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EPA Decision to Block State Emissions Plans Raises Policy Debate

December 20, 2007 at 6:05 PM EST
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The Environmental Protection Agency denied new emissions proposals from California and 16 other states Wednesday that would set guidelines for automakers. Sen. Barbara Boxer, D-Calif., and a former EPA official debate who should regulate emissions.
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MARGARET WARNER: The Bush administration’s refusal to let states set their own auto emissions standards met with harsh criticism from state officials today.

Last night, the Environmental Protection Agency denied California’s two-year-old request for a waiver so it could impose carbon dioxide emission standards stricter than those in effect nationally.

The California plan would require a 30 percent reduction in car and light truck emissions by 2016. That would translate into a new overall vehicle mileage average of 36 miles per gallon.

At least 16 other states, with about 45 percent of the nation’s automobiles, had pledged to adopt California-like limits, as well, if the waiver were approved.

California Governor Arnold Schwarzenegger vowed to sue, saying, “It is disappointing that the federal government is standing in our way and ignoring the will of tens of millions of people across the nation. We will continue to fight this battle.”

In his White House press conference this morning, the president defended the EPA’s decision, saying it made sense in the wake of a new energy bill approved this week.

GEORGE W. BUSH, President of the United States: The question is how to have an effective strategy. Is it more effective to let each state make a decision as to how to proceed in curbing greenhouse gases? Or is it more effective to have a national strategy?

Director Johnson made a decision based upon the fact that we passed a piece of legislation that enables us to have a national strategy. It’s one of the benefits of Congress passing this piece of legislation.

MARGARET WARNER: The energy bill signed by the president yesterday sets a 35-mile-per-gallon vehicle fuel standard by 2020. It also mandates a major increase in the production and use of biofuels, like ethanol.

The president said his national strategy to confront climate change also has a global dimension. His approach to the problem, beginning with his rejection of the Kyoto treaty, has often put the U.S. at odds with other nations.

But he cited progress made in last week’s summit in Bali, when the administration agreed to take part in two years of negotiations for a post-Kyoto agreement.

GEORGE W. BUSH: In order to be effective on a global basis, countries that emit greenhouse gases need to be at the table.

We could do all we wanted to do, but it wouldn’t affect greenhouse gases over the long run, unless a country like China had agreed to participate in a — in a strategy.

And so we went to the Bali conference with that in mind and worked out a compromise that said we’re committed to a process that’s going to unfold over the next two years, but we’ve also got a parallel process working to make sure major emitters sit at the table.

MARGARET WARNER: The parallel track consists of U.S.-sponsored talks that include large developing countries that didn’t sign Kyoto, like China and India.

Precedent of waivers for California

MARGARET WARNER: Now, two views of whether the states or the federal government should prevail in setting emission standards to try to curb global warming. Democrat Barbara Boxer of California chairs the Senate Committee on Environment and Public Works.

And Jeff Holmstead was assistant EPA administrator for air quality issues between 2001 and 2005. He's now a partner at the Bracewell and Giuliani law firm, where his clients include utilities and refineries, renewable energy firms, and coal-fired power plants.

Welcome to you both.

Senator Boxer, we just heard President Bush saying that the new energy bill means there's absolutely no need to have separate state standards. Does his argument make some sense, that it's better to have a national strategy?

SEN. BARBARA BOXER (D), California: Well, the president is flat-out wrong about this, because we've always had fuel economy standards for a very long time. And still, under the Clean Air Act, California has been granted waivers 50 times, eight times by Ronald Reagan, 14 times by Jimmy Carter, seven times by George Bush's dad.

So the fact is that this is the first time we've ever been denied. And the answer is that we've got global warming coming right at us. It's a crisis.

We need the federal government to be involved, of course. But we also have to let the states be involved. And there's not every state doing its own thing. There's only one waiver, and then the states follow California.

And as I say, this has been done 50 times in the past. This is a shocking decision, and it is very bad for the environment, for the planet, for the people of our nation.

MARGARET WARNER: A shocking decision?

JEFFREY HOLMSTEAD, Bracewell and Giuliani Law Firm: Well, I don't think it's really shocking, and it's not quite right to say that EPA has always granted waivers to California. And this waiver is just completely different from anything that's ever been done before.

Congress has decided years ago that there should -- the presumption is there should be a uniform national emissions standard. And in order to have anything other than that, California needs to show that there are compelling and extraordinary conditions that exist.

And that's always been understood to mean California has the worst air quality in the nation. If they need to do something to clean up their local air quality, then they should be able to do that.

That's fundamentally different from climate change, where what's emitted in Riverside or Los Angeles has no different impact on California than what's emitted in Washington, D.C., or Shanghai.

So it really is very different from anything that's ever been done before under the Clean Air Act.

Effects of climate change

MARGARET WARNER: What about that point, Senator? And the EPA administrator made this point to reporters last night in a conference call, that all the other waivers you're talking about, that dealt with dirty air, essentially, pollution that affects residents of California.

But when you're talking about greenhouse gas emissions or CO-2 emissions, you're talking about a problem of climate change. You're not going to improve the warming or slow warming in California by California having tighter standards.

SEN. BARBARA BOXER: Well, first, I have to say, Mr. Holmstead is completely wrong. We were granted waivers 50 times; that is a fact.

And it's explicitly stated in the Clean Air Act -- explicitly stated -- that the type of pollution we're talking about here is covered.

Now, your special guest here, who's my opponent tonight, is the one who signed the order that said that EPA had no obligation and no authority to regulate greenhouse gases.

He was overruled. The Bush administration -- and he, in particular -- they were overruled by the Supreme Court. So the fact of the matter is we have a right to get this waiver.

And if you want to talk about special circumstances in California, that's an easy case to make. We're talking about a state that is a coastal state, so the sea level rise will absolutely impact us. We're talking about a state that relies on snow pack, and snow pack is disappearing.

So what this administration has done -- and, by the way, if you read the Washington Post today -- and I have total confidence in their story -- Mr. Johnson's staff, every legal person there, every scientist there, did not go along with this. And it is shocking.

And that's why Henry Waxman and I are going to do careful oversight. This is another case of the cheese stands alone.

And I understand why Mr. Holmstead backs it. I mean, his firm represents some of the biggest polluters. You said who they are. I have one here, the petrochemicals and refiners. So I understand why he would say that.

I don't understand how Mr. Johnson, who's supposed to head the Environmental Protection Agency, not the Environmental Pollution Agency, should take that position. It's just wrong.

Mobile vs. stationary sources

MARGARET WARNER: We should mention that we invited the Environmental Protection Agency to send someone on the program tonight, and they declined, so you're it, Mr. Holmstead.

Are you saying, though, that what the Bush administration is essentially saying is, when it comes to global warming, the states have no role absolutely, that it's totally up to the federal government?

JEFFREY HOLMSTEAD: No, that's really not what they've said at all. In fact, states can do virtually whatever they want on so-called stationary sources.

If you have a factory, if you have -- I'm not saying that makes sense. I mean, this really is a global issue.

But as a legal matter, Congress decided some years ago that the presumption is that this makes a lot more sense for cars to be sold with the same standards everywhere in the United States. And the only exception to that was an exception to deal with dirty air in California.

And the senator is absolutely right, that there's been probably more than 50 waivers granted. But all of those waivers were designed to deal with the dirty air in California, not to deal with climate change.

MARGARET WARNER: If I could expand this...

SEN. BARBARA BOXER: But if I might...

MARGARET WARNER: Yes, go ahead, Senator.

SEN. BARBARA BOXER: I was going to say that every one of those waivers had to do with the mobile sources, with cars, every one of them.

And if you read Massachusetts v. EPA, the recent Supreme Court decision, they said very clearly that the Department of Transportation should go right ahead and issue their mileage requirements, but that has nothing to do with what EPA does.

And EPA really has an obligation. And, by the way, they are going to be sued so fast it will make their heads spin by all of these states coming in and saying, "What are you doing?", that they have to do their due diligence to cut back on global warming.

You know, all you have to do is look at what happened in Bali, where we were standing alone. We were actually booed there. And that's why, at the end of the day, we came around.

But this position that they are taking now is so wrong on its face, it goes against legal precedent and everything else, they're going to be overruled.

MARGARET WARNER: Briefly, Senator, because we're just about out of time and I have to get back to Mr. Holmstead here, but essentially President Bush was saying, though, that this energy bill that he signed, and many of you voted for, that that is really an effective national strategy now to deal with global warming. Just on its merits, do you see it that way?

SEN. BARBARA BOXER: Not at all. And as a matter of fact, if he would read the bill, he would see that there's a savings clause in there for the Clean Air Act. It specifically says nothing in this diminishes the rights of the states or anyone else under the Clean Air Act.

And Senator Feinstein has an important colloquy, and she says -- and I'm quoting it -- "In no way, shape or form should this bill diminish California's rights to get a waiver."

So this thing makes no sense. Everyone is up in arms around the country. Mr. Johnson stands alone. And I will tell you: This is going to be overturned one way or the other.

Federal energy bill

MARGARET WARNER: Mr. Holmstead, back to you. Do you see significant differences in the end point that the California standards would try to achieve versus the federal mileage standards?

In other words, what I see is they get to almost the same point, but California would have gotten and the other states would have gotten there a lot sooner, in 2016 versus 2020.

JEFFREY HOLMSTEAD: I think what you're saying is basically right, and there's questions here about exactly what California would do and exactly what the Department of Transportation would do.

But they both get at the same issue. I mean, CO-2 emissions and corporate fuel economy are essentially the same thing. It's just a measure...

MARGARET WARNER: Even though the California state model would have actually regulated the emissions...

JEFFREY HOLMSTEAD: Right.

MARGARET WARNER: ... and the federal model only regulates mileage?

JEFFREY HOLMSTEAD: Right. But you know how they measure mileage -- they measure fuel economy by measuring CO-2 emissions from the tail pipe. That's how they do it. They actually measure CO-2 emissions from the tail pipe to determine fuel economy.

So the question for the country is really whether it makes more sense to have a national, comprehensive strategy or whether to have states doing different things.

MARGARET WARNER: Well, I can see you two disagree, but a brief point, a final comment from you. Do you agree with Senator Boxer, though, if this goes to court, the EPA might well lose?

JEFFREY HOLMSTEAD: When you go to court -- she is absolutely right that EPA will be sued, and they're often sued. They're usually upheld.

And, you know, this will be really a case of first impression. Not withstanding the fast that there's been waivers in the past, they've been waivers about a very different issue. And so it's going to be an interesting court case. I think EPA probably will win.

MARGARET WARNER: Well, we'll have to leave it there...

SEN. BARBARA BOXER: EPA's been losing all time lately, so I don't know what you're talking about. They lost the last case on this, and they'll lose this because they're not on the side of the people, and they're not on the side of the law. But happy holiday.

MARGARET WARNER: Thank you, Senator Boxer. Thanks, Senator Boxer and Mr. Holmstead. Thank you both.

JEFFREY HOLMSTEAD: Thank you.