Hearing of the Senate Environmental and Public Works Committee: Oversight of EPA's Decision to Deny the California Waiver (Panel I)

Interview

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SEN. AMY KLOBUCHAR (D-MN): Madame Chair, thank you for holding this hearing.

Administrator Johnson, I appreciate your kind call after our bridge collapse in Minnesota and your interest in the environmental impacts of that collapse.

I was listening as my colleague Senator Sanders very eloquently talked about what's going on here, and I also noted that he took you to Bali. I'm going to take you to a less glamorous place, and that would be Ely, Minnesota, where I was in the last a few weeks as I toured through 47 counties in my state. And I did an event there with the governor, who's a Republican governor, and the explorer Will Steger.

And you have to understand that Ely, where my grandpa worked in iron ore mines and was a logger, has always been a place of huge environmental fights -- over the Boundary Waters Canoe Area, over the ATVs and snowmobilers. But what is interesting about this forum we had is that people came together to talk about climate change, and there weren't the splits that you traditionally see. There was a Republican governor, there was a Democratic senator, there was the steelworkers, there were the snowmobilers, who all voiced their concern about the effects that climate change is having on our environment.

And in our state this hasn't been a partisan issue. We've been able to work with a Democratic legislature and a Republican governor to come together and get one of the most aggressive renewable standards in the country.

And that's why I'm so disappointed that we're even here to have this hearing, because I don't think that we should have an agency that has to be pushed time and time again to get it right. As Senator Carper was mentioning, you know, to think that this court -- the Supreme Court, which isn't exactly a radically liberal court right now -- had to say that the Clean Air Act authorizes the EPA to regulate greenhouse gas emissions, that you couldn't have have just come upon that yourself -- we've talked about this before -- and start working on it. And I jut believe that we shouldn't need to have these kind of oversight hearings, but unfortunately we do.

Administrator Johnson, your agency's decision to deny California a waiver just defies logic to me. And it's clearly a decision, I believe, that's based on politics and not on fact.

It's a decision that my state, as well as 15 others are now fighting. I question this inference that an increase in the CAFE standards clearly eliminates the need for the California waiver. I was on, I am on, the Commerce Committee. We negotiated that agreement. I think there could be room, when you look at the fact that these standards were not increased since I was in junior high, and we finally got this done, I think one could argue there's room to do more.

Administrator Johnson, I want to read what the United States District Court said last fall, when it found that an increase in CAFE standards, and the California waiver, overlapped but do not conflict. The court said, regulation of greenhouse gases from new motor vehicles cannot clearly be categorized as either an area of traditional state regulation, such as medical negligence, or an area in which federal control predominates, such as the national banks.

From the beginning of federal involvement in environmental pollution regulation, the area has been regarded as a cooperative state-federal legislative effort. We're having this hearing today because states' efforts to reduce greenhouse gas emissions are being blocked by this administration. And back in July, when our friend Senator Nelson testified before this committee, on this very issue, he talked about states wanting to control their own destiny.

Well, at a time when the federal government has really been doing nothing in the area of climate change, for years and years and years, it is finally changing. But we cannot simply step back and say, well, we're finally looking at this issue and are considering doing something about it but states, who have been working on this now and filling in this void for years, are not allowed to act. At this moment, we have 16 states that want to control their own destiny, 16 states that want to tackle the problem that the EPA and this administration have been ignoring.

So I thank you, Madame Chair, for holding this hearing, and look forward to working with my colleagues, during this new session, to address this issue that the administration has failed to do.

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SEN. KLOBUCHAR: Administrator Johnson, I was listening to what Senator Sanders was asking, some of the other questions about the finding that you have to make to meet the standards of the EPA- Massachusetts case -- so, you have to show there's a dangerous standard. Could you describe it for me again, what it is?

MR. JOHNSON: Well, when the Supreme Court made its decision in April of last year that CO2 is a pollutant, they in essence left me with a three-part decision. And the three-part decision was if you find that there is endangerment to public health or the environment, then you must regulate; if you find that there isn't endangerment to public health or the environment, then you don't regulate; or if there -- again, my words -- other conditions or other things that may not be aware of. And so, we are as an agency, and certainly as an administration, working through a deliberate process to evaluate that very important issue.

SEN. KLOBUCHAR: Okay. I have a really good idea for you to speed it up. Julie Gerberding testified before the committee, and I assume, since she's a trusted person with the Centers for Disease Control --

MR. JOHNSON: Great colleague.

SEN. KLOBUCHAR: Okay. And the Centers for Disease Control, you trust them, I would hope.

MR. JOHNSON: Yes.

SEN. KLOBUCHAR: Okay. And you remember what happened when she testified and it turned out that some of her testimony was redacted and it was a big brouhaha, which you haven't been in luckily. But in her testimony that was redacted, she actually said a lot of things that you could use tomorrow to say that its a public health risk because I have it here. She talked about how the U.S. is expected to see an increase in the severity, duration, and frequency of extreme heat waves from climate change. This coupled with an aging population increases the likelihood of higher mortality as the elderly are more vulnerable to dying from exposure from excessive heat. That would seem, to me, to be a public health risk.

MR. JOHNSON: Again, those are the important parts of our consideration that are trying to -- again, under the Clean Air Act, which we're charged with evaluating, is whether there's endangerment and whether that endangerment -- and again, in one sense it doesn't --

SEN. KLOBUCHAR: Okay. What I'm saying is you have one agency of your administration, in addition to that, talking about how some of the infectious diseases that can develop, talking about that the air quality, causing permanent lung damage, aggravate chronic lung diseases, vector-borne and zoonotic diseases such as plague, Lyme disease, West Nile virus, malaria, Dengue fever have been shown to have a distinct seasonal pattern. You have all of these things right in another agency that is telling you that this could create a public health risk, so I think this is what drives people in my state when I start out talking about Ely, Minnesota -- crazy that you have one agency of the government saying, "Oh, here it can be a public health risk," but then you're not able to view this report and say, "This is a compelling reason. Our own government has found that there's a public health risk." That's my question.

MR. JOHNSON: Well, one is, I've not said whether we are or not using it, and certainly as an agency we need to look at the entirety of the science and make a determination. Again, the threshold question posed by the Supreme Court is whether there's endangerment.

For whatever reason there may be endangerment is certainly important scientifically and certainly what steps to take to mitigate, but certainly under the Clean Air Act, triggering action and next steps is whether there is or is not endangerment.

SEN. KLOBUCHAR: Okay. I just think you have your endangerment in this report. You've seen the wildfires in California that this report also predicted would happen, in fact, it was redacted while these wildfires were going on.

One other thing, and then I'll go into the next round here, is I know that as one of the rationales for denying the waiver, you talked about how it could create a patchwork system as opposed to one federal standard. But correct me it I'm wrong, but the way the law works is the California standard comes in, this would be the choice: there'd be the California standard or there'd be the federal standard.

MR. JOHNSON: Well, thank you for mentioning that because I tried to make it clear in the letter to Governor Schwarzenegger that the basis of my decision were on the three criteria under Section 209, and compelling extraordinary was the issue that the criteria was not bet. I pointed out in the letter that that certainly is in a context of what is the policy of both of what is happening as a nation and that is the policy. Again, my words, policy context, but that was not the decision criteria. The decision criteria are very clear in Section 209, and whether or not --

SEN. KLOBUCHAR: Great. That's fine and when I come back I'll talk about it. But you have said before that this could create a confusing patchwork of state rules.

MR. JOHNSON: And again, that is not one of the criteria for the decision --

SEN. KLOBUCHAR: Okay, but you did say it.

MR. JOHNSON: But I certainly said --

SEN. KLOBUCHAR: Okay. And what I'm trying to point out to get the record straight because this is a very useful political argument for people to use. It's not really true because the way the law works, you'll have the California standard or you'll have the federal standard, so you'll have two standards that states could pick from.

MR. JOHNSON: Perhaps a better description would be --

SEN. KLOBUCHAR: So it's not a patchwork.

MR. JOHNSON: A checkerboard. Perhaps a checkerboard.

SEN. KLOBUCHAR: It's like one checkerboard with one red and one black, not a patchwork.

MR. JOHNSON: Patchwork of states.

SEN. KLOBUCHAR: Okay. But I just wanted to make clear to the country here that you said it would be a patchwork. It's not really, it's just two choices: one, that you can use different ways to get to, which we'll get into in the second round, and then the federal standard that was the first step, a baby step, that we've taken as we've noticed since I was in seventh grade.

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SEN. KLOBUCHAR: Thank you.

So then, just to finish up what Senator Sanders was saying, so this wasn't a pure coincidence that this happened?

MR. JOHNSON: As I said, the factor that caused me to issue it on that day and that time was that there was misinformation that was being communicated, and that we had multiple phone calls from many press sources, and that I felt an obligation to correct that. As I said, I'd already announced to my staff and directed them to begin preparing the technical documents, and that I knew that I wanted to meet and honor my commitment to the governor and to members of this committee, and certainly Congress, by the end of the year. The mechanism of doing that was a letter and announcing what my intent was so that I could honor those. And the timing of it was, again, driven by the fact that misinformation was getting out there. Again, it was not my ideal rollout plan at all.,

SEN. KLOBUCHAR: So this is the first waiver that it's ever been denied under this act?

MR. JOHNSON: Well, I also consider it the first waiver decision and unique given the greenhouse gases, but you're correct.

SEN. KLOBUCHAR: Okay. And there have been like 50 granted?

MR. JOHNSON: Whether it's 50 or 100, this is the first one, and a major one, which, again, I do not believe met the criteria under Section 209.

SEN. KLOBUCHAR: I was thinking back to what we talked about earlier with the checkerboard of the patchwork, which you've now said that you've sort of backed off from, that it's not really a patchwork, it's just, instead of a checkerboard, it's two checkers. I mean, it's a choice of one standard or another. And one of the things that I wanted to make clear here so people understand that the California standards don't mandate that the greenhouse gas reductions come from fuel efficiency alone, is that correct?

MR. JOHNSON: My recollection is that it also includes air conditioners, as well, for example.

SEN. KLOBUCHAR: Thank you. So then a combination of improved technologies, the tailpipe emissions of greenhouse gases, use of alternative fuels, credits for air conditioner improvements, credits carried from another year or fleet, and credit-trading among manufacturers. That's what I understand.

MR. JOHNSON: One of the important features that Congress just passed was, in fact, giving the Department of Transportation the authority under law to be able to trade between trucks and cars. And certainly, California already has that authority, and certainly we think that's a good thing.

SEN. KLOBUCHAR: And so, looking back, you keep talking about the 209b and that the three ways that you could deny the waiver request if you are looking at this would be if California's determination was arbitrary and capricious -- and that's not the reason you did it, right?

MR. JOHNSON: Again, that was not the principal reason, no.

SEN. KLOBUCHAR: Okay. And then the other one, the one that says it's inconsistent with other Clean Air Act requirements, and that wasn't the reason.

MR. JOHNSON: Again, the reason I stated was the second one.

SEN. KLOBUCHAR: That California does not need such state standards to meet compelling and extraordinary conditions. So I'm thinking of this, will this happen, like these wildfires, and your own Center(s) for Disease Control of the administration saying that wildfires in West Coast states could happen.

I'm thinking about your own agency's report, which said, I believe, that the temperature has increased in the world one degree since the Industrial Age, and then they project something like three to eight degrees in the next century. Is that correct?

MR. JOHNSON: I don't recall those specific statistics, but I'll take your word for it.

SEN. KLOBUCHAR: And let me just tell you, Lake Superior -- because these guys always talk about oceans all the time -- Lake Superior, lowest level in 80 years. Now, why is that? Because all the ice is evaporating, and so the level's going lower and the barge can't come in so they're using more and more barges. The snowmobilers are talking about a huge change in their lifestyles and in their recreation and the sale of snowmobiles because of less snow. The resort owners we've seen a 30 percent reduction. I'm just -- at what point -- and this is in Minnesota, but they have these things in California, too -- you know, at what point do we see extraordinary conditions occurring that would meet the standard?

MR. JOHNSON: Well, again, as you are pointing out that it is not an issue that is exclusive to California. It's not unique to California. It is a global problem. It's a national problem.

SEN. KLOBUCHAR: But if California can show that they meet the standard of extraordinary just like Minnesota does with Lake Superior, why wouldn't they meet the standard?

MR. JOHNSON: Again, in my judgment, given the fact that it is a global problem and one facing, as you're saying, Minnesota and many other states, it is not exclusive. It's not a -- there's not a compelling need for that state standard, and that's the basis of my decision.

SEN. KLOBUCHAR: Well, we disagree.

Thank you.

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