White House Involved in EPA's California Waiver Decision
by Rick Melberth*, 5/28/2008
A report released May 19 by the House Committee on Oversight and Government Reform concluded the White House improperly intervened in a decision by the U.S. Environmental Protection Agency (EPA) to deny California's request for a waiver under the Clean Air Act. The waiver would have allowed the state to set standards for greenhouse gas emissions from new vehicles. In denying the waiver, EPA Administrator Stephen Johnson went against the recommendation of EPA staff, who concluded there was no legal or scientific basis to deny the waiver.
The Clean Air Act allows for two separate standards for controlling motor vehicle emissions, a federal standard and a waiver for one state, California, which already had in place its own standard. The latter may be adopted by other states, but those states do not have the authority to create different standards. The law requires the EPA to grant a waiver to California if the agency determines that the state's standard is at least as protective of public health as the Clean Air Act regulations.
EPA may deny California's waiver requests, under this section of the law, if the Administrator finds that "(A) the determination of the State is arbitrary and capricious, (B) such State does not need such State standards to meet compelling and extraordinary conditions, or (C) such State standards and accompanying enforcement procedures are not consistent with" certain federal statutory requirements.
According to the report prepared by the majority staff of the committee, California has historically been granted waivers by EPA over "several decades." The discretion given to California to set its own standards is quite broad due to the unique characteristics of the state, and therefore, the burden of proof is on those opposing the waivers. The report details the process used internally at EPA regarding this particular waiver request, which California submitted to EPA in December 2005. The report concludes that the "career staff at EPA unanimously supported granting California's petition."
The investigators interviewed or deposed eight EPA officials and subpoenaed documents that EPA refused, at first, to provide to the oversight committee. On April 8, committee chair Henry Waxman (D-CA) issued another subpoena for documents related to the communications between the EPA officials and the White House, but EPA has withheld some of the documents requested. Investigators have reviewed more than 27,000 pages of documents from EPA.
The staff report chronicles the series of briefings EPA staff gave to Johnson. These briefings, conducted between June and late October 2007, made clear the conclusions of the technical and legal experts at EPA, including:
- That California's unique geography, climate, and driving population "remain compelling and extraordinary" and that the state is "highly vulnerable to climate change."
- The impacts of climate change are likely to exacerbate California's existing ozone problem. More importantly, "climate change impacts on California's wildfire, water resources, and agricultural situation may be the state's greatest concerns."
- "California exhibits a number of specific features that are somewhat unique and may be considered compelling and extraordinary with regard to both the need for mitigation actions and its potential vulnerability to climate change."
These briefings apparently led Johnson to conclude in the fall of 2007 that he should grant the waiver or at least a partial waiver (granting the waiver for only few car model years). According to the deposition of one EPA official, Associate Deputy Administrator Jason Burnett, after Johnson met with officials in the White House, he changed his conclusion and moved to deny the waiver. Burnett refused to tell the committee with whom Johnson and other EPA officials communicated. Burnett also did not confirm that Johnson's change was a direct result of those communications, but, in answering questions from the investigators, Burnett provided some evidence that such was the case. He had been directed by EPA not to answer questions about those internal deliberations between the agency and the White House.
Johnson announced his decision to deny the waiver Dec. 19, 2007, in a letter to California governor Arnold Schwarzenegger, citing California's lack of compelling and extraordinary conditions. Burnett told committee investigators that there was "White House input into the rationale in the December 19th letter."
According to the staff report, EPA administrators typically announce these final decisions and issue formal legal justifications for the decisions at the same time. In this instance, EPA did not release the justification document until March 6. It included additional justifications for the denial, including that the waiver provisions of the Clean Air Act were not intended "to allow California to promulgate state standards for emissions from new motor vehicles designed to address global climate change problems." The legal justification also stated that Johnson did not believe the impacts of climate change are greater on California than the rest of the nation.
Johnson's denial of the waiver not only led to the investigation by the Committee on Oversight and Government Reform but also to congressional proposals to overturn the decision. Sen. Barbara Boxer (D-CA) introduced legislation in January to override Johnson's decision and to approve this particular waiver request. The legislation would allow California and as many as nineteen other states to move forward with adopting California's motor vehicle emission standards. On May 21, the Senate Committee on Environment and Public Works, which Boxer chairs, reported the bill out favorably. A companion bill, H.R. 5560, was introduced in the House March 6 by Rep. Peter Welch (D-VT) and has been referred to the House Committee on Energy and Commerce.