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SOURCE: California Air Resources Board, "Technical Assessment," Jan. 2, 2008/Rich Clabaugh–STAFF |
California's data challenges EPA
The Golden State filed suit on Wednesday for the right to limit greenhouse-gas emissions from autos.
from the January 4, 2008 edition
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Hints as to EPA's legal position may be found, however, in Johnson's Dec. 19 letter to Gov. Arnold Schwarzenegger denying California's request. It was, he said, fundamentally different from past waivers the EPA has granted. But legal analysts say EPA's basis for denying California must go further and pass four legal tests under the Clean Air Act, including:
•Prove that California's request was arbitrary and capricious.
•Show that state standards and enforcement would present an unreasonable risk to public health.
•Show that the state doesn't need such standards to meet compelling and extraordinary conditions.
Indeed, California has presented a detailed case that global warming presents compelling and extraordinary risks – including loss of coastline due to sea-level rise as well as loss of vital water supplies through reduced snow pack and wildfires.
Others insist there is no "patchwork," as Johnson contends, and that this argument isn't relevant.
"You would have two systems – not many – and that's the same system as we have today," Mr. Buckheit says. "We have California cars and cars from other states. That's it."
Mary Nichols, chairman of the California Air Resources Board, during a teleconference Wednesday rejected EPA administrator Johnson's reference to a confusing patchwork of state laws as a valid reason for denying California's request.
Gov. M. Jodi Rell (R) of Connecticut, who leads one of the 15 states that have joined California's suit, also had harsh words for the EPA. "The EPA has become a roadblock to states that want to pass tougher clean-air standards," she said. "This is a shame and a disgrace. They are not serving the people or the health of the public by preventing states from improving their environments."
Another key EPA argument is that California's climate-change problem isn't unique and doesn't require a unique solution because global warming "is not exclusive or unique to California, and [the waiver request] differs in a basic way from previous local and regional air-pollution problems addressed in prior waivers," as Johnson put it in his letter to Governor Schwarzenegger.
Environmentalists say recent court rulings undermine such arguments: two by US district courts and one by the US Supreme Court in April that said the EPA had authority to regulate greenhouse-gas emissions under the Clean Air Act. By contrast, Johnson's position would turn the Clean Air Act, which from its inception has allowed California to take a lead position on air pollution, on its head, they say.
"The idea that California can't address greenhouse gases because of its global nature, and therefore hasn't demonstrated a compelling need for a more protective standard, is absurd," says Vickie Patton, deputy general counsel for Environmental Defense. "Under this EPA Humpty Dumpty view of the world, the most widespread and damaging problems would go unaddressed."
Given its complexity, California's suit filed at the Ninth Circuit Court of Appeals is likely to last at least a year. A new tenant of the Oval Office, however, might direct the EPA to grant California a waiver after all – something that could occur before any court ruling, Buckheit says.
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