Hearing of the House Select Energy Independence and Global Warming Committee - Massachusetts V. U.S. EPA Part II: Implications of the Supreme Court Decision
Statement
REP. MARKEY: Good morning, and welcome to the Select committee on Energy Independence and Global Warming, and thank you all so much for being here today for our second hearing to focus on the aftermath of the land mark Supreme Court decision in Massachusetts versus EPA.
The Bush Administration's approach to climate change policy has been to deny the science, delay the regulation, and dismiss the critics.
The administration's denial of its own authority to regulate carbon dioxide as a pollutant under the Clean Air Act led to the Supreme Court's decision in Massachusetts versus EPA almost one year ago.
The Supreme Court decision made a few things exceedingly clear. Greenhouse gases are pollutants that can be regulated under the Clean Air Act.
EPA's excuses for its failure to regulate greenhouse gas emissions from motor vehicles, including its excuse that the Department of Transportation sets fuel economy standards, were all inadequate.
Under the Clean Air Act, EPA must determine whether these emissions cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare, a determination often referred to as an "endangerment finding."
And finally, if the EPA does make a positive endangerment finding, it must regulate greenhouse gas emissions from motor vehicles.
In May of last year, the president directed EPA, among -- along with other agencies, to prepare a regulatory response to the Supreme Court decision.
In June, the select committee held a hearing at which EPA Administrator Johnson appeared. He told us he was working on both the "endangerment finding" and the proposed regulations.
And numerous statements made by him and other administration officials during the next six months indicated that the EPA was on track to issue a proposed rule by the end of last year, and have final regulations in place by the end of this year.
Well, that did not happen. Instead, what we've learned from a steady stream of press reports and Congressional hearings is that, EPA in fact concluded that greenhouse gas emissions endanger public welfare, and submitted its finding to OMB, the Office of Management and Budget in December.
EPA, in fact, drafted greenhouse gas regulations for motor vehicles and submitted its draft to other agencies in December.
And then, according to numerous reports, EPA stopped all of its work in this area, except for its work to deny California, Massachusetts, and more than a dozen other states the right to move forward with their own motor vehicle emissions standards.
And instead of cooperating with Congress, EPA has answered Congressional inquiries for information with delays and denials that interfere with the work of this committee and other committees of the House.
In stark contrast to EPA's failure to lead, we have here today two witnesses who have been climate heroes in the State of Kansas.
Unlike the EPA administrator, who still can't seem to accept the scientific consensus and declare that greenhouse gas emissions are dangerous, Kansas used its own state authority to deny a permit for a new coal-fired power plant on just those grounds.
For its trouble, Governor Sebelius's administration has been subjected to an ad campaign comparing it to Vladimir Putin, Hugo Chavez and Mahmoud Ahmadinejad.
And the sponsor of the coal-fired plant, Sunflower Electric, has engaged in a full court press to change the law to its liking because it could not show that a coal -- new coal plant would not endanger public health or welfare.
Today, the committee seeks the answers from Administrator Johnson. We are seeking documents, we have been requesting for almost two months. We want an answer to when the last remaining environmental ministry head in the developed world will decide whether greenhouse gas emissions are dangerous.
We will be looking for an answer to the question of when the federal government will begin to lead climate change policy by example, instead of by doing everything possible to thwart the states who try to do their part to save the planet.
I think our witnesses today have an enormous responsibility. I thank them for testifying today.
And I recognize now the ranking member -- gentleman from the state of Wisconsin, Mr. Sensenbrenner.
BREAK IN TRANSCRIPT
REP. MARKEY: The chair now recognizes himself for a round of questions. Mr. Johnson, as you well know the committee invited you to testify at this hearing on January 15, 2008.
And in my letter of invitation I asked you to provide the committee prior to this hearing with a copy of the EPA's draft rules to regulate greenhouse gas emissions for motor vehicles.
The committee's letter noted that the rule had already cleared internal reviews and had been forwarded to the Department of Transportation for review in December of 2007.
By unanimous consent I move that the committee's correspondence with EPA be made part of the record of this hearing.
Without objection so ordered.
On January 28, we spoke by phone, and I reiterated my request for a copy of EPA's proposed rule. In addition, I requested that you provide me with a copy of EPA's proposed endangerment finding which had been forwarded to OMB for review in December. You agreed to do so.
But late last week, your staff informed committee staff that you would not be providing those materials and in a subsequent letter to the committee you indicated that you are asserting that these materials are quote, "pre-decisional" and hence cannot be shared.
On March 7th, the committee sent you a letter stating quote, "If the basis for withholding these documents is a claim of executive privilege then please advice on when that determination was made and the process you went through to substantiate your claim." You have yet to respond to that request.
My first question, will you commit to providing the select committee with copies of both the EPA's proposed rules to regulate greenhouse gas emissions from motor vehicles and its endangerment finding?
MR. JOHNSON: Well, Mr. Chairman, as I indicated my response of March 11th, to the letters you are referring, to I apologize that there was a misunderstanding, but the agency has a long-standing practice regarding requests for documents that are related to preliminary rule making and the documents that you had requested are -- fall very much in that category.
REP. MARKEY: Well, as you know pre-decisional is a concept that comes out of the Freedom of Information Act, but the committee did not request the documents under the Freedom of Information Act but rather under House resolution 202 and the rules of the House.
So that concept on its own is simply inapplicable to a Congressional request. Are you asserting that these are subject to executive privilege?
MR. JOHNSON: At this time, no sir, we are not. I am not asserting that these are part of an executive privilege; no.
REP. MARKEY: Do you have any reason to believe that President Bush saw the documents that you are refusing to supply to the committee?
MR. JOHNSON: I don't know whether he did or didn't as I have already indicated that it is true that the agency was working on draft regulations and as part of those draft regulations included endangerment, and as has been the routine practice of the agency and certainly our historical practice that as we address the Clean Air Act issue of endangerment we accompany what our proposed regulations would be -- (cross talk) -- working on that and the Energy Independence And Security Act changed what steps that we were taking.
REP. MARKEY: Do you have any reason to believe that Vice President Cheney has seen these documents?
MR. JOHNSON: I don't know who has or who hasn't seen these documents. I am aware that we have prepared drafts, they were in preparation for the president's Twenty and Ten plan and the Energy Independence and Security Act answered the call of the Twenty and Ten.
And we as an agency began focusing our attention on implementing the new legislation that you passed and by the way congratulations as you well know it has been 32 years since the -- since our nation has changed its CAFE standard and for obviously energy security as well as environmental reasons it is good that we are focusing our attention on --
REP. MARKEY: And I appreciate that. So it seems to me that you presented the committee with a very difficult decision to make.
The committee views very seriously your refusal to cooperate and your intent to interfere with the work of the committee on this important issue.
The House is in recess after tomorrow but I want to let all members know that when we return we will take up this issue with all of our available resources and all of the authorities including extraordinary authority given to this committee under the rules of the House.
This is a subject that the American public have a right to know about, have a right to the documents that deal with this very, very important issue.
And it is going to be very important for us to clarify whether or not there is executive privilege which is being exerted here, or it is merely the Freedom of Information Act.
But in either instance we intend on proceeding in a way that ensures that the public has access to these very important documents.
My time for the first round has expired.
Let me turn now and recognize the gentleman from Wisconsin Mr. Sensenbrenner.
BREAK IN TRANSCRIPT
REP. MARKEY: The gentleman's time has expired, we will go to a second round of questions and the chair will recognize himself.
When you last appeared before the Select Committee, you would not say whether or not you believed that greenhouse gas emissions caused or contributed to air pollution, which may reasonably be anticipated to endanger public health or welfare.
Nine months have gone by since you last appeared before the Select Committee. You put three or four fulltime staff members on this question for several months. Your staff has told Congress that you reviewed all materials and agreed to forward a positive finding of endangerment to OMB in December. Are you prepared to tell the Select Committee, right here, right now, that greenhouse gas emissions cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare? Yes or no?
MR. JOHNSON: The answer is, no, and it would be inappropriate for me to prejudge a preliminary draft regulatory decision that has not gone through the appropriate process or been published for notice and comment.
REP. MARKEY: So you're saying that you can't even tell the Select Committee when you will be ready to make this determination, though you spent all of last summer and fall assuring Congress that it would be done by the end of the year. Why can't you even give us a date?
MR. JOHNSON: Well, the reason is, and I have tried to be very clear today, is that as we move forward with evaluating endangerment and that, that it has implications for not only mobile sources, but it also has implications for stationery sources. And that I understand my responsibility to address the concerns by the "Mass. v. EPA," but I also understand my responsibility to recognize potentially, the widespread implication and impact of such a decision, and that's what I'm evaluating.
REP. MARKEY: So isn't it true that the only regulatory requirement, the publication of the endangerment finding triggers is the requirement to regulate greenhouse gas emissions from motor vehicles?
MR. JOHNSON: Again, what is before the agency is issue of the "Mass. v. EPA" and as part of that the very important question of endangerment, and that there are significant implications as to how, if, what, the endangerment finding is addressed, given the intricacies and the interconnected of the Clean Air Act.
REP. MARKEY: I understand what you're saying, but no stationery sources would be automatically or immediately subject to greenhouse gas regulations as a result of concluding the greenhouse gas emissions cause or contribute to air pollution, which may reasonably be anticipated to endanger public health or welfare. Isn't that right?
MR. JOHNSON: Well, that's actually one of the questions that I'm looking at.
REP. MARKEY: So, let me continue to move forward then. The energy bill did not in any way alter your obligation to make the determination on whether greenhouse gas emissions cause or contribute to air pollution, which may reasonably be anticipated to endanger public health or welfare.
In fact the energy bill says, quote, "Except to the extent expressly provided in this act or an amendment made by this act, nothing in this act or an amendment made by this act supersedes the limits the authority provided or responsibility conferred by, or authorizes any violation of any provision of law including a regulation, including any energy or environmental law or regulation." That includes the Clean Air Act, Mr. Johnson. So let me ask you again, since you've already completed your work on the endangerment finding and nothing in the energy bill impacts your responsibility to publish it or alters in any way the outcome of the simple question of whether greenhouse gas emissions cause or contribute to air pollution, which may reasonably be anticipated to endanger public health or welfare, when will the EPA publish its endangerment finding?
MR. JOHNSON: Well, as I have already stated that and in addressing the issue of endangerment it was part of a regulatory package that was focused on --- focused on addressing and implementing the president's "20 in 10" plan. So while it's true that the Energy Independence and Security Act did not alter, certainly that portion of the Clean Air Act, what is true is that it did alter what regulatory steps the agency is now taking with regard to renewable fuels and the government is taking with regard to the CAFÉ standard, and so the issue of endangerment which as I said, is historic practice is it accompanies the regulatory effort, we are now looking at what are the appropriate next steps.
REP. MARKEY: Well, you recently denied California's request to implement its greenhouse gas regulations for motor vehicles because you said California had not demonstrated, quote, "a compelling and extraordinary need for the regulations." You did however say, again, quote, "Warming of the climate system is unequivocal," and cited numerous adverse impacts of climate change such as rising sea levels, which is the Massachusetts case that was ruled upon by the Supreme Court, heat waves, more intense hurricanes and increased wildfires and insect outbreaks. You even said that some of these impacts could lead to increases in mortality. Do you not believe that any of these factors you mentioned may reasonably be anticipated to endanger public health or welfare?
MR. JOHNSON: Well, Mr. Chairman, as I clearly point out both in my testimony as well as in my California waiver decision, the greenhouse gas emissions and global climate change is just that, it's global and it's a serious challenge. I also very clearly pointed out in the --- in my decision document that the California waiver does not reflect and should not be construed as my judgment on endangerment.
REP. MARKEY: Well, again, there is a profound difference of opinion between the Select Committee and the EPA over this question --- your responsibility, the urgency of the problem and whether or not you are discharging your responsibilities pursuant to a Supreme Court decision in "Massachusetts v. EPA". And we intend on pursuing this question vigorously in the weeks and months ahead.
Let me now turn once again and recognize the gentleman from Wisconsin, Mr. Sensenbrenner.
BREAK IN TRANSCRIPT
REP. MARKEY: I thank you.
And all the time for questions by members of the committee has expired.
Mr. Johnson, you are a scientist with a unique charge. The planet is sick. There are no hospitals for sick planets. The Congress has told you to do something about it. The Supreme Court has told you to do something about it.
You have told this committee that you don't want to, in fact, make a rush to judgment. The problem is that the planet is on a rush to ruin, a rush to catastrophe, even as you say that you do not want to make a rush to judgment.
This committee is very concerned that you do not understand that there are no emergency rooms for planets. We have to engage in preventative health care for the planet. We won't be able to deal with the catastrophic consequences once they occur. We have to stop them from happening.
You have less than a year left to go as administrator to make the decisions that put the United States on a path of leadership, rater than being the laggard in the world. The world is asking us to be the leader. Nothing in the energy bill, nothing in law prevents you from making these decisions. We urge you to make those decisions.
We hope that you do not waste these last 10 months of your administration. But because of your testimony today and your lack of willingness to provide the documents which this committee needs, we are going to continue to pursue very aggressively this subject because time is of the essence. We are going to be asked in subsequent generations whether or not we tried, we really tried to prevent that catastrophe from occurring.
And the least that we should be able to say is that we tried. Right now, there is no evidence on this question of endangerment to the public health and welfare that the EPA is acting consistent with the urgent threat to our planet that is clear from all scientific evidence.
So we thank you for testifying before us today. We are going to be in frequent communication with you on this subject, which goes to the central issue of our generation, have we dealt with this urgent threat to the planet. That is how we are going to be viewed by history. All other issues will be merely a footnote in history to the question of whether or not we dealt with this catastrophic threat to our planet. We urge you to act and to act soon on the issue and we thank you for being before our committee.
BREAK IN TRANSCRIPT
Source