Under sworn testimony at a Senate hearing today, Environmental Protection Agency (EPA) Administrator Stephen L. Johnson repeatedly said he stood by his decision to deny California a waiver under the Clean Air Act. Yet, he refused to offer specific technical information that led to his decision or answer questions surrounding the timing of his decision and speculation about White House pressure to deny the waiver.

    If granted, the waiver would have allowed California and other states to enforce more stringent auto emission standards and curb greenhouse gas emissions, including carbon dioxide, in a shorter time frame than under current federal law.

    Meanwhile, a letter signed by EPA union officers, representing thousands of EPA employees, was being sent to Administrator Johnson expressing concern that "a large part of the American public believes the White House motivated your recent decision," and the decision to deny California's waiver overruled a reportedly unanimous recommendation of the agency's legal and technical staff. "We call on you to explain why you chose the option you did and, of utmost importance, we ask that you explain why you rejected the options recommended by your technical and legal staffs."

    Asked if it was "coincidence," his decision to deny the waiver was made on the eve of President Bush signing the 2007 Energy Independence and Security Act, Administrator Johnson responded that it was a "unique situation."

    During the sometimes emotionally charged four-hour hearing, members of Congress repeatedly attempted to compel the administrator to reveal the technical and legal justification used by him in making his decision to deny the California waiver.

    On December 20, the Committee had requested the EPA produce legal and technical documents related to the decision process for Congressional inspection. The agency has yet to turn over such documents, citing "executive privilege" from a Nixon-era court case. Clearly frustrated, Chairwoman Sen. Barbara Boxer (D-California) showed examples of the EPA briefing documents her staff had been allowed to transcribe. "Colleagues, this is the tape, this is the tape that was put over - finally the administration had a way to use duct tape. This administration, this is what they did to us. They put this white tape over the documents and staff had to stand here. It's just unbelievable. And pull off out of the sentences here. I mean what a waste of our time. This isn't national security. This isn't classified information, colleagues. This is information the people deserve to have. And this is not the way we should run the greatest government in the world."

    Senator Boxer called the decision to deny California's waiver request "unconscionable," not only because it stops California's efforts to reduce greenhouse gas emissions, but also because it denies 14 other States the ability to adopt the California emission standards, affecting an estimated 152 million Americans and over fifty percent of new cars sold in the United States.

    Johnson said he had made the announcement on the same day President Bush signed the Energy Bill because his press office had told him there were leaks being made to the media with incorrect information. "I felt compelled that the American people were owed the truth."

    Yet, Senator Boxer pointed out the December 19 press release announcing the decision made no mention of these "leaks" and instead begins with a statement about the 2007 Energy Bill being signed that same day and says the national Energy Bill "is a better approach."

    When further pressed on the timing of California's waiver denial and the Energy Bill enactment, Johnson said he was aware of deliberations in Congress over whether or not there would be changes made to the Clean Air Act under the 2007 Energy Bill, while he was at the same time deliberating over the California waiver request, "As I was going on with my deliberative process I was also aware that members of Congress may change the Clean Air Act. They didn't." This change would have subordinated the Clean Air Act to the new corporate average fuel emission (CAFE) standards. However, the 2007 Energy Bill left the regulation of automobile emissions under the purview of the EPA through the Clean Air Act.

    When pressed by committee members on how he balanced personal viewpoints and judgments alongside the technical information provided by his staff, Johnson said, "I believe it's good government to consider public opinions." He said he had listened to all of those opinions and made an independent decision to balance them with his own judgment. "I examined the law, what science says - that this is a global problem requiring global, and at a minimum national, solutions. I listened to you, Congress, members of the administration. Ultimately a judgment on my part was made and I'm happy with my judgment." And he said, "I was not directed by anyone to make the decision."

    When pressed on the technical information that was used in the decision, Administrator Johnson said the EPA would have a decision document on the denial of California's waiver request by the end of February.

    Johnson said, "Greenhouse gases are fundamentally global in nature. My decision was based on the law, facts presented to me, and my own judgment." He went on to say, "I am bound by criteria in the Clean Air Act, not by people's opinions," and the California waiver request, in his judgment, did not meet "the compelling and extraordinary criteria" set out in the law. Senator Lieberman wanted to know on what scientific grounds that determination was made. Johnson did not give a direct answer.

    But, David Doniger, policy director of the Climate Center of the Natural Resources Defense Council, said the decision by courts on this matter will come down to what does "compelling and extraordinary" mean under the Clean Air Act, not what is "unique," and not what is locally compelling and extraordinary.

    When Sen. Frank R. Lautenberg (D-New Jersey) asked the administrator if he believed global warming was a serious problem for human health, Johnson said the EPA would need to review whether or not greenhouse gas emissions raise the issue of "endangerment" under the Clean Air Act, and said that the agency has not made a determination whether human activity is the driver of global warming. Senator Lautenberg interrupted, "I'm asking your belief." And asked again, "If there was no federal law that gave you the route to follow, what would your conscience tell you what should be done here with this waiver?" Johnson responded, "My conscience is driven by the law."

    Before this same committee in October 2007, the director of the Center for Disease Control and Prevention, Dr. Julie Louise Gerberding, testified that climate change is a risk to human health. Those statements were later redacted by the Bush administration. Recalling that testimony, Sen. Amy Klobuchar (D-Minnesota) said, "You have your endangerment here in your own administration's report."

    When asked when a decision on "endangerment" would be made and documents on this could be given to members of the committee, Johnson responded, "Endangerment will be part of the notice and comment for developing regulations on fuel emissions and greenhouse gases. This is internal deliberation, but once the decision is made you will have them."

    Internal EPA sources confirmed earlier this week that scientists in EPA's Office of Air and Radiation are working on an endangerment finding in order to justify promulgating regulations for carbon dioxide emissions.

    The Committee also heard testimony from the governors of Maryland, Pennsylvania, and Vermont, and David Doniger of the Natural Resources Defense Council. Along with California, these states and 11 others have filed an appeal with the Ninth Circuit Court to overturn EPA's decision. The Natural Resource Defense Council is party to a similar appeal filed by the Sierra Club, Environmental Defense Fund, Conservation Law Foundation and International Center for Technology Assessment.

    The Governors were focused on efforts their states have been taking to curb greenhouse gas emissions and how the denial of the waiver would stall those efforts. Possible bipartisan solutions at state and national levels that could be advanced to mitigate the harm caused by global climate change were also proposed.

    Also providing testimony were Mike Cox, attorney general of Michigan, Doug Haaland, director of member services for the California Assembly Republican caucus, and Jeffrey R. Holmstead, an attorney with the law firm Bracewell & Giuliani. They all praised EPA's decision to deny California a waiver request under the Clean Air Act.

    As Senator Carper (D-Delaware), some of the other Committee members and the governors pointed out throughout the hearing, the federal government's inability to develop national laws and regulations that would put strict limitations on greenhouse gas emissions, especially carbon dioxide, from not only automobiles but other sources such as power plants and agriculture, has been the reason behind California and other state's efforts to develop state and regional plans for tackling emissions. As Senator Casper said, "We should be less concerned with stopping states and more concerned with establishing a federal greenhouse gas program."

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