air Act can impact a host of other provisions in the statute. Johnson also hedged on whether the agency will issue a long-awaited endangerment finding on the risks posed by GHG emissions, a possible retreat from his statement to the Senate environment committee last month that the agency was planning to issue the finding.”

March 13, 2008: At a hearing of the Select Committee on Energy Independence and Global Warming, EPA Administrator Stephen Johnson said “that it is very evident that as one looks at the Clean Air Act, there are many interconnections, and a decision on one part of the Clean Air Act could have significant consequences both in how greenhouse gas is regulated as well as other unintended consequences, perhaps such as significant harm.” 

March 27, 2008: EPA Administrator Stephen Johnson sent a letter to Select Committee on Energy Independence and Global Warming Chairman Edward J. Markey and Ranking member James Sensenbrenner informing them that EPA had decided to issue an Advanced Notice of Proposed Rulemaking (ANPR) later in the spring which would “present and request comment on the best available science including specific and quantifiable effects of greenhouse gases relevant to making an endangerment finding and the implications of this finding with regard to the regulation of both mobile and stationary sources”, including the Agency’s response to Massachusetts v U.S. EPA.  After reviewing the comments submitted in response to the ANPR, EPA “will then consider how to best respond to the Supreme Court decision and its implications under the Clean Air Act.”

April 2, 2008: The Select Committee On Energy Independence and Global Warming voted unanimously to authorize the Chairman to issue a subpoena to Administrator Johnson for the endangerment finding and greenhouse gas motor vehicle regulations prepared by EPA in its response to Massachusetts v EPA.  On the same day, at a Select Committee hearing, Robert Meyers, Principal Deputy Assistant Administrator of the EPA Office of Air and Radiation, indicated in response to a question that a formal endangerment finding or regulatory proposal would normally not be included in an ANPR, but would rather be included in a subsequent Notice of Proposed Rulemaking that would be issued after the ANPR responses were received and analyzed. This demonstrated the high probability that the Bush Administration would leave all regulatory decisions related to the response to Massachusetts v EPA to the next President. The subpoena for the December 2007 documents was issued the following day.

April 16, 2008: President Bush said in a speech that “the Clean Air Act, the Endangered Species Act, and the National Environmental Policy Act were never meant to regulate global climate change.  For example, under a Supreme Court decision last year, the Clean Air Act could be applied to regulate greenhouse gas emissions from vehicles.  If these laws are stretched beyond their original intent, they could override the programs Congress just adopted, and force the government to regulate more than just power plant emissions.  They could also force the government to regulate smaller users and producers of energy from schools and stores to hospitals and apartment buildings.  This would make the federal government act like a local planning and zoning board, and it would have crippling effects on our entire economy. Decisions with such far-reaching impact should not be left to unelected regulators and judges.  Such decisions should be debated openly and made by the elected representatives of the people they affect.  The American people deserve an honest assessment of the costs, benefits and feasibility of any proposed solution.”

March –July 2008: EPA staff worked to prepare the ANPR.

May 30, 2008: A draft of the ANPR was submitted by EPA to OMB, and a copy thereof was obtained by the Select Committee on Energy Independence and Global Warming. It did not propose either an endangerment finding or vehicle greenhouse gas regulations for motor vehicles, but did contain some of the analysis used to formulate EPA’s December 2007 endangerment finding and regulatory response to Massachusetts v EPA.

June 20, 2008: The Select Committee on Energy Independence and Global Warming obtained access to the EPA’s December 2007 endangerment finding and regulatory response to Massachusetts v EPA via an agreement reached with the White House and EPA.

June 24, 2008: Chairman Markey sent a letter to President Bush detailing the Select Committee staff’s review of the December 2007 documents and indicated that any “legal and scientific-based” ANPR released by EPA must include the key recommendations of those documents. “To do less would be a blatant denial of the overwhelming scientific evidence indicating that greenhouse gas emissions are dangerous, would overrule the scientific and legal recommendations of the EPA, and would further undercut your Administration’s credibility on matters related to climate change both here and in the rest of the world.”

July 11, 2008:  The ANPR is released by EPA.

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