Analysis of the EPA’s decision to deny California’s waiver
As I mentioned below, today the U.S. EPA denied California’s request for a waiver exempting it from federal fuel economy standards, allowing it to implement its own standards. EPA administrator Stephen Johnson announced the decision in a rushed press conference following President Bush’s signing of the energy bill.
The announcement came with a veritable torrent of dishonest spin. Let me try to disentangle some of it.
1. Johnson leaned heavily on today’s passage of the energy bill, saying that a "uniform national standard" is preferable to a "confusing patchwork of state standards."
The "patchwork" line is completely disingenuous. There aren’t multiple standards in different states. There’s one: California’s standard, which other states can choose by law to adopt, or not. Seventeen states, representing over half the U.S. population, have pledged to adopt it.
2. Johnson said that he’d had "hours and hours" of briefing from the EPA’s "world-class professional staff," which provided him with many "pros and cons" upon which he based his decision.
There’s good reason to believe this is false. According to House Oversight Committee chair Henry Waxman (D-Calif.) and other sources, the EPA’s professional staff was cut out of the debate (PDF), which proceeded almost entirely on political grounds. Indeed, EPA staff overwhelmingly believes that the waiver should be granted. [Juliet Eilperin confirmed this.]
3. Johnson asserted that the newly passed CAFE standards (35mpg) are tougher than California’s standards, which he said would amount to 33.5mpg.
The reason automakers have lobbied the White House so hard to get this decision is that California’s standards are tougher than the new federal standards. The 33.5mpg number appears to have been pulled out of Johnson’s rear. [UPDATE: Apparently, Cali’s standards would reach 33.5mpg by 2016, while the federal standards would reach 35mpg by 2020. Also, Cali’s standards cover all emissions related to use of all vehicles, while the fed standards only concern fuel economy. [UPDATE UPDATE: Calif. officials dispute Johnson’s number.]] Regardless, the Calif. standards were always meant to be ramped steadily up over time, in keeping with their climate change action plan (the current standards go through about 2016). Make no mistake: this is a gift to automakers.
4. Johnson said he was denying the waiver on the basis of section 209 of the Clean Air Act. He said this request for a waiver was “distinct from all prior requests,” in that the previous requests regarded local pollutants, and GHGs are global pollutants. Thus, California does not meet the “compelling and extraordinary conditions” called for by the Act.
This flies in the face of the clear language of the CAA and the just-passed energy bill, both of which explicitly reserve for California the right to exceed federal fuel economy standards. It also directly contradicts rulings in several recent court cases. Johnson’s legal reasoning has no support outside of Bush administration political appointees.
In short, as Johnson all but admitted, this decision was made based on a "policy preference" of the White House — exactly what was prohibited by the Supreme Court’s ruling in Mass. v. EPA.
Schwarzenegger and state Attorney General Edmund G. Brown Jr. are preparing an immediate lawsuit. Sen. Barbara Boxer said she is “prepared to take all measures to overturn this harmful decision” via legislation. Waxman says his Oversight Committee will immediately launch an investigation into how the decision was made.
There’s no way this decision will stand for long. It’s just another petty act of truculent defiance from an executive branch that history has left behind. Quite a legacy.