After EPA rejects California, emissions court battle looms

The agency's legal argument on greenhouse-gas emissions is weak, analysts say.

from the December 21, 2007 edition

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But some sources suspect that a key factor in the EPA's new position is the Bush administration's concern – echoed by industry groups – that granting California a waiver to regulate auto emissions could quickly lead to greenhouse-gas regulations for other industries.

Wednesday's decision appears opposite to the EPA's apparent position in an internal White House debate last week, reported by the Monitor last week. In that discussion, Johnson of the EPA told White House officials unequivocally that his agency intended to issue a forceful "endangerment finding" for carbon-dioxide emissions, a prerequisite for a finding that CO2 is a pollutant, according to one source familiar with the discussion, who asked not to be named because he was not permitted to speak to the press.

Once CO2 was so designated, the EPA would be empowered to regulate greenhouse-gas emissions across a range of industries, not just cars.

"It looks as though the strict constructionists won out," according to this source. "They're worried that regulating CO2 will spill over from cars into the rest of the economy."

Environmental lawyers say the EPA's position on the California waiver won't hold up under court challenges, only delay it.

"The main argument Administrator Johnson used in justifying his decision has already been repudiated by the Supreme Court," says Jim Marston, a senior attorney with Environmental Defense. "The courts have said expressly that the existence of [fuel-economy standards] does not in any way prohibit or restrict EPA and states from having separate standards on greenhouse emissions. There's no conflict."

There are also indications that the position the EPA announced may have been contrary to an internal position recommended by the agency's own lawyers.

The Washington Post reported Thursday that a slide presentation by agency lawyers had said that if the EPA granted the waiver and California sued, the "EPA [is] likely to lose suit." At the same time, if the auto industry sued the agency over granting California a waiver, the "EPA is almost certain to win."

A Dec. 7 letter to the US Senate by industry groups and the US Chamber of Commerce warned that federal greenhouse-gas regulation could produce the "unintended triggering of an expansive and costly stationary [greenhouse-gas] source control program" and that "over 300,000 facilities would potentially become regulated stationary sources."

Johnson's decision was met with disbelief. California Gov. Arnold Schwarzenegger, state officials, and environmental groups promises to sue the agency quickly.

"We are deeply disappointed that the administrator has chosen to deny our waiver and we are even more discouraged that he did it on such flimsy grounds," said Mary Nichols, chairwoman of the California Air Resources Board, in a press teleconference. "We are not happy and intend to pursue our legal remedies. We will sue and sue and sue and sue until we get our legal rights."

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