[Senate Hearing 110-1095]
[From the U.S. Government Publishing Office]
S. Hrg. 110-1095
THE IMPLICATIONS OF THE SUPREME COURT'S DECISION REGARDING EPA'S
AUTHORITIES WITH RESPECT TO GREENHOUSE GASES UNDER THE CLEAN AIR ACT
=======================================================================
HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
APRIL 24, 2007
__________
Printed for the use of the Committee on Environment and Public Works
Available via the World Wide Web: http://www.fdsys.gov
__________
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
HILLARY RODHAM CLINTON, New York JOHNNY ISAKSON, Georgia
FRANK R. LAUTENBERG, New Jersey DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland LARRY E. CRAIG, Idaho
BERNARD SANDERS, Vermont LAMAR ALEXANDER, Tennessee
AMY KLOBUCHAR, Minnesota CRAIG THOMAS, Wyoming
SHELDON WHITEHOUSE, Rhode Island CHRISTOPHER S. BOND, Missouri
Bettina Poirier, Majority Staff Director and Chief Counsel
Andrew Wheeler, Minority Staff Director
C O N T E N T S
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Page
APRIL 24, 2007
OPENING STATEMENTS
Boxer, Hon. Barbara, U.S. Senator from the State of California... 1
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 4
Lautenberg, Hon. Frank R., U.S. Senator from the State of New
Jersey......................................................... 7
Bond, Hon. Christopher S., U.S. Senator from the State of
Missouri....................................................... 8
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode
Island......................................................... 11
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming....... 13
Lieberman, Hon. Joseph I., U.S. Senator from the State of
Connecticut.................................................... 14
Klobuchar, Hon. Amy, U.S. Senator from the State of Minnesota.... 16
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 17
Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland 19
WITNESSES
Johnson, Stephen L., Administrator, U.S. Environmental Protection
Agency......................................................... 20
Prepared statement........................................... 21
Reilly, William K., Senior Advisor, TGP Capital Founding Partner,
AQUA International Partners.................................... 46
Prepared statement........................................... 48
Response to an additional question from Senator Boxer........ 52
Browner, Carol M., Principal, The Albright Group, LLC............ 52
Prepared statement........................................... 54
Klee, Ann R., Partner, Crowell and Moring........................ 60
Prepared statement........................................... 62
Doniger, David, Policy Director, Climate Center, Natural
Resources Defense Counsel...................................... 73
Prepared statement........................................... 75
Glaser, Peter, Partner, Troutman Sanders, LLP.................... 77
Prepared statement........................................... 79
Responses to additional questions from Senator Inhofe........ 82
THE IMPLICATIONS OF THE SUPREME COURT'S DECISION REGARDING EPA'S
AUTHORITIES WITH RESPECT TO GREENHOUSE GASES UNDER THE CLEAN AIR ACT
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TUESDAY, APRIL 24, 2007
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 9:45 a.m. in room
406, Dirksen Senate Office Building, Hon. Barbara Boxer
(chairman of the committee) presiding.
Present: Senators Boxer, Inhofe, Bond, Cardin, Carper,
Klobuchar, Lautenberg, Lieberman, Thomas, Warner, Whitehouse.
Senator Boxer. The Committee will come to order.
We welcome everybody here. We look forward to a very
productive morning. Senator Inhofe and I will take up to 10
minutes for our opening statement, and then colleagues will
have 5 minutes for their opening statements, and then we will
go to the Administrator and then to our distinguished panel.
OPENING STATEMENT OF HON. BARBARA BOXER, U.S.
SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. On April 2, 2007, 22 days ago, the Supreme
Court of the United States of America ruled that EPA has the
ability to regulate greenhouse gases as an air pollutant under
the Clean Air Act. This landmark opinion confirms that EPA can
take action now, using existing law, to begin fighting to save
our planet. The world's leading scientists tell us, including
our own National Academy of Sciences, that prompt action is
needed and we can't afford a delay.
Because EPA chose to challenge the plain language of the
Clean Air Act and go to court, rather than take immediate
action, we have lost several critical years in the fight
against global warming. With years of litigation, both time and
taxpayer dollars have been wasted just in the effort to
overcome EPA's resistance to regulating greenhouse gas
pollution.
I very much appreciate the Supreme Court's opinion in this
matter, but I do regret that it was necessary, when the
language of the Clean Air Act is so clear. EPA has the
authority to regulate carbon dioxide and other greenhouse gases
as an air pollutant because the Act's, and I am quoting here,
``sweeping definition of air pollutant includes any physical or
chemical substance which is emitted into the air.'' This is the
Supreme Court saying this. EPA has authority to regulate carbon
dioxide and other greenhouse gases as an air pollutant under
the Clean Air Act because the Act's sweeping definition of
``air pollutant'' includes any physical or chemical substance
which is emitted into the air.
Now, what I find interesting is that if you go and look
closely at comments made by the Administration, they have
actually admitted that the threat posed by global warming is
very real, and requires our leadership to confront it. Just go
to the White House website and read the President's own words
under the heading, Leading the Global Effort on Energy Security
and Climate Change.
This is what the President says: ``The issue of climate
change respects no border. Its effects cannot be reined in by
an army nor advanced by any ideology. Climate change, with its
potential to impact every corner of the world, is an issue that
must be addressed by the world,'' President George W. Bush,
July 13th, 2001.
Upon issuance of a recent IPCC report on global warming,
the Bush administration issued a press release stating, ``The
report confirms what President Bush has said about the nature
of climate change. It reaffirms the need for U.S. leadership.''
The Bush administration's own Pentagon commissioned a
report on global warming and national security. It includes
that the U.S. will find itself in a world where Europe will be
struggling internally with large numbers of refugees washing up
on its shores, and Asia in serious crisis over food and water,
disruption and conflict will be endemic features of life. And
that is a report by the Bush administration's Department of
Defense.
The current administrator, Mr. Johnson, who is here today,
has said in public statements that EPA takes this issue
seriously. All of these words, ladies and gentlemen, should add
up to action. But instead, Mr. Johnson, you chose to hide
behind a bogus legal argument that was decimated by the Supreme
Court. But now in light of this Court decision, there is an
unmistakable green light for action now.
EPA Administrator Johnson is here today to testify on
behalf of the Administration, and Mr. Johnson, when we got your
testimony on Sunday, I read it with great anticipation. Surely,
I thought, the time has come for us to begin to tackle this
problem together. We have had all these statements from your
Administration, and you, the DOD, the IPCC, everybody, the
President, the Supreme Court decision. But when you take away
the rhetoric and the nice words and the 19 pages of EPA
testimony delivered to us yesterday, and I surely hope that you
are going to change some of that and give us some action. I
surely hope that over the last 48 hours you have thought about
this. But if you just give us what you gave us in writing, you
don't get to the issue of global warming until page 17 in terms
of what you are going to do about this--page 17 of 19 pages.
Administrator Johnson says, ``It is impossible to date to
understand and explain fully how the decision may have any
specific impact.'' That is what you write to us. ``It is
impossible to date to understand and explain fully how the
decision may have any specific impact.''
I don't know what decision you read, sir. This decision is
so clear, and I urge you to read it again. Don't have it
filtered by anybody. Just read the clarion call of that Supreme
Court decision.
And you write more about the great bureaucracy involved and
the numerous procedural options even to grant California's
request for a waiver to regulate global warming emissions under
the Clean Air Act so California can get on with this challenge,
according to the will of the California people, our Democratic
legislature, our Republican Governor.
So when we look behind the words of the current
Administrator, we seem to be getting next to nothing. Again, I
hope you have had a second thought and will give us something
new today.
Now, today we will hear from two former Administrators of
EPA, both Republican and Democratic, and they will tell you EPA
can begin to take action now on the California waiver for
vehicle regulations, on vehicles nationally, on power plants
and more. And early analysis on this was done years ago during
the Clinton Administration, so a lot of the work has been done.
There is no excuse for a delay.
California's request for a waiver to regulate vehicle
emissions has been pending for 16 months. I thought this
Administration respected State's rights. Eleven additional
States, including Maryland, Vermont, Connecticut, New York, New
Jersey, Rhode Island, all represented on this Committee, as
well as Washington and Pennsylvania, have moved forward to
adopt the California standards.
EPA stands in the way of action. Vehicles represent about
one third of global warming emissions. California will cut
emissions by one third. It is a serious start, but all of these
States have been blocked by the Environmental Protection
Agency. EPA could issue a notice for public comment today, and
I hope you will do that. It is not in your statement, but you
can still do that.
In a few short months, this waiver could be in place. I
expect action from EPA. I will pursue this issue with Mr.
Johnson and this Administration week after week until
California and 11 States are free to act and much more gets
done.
The stakes are high. The U.N. representing hundreds of the
world's leading scientists told us our water resources are
threatened, the most vulnerable in our society are threatened,
and as many as 40 percent of the species on Earth--40 percent.
I sat right here in this room last week where the scientists
showed us that chart. Senator Whitehouse was there. Forty
percent of God's creation is threatened with extinction if we
don't act soon. We have heard from the Bush Administration that
they respect the findings of this organization.
So I would just say unless there is a change, the EPA's
current plans, which Mr. Johnson will tout today, will leave us
all in serious trouble. I have materials used in a briefing
with the Administrator early this year where he was informed
that the Bush Administration plan would allow global warming
emissions to continue to grow and would make very little
difference when compared to the status quo. There will be no
stabilization of emissions under the current plans, and
dangerous climate change will not be averted.
And by the way, in the last few years, our emissions have
gone up 3.3 percent since the Administration took office. We
cannot afford to have our emissions increasing, and they are.
That is not in dispute. Slowing the increase, which has up to
now been the Administration's plan, doesn't protect us in the
future. EPA has the tools to take action now. EPA has a duty to
act. It is time for the U.S. to be the leader in this global
fight. We can't afford to wait, and EPA has the full authority
to act today.
Thank you very much.
Senator Boxer. And now for a different perspective. Senator
Inhofe.
[Laughter.]
Senator Inhofe. Oh, not that different.
OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S.
SENATOR FROM THE STATE OF OKLAHOMA
Thank you very much. It is really good to see people that
you haven't seen for a long time. Ms. Browner, I have always
held you in a very high, high regard, but it has been a long
time since I have seen you. It is nice to have you back.
And of course, we see quite a bit of you, Stephen.
Let me just mention that if you go to the website that
Senator Boxer was talking about, I think you will see why, and
I find myself also in agreement with many of the things that
both the U.N. and the IPCC said. In that report, they said they
downgraded man's contribution. They downgraded man's
contribution by 25 percent. They have changed the sea level
rise, downgraded that by 50 percent. They came out and said
that livestock emissions emit more greenhouse gases than the
entire transportation sector. So there are a lot of things that
we just don't seem to talk about that came out in that report.
But I thank you for having this so that we may examine the
recent Supreme Court decision that, more than any other in
recent years, usurps congressional authority. It represents
judicial activism at its worse, where five judges chose to
place their own policy concerns above the rule of law. Through
this decision, the Court's liberal judges have not only chosen
to provide the executive branch with authority it clearly was
not granted, but to create a regulatory quagmire in which the
EPA is granted the authority to regulate carbon dioxide through
a statute which clearly was not intended to deal with it.
Ironically, when the Clean Air Act was passed in the
1970's, the doomsayers in society were not saying the world was
going to turn into a ball of fire, but a ball of ice. Another
ice age was coming and surely we were all going to die.
The simple fact is that this issue is not only extremely
complex from a scientific perspective, but also from an
economic one. How it is handled will have profound consequences
for every American because of fossil fuel energy is the very
lifeblood of our economy. Attempts to eliminate greenhouse gas
emissions will bring as yet unimagined hardships to American
poor and elderly and working class.
We talked about this in the last couple of hearings, the
fact that the type of reductions that were mandated in the
Kyoto Treaty and many of the other concepts that have come
along would be equal to ten times the size of the Clinton-Gore
tax increase of 1993. It is the poor and those on fixed
incomes, the elderly and the working class that pay a greater
percentage of this in terms of their income.
The Constitution clearly intended Congress to be the branch
of government to deal with extremely intricate and far-reaching
questions, not for the executive branch to be handed sweeping
authority based on tortured and stretched interpretations of
statutory language. But we are where we are, and the Supreme
Court has ruled, and whether that was wise or not, it has
ruled.
I do not envy you, Mr. Administrator. No doubt you are
being pressured to exercise that authority that you have had
forced upon you, and to make carbon regulation the central
organizing principle of our society, but I caution you against
it. I suspect that you, as a scientist, are all too well aware
of how politicized the science of climate change has become. In
the rush to forge a consensus, there has been a coordinated
effort to squash scientific findings and voices which the
alarmists find inconvenient.
Yet as John Kollias recently wrote in the San Antonio
Express News, he said, and I am quoting now, ``The scientific
consensus used to be that the Earth was flat, that the sun
traveled around the Earth, and until 30 years ago, that we were
entering into a new ice age.'' That was the scientific
consensus in those areas.
Our understanding of the climate is now in its infancy, and
more information is coming in all the time. Just last year,
just a year ago I think this month, it was discovered that
trees emit methane, which is an anthropogenic gas, a greenhouse
gas. This is something that they didn't seem to know before. I
have to ask the question: What else don't we know, if it is
something as basic as trees emitting methane was something that
was unknown?
A study published last week, April 18, in the Geophysical
Research Letters, finds that wind shear in the Atlantic will
increase with global warming, leading to fewer and weaker
tropical storms. So I would almost have to say, Madam Chairman,
it looks like Al Gore got it wrong again. Apparently, the
hurricanes might not be so angry after all.
In assessing whether greenhouse gases endanger public
health and welfare, how will you evaluate the most recent
cutting edge findings which demonstrate what we all know to be
true, that climate fluctuations, whether natural or caused by
man, will have good as well as negative consequences. How will
you work into your analysis the number of deaths and economic
damage that would be averted in a warmer world due to an
increased wind shear, and thus decreased Atlantic storm
activity? How will you calculate increased food production from
longer growing seasons? In short, how will you quantify both
sides of this equation?
I am sure you, Mr. Administrator, recognize that national
ambient air quality standards for greenhouse gases cannot be
crafted without putting every county in the Nation into
nonattainment. Since even in theory, States could not possibly
craft implementation plans showing they would attain a NAAQS
standard, wouldn't EPA have to disapprove their plans and take
over the programs?
Now, that is something that we have gone through before. We
did this in previous Administrations, finding ourselves out of
compliance. It looks like we would be there again. Since China
will become the world's biggest carbon emitter this year,
wouldn't this mean we are putting China and other developing
countries in charge of whether States receive their highway
dollars?
The Clean Air Act was never designed to control carbon
dioxide. As Richard Lindzen, an MIT climate scientist said on
the Weather Channel in March, ``Controlling carbon is a
bureaucrat's dream. If you control carbon, you control life.''
So, Mr. Administrator, you have a mess on your hands, and I
urge you to think carefully about it.
Thank you very much.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. James M. Inhofe, U.S. Senator from the
State of Oklahoma
Thank you Madam Chairman for holding this hearing today. As
has been noted, Lieutenant General Robert Van Antwerp is
currently Commander of the U.S. Army Accessions Command. His
nomination to be Chief of Engineers comes at a very challenging
time for the Army Corps, but he is certainly well qualified and
highly regarded. I have no doubt that he will be successful at
this new post.
Although General Van's nomination is officially the
jurisdiction of the Armed Services Committee, I think it is
important that this Committee have a chance to hear from him
prior to his confirmation. The Armed Services Committee, of
which I am also a member, held a hearing and approved his
nomination last month. There we heard from General Van on the
wide range of issues that are the responsibility of the Chief,
but it is this Committee that has the expertise regarding the
Civil Works mission of the Corps of Engineers.
The new Chief will face many difficult decisions and
management challenges just within the Civil Works mission. He
will need to oversee the continued rebuilding and improvement
of the hurricane protection system in South Louisiana, with all
of the engineering difficulties that presents. He will need to
continue implementation of the many changes that have begun as
a result of the hurricanes down there, such as the emphasis on
integrated water resources management and the use of risk
assessment tools to guide our decisions and inform the public.
As the new Chief, General Van would take charge of a vast
regulatory program that needs to begin providing clarity and
certainty to the regulated community in the wake of two Supreme
Court decisions that haven't seemed to clarify much of
anything.
The new Chief will need to implement whatever new policy
provisions are included in the WRDA bill we all hope to have
enacted as soon as possible. In particular, both House and
Senate bills include various so-called ``Corps reform''
provisions. Whatever the final mix is, General Van as Chief of
Engineers would be responsible for ensuring that these items
are incorporated into the Corps procedures efficiently and
effectively.
Finally, on a note specific to my home State of Oklahoma-
General Van, over the past four years, State and Federal
agencies have devoted much resources and effort to remediation
and resident assistance at the Tar Creek Superfund Site in
northeastern Oklahoma. I want to get your commitment to make
the work at Tar Creek a top priority and to ensure timely
cooperation with State agencies that are involved in assisting
the area residents.
General Van, upon confirmation you will face many difficult
tasks, but I have every confidence that you will meet these
challenges and be a strong leader for the Corps of Engineers.
Senator Boxer. Thank you so much, Senator.
We are going to call on Senators in the following order of
arrival. It is going to be Lautenberg, Bond, Whitehouse and
Thomas. All right?
Senator Lautenberg.
OPENING STATEMENT OF THE HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Thank you, Madam Chairman, for holding
this hearing on EPA and how it once again failed to protect the
health of the environment and the health of the American
people.
Thankfully, the recent Supreme Court ruling could reverse
this trend. The Court's conclusion confirms that EPA can
regulate greenhouse gases from vehicles. The EPA had argued
that this was beyond its authority. I think some of that
thinking may have been propelled from this Committee. At one
point when we adopted a replication of Comedy Central, when it
was said that global warming is nothing but a hoax perpetrated
on the American people. Finally, perhaps we have dismissed that
bad joke.
To us, and anyone concerned about the environment, it is
just plain common sense that EPA would regulate emissions from
cars and trucks. These emissions account for approximately one
third of all greenhouse gas emissions. And those emissions
cause global warming, which leads to rising sea levels, risks
to wildlife, and countless other effects to human beings.
And so my question for the Administration, Mr. Johnson, as
someone with your background, your intellect, your training,
why has it been so difficult to convince you that your agency
should act to protect our environment? It is obvious that you
maybe believe that you are simply a soldier in the ranks, just
doing your duty. However, you are a top general, a veritable
chief of staff, leading the fight against the formidable enemy.
And it was my hope, and frankly, Mr. Johnson, the hopes of
grandchildren across this Country, that you would at least
protest the orders that you were given and lead the fight
against this enemy.
Why have four previous EPA Administrators, including two
right here today, argued for action when this Administration
has chosen not to act? The EPA's mission is to protect human
health and the environment. It takes bold action to fulfill
that mission. Previous EPA Administrators, including the ones
testifying here today, displayed that leadership. Administrator
Reilly worked to curb the production of the CFCs that created
the hole in the ozone layer. Administrator Browner saw that
particulate matter had major health impacts. She responded with
strong standards to improve air quality.
It is time for this Administration to stop denying the real
impacts of global warming, and instead to confront them. States
are already taking action. Bold, visionary States, including my
State of New Jersey, have adopted the California standard for
emissions. This standard will work to reduce greenhouse gas
emissions from cars by 30 percent by the year 2016. And all
that is needed for these States to adopt these standards is a
waiver from EPA, and they have waited more than a year for this
waiver, but it still hasn't come.
It is time for this EPA to be bold and act in the best
interests of the American people by regulating greenhouse
gases. I hope you will take on this task, Mr. Johnson, with all
the skill, the knowledge and the honor that you possess.
Thank you, Madam Chairman.
Senator Boxer. Thank you very much, Senator Lautenberg.
Senator Bond.
OPENING STATEMENT OF THE HON. CHRISTOPHER S. BOND,
U.S. SENATOR FROM THE STATE OF MISSOURI
Senator Bond. Thank you very much, Madam Chair.
Welcome, Administrator Johnson. We appreciate this hearing
on the Supreme Court's recent decision regarding EPA authority.
This Supreme Court decision certainly does remind us of the
power of activist judges using the courts to achieve
legislative policy goals. I think it is interesting to note in
this regard that we have Congressman John Dingell of Michigan,
who as Chairman of the House Commerce Committee, basically
wrote the 1990 Clean Air Act Amendments, saying that he
purposely did not give EPA legislative authority to regulate
carbon dioxide.
Nevertheless, five members of the Court still have found a
way to provide that authority. Congratulations. But we have our
decision, and now the new law of the land. Some, as we have
heard, are very eager and impatient for EPA to move forward.
They want EPA to rush, rush, rush with new carbon regulations.
They wonder why EPA can't just go ahead with new carbon
regulations. They do not accept warnings and cautions that this
is a complicated undertaking that must be undertaken very
deliberately.
They will be too impatient to accept that regulations that
will pervade almost every corner of the economy, threaten the
jobs of millions, raise the heating and power bills of hundreds
of millions, might take a little time. They will berate this
witness, as we will hear and have heard. They will accuse him
of stalling and they will say: Why, Mr. Administrator, aren't
you moving faster?
Some have promised to hound you for quick action to call
you back week after week, week after week, week after week, to
ask you why is EPA taking so long to implement the new carbon
regulations. Well, personally, I would like to see you get it
right, rather than quick, because this is a long-term
consideration.
Well, when those who were saying you need to act
immediately, it is more of a case of do what I say, not what I
do. If you look at what some of the carbon proponents are
doing. They are taking things much more slowly, much more
deliberately. An example is what California says about how to
implement a greenhouse gas program. It reads, ``Such an
ambitious effort requires careful planning and a comprehensive
strategy.'' Not a bad idea. That doesn't sound like hurry,
hurry, hurry to me.
Of course, it has been only 3 weeks since the Supreme Court
decision, and you should have had a decision out yesterday.
Maybe California thinks such an ambitious effort that requires
careful planning and a comprehensive strategy would take maybe
at least a few months.
No, California does not think this will take weeks. It does
not think it will take months. California expects their carbon
regulation planning and development will take years. Here is
the schedule they envision. It was passed in 2006. They think
it will take 3 years to develop a plan, until 2009. They think
it will take another 2 years to develop regulations, for 5
years. And they think it will take another year, until 2012, to
implement regulations.
Well, the Supreme Court has passed over and eliminated the
legislative consideration policy, which should have taken some
time here. So all we have is a tight 6 year time table now that
they have passed the law, to get the regulations implemented.
Three weeks after the Supreme Court passed its new law,
some seek to criticize. Of course, California is taking early
actions, but so is the U.S. The President is committed to cut
greenhouse gases by 18 percent or 100 million additional tons
through 2012, and the President's Advanced Energy Initiative,
with a 22 percent increase in clean energy and technology
funding. The Asia Pacific Partnership is the most important
thing we can do in global warming, to work with India, China,
Japan and others, to get clean coal technologies to China and
India, who together will put out five times more carbon
emissions by 2012 than Kyoto cut. The President's 20/10
Initiative announced in the State of the Union, sets an
aggressive new goal to use 20 percent less gasoline in 10
years; a biofuels mandate in the energy bill, as well as a host
of other energy and conservation efforts.
We have come a long way. We need a lot more to do, but we
can't put the burden of unduly harsh stringent regulations on
the backs of low-income families, low-income seniors, blue
collar manufacturing families in my part of the world who
depend heavily on coal for energy.
Thank you, Madam Chair.
[The prepared statement of Senator Bond follows:]
Statement of Hon. Christopher S. Bond, U.S. Senator from the
State of Missouri
Thank you, Madame Chairman, for hosting this hearing on the
Supreme Court's recent decision regarding EPA authority to
regulate greenhouse gases under the Clean Air Act.
The Supreme Court's decision certainly does remind us of
the power of activist judges using the courts to achieve policy
goals. In this case, you have Congressman John Dingell, of
Michigan who as Chairman of the House Commerce Committee
basically wrote the 1990 Clean Air Act Amendments, saying that
he purposely did not give EPA the authority to regulate carbon
dioxide. Nevertheless, the courts still found a way to provide
EPA that authority.
But, we have our decision and it is now the new law of the
land. Some, as we have heard, are very eager and impatient for
EPA to move forward. They want EPA to rush, rush, rush with new
carbon regulations. They wonder why can't EPA just go ahead
with new carbon regulations.
They do not accept admonitions that this is a very
complicated undertaking that must be undertaken very
deliberately. They will be too impatient to accept that
regulations that will pervade almost every corner of the
economy, threaten the jobs of millions, raise the heating and
power bills of hundreds of millions, might take a little time.
They will berate this witness, they will accuse him of
stalling, they will ask why he isn't moving faster. They are
promising to hound him for quick action, calling him back
``week after week, week after week, week after week'' to ask
him why is EPA taking so long to implement new carbon
regulations.
Well I think this is more a case of ``do what I say, not
what I do.'' If you look at what carbon proponents are doing,
they are taking things much more slowly, much more
deliberately.
Here, for example, is what California says about how to
implement a greenhouse gas program. [Refer to Chart]. It reads,
``SUCH AN AMBITIOUS EFFORT REQUIRES CAREFUL PLANNING AND A
COMPREHENSIVE STRATEGY.''
ca on reducing ghg
emissions
``. . . such an ambitious effort
requires careful planning and
a comprehensive strategy.''
Source: California Air Resources Board, ``Proposed Early
Actions to Mitigate Climate Change in California''
That does not sound like ``hurry, hurry, hurry.'' Of course
it has been only 3 weeks since the Supreme Court decision.
Maybe California thinks that ``such an ambitious effort that
requires careful planning and a comprehensive strategy'' will
take at least a few months.
No, California does not think this will take weeks. It does
not think it will take months. California expects their carbon
regulation planning and development will take years.
Here is the schedule they envision. [Refer to Chart]
California passed its Global Warming Solutions Act, AB 32, in
2006. They will allow 3 years just to develop an overall
greenhouse gas reduction plan. They will allow a total of 5
years to develop reduction regulations. And they expect
implementation of regulations to come no sooner than 6 years
from enactment.
california global warming
solutions act of 2006
(ab 32)
Passed.................................................2006.
...................
Develop
Plan......................................2009..................
..3 years
Develop
Regs......................................2011..................
..5 years
Implement
Regs.................................2012....................6
Years
And what do we have here? Three weeks after the Supreme
Court's decision some seek to criticize EPA's actions.
Of course, California is taking early actions to reduce
greenhouse gas emissions. They have just released a list of
actions they can take in the near future. Similarly, this
administration is undertaking a host of actions to bring about
lower greenhouse gases. Administrator Johnson's testimony is
filled with pages and pages of examples.
We have: the President's commitment to cut U.S. greenhouse
gas intensity by 18 percent, or 100 million additional metric
tons of reduced carbon-equivalent emissions through 2012; the
President's Advanced Energy Initiative with a 22 percent
increase in clean-energy technology funding; the Asia-Pacific
Partnership to get new clean technologies to China and India
who together will put out five times more new carbon emissions
by 2012 than Kyoto will cut; the President's ``20 in 10''
initiative announced in the State of the Union setting the
aggressive new goal for the U.S. to use 20 percent less
gasoline in 10 years; a biofuels mandate we adopted in the
Energy bill and now will most likely expand this year to
increase our use of renewable and low carbon emitting ethanol
and biodiesel; as well as a host of other efficiency and
conservation efforts across the government.
We have done a lot, and we will do more. But at a minimum
we owe our constituents a thoughtful approach that will
thoroughly consider and seek to minimize the pain imposed on
them. We owe the low income family struggling to keep their
homes warm in the winter. We owe the fixed-income seniors who
can't keep their homes cool in the summer. We owe the blue
collar manufacturing worker fighting to keep their families in
the middle class. We owe the coal dependent States across the
Midwest and South who face the harshest power bill increases.
We owe workers in the chemical, fertilizer, plastics and
manufacturing who face more of their jobs going overseas to
China. We owe them careful planning and a comprehensive
strategy.
Thank you
Senator Boxer. Thank you, Senator.
I want to put a couple of things in the record at this
point. First, I want to put in the record the names of the
Supreme Court Justices who wrote this opinion and who appointed
them. The majority of the five were appointed by Republicans,
one by Ford, one by Reagan, and one by Bush I, and two others
by Clinton. So I think it is important because Senator Inhofe
said ``those liberal judges'' and Senator Bond said ``activist
judges.'' So I just wanted to make sure that these liberal
activist judges that we all understand that three of the five
were appointed by conservative Presidents, or at least those
who call themselves that.
[The referenced material was not received at time of
print.]
Senator Bond. Madam Chair, I agree with that, but it
doesn't make them right.
Senator Boxer. Well, I am just putting in the record who
appointed these judges. I think that that is a very important
point.
And also one more point, I want to put in the record the
names of the 11 States that have asked EPA to grant the waiver
they have waited 16 months for. For the record, California,
Connecticut, Maine, Maryland, Massachusetts, New Jersey, New
York, Oregon, Pennsylvania, Rhode Island, Vermont, and
Washington.
I also have another announcement. Senator Inhofe and I have
made a decision that at this point, everyone here will make
opening statements, but anyone coming from now on will forfeit
their right to an opening statement, because we really need to
get moving.
So at this point, we are now going to hear from Senator
Whitehouse, followed by Senator Thomas, followed by Senator
Lieberman.
OPENING STATEMENT OF THE HON. SHELDON WHITEHOUSE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Thank you, Madam Chair. Administrator, welcome back.
We are here today for two troubling reasons. We are here
today because global warming, as our Chairwoman knows only too
well, is a serious and urgent problem that we have to address
in our communities and our States and in our Country, and I
would also say in our time.
We are also here because of the decision handed down in
Massachusetts v. Environmental Protection Agency reflects yet
another instance of what I see as a disturbing legal trend,
which is courts having to force your agency, the EPA, to do its
job. Massachusetts v. EPA presents a major step forward to
reduce automotive greenhouse gas emissions. As you know,
Administrator Johnson, the ruling made clear that EPA does in
fact have the authority under the Clean Air Act to regulate
vehicle CO2 emissions, contrary to the Agency's
constant insistence otherwise.
I hope this ruling will compel your agency not only to
recognize its authority, but also to act on it.
Further, in issuing its opinion, the Court removed any
remaining excuse your agency has for failing to approve long
overdue waiver requests allowing Rhode Island and other States
to set more stringent vehicle emissions standards than
currently required under Federal law. EPA's years of legal
stonewalling by delaying the implementation of these standards
has allowed millions of tons of carbon dioxide pollution into
our air and made it more difficult to reverse the effects of
climate change.
Make no mistake, climate change is already having a
distressing effect on Rhode Island's treasured coastal
environment and on our communities. The annual mean winter
temperature in Narragansett Bay has increased significantly
over the past 20 years, causing ecosystem changes such as
reduction in abundance of winter flounder, a once-thriving
species. Predicted sea level rise will endanger many parts of
the Ocean State's coastline.
Just last week, we were struck by a nor'easter that tore up
our shoreline. Coastal erosion is obviously not a new
phenomenon in Rhode Island, but as global warming continues to
worsen, the damage will only increase.
And then there is the other problem: EPA's track record in
court during the Bush Administration. Over and over, weak
public health protections have been overturned, where EPA has
conceded illegal action. Consider these examples: three air
toxics rulemakings in the past month alone; a national smog
rulemaking, especially important to downwind communities in
Rhode Island and the rest of New England; and another
significant air pollution loophole that the Court said was
sensible only in a humpty-dumpty world.
Courts have even begun rebuking EPA for defying the law,
reminding EPA of the proper way to appeal cases, for example,
or what political considerations it must considers when it
carries out the Clean Air Act.
My experience with this Administrator was as Rhode Island's
Attorney General when I had to join other Attorneys General
from Northeastern States to sue the Bush administration for the
pollution emitted by powerplants in the Midwest. Prevailing
winds blow those emissions onto us in Rhode Island. The
emissions from those Midwestern powerplants are so bad that
even if in Rhode Island we stopped all our in-State emissions,
we would still fail Federal ozone standards entirely due to
pollution traveling in from out of State. We needed to go to
court to get help from the Federal Government because you
weren't there for us.
I don't see how it is that we should have to do this to
enforce the laws of the land against the big business
interests. EPA has refused to carry out the duties already
conferred upon it by Congress. This raises real questions about
this Administration's commitment to protecting the people of
this Country and its environment against harmful pollution.
It also raises real questions about the dissonance between
your fine words and your meager actions as Administrator. You
were here before. You spoke beautifully, sir. But here we go
again and again and again in the courts. As the Chairman has
pointed out, we have had a lot of Republican Presidents. These
are not liberal activist courts. These are courts applying the
law, and over and over again your agency has been found
failing.
I look forward to learning more today about the steps you
are taking to reconsider your decision and allow States like
Rhode Island to move forward with efforts to curb the harmful
effects of greenhouse gas emissions.
Thank you, Madam Chair.
Senator Boxer. Thank you, Senator.
Senator Thomas.
OPENING STATEMENT OF THE HON. CRAIG THOMAS,
U.S. SENATOR FROM THE STATE OF WYOMING
Senator Thomas. Thank you, Madam Chair. I will go along
with your idea of moving ahead, so I will be very short.
Let me say that the Court ruled that EPA has authority to
regulate greenhouse gases as an air pollutant. The Court did
not rule that EPA must regulate greenhouse gases from motor
vehicles since before EPA can do that, it must determine that
emissions are gases that ``reasonably anticipate to endanger
public health and welfare.'' This is part of the Court
decision.
So there is some room here to have to make some decisions.
In any event, I don't call myself a climate skeptic. I am
trying to be realistic about it, however, and certainly we all
oppose the climate change legislation that would suffer
consequences in the next election if we were opposed to that.
On the other hand, let me tell you that people who are going to
have to pick up the costs are going to be a little opposed to
doing some of those things as well.
Cheyenne Light Fuel and Power serves 80,000 customers. They
offered for $3 a month a green pricing to customers. How many
took advantage of it? Thirty people were excited about doing
that.
So I guess we just have to understand who is going to pay
the costs, and we have to have bills that we can abide by
before we pass them. We included in the Energy Policy Act the
provisions that the government should participate in the
demonstration of technologies before we move particularly
forward. So I hope we can do that.
We have already passed an energy bill. We already know how
to do some of the things that will have an impact, such as
clean coal. So before we pass too many regulations, we ought to
be urging people to do the things that we know how to do that
will have an impact on it.
So I am concerned that we don't spend too much time working
people up about the issue that we fail to find workable
solutions, and that is what we are designed to do. So I am
anxious to hear the Administrator's plans.
Thank you.
Senator Boxer. Thank you very much, Senator.
Senator Inhofe, just a quick diversion here for a second.
Did you want to say something?
Senator Inhofe. Here is what I would like to know. I know
that Senator Craig had a Statement he wanted to make. I notice
that Senator Thomas had 2 minutes left, and I had 3 minutes
left. If you will yield your 2 minutes to him, I will yield my
3 minutes, and I will have his five. Does that sound good?
Senator Thomas. That is fine.
Senator Inhofe. All right.
Senator Boxer. So here is what has been happening. We have
been getting complaints because we made a decision that is not
a popular one, and so both of us together, Senator Inhofe and
I. And so what we are going to do is, anyone who shows up now
would have 3 minutes, but in the future if people come after
the first 30 minutes of a hearing, we are going to have to ask
you to defer your opening Statement to your question time.
So what we are going to do now is when any Senator comes,
we will give them 3 minutes for an opening Statement. So it is
Senators Lieberman, Klobuchar, and Carper.
OPENING STATEMENT OF THE HON. JOSEPH I. LIEBERMAN,
U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Lieberman. Thanks, Madam Chairwoman, Senator
Inhofe, and Administrator Johnson.
Even before the Supreme Court issued its decision in
Massachusetts v. EPA on April 2d, I think a lot of people in
this Country, including a lot of the larger sources of
greenhouse gas emissions, saw the inevitability of new Federal
laws mandating cuts in greenhouse gas emissions. The only
question was when. They felt that because they realized that
the American people simply would not let the Federal Government
stand idly by in the face of the scientific consensus that our
children and grandchildren would suffer dearly for our
inaction.
What the Supreme Court decision adds, I think, is a sense
of imminence, or if I may put it, Madam Chair, knowing your
love for musicals and the words of a great musical, when it
comes to global warming, I think something's coming, something
good.
The decision of the Supreme Court sends a message that if
Congress does not enact nationwide requirements for reducing
global warming pollution within the next few years, then the
Environmental Protection Agency has the responsibility under
law to promulgate such requirements.
I understand that the Court did not order EPA to promulgate
new rules, but in documents filed in that Court case, EPA
itself has conceded the causal connection between man-made
greenhouse gas emissions and global warming. And the
Administration has accepted the findings of the
Intergovernmental Panel on Climate Change.
In light of those official positions, I cannot see how EPA
can avoid issuing emission reduction requirements for
greenhouse gases without inviting an even more forceful
response from the courts than the one the Supreme Court gave on
April 2d.
I know that an agency can draw out the rulemaking process
when it is reluctant to issue new regulations, but the law does
place limits on administrative foot-dragging.
I think, then, that greenhouse gas emitters and a lot of
others are going to realize that they will see an EPA global
warming rule in the foreseeable future unless, of course,
Congress acts earlier. I am confident personally that Congress
will act earlier. For one thing, I believe that it is clear
that the private sector would like to see now a statute that
charts a clear nationwide efficient and sensible course, rather
than facing a multitude of State legislation on global warming,
or agency rules that will be subject to litigation with all the
uncertainties that that entails.
Indeed, Congress has started to act, and what is most
encouraging, has started to act in a bipartisan way. Last week,
two members of this Committee, Senator Carper and Senator
Alexander, one a Democrat and one a Republican, introduced
bills that would achieve very substantial reductions in the
greenhouse gas carbon dioxide from the electricity-generating
sector of the economy.
And last week, another member of the Committee, Senator
Warner, who I am glad to say is the Ranking Member of the
Subcommittee on Climate Change which I am pleased to chair,
stated that Congress should establish new rules or controls to
combat global warming. He said that the new Federal program
must, ``allow for an economy-wide approach that incorporates
market-based flexibility, provides for a measure of Federal
investment in new technologies, includes cost containment
mechanisms, and has environmental integrity.''
I look forward to working with Senator Warner on our
subcommittee to produce bipartisan anti-global warming
legislation. So I am optimistic today about what this Congress
and the Senate in particular can and will accomplish to curb
global warming, but that does not relieve EPA of its legal and,
in my opinion, moral obligation to act with all deliberate
speed to comply with the Supreme Court's decision.
In particular in an initial matter, I hope that
Administrator Johnson will grant California's petition for a
waiver of Federal preemption with respect to the State's
greenhouse gas emission standards for vehicles. My State of
Connecticut and other States have had the good sense to adopt
the California standards and we await your action on that.
Frankly, I don't see how EPA could deny the waiver petition
now, without contravening the Supreme Court's holdings.
Finally, Madam Chair, I want to express my own gratitude to
my Governor, a Republican; my Attorney General, a Democrat; for
the work they did, along with all the other petitioning States,
municipalities and public interest organizations that led to
this landmark Supreme Court decision, which is a victory in the
battle to do something about global warming.
Thank you very much.
[The prepared statement of Senator Lieberman follows:]
Statement of Hon. Joseph I. Lieberman, U.S. Senator from the
State of Connecticut
Thank you, Madame Chairwoman.
Even before the Supreme Court issued its decision on April
2, I think most large industrial firms in this country saw the
inevitability of new Federal laws mandating cuts in greenhouse
gas emissions. They were smart enough to realize that the
American people would not let the Federal Government get away
with inaction in the face of the scientific consensus that our
children and grandchildren would suffer dearly for it.
What the Supreme Court decision adds, I think, is a sense
of imminence. The decision ensures that if Congress does not
enact nation-wide requirements for reducing global warming
pollution within the next few years, then the Environmental
Protection Agency will promulgate such requirements.
I realize the Court did not order EPA to promulgate new
rules. But EPA has conceded the causal connection between man-
made greenhouse-gas emissions and global warming, and the
Administration accepts the findings of the Intergovernmental
Panel on Climate Change. In light of those official positions,
I cannot see how EPA can avoid issuing emission-reduction
requirements for greenhouse gases without inviting an even more
forceful response from the courts.
I am also aware that an agency can draw out the rulemaking
process when it is reluctant to issue new regulations. But the
law does place limits on administrative foot-dragging.
I think, then, that sophisticated industrial concerns in
this country realize that they will see an EPA global warming
rule by 2010 unless Congress acts earlier.
I think Congress will act earlier. For one thing, I think
the private sector would like to see a statute chart a clear,
nation-wide, efficient, and sensible course. I do not think
American businesses want to subject themselves totally to
agency rules that will be subject to litigation, with all the
uncertainties that entails.
Indeed, Congress has started to act. Last week, A
Republican member of this committee, Senator Alexander,
introduced a bill that would achieve very substantial
reductions the greenhouse gas, carbon dioxide, from the
electricity generating sector of the economy. I was pleased to
co-sponsor that strong bill--just as I was pleased to cosponsor
a comparably strong power plant pollution bill introduced by
Senator Carper.
Also last week, another Republican member of this
committee, Senator Warner, stated that Congress should
establish new rules or controls to combat global warming. He
said that the new Federal program must ``allow for an economy-
wide approach that incorporates market-based flexibility,
provides for a measure of Federal investment in new
technologies, includes cost-containment mechanisms, and has
environmental integrity. Most importantly, the Federal
Government must ensure international participation by developed
and developing nations.'' I happen to know of--and a lot
about--a pending multi-sector, market-based climate bill that
might serve as the basis for legislation that could earn
Senator Warner's support.
So I am optimistic about what this Congress, and the Senate
in particular, can and will accomplish to curb global warming.
That brewing action does not, however, relieve EPA of the legal
and, in my opinion, moral obligation to act with all deliberate
speed to comply with the Supreme Court's decision. In
particular, and as an initial matter, I hope that Administrator
Johnson will grant California's petition for a waiver of
Federal preemption with respect to the State's greenhouse-gas
emission standards for vehicles. Connecticut and other States
have had the good sense to adopt the California standards. I do
not see how EPA could deny the waiver petition without
contravening the Supreme Court's holdings.
Finally, Madame Chairwoman, let me just congratulate
Connecticut, along with Massachusetts and all the other
petitioning States, municipalities, and public-interest
organizations for this landmark court victory. I am very proud
to represent a State that stood on the right side of history
here.
Thank you, Madame Chairwoman.
Senator Boxer. Thank you so much.
Senator Klobuchar, 3 minutes.
OPENING STATEMENT OF THE HON. AMY KLOBUCHAR,
U.S. SENATOR FROM THE STATE OF MINNESOTA
Senator Klobuchar. Thank you, Madam Chair. I apologize, I
was late. We had an Agriculture Committee meeting in which we
discussed the sudden decline in the honeybee population across
the Country, including in Minnesota, something that may come
your way, Administrator Johnson.
I am pleased that this Committee has switched from talking
about whether or not global warming exists, to how we can solve
it, and to talking about under the Chairwoman's leadership how
we can become an international leader in this area.
Our State, and I can't remember when you came last time,
Administrator Johnson, that this happened, but our State just
recently adopted a very aggressive portfolio of standards for
electricity, 25 percent renewable by 2020 and 30 percent for
excel [phonetically]. I am very pleased it was done on a
bipartisan basis, and signed into law by a Republican Governor.
But I don't think that should be an excuse for inaction on
the work that is being done in California and New Jersey and
other States by the Federal Government. I think it was Justice
Brandeis that once said that the States are the laboratories of
democracy, but I don't think that he meant that they would be
the only place where the action is taken in democracy.
That is why I was so pleased by this Supreme Court opinion,
which basically said that the EPA could avoid promulgating
regulations for greenhouse gases only if, ``it determines that
greenhouse gases do not contribute to climate change, or if it
provides some reasonable explanation as to why it cannot or
will not exercise its discretion to determine whether they
do.''
In the coming weeks as you decide whether or not to
initiate an enforcement action for greenhouse gases, I strongly
recommend that you consider the sound science. We heard about
it in a very good briefing last week by the scientists from the
Intergovernmental Panel for Climate Change. The report, as you
know, was written by hundreds of scientists and reviewed by
outside experts.
I urge you to take seriously the findings of the scientific
community, and I also encourage you to do what it takes to
expedite this rulemaking process. As Senator Lieberman was
mentioning, processes can start and they can go on and on and
on. Clearly, what you are hearing from a number of people on
this Committee is that this process must start immediately and
it must be done on an expedited basis. The EPA needs to roll up
its sleeves and get to work.
Thank you.
Senator Boxer. Thank you, Senator.
Senator Carper, 3 minutes.
OPENING STATEMENT OF THE HON. THOMAS R. CARPER,
U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Carper. Thank you, Madam Chair.
Mr. Johnson, welcome. Thank you for joining us today. We
look forward to hearing from you, and our other witnesses, a
couple of whom are sitting right behind you. It is nice to see
you all.
Earlier this morning, I was with a couple of our colleagues
from the House, a Democrat and a Republican, and we were before
a forum of folks who were interested in climate change. One of
the questions of our panel was, what are the Presidential
candidates likely to do, whoever is nominated or elected, what
are they likely to do on climate change.
Somebody is going to get elected President and Vice
President, and they are going to have to put together a cabinet
and they are going to have to figure out all the promises that
they made in their campaigns, and how to get started on climate
change. I look at all the Democrats that are running and I
think they are all going to want to do something, and most of
the Republicans will want to get going as well.
I think we would make a big mistake if we waited until
after the election to get started. We shouldn't have to wait
that long. We don't have to wait that long. Frankly, I think
people elected us, and the real message I took out of the last
election is folks want us to get stuff done. They want us to
find a way to work together. They want us to find a way to
govern from the middle.
The Supreme Court has given you a great opportunity at EPA
to get started, and my hope is that you will do that.
I am going to be asking you some questions. I will
telegraph this pitch: I am going to be asking you some
questions of thing that I think you can do absent any kind of
legislation, whether it is my legislation, Senator Lieberman's
legislation, or legislation that Senator Boxer has introduced,
or Senator Alexander. There are some things that you can do,
and I think you might want to do. And I look forward to having
a chance to talk with you about that in just a few minutes.
The important thing for us is to not do something foolish.
The important thing for us is to not do something that is going
to mess up our economy or put it in a tailspin or to somehow
unduly burden consumers. We don't have to do that. There are a
whole lot of things that we can do. If we fall short of passing
a climate economy-wide bill like Senator Lieberman has
introduced, if we come up short passing just an industry-
specific bill, like I have introduced with some colleagues, we
have some other things we can do, and we look forward to
talking with you about those at this hearing. Thank you.
Thank you, Madam Chair.
[The prepared statement of Senator Carper follows:]Senator
Thomas Carper
I'd like to thank the Chair for convening this hearing.
I would not necessarily call myself a ``climate skeptic''.
I do try to be realistic though, and with that in mind, I'd
like to make a few remarks.
I believe we owe it to the folks we represent to fully
understand the consequences of the legislation and proposals we
consider. It has been said, by some, that members who oppose
climate change legislation will suffer some sort of
consequences in the next election. I have even seen a recent
poll that says three-quarters of Americans believe global
warming is a problem.
I remind my colleagues, however, that legislation which
increases the price consumers pay for energy will also have
consequences. I'd like to share an example from my home State
of Wyoming.
Cheyenne Light, Fuel & Power is an electric utility in my
State. It provides energy to some 80,000 customers. For an
extra $3.50 a month, they offered ``green pricing'' to
customers; that means you could get power with no carbon
emissions for just $3.50 extra, per month. I found it
interesting that only 30 people signed up.
Now, if that were an election, I don't think I'd want to be
the one who made ``green pricing'' mandatory.
I think we need to remember that these so-called
``solutions'' to climate change cost a lot of money. We need to
be honest about who we expect to pay those costs.
We must also make sure that we can abide by laws before we
pass them. That is why I included Sec. 413 in the Energy Policy
Act of 2005 to demonstrate clean coal technology. That
provision authorizes the government to participate in a
demonstration of the technologies we need to move forward.
It seems like we talk an awful lot about climate change
lately. We seem to forget that we are already doing a lot to
address it. We already passed an energy bill in 2005 that
allows us to take significant action toward figuring our next
steps.
But this hearing is about the implications of a Supreme
Court decision, and it is about what the EPA is going to do
next.
I did want to explain that there is a middle-ground to be
had in this debate, however. I am concerned we spend so much
time getting people worked up about this issue that we risk
failing to find workable solutions.
I am anxious to hear what the Administrator's plan is, and
I yield the remainder of my time.
Senator Boxer. Thank you.
Senator Cardin.
OPENING STATEMENT OF THE HON. BENJAMIN L. CARDIN,
U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Cardin. Madam Chair, let me first thank you for
holding this hearing. It is nice to have you here, Mr. Johnson.
I appreciate your testimony here today and the challenges that
the Supreme Court has really laid to you to be aggressive in
regulating the greenhouse gases. I look forward to your
testimony. I can assure you that we want to work together.
This Committee really wants to be aggressive in dealing
with the issues of global warming, and we would very much
welcome working with the Administration to come up with an
aggressive plan to deal with in a responsible way our
responsibilities here in the United States and show leadership
internationally.
So I look forward to your testimony and welcome.
[The prepared statement of Senator Cardin follows:]
Statement of Hon. Benjamin L. Cardin, U.S. Senator from the
State of Maryland
Thank you for holding this hearing today.
I represent a State which relies heavily upon the Army
Corps of Engineers' civil works programs.
Maryland has 31 miles of Atlantic Ocean coastline, which
are the site of two critical Corps projects--a hurricane
protection project at our premier beach resort community, Ocean
City, and a mitigation project at Assateague Island National
Seashore.
The Chesapeake Bay is America's largest estuary. The
Corps' oyster and habitat restoration, shoreline protection,
and sediment management programs are integral to our efforts to
restore the Bay.
We have a geography and topography which makes the
Chesapeake Bay particularly susceptible to erosion. This
erosion contributes millions of cubic yards of sediment
annually to the bay, adversely affecting water quality and
clogging navigation channels.
The Port of Baltimore is one of the largest ports on the
east coast and a vital engine of economic activity,
contributing $2 billion to the State's economy and employing
18,000 Marylander's directly and tens of thousands more
indirectly.
There are 126 miles of shipping channels leading to the
Port of Baltimore. Maryland also has more than 70 small
navigation projects around the Chesapeake Bay and Atlantic
Ocean. These navigation projects are critical to commercial and
recreational fisherman, to local and regional commerce and to
local economies.
We rely heavily on the U.S. Army Corps of Engineers for
flood protection in communities in Western Maryland and for
water supply.
In short, the Corps of Engineers has projects and provides
assistance to virtually every jurisdiction in the State of
Maryland
Our efforts in Maryland focus on four areas:
maintaining the navigational channels serving the Port
of Baltimore and numerous communities in our State, and finding
responsible and environmentally sound solutions for disposing
of the dredged material from these channels,
restoring the Chesapeake Bay and the rivers and streams
which flow into the Bay,
addressing the shoreline erosion problems on Maryland's
Atlantic Coast , and
mitigating for previous construction of civil works such
as the rewatering of the C&O Canal in Cumberland.
I have talked with met with the nominee and reviewed his
impressive background. We need a Chief of Engineers that
understands the importance of the range of issues facing
Maryland and the nation. I think that Lt. Gen. Van Antwerp has
the potential to bring to the job a strong background and a
willingness to work with us that will combine to make him an
excellent chief. I look forward to asking the nominee a few
questions, and I anticipate working closely with him in the
years ahead.
Senator Boxer. Thank you, Senator.
Just to reiterate to Senators and staffs, if they want to
let their bosses know, we will give them an extra 3 minutes for
their opening statement when they arrive, added on to their
question time.
Administrator Johnson, welcome and please proceed.
STATEMENT OF STEPHEN L. JOHNSON, ADMINISTRATOR, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Mr. Johnson. Thank you, Madam Chairman.
Chairman Boxer and members of the Committee, thank you for
the opportunity to testify today on the landmark Supreme Court
decision, Massachusetts v. EPA.
As you know from my previous appearances before this
Committee, and over the last 6 years, this Administration has
invested more than any other nation in the world, $35 billion,
in a comprehensive climate change agenda. This aggressive, yet
practical, strategy is supporting world class scientific
research, providing tax incentives for renewable and
alternative energy, forging results-oriented partnerships, and
developing and deploying the next generation of clean
technologies.
Currently, EPA is moving forward to meet the Supreme
Court's decision in a thoughtful, deliberative manner,
considering every appropriate option and every appropriate tool
at our disposal. Throughout our review, I have sought guidance
from the agency's legal and policy professionals to understand
the Court's findings, and what that means for EPA. Let me
provide you with what are, in my view, the three most salient
points from the decision that are directly relevant to today's
hearing.
First, the Court found that greenhouse gas emissions are
indeed pollutants under the Clean Air Act.
Second, the Court ordered EPA to reconsider its denial of a
petition from the State of Massachusetts and several other
groups seeking regulation of greenhouse gas emissions from new
motor vehicles and engines. One of the most significant things
EPA must determine is whether greenhouse gas emissions endanger
public health or welfare based upon the requirements of the
Clean Air Act.
Finally, the Court was very clear that, if an endangerment
finding is made, the Agency possesses considerable flexibility
in how it regulates greenhouse gas emissions from mobile
sources. It is incumbent upon us to act expeditiously and
prudently, making decisions informed by the best available
science.
Along with addressing the decision's substantive
ramification, the Agency is considering the appropriate
procedural steps to take if the Court remands the petition.
Whatever we decide on that and many other issues, I can assure
you that we are committed to receiving broad public input prior
to making sound decisions.
As we review the Court's decision, the Administration will
continue moving forward, both domestically and internationally
to address the serious challenge of global climate change.
Under the President's leadership, our Nation is making
significant progress in tackling emissions. According to the
International Energy Agency, from 2000 to 2004, U.S. emissions
of carbon dioxide from fuel combustion grew by 1.7 percent,
during a period when our economy expanded by nearly 10 percent.
This percentage increase was lower than that achieved by Japan,
Canada, the original 15 countries of the European Union, India
and China.
IEA data also shows that the United States reduced its
carbon dioxide intensity by 7.2 percent between 2000 and 2004,
better, for example, than Canada, Japan, or the EU 15.
I would also note that the U.S. is on track to meet and
possibly exceed the President's goal to reduce greenhouse gas
intensity by 18 percent by 2012. By contrast, only two of the
original EU 15 countries in the Kyoto Protocol are on schedule
to meet their Kyoto targets.
As part of our forward progress, just this morning we
signed the formal notice that starts the public process for
considering the California waiver petition process. This is in
keeping with my and the Agency's commitment to expeditiously
begin the process following the Supreme Court ruling. The
decision we make in response to Massachusetts v. EPA will be
integrated in the Administration's existing climate policy and
will build on the progress we have already achieved.
Again, thank you for the opportunity to testify. Before I
take questions, Madam Chairman, I would like that my full
written statement be submitted for the record.
Thank you very much.
[The prepared statement of Mr. Johnson follows:]
Statement of Stephen L. Johnson, Administrator, U.S. Environmental
Protection Agency
Good morning Madam Chairman and Members of the Senate
Committee on Environment and Public Works. I appreciate the
opportunity to appear before you today to discuss the
Environmental Protection Agency's (EPA) efforts to address the
challenges posed by climate change. Today I will speak to you
about both the Administration's ongoing work to address climate
change and the recent Supreme Court decision in Massachusetts
v. EPA.
introduction
President Bush and the Environmental Protection Agency are
firmly committed to taking sensible action to address the long-
term challenge of climate change. Long before the Supreme Court
issued its decision in Massachusetts v. EPA, the Administration
had been implementing aggressive steps to tackle climate
change, both domestically and internationally. We will continue
to move forward with the President's comprehensive climate
change agenda as we consider the ramifications of the Supreme
Court's decision.
President has requested, and Congress has provided,
substantial funding for climate change science, technology,
observations, international assistance and incentive programs--
approximately $35 billion since 2001. Federal programs are
helping to further reduce scientific uncertainties associated
with the causes and effects of climate change; promoting the
advancement and deployment of cleaner, more energy efficient,
lower carbon technologies; encouraging greater use of renewable
and alternative fuels; accelerating turnover of older, less
efficient technology through an array of tax incentives; and
establishing numerous international climate partnerships with
the world's largest greenhouse gas emitters. Through a
comprehensive suite of mandates, incentives, and partnerships,
the President's climate change policies are contributing to
meaningful progress in reducing the growth rate of U.S.
greenhouse gas emissions, even as our population grows and our
economy continues to expand.
administration climate strategy
Progress Toward the President's Goal
In 2002 President Bush committed to cut U.S. greenhouse gas
intensity by 18 percent through the year 2012. This commitment
was estimated to achieve about 100 million additional metric
tons of reduced carbon-equivalent (MMTCO2) emissions
in 2012, with more than 500 MMTCO2 emissions in
cumulative savings over the decade.
According to EPA data reported to the United Nations
Framework Convention on Climate Change (UNFCCC), U.S.
greenhouse gas intensity declined by 1.9 percent in 2003, by
2.4 percent in 2004, and by 2.4 percent in 2005. Put another
way, from 2004 to 2005, the U.S. economy increased by 3.2
percent while greenhouse gas emissions increased by only 0.8
percent.
To build on the substantial progress in meeting the 18
percent intensity reduction, President Bush has announced four
major energy policies in the last 2 years. In his 2006 State of
the Unions Address, President Bush proposed the Advanced Energy
Initiative (AEI)--a 22 percent increase in funding for 2007 for
clean-energy technology research to change how we power our
homes, business, and cars. The 2008 President's Budget includes
$2.7 billion for the AEI, an increase of 26 percent above the
2007 Budget.
This year, in his State of the Union Address, the President
announced his ``20-in-10'' initiative, which sets an aggressive
new goal for the United States to use 20 percent less gasoline
in 2017 than currently projected. As part of this effort, the
Administration recently sent legislation to Congress to create
an Alternative Fuel Standard (AFS) which would mandate the use
of 35 billion gallons of alternative fuel in 2017. Should the
AFS become law, it will complement and build upon the Renewable
Fuel Standard (RFS), which EPA recently finalized. The AFS
would rely on credit, banking and trading mechanisms that EPA
developed for the RFS, thereby achieving market efficiencies
while ensuring the use of an increasing amount of renewable and
alternative fuel by our Nation.
Another component of the 20-in-10 plan is reforming cars,
and for further increasing light truck and SUV standards. We
believe new technologies can be deployed to significantly
improve fuel economy without impacting safety. If enacted, this
legislation will reduce projected gasoline consumption by up to
8.5 billion gallons in 2017.
When approaching the issue of greenhouse gas emissions from
the transportation sector, it should be recognized that 95
percent of such emissions consist of carbon dioxide, with the
remaining 5 percent of emissions consisting of nitrous oxide
and methane exhaust emissions and hydroflourocarbons from air
conditioners. In addressing greenhouse gas emissions from the
transportation sector, the President's 20-in-10 plan recognizes
that on-board technology to control carbon dioxide emissions
from vehicles does not currently exist. Therefore, the 20-in-10
plan addresses two primary factors that can reduce carbon
dioxide emissions from vehicles; greatly increasing the use of
renewable and alternative fuels and increasing the fuel economy
of vehicles.
Fuels, such as cellulosic ethanol, can offset lifecycle
greenhouse gas emissions by over 90 percent when compared with
gasoline derived from crude oil. Biodiesel can result in the
displacement of nearly 68 percent of lifecycle greenhouse gas
emissions relative to diesel made from petroleum. Increasing
the use of such fuels in the transportation sector has the
potential to make substantial reductions in greenhouse has
emissions. For any given fuel, increasing the fuel economy of a
vehicle will decrease greenhouse gas emissions. Combining the
fuel savings from reforming and increasing CAFE with reductions
achieved under the AFS, annual emissions of carbon dioxide from
cars and light equivalent of ``zeroing out'' annual emissions
from 26 million automobiles.
As part of the ``20-in-10'' commitment, the President has
also issued an Executive Order in January of this year that
directs the government to reduce fleet petroleum consumption by
2 percent annually, increase the use of alternative fuels by at
least 10 percent annually, increase the purchase of efficient
and flexible fuel vehicles, make government buildings more
efficient, and take other steps with regard to improving energy
efficiency with respect to the government's purchase of power.
The President's budget also redirects Department of
Transportation funds to a new $175 million highway congestion
initiative for State and local Governments to demonstrate
innovative ideas for curbing congestion. These ideas include
congestion pricing, commuter transit services, commitments from
employers to expand work schedule flexibility, and faster
deployment of real-time traffic information. In just 1 year,
wasted fuel accounts for more than 20 million metric tons of
carbon dioxide emissions.
In addition to these initiatives, the President's Farm Bill
proposal includes more than $1.6 billion of additional new
funding over 10 years for energy innovation, including bio-
energy research, energy efficiency grants, and guaranteed loans
for cellulosic ethanol plants.
u.s. epa climate initiatives
While EPA explores options in response to the recent
Supreme Court decision in Massachusetts v. EPA, we will
continue to implement the initiatives that have proven
effective in reducing greenhouse gas emissions, and which form
an integral component of the President's comprehensive strategy
to address climate change.
EPA climate programs include a wide array of partnerships,
which rely on voluntary measures to reduce greenhouse gas
intensity, spur new investments, and remove barriers to the
introduction of cleaner technologies. Many of these partnership
programs provide near-term solutions that focus on reducing
emissions. These programs complement the work of other Federal
agencies investing in long-term research and development
programs, such as the Department of Energy's (DOE) FutureGen
and fuel cell development programs. EPA is also one of many
Federal agencies participating in the multi-agency Climate
Change Technology Program.
In addition, EPA also invests in a long-term global change
research and development program. EPA's global change research
focuses on understanding the effects of global change
(particularly climate change and variability) on air and water
quality, ecosystems, and human health in the United States. The
goal of the program is to produce timely and useful information
and tools that enable resource managers and policymakers to
more effectively consider global change issues in decision-
making. The program's activities are coordinated with other
Federal agencies' climate change research through the U.S.
Climate Change Science Program.
Transportation
While transportation is crucial to our economy and our
personal lives, it is also a significant source of greenhouse
gas emissions. Travel growth has outpaced improvements in
vehicle energy efficiency making it one of the leading economic
sectors in greenhouse gas emissions. Through a combination of
new technology development, voluntary partnerships, consumer
information and renewable fuels expansion, EPA is working to
reduce greenhouse gas emission from this sector. By focusing
both on vehicles and fuels, these efforts follow the same
successful approach the Agency has used to cut emissions from
motor vehicles.
Reducing Vehicle Fuel Consumption
EPA's SmartWay Transport Partnership is a public-private
partnership that aims to reduce greenhouse gas emissions, fuel
consumption, and criteria pollutants from ground freight
transportation operations. Nearly 500 companies, including some
of the nation's largest shippers and carriers, have joined the
SmartWay program.
The efforts of these companies, which include the use of
fuel efficient technologies and anti-idling practices, will
reduce greenhouse gas emissions and fuel consumption. EPA
estimates that by 2012, the companies that participate in the
SmartWay Transport Partnership will cut carbon dioxide
(CO2) emissions by up to 66 million metric tons per
year, and nitrogen oxide (NO2) emissions by up to
200,000 tons per year. It will save to heat 17 million houses
for 1 year.
EPA also is working to develop and commercialize new,
State-of-the-art low greenhouse gas technologies at its
National Vehicle and Fuel Emissions Laboratory in Ann Arbor,
Michigan. EPA invented and patented the world's first full
hydraulic hybrid vehicle system, capable of achieving a 40
percent reduction in greenhouse gas emissions and a 60-70
percent improvement in fuel economy.
Promoting Today's Transportation Technologies
EPA is also working to maximize the potential of today's
fuel-efficient technologies. For example, the recent phase-in
of ultra low sulfur diesel fuel opens up new markets for clean
diesel passenger cars and pickup trucks. These vehicles are up
to 40 percent more efficient than conventional gasoline
vehicles, reducing life-cycle carbon dioxide emissions by up to
20 percent.
In addition, EPA has ongoing efforts to keep the public
informed about the fuel economy performance of the vehicles
they drive. As evidenced by the million plus monthly ``hits,''
the on-line Green Vehicle Guide has proven to be a popular
consumer tool to help car shoppers identify the cleanest and
most fuel efficient vehicles that meet their needs. EPA
recently issued new test methods designed to improve the
accuracy of window sticker fuel economy estimates to better
reflect what consumers actually achieve on the road. We also
redesigned the fuel economy label to make it easier for
consumers to compare fuel economy when shopping for new
vehicles.
Ensuring Access to Clean Renewable and Alternative Fuels.
The Energy Policy Act of 2005 established the Renewable Fuel
Standard (RFS)--a requirement for the use of 7.5 billion
gallons of renewable fuels in the U.S. by 2012. EPA recently
completed this rulemaking. The U.S. Department of Energy (DOE)
now projects that ethanol use will greatly exceed the legal
requirement, EPA estimates that the RFS will reduce carbon
dioxide equivalent greenhouse gases by 8 to 13 million tons,
about 0.4 to 0.6 percent of the anticipated greenhouse gas
emissions from the transportation sector in the U.S. in 2012.
Energy Efficiency
EPA has long recognized that energy efficiency offers one
of the lowest cost solutions for reducing energy bills,
improving national energy security, and reducing greenhouse gas
emissions--all while helping to grow the economy through
increased electric grid reliability and reduced energy costs in
the natural gas and electricity markets.
Energy STAR
In 1992 the EPA introduced Energy STAR as a voluntary
labeling program designed to identify and promote energy-
efficient products. Computers and monitors were the first
labeled products. Through 1995, EPA expanded the label to
additional office equipment products and residential heating
and cooling equipment. In 1996, EPA partnered with the U.S.
Department of Energy for particular product categories. The
Energy STAR label is now on major appliances, office equipment,
lighting, home electronics, and more. EPA has also extended the
label to cover new homes and commercial and industrial
buildings.
Through its partnership with more than 8,000 private and
public sector organizations, Energy STAR delivers the technical
information and tools that organizations and consumers need to
choose energy-efficient solutions and best management
practices. Over the past decade, Energy STAR has been a driving
force behind the more widespread use of such technological
innovations, such as LED traffic lights, efficient fluorescent
lighting, power management systems for office equipment, and
low standby energy use. In 2006, Americans, with the help of
Energy STAR, saved $14 billion on their energy bills and
prevented greenhouse gas emissions equivalent to those of 25
million vehicles--the number of cars in California and Illinois
combined.
Energy Supply
In partnership with a variety of Federal agencies and other
organizations, the Agency is currently engaged in a number of
initiatives that foster development and deployment of cleaner
energy production technologies. The power generation sector is
a critical element in addressing climate change because the
combustion of fossil fuels for non-transportation energy uses
constitutes roughly 40 percent of the greenhouse gas inventory
for the United States, with the majority of these emissions
resulting from the burning of coal.
Coal and CO2 Capture and Storage
Coal is an important fuel to achieve energy security and
increase economic prosperity in the United States. Currently,
about 50 percent of electricity in the United States is
generated from coal, and according to DOE, at current rates of
consumption, coal could meet U.S. needs for more than 250
years. To achieve our goal of energy security coal must
continue to play a major role in the generation of significant
contribution to reducing greenhouse gas emissions from coal-
fired electricity generation, while allowing continued use of
our ample coal reserves. To address the potential environmental
impact of coal-fired power plants, EPA, DOE, and others are
exploring technological innovations that would allow coal to be
burned more efficiently and with fewer emissions. Recognizing
the importance of advanced coal technology, EPA is working to
ensure that these new technologies are deployed in an
environmentally responsible manner.
The Administration is investigating the prospects for
carbon dioxide capture from power plants and other industrial
sources and long-term storage in geologic formations. EPA's
role consists in ensuring that carbon capture and storage is
developed and deployed in a manner that safeguards the
environment. We are currently focusing our efforts on two
fronts: (1) partnering with public and private stakeholders to
develop an understanding of the environmental aspects of carbon
capture and storage that must be addressed for the necessary
technologies to become a viable strategy for reducing
greenhouse gases; and (2) ensuring carbon dioxide storage is
conducted in a manner that protects underground sources of
drinking water, as required by the Safe Drinking Water Act.
Combined Heat & Power Partnership
Combined Heat and Power (CHP) is an efficient, clean, and
reliable approach to generating power and thermal energy from a
single fuel source. By installing a CHP system designed to meet
the thermal and electrical base loads of a facility, CHP can
increase operational efficiency and decrease energy costs,
while reducing emissions of greenhouse gases that contribute to
climate change. EPA's CHP generation. The Partnership works
closely with energy users, the CHP industry, State and local
Governments, and other stakeholders to support the development
of new projects and promote their energy, environmental, and
economic benefits.
Other Industrial Sectors
A number of EPA's climate initiatives cut across multiple
industrial sectors:
Climate Leaders
Climate Leaders is an EPA partnership that encourages
individual companies and other organizations to develop long-
term, comprehensive climate change strategies. Partners develop
corporation-wide greenhouse gas inventories, including all
emission sources of the six major greenhouse gases
(CO2, CH4, N2O, HFCs, PFCs, SF6), set an
aggressive corporate-wide greenhouse gas emissions reduction
goal to be achieved over 5 to 10 years, report inventory data
annually, and document progress toward their emissions
reduction goals. Since its inception in 2002, Climate Leaders
has grown to include nearly 100 corporations whose revenues add
up to almost 10 percent of the United States' gross domestic
product and whose emissions represent 8 percent of total U.S.
greenhouse gas emissions. Five organizations have achieved
their GHG reduction goals--Baxter International, General Motors
Corporation, IBM Corporation, National Renewable Energy
Laboratory and SC Johnson.
High GWP Gas Voluntary Programs EPA has a set of voluntary
industry partnerships that are substantially reducing U.S.
emissions of high global warming potential (high GWP) (HFCs)
and sulfur hexafluoride (SF6)-are manufactured for commercial
use or generated as waste byproducts of industrial operations.
Some of these gases have valuable uses as substitutes for ozone
depleting substances. However, some species of these gases,
while released in small quantities, are extremely potent
greenhouse gases with very long atmospheric lifetimes. The high
GWP partnership programs involve several industries, including
HCFC-22 producers, primary aluminum smelters, semiconductor
manufacturers, electric power companies and magnesium smelters
and die-casters. These industries are reducing greenhouse gas
emissions by developing and implementing cost-effective
improvements to their industrial processes. To date, these
voluntary programs have achieved significant emission
reductions and industry partners are expected to maintain
emissions below 1990 levels beyond the year 2010.
International Efforts
EPA's global leadership on climate change extends not only
to our suite of domestic programs, but also to our pioneering
and effective international partnerships.
Methane to Markets Partnership
The United States launched the Methane to Markets
Partnership in November 2004 with active participation from
EPA, DOE, the U.S. Agency for International Development, and
the State Department. The Methane to Markets Partnership is a
multilateral initiative that promotes energy security, improves
environmental quality, and reduces greenhouse gas emissions
throughout the world. The Partnership consists of 20 Partner
countries, and involves over 350 private sector and other
Network.
Under the Partnership, member countries work closely with
private sector development banks, and other governmental and
non-governmental organizations to promote and implement methane
recovery and use opportunities in four sectors: oil and gas
systems, underground coal mines, and landfills and animal waste
management systems. Capturing and using ``waste'' methane not
only provides an additional energy source that stimulates
economic growth but also reduces global emissions of this
powerful greenhouse gas. The United States has committed up to
$53 million for the first 5 years of the Partnership. EPA
estimates that this Partnership could recover up to 500 billion
cubic feet of natural gas (50 MMTCO2) annually by
2015.
Asia-Pacific Partnership on Clean Development and Climate
(APP) EPA is an active participant in this Presidential
initiative, which engages the governments and private sectors
in six key nations--Australia, China, India, Japan, the
Republic of Korea and the United States--that account for about
half of the world's economy, energy use and greenhouse gas
emissions. Partners are enhancing deployment of clean energy
technologies to address their energy, clean development, and
climate goals. An example of APP success is the leveraging of a
$500,000 U.S. Government grant to build the largest coal mine
methane power facility in the world in China, which, when
completed, will avoid the annual equivalent emissions of one
million cars. Another success story is the provision of
technical support to China to develop a voluntary energy
efficiency label similar to Energy STAR.
This Administration is meeting unparalleled financial,
international and domestic commitments to the reduction of
greenhouse gas emissions, and as outlined today, EPA plays a
significant role in fulfilling those commitments. The
initiatives discussed above represent only a sample of EPA's
climate change activities. We will continue to move forward to
address climate change in ways that produce meaningful
environment benefits and maintain our nation's economic
competitiveness.
The recent Supreme Court decision in Massachusetts vs. EPA
comes against the backdrop of this Administration's
comprehensive climate policy. My testimony will now discuss the
Supreme Court's decision.
the supreme court decision
On April 2, the Supreme Court issued its decision in
Massachusetts v. EPA. Prior to the Supreme Court decision, the
D.C. Circuit had upheld EPA's denial of a petition to regulate
greenhouse gas emissions from new motor vehicles under Section
202(a)(1) of the Clean Air Act. In our briefs before the
Supreme Court, we raised three arguments for why the Court
should affirm the D.C. Circuit's decision. The Court, in a 5-4
decision, disagreed with our three arguments and reversed the
lower court decision.
First, the Court found that Massachusetts had standing to
sue and therefore could challenge the petition denial in
Federal court. Specifically, the Court found that Massachusetts
had suffered a risk of injury due to EPA's decision. One
noteworthy finding in the majority's opinion is that it gave
the State ``special solicitude'' in establishing the
constitutional standing requirements. The dissent, written by
Chief Justice Roberts, suggested he found this to be an
unjustified expansion of established constitutional principles
and precedent.
Second, the Supreme Court held that the Clean Air Act
authorizes EPA to address global climate change through the
regulation of greenhouse gas emissions from motor vehicles.
Importantly, the Court did not hold that EPA was required to
regulate greenhouse gas emissions under section 202, or any
other section, of the Clean Air Act. Rather, the Court merely
concluded that greenhouse gas emissions were ``air pollutants''
under the Clean Air Act, and, therefore, they could be
regulated under section 202 by the EPA subject to certain
determinations as discussed below.
The Court also considered whether--given the authority to
regulate greenhouse gas emissions under section 202 the Clean
Air Act--EPA properly decided not to regulate greenhouse gas
emissions from motor vehicles. EPA's decision stemmed in part
from expressions of uncertainty as stated in a 2001 National
Research Council report on the science of climate change. In
denying the petition in 2003, EPA also had articulated
additional policy reasons for why even if the Agency had
authority to regulate greenhouse gas emissions, it was not
appropriate to do so at that time. Those reasons included the
Administration's achievements through and investments in
technology advancement and voluntary programs, as well as
recognition of the global nature of addressing climate change
concerns, which must take into account developing nations such
as China and India. In contrast, the Court found that EPA could
not consider such ``policy considerations'' as a basis for
denying the petition.
The Court held that, on remand, EPA must decide whether or
not greenhouse gas emissions from motor vehicles cause or
contribute to air pollution that is reasonably anticipated to
endanger public health or welfare, or to explain why scientific
uncertainty is so profound that it prevents making a reasoned
judgment on such an endangerment determination. Importantly,
the Court's decision explicitly left open the issue of whether
EPA can consider policy considerations when writing regulations
in the event EPA were to make an endangerment finding. Indeed,
the Court seemed to recognize that EPA has significant latitude
with regard to any such regulations.
What is next? The Supreme Court will send the case back to
the U.S. Court of Appeals for the District of Columbia. Then
the Court of Appeals will most likely issue an order sending
the petition back to EPA.
While technically the petition is not yet back before the
agency, EPA is exploring and studying the issues raised by the
Court's decision, including potential ramifications on other
provisions of the Clean Air Act. The Agency fully recognizes
the decision as one of the most important environmental law
decisions in year--accordingly, we are trying to assure that
the Agency is in the best possible position to address its
ramifications. However, given the complexity of the decision
and the very short time that has elapsed since the Court issued
the opinion, at this early date it is impossible today to
understand and explain fully how the decision may have any
specific impact.
What I can tell you today is the Court left open the
question of what procedure EPA is to follow on remand regarding
a potential endangerment finding. Any such process should
various procedural options to consider, including whether we
should reopen the public comment period on the petition;
whether we should hold a public hearing or hearings; and
whether we should, or, are required to, use rulemaking
procedures to decide the petition.
In addition, I am aware of a number of other pending
petitions, judicial cases, and permitting actions in which
parties might reference the Supreme Court's decision in support
of or against various positions. For example, the Governor of
California 2 weeks ago met with me and my staff to discuss his
views regarding the impact of the decision on California's
request for a waiver of Clean Air Act preemption of its
standards regulating greenhouse gases from certain motor
vehicles. The D.C. Circuit Court of Appeals currently has
before it consolidated challenges to 2006 revisions to the
Section 111 New Source Performance Standards for utility
boilers, and some of these challenges are based on arguments
that we should regulate CO2 emissions from the
boilers as part of the revised NSPS--this case was severed and
stayed pending the Court's decision in Massachusetts v. EPA.
There are air permit applications pending before the agency in
which similar arguments have been made, and there are cases
being litigated in the courts addressing California's and other
States' greenhouse gas standards for motor vehicles.
All these actions present complex issues of their own, and
I cannot comment at this time on how the Supreme Court's recent
decision may or may not relate to them. In my position as
Administrator, I also must be mindful that the appropriate
process is followed in addressing these issues, which requires
that I not prejudge any determinations. At the same time, all
these decisions make clear that we must be aware of potential
broader ramifications. I can assure you that we are focusing
not only on the complex issues directly addressed in the
Massachusetts v. EPA decision, but on these issues as well.
conclusion
The Administration remains committed to addressing climate
change in a manner that promotes a healthy environment and a
healthy economy. Today, I have outlined the myriad of programs,
partnerships, and investments the Administration is deploying
to meet this challenge. We look forward to analyzing the
choices we must make in light of the Supreme Court decision.
Thank you.
Senator Boxer. OK. You have just stated that you have
started the process to grant the waiver. Is that what I heard?
Mr. Johnson. Madam Chairman, what I said is we have started
the process, which is a public notice and comment on the
petition itself. Written comments are due June 15, and there
will be a hearing on May 22, in Washington, DC.
Senator Boxer. OK. Can you give us a time line after the
hearings are complete? What is your time line for making a
decision?
Mr. Johnson. What I committed to the Governor is that we
would move expeditiously, but responsibly. Not knowing what the
comments will be, that was the extent of my commitment.
Senator Boxer. I am asking you more than that, because you
don't report to the Governor, you report to us and to the
President. So I am asking you what do you see your time line
as? Give us a sense of it. Give us the quickest. Give us the
longest.
We need to know. We have Senators sitting here whose States
have put out a lot of taxpayer money. We want to know what the
schedule is. We are very happy that you did add this to today's
testimony. We expected it. We are very happy it happened, but
please tell us what is your general feeling as to how long it
will take.
Mr. Johnson. What I said to the Governor and the California
Air Resources Board was that I would act on their request
shortly after the Supreme Court had ruled its decision. I have
honored that commitment, and I am reporting to you today that I
will act expeditiously.
Senator Boxer. Well, your people who work for you have told
us that it could take three to 4 months maximum. Would you
agree that that is accurate, three to 4 months to get this
done?
Mr. Johnson. I won't commit to a specific three to 4 month
schedule because I don't know what the comments are.
Senator Boxer. Do you agree with them that it could be done
in three to 4 months?
Mr. Johnson. Again, I would like to hold that in abeyance
until I see what the comments are.
Senator Boxer. OK. Well, we will call you back here right
after the comment period has expired to then get your opinion,
because I think I am asking you a very general question. Give
me the shortest time. Give me the longest time. And you won't
give us that answer, and we have had 11 States waiting for 16
months. So when the comment period is completed, we will have
another hearing. I will ask you about that.
Now, it is my understanding that California has never been
denied a waiver. Is that your understanding?
Mr. Johnson. That is my understanding.
Senator Boxer. OK. So you have laid out the early part of
the schedule, but you will not know the rest of the schedule
until you have seen the comments. So the comments are completed
on what date?
Mr. Johnson. The comment period closes June 15.
Senator Boxer. OK. So then we will at that point set up a
hearing to get your timeframe.
Can you give me a schedule as to when you will take action
to make an endangerment finding for emissions of greenhouse
gases that would require regulation under the Clean Air Act?
Mr. Johnson. As I said, Senator, the decision is complex,
analyzing the endangerment, and the standards of what the Clean
Air Act says. For the decision, we will move expeditiously, but
we will move responsibly.
Senator Boxer. OK. Now, let me again read to you what our
President has said: ``The issue of climate change respects no
border. Its effects cannot be reined in by an army nor advanced
by any ideology. Climate change, with its potential to impact
every corner of the world, is an issue that must be addressed
by the world.'' Now, in addition, the Department of Defense has
warned us.
So, you are still telling me it is complex. So you can't
give me any timeframe as to when you would make a finding as to
whether or not this is a danger.
Mr. Johnson. As I have said, we are going to be moving
expeditiously, but we are going to be moving responsibly.
Senator Boxer. When are you going to undertake this issue
of determining whether or not you will make an endangerment
finding?
Mr. Johnson. It started on April 2, as soon as the Supreme
Court issued its decision. That is when we began to consider
the ramifications.
Senator Boxer. And when you say we began, I assume this is
behind closed doors. So what have you done so far, since April
2nd?
Mr. Johnson. I have had a number of briefings inside the
Agency, and across the Federal Government.
Senator Boxer. You have had briefings. And when will those
briefings conclude?
Mr. Johnson. As soon as I am satisfied that I have looked
at all the options, and particularly what the Supreme Court has
directed us to do, of making the decision as to whether there
is an endangerment finding. Clearly, the Supreme Court said, as
you pointed out, we have significant latitude in developing
regulations under Section 202 of the Clean Air Act. I want to
carefully consider all those options before I make a decision.
Senator Boxer. OK. I just want to call your attention to
the fact that the Court wrote on page 18, ``The harms
associated with climate change are serious and well
recognized.'' Just so that I understand, and I am going to have
a second round, so I will hold here and turn to Senator Inhofe,
but as I understand it, you have started within the Agency a
review as to whether or not climate change, global warming is a
danger, and whether or not you will make that endangerment
finding, but you have no schedule as to when you will complete
this.
It takes me to Senator Carper's point. Either we are going
to start or we are going to lose more time. We have lost a lot
of time. So we will stay on this, and I would expect that you
will be hearing from me for an update on how these meetings are
coming, and at what point do you say, we are going to make a
finding. Because I think it has been stated by others here who
are attorneys that you have to be in good faith here.
Everything the President has said, the DOD has said, you
yourself has said, your spokespeople have said, and the embrace
of the IPCC says, and our National Academy of Sciences says,
that this is a danger.
It just seems to me, and I sense this and I hope I am
proven wrong, believe me, that I don't hear in your voice a
sense of urgency as to when to decide to make this finding. But
we will get back to it in the second round.
Senator Inhofe.
Senator Inhofe. Thank you, Madam Chairman.
Administrator Johnson, I keep listening to my colleagues on
this side as if you can just snap your finger and have this
done. Even as Senator Bond said, in California, that the
legislature said initially 4 years, and I understand maybe 6
years to get into this issue.
Those who say that we should rush into action, maybe I am
wrong on this, but I am going to read to you the provisions of
the Act that are potentially relevant to CO2. Stop
me if you think any of these you would disagree with. All
right?
Mr. Johnson. Yes, sir.
Senator Inhofe. Title I, that is your power and your
manufacturing portion, Sections 108, 109, 110, 111, 112, 129,
165, 172 and 173. That is in Title I.
Mr. Johnson. Those are all the sections of the Clean Air
Act under Title I that may be impacted by this decision.
Senator Inhofe. All right. Title II, that is the
transportation sector, and again, stop me if I am wrong on
this. That would be Sections 202, 209, 211, 213, and 231, and
then Titles V and VI, which is the permitting Sections 502,
612, and 615.
I guess there may be more, but my point is based on the
Supreme Court decision earlier this month, is it reasonable to
assert you can simply rush out on these regulations?
Mr. Johnson. I think that would be irresponsible, sir.
Senator Inhofe. Having gone through a similar thing in
years past in terms of States getting into attainment, if you
found that carbon dioxide constitutes an endangerment to public
health, and you set ambient air quality standards, do you
believe that some of the counties would be in attainment and
others would be out? Or do you believe, as I believe, that all
counties could be out of attainment?
Mr. Johnson. I wouldn't want to speculate, Senator, as to
what the impact would or wouldn't be. Again, my first focus is
evaluating the Supreme Court decision with regard to motor
vehicles and what this means. Other parts of the Clean Air Act
add to the complexity. I said this decision is very complex and
that we want to take sufficient time, moving expeditiously, but
responsibly to act.
Senator Inhofe. Let me ask you this. How would States
demonstrate a plan to attain these standards if in fact ambient
air quality emissions would continue to climb because of China,
India, Mexico, Brazil, other developing countries? Even if the
States were to shut down all manufacturing, shut down all
generation plants, couldn't they still be out of attainment?
I think that is the reason, as the Chairman pointed out in
quoting President Bush, he said it is a problem that has to be
addressed by the world, not just by us. What is your thinking
about that? Am I way off base when I say that a State could
shut down everything and still have the problem?
Mr. Johnson. It is clear that for global climate change,
both from developing as well as developed nations, we need to
be working together. By our own estimates, by the year 2015,
developing nations will actually overtake developed nations
with regard to greenhouse gas emissions.
So it is not good enough just for the U.S. to be doing it
alone, but in fact to be doing it on a world scale. That is why
the President, under his leadership, has initiated the Asia
Pacific Partnership, the Methane to Markets Partnership and
other programs to try to reach out and help that part of the
world.
Senator Inhofe. The amount that we have in this
Administration as proposed, and we have spent in terms of
technology and in terms of the partnership approaches is a huge
amount. I don't know how anyone can say that we are not
addressing it in terms of a percentage of the overall budget,
because it has been just unbelievable.
In my State of Oklahoma, it is my understanding there are,
with clean coal technology, three pending applications for
coal-generated electricity. And yet we went through 15 years
between 1990 and 2005 without licensing any coal generation
plants. We were talking about China. China has been cranking
out about one every 3 days.
Do you see any indication, sitting over here where you sit
and looking around the world, that this is not just a huge
world problem, if we recognize it as a problem, if the findings
are that carbon dioxide constitutes an endangerment to public
health, that we in this Country can do it without other
countries participating?
Mr. Johnson. Senator, it is a global problem, and we need
help across the world.
Senator Inhofe. Yes. If you were to regulate greenhouse
gases under the Clean Air Act, do you believe that the
structure of the Act is well suited for regulation?
Mr. Johnson. Well, that is one of the questions we are
asking ourselves, Senator, as part of our analysis, whether in
fact all the parts of the Clean Air Act, which you recited, are
applicable and whether that is the best approach.
Senator Inhofe. Yes. If you were to craft new source
performance standards, what factors would go into the
determination of those standards?
Mr. Johnson. At this point, Senator, I wouldn't want to
speculate on new source performance standards, particularly
those under Section 111. Again, the focus of the Supreme Court
decision was on motor vehicles, which is Title II of the Clean
Air Act, which is where our focus is, but also considering what
the implications are across other parts of the Act, including
the NSPS, the new source performance standard.
Senator Inhofe. And in those standards, wouldn't you
include the cost benefits?
Mr. Johnson. That is one of the issues that, depending upon
under what part of the Clean Air Act, that we would consider
regulating.
Senator Inhofe. I understand that. This is a problem
because they always say that we can't do that, and I saw the
Administrator shaking her head. I look forward, Administrator.
But it is my understanding that was just if it is an
endangerment of public health that you would not use it. Maybe
I am wrong on that, but I can assure you that the cost is going
to be something that is going to be discussed at some length.
How wide-ranging is the authority that the Supreme Court
has granted you? You have new authority now. Does this go into
regulating fuels, power plant emissions, factories? How wide-
ranging is it?
Mr. Johnson. They spoke to Section 202 on motor vehicles,
but we are assessing both the impact under Title II, as well as
under other titles of the Act, from stationary sources under
Title I, all the way to Section 615 which addresses the
stratosphere.
Senator Inhofe. Yes. When they first started talking about
this--
Senator Boxer. Senator, your 7 minutes are up. So could you
finish?
Senator Inhofe. I am finished. Thank you very much.
Senator Boxer. Thank you.
We are going to go back and forth in order of arrival.
Senator Lautenberg.
Senator Lautenberg. Thank you.
Mr. Johnson, what we all heard here this morning is that
just using California, for instance, as an example, we saw the
placard that confirmed a point of view that it could take up to
6 years to be able to start reducing greenhouse gas according
to the standards of global warming and greenhouse gases.
But do we do better by not starting because it is going to
take so long to get these changes into place?
Mr. Johnson. Senator, we began reviewing this decision as
soon as the decision was issued on April 2. It is very complex.
As Senator Inhofe pointed out, there are many parts of the
Clean Air Act that may be impacted. I want to make sure that I
consider all options, carefully consider them. I understand the
sense of urgency that has been expressed here. I want to move
expeditiously, but I do want to move responsibly.
Senator Lautenberg. Yes. What is the biggest
responsibility? Is it to make sure that prices don't go up
some? Or is it to protect the lives of those in the future, the
lives, the health and the lives of those who will be here
during the years ahead? What is the biggest responsibility?
Public health?
Mr. Johnson. The biggest responsibility is, according to
the Supreme Court, is to maximize----
Senator Lautenberg. The Supreme Court?
Mr. Johnson. Well, they have given a very specific
direction, if you will. Justice Scalia, even though dissenting,
put a three part test or three steps that his summarizes what--
--
Senator Lautenberg. How about your summary?
Mr. Johnson. Well, my summary is: the first step is to
determine under the Clean Air Act whether cause and contribute
then triggers the endangerment finding. As the Supreme Court
says, if it does, then I am required to regulate. If it does
not, then I am not required to regulate.
Senator Lautenberg. Isn't there something in the mandate at
EPA that when there are questions about whether or not public
health was endangered, that they have to move on it? We know
that it is a complicated task. We know that it has been looked
at for years. We also know that there has been enormous
resistance on the part of EPA to get going on these things.
We also know that there was considerable doubt at EPA about
whether or not it pays to move it. In the opinion of the Court,
when they issued their opinion, they said in their view, EPA
nevertheless maintains the decision not to regulate greenhouse
gas emissions from new motor vehicles contribute so
insignificantly, in EPA's view. And they go on to say that
petitioner's injuries, that the Agency cannot be hailed into
Federal court to answer for them, for the same reason. EPA
doesn't believe that any realistic possibility exists that
relieve petitioners so they could mitigate global climate
change and remedy their injuries.
And here we have heard about the futility of our pursuit
because China and India are going to contribute more greenhouse
gas in the future. So we are saying, if the fire is next door
in the building down the block, why bother? It is not getting
to us. I don't see that kind of laissez faire attitude, to say,
well, it is going to be terrible anyway; why bother?
They say here, directing EPA's view, the predicted increase
in greenhouse gas emissions from developing nations,
particularly China and India, are likely to offset any marginal
domestic decrease.
So is it your view that it is not worth bothering because
these other countries are just going to make it bad anyway?
Mr. Johnson. Senator, my view is to implement what the
Court has directed me to do under the Clean Air Act. That is
what I am in the process of doing. I am going to do it
expeditiously, but I am going to do it thoughtfully and
responsibly.
Senator Lautenberg. Well, we know you are thoughtful. We
just wish you were more hasty.
Thanks very much.
Senator Boxer. Thank you, Senator.
Senator Thomas.
Senator Thomas. Thank you, Madam Chairman.
Administrator, if you kind of take a broad look at
regulation versus incentives for reducing carbon and having
cleaner energy produced, how do you measure those two things in
terms of the accomplishment of our goals?
Mr. Johnson. I think we all recognize there are many tools
in our toolbox for dealing with global climate change.
Legislation is one tool. Regulation is a second tool, and
partnership programs are certainly a third tool. What our
experience to date at EPA is that our partnership programs are
working. They are delivering environmental results. They are
reducing greenhouse gas emissions, whether it be our ENERGY
STAR Program or our Methane to Market Program, or as we move
into our Asia Pacific Partnership Program, or Climate Leaders
Program.
All the programs that I mentioned in my written testimony,
all contribute to reducing greenhouse gas emissions. Of course,
what is before me today, which is the subject of this hearing,
is now, given the Supreme Court's decision, what does this mean
for regulation at EPA. That is what I am sorting through right
now.
Senator Thomas. Sure. I understand. There is, of course,
California, for example, has great demands for energy, and
those demands keep growing. They say we don't want any energy
made from coal, but that will turn the lights off if they don't
do that.
So we need to balance between having regulations and moving
toward that, and having ways to produce energy in another way,
it seems to me, in order that we have to have energy. We have
to have energy.
Mr. Johnson. We have to have energy.
Senator Thomas. It is a little hard.
You mentioned the Asia Pacific Partnership. I think one of
the witnesses there believes that the activities with the Asia
Pacific Partnership, if I can quote his statement, ``utterly
ineffective effort to look busy.'' How do you react to that
assessment?
Mr. Johnson. Well, as one of the world's leaders, we are
the first country to reach out to our Asia Pacific partners to
actually begin addressing global climate change, and on
specific projects, specific areas such as, like you said, clean
energy, clean coal technology, to actually deliver results.
So I am very proud of the fact that we are the first
country to reach out and that we are working to deliver
results, not only here in the United States, but across the
globe.
Senator Thomas. Climate change is kind of a global issue,
isn't it?
Mr. Johnson. It is.
Senator Thomas. I guess I continue on the Energy Committee
and dealing with some of these things, it is sort of a balance
between having some regulations, which is rather easy to do,
and sit here and do it in the Congress; it is another to be
able then to produce the energy that is necessary under those
regulations. So I hope we can give as much attention to doing
some of the things we now know how to do. Nuclear energy, for
example, is very clean. We know how to do that. We know how to
make clean coal. We can reduce that, but still we haven't done
anything to encourage IGCC plants. We haven't got FutureGen on
the ground yet, and those kinds of things.
So you noted in your testimony that since 2001, we have
spent $35 billion on CO2 reductions in the
government.
Mr. Johnson. Yes.
Senator Thomas. How does that compare with what other
countries are doing? How do you evaluate the effectiveness of
that $35 billion?
Mr. Johnson. That is an unparalleled investment. No other
country in the world has invested as much as the United States.
Not only is that investment for science and technology, as well
as some tax incentives, but we are delivering programs. I
talked about some of those programs, certainly in the
partnership area, and we are delivering real results.
Senator Thomas. Thank you very much.
Thank you, Madam Chairman.
Senator Boxer. Thank you very much, Senator.
Senator Whitehouse?
Senator Whitehouse. Thank you, Chairman Boxer.
Administrator Johnson, in your view, what is the single
greatest environmental hazard facing our Nation and our world
right now?
Mr. Johnson. I would not identify one. As Administrator, I
see a number of challenges.
Senator Whitehouse. Pick the one that you think is the most
serious.
Mr. Johnson. I don't see one as being the most serious. I
see a number of issues ranging from clean water and
infrastructure, to air issues, including global climate change,
to dealing with hazardous waste sites.
Senator Whitehouse. So you think global warming is on
exactly the same scale and of no greater hazard to our Nation
and our world than, say, an infrastructure issue or the cleanup
of toxic waste facilities?
Mr. Johnson. I would say that they are all very serious
issues in need of environmental protection, and they all need
to be addressed in an appropriate way.
Senator Whitehouse. Isn't it part of your job to rank them
in terms of priority and define what the most significant
hazards are that our Country faces, so that you can, if there
is in fact a difference, proceed against it with due regard for
the priority that it entails?
Mr. Johnson. Indeed, it is my responsibility to protect
public health and the environment, and I take that
responsibility, as I have for 26 years at EPA, very seriously.
But to put all the Agency resources on one issue to the
exclusion of others would be foolhardy, in my opinion.
Senator Whitehouse. I think you will agree that that was
not the question I asked, was it, Administrator?
Mr. Johnson. I wasn't sure where you were headed, sir.
Senator Whitehouse. Don't anticipate where I am heading.
Just answer the question. That is all you need to do. And the
question is: What is the most serious environmental hazard that
we face in our Country and our Nation? Is that a complicated
question?
Mr. Johnson. It is not complicated at all, and I will give
you my same answer. I think that there are a number of issues
of equal importance, and that it is important as a Nation, and
certainly as an Agency, that we address all of those, including
global climate change.
Senator Whitehouse. You astonish me.
In the months leading up to the Massachusetts v. EPA
decision, what was your view of the argument that you had
regulatory jurisdiction in this area?
Mr. Johnson. Senator, I now accept what the Supreme Court
has said. What I thought of the opinion before doesn't really
matter because it is now the Supreme Court's decision. I accept
it. CO2 is a pollutant and now I am moving
expeditiously, but responsibly, to decide what are next steps
at EPA.
Senator Whitehouse. I am asking you what you thought
beforehand of the argument.
Mr. Johnson. As I said, I am not going to get into
revisionist history. It was the Agency's position. I am the
head of the Agency. We thought that it was not clear as to it
being a pollutant. That is certainly what our position was.
Clearly, for the Court, it was not a unanimous decision, five
to four, so clearly the Supreme Court had questions even of
itself. But for now, I accept the decision and now my focus
is----
Senator Whitehouse. Did you think it was a legitimate
argument being made by the other side?
Mr. Johnson. Again, I accept the Court's decision and I am
moving forward with----
Senator Whitehouse. I am not asking you about going
forward. I am asking you about going back. That is the focus of
my question. The question is, what did you think then? Did you
think that this was a credible argument? Did you think that
these were, you know, crazy people? That this was a wild idea
that you didn't need to prepare for the eventuality that you
might lose the case?
Mr. Johnson. It was a credible argument and, again, my
focus is now on the decision moving forward, not revisiting the
past.
Senator Whitehouse. But in evaluating your performance, I
think we need to evaluate the past, don't we?
Mr. Johnson. I will leave that up to you, sir.
Senator Whitehouse. OK. Well, here is where I am. I think
you agreed that it was a somewhat legitimate credible argument,
even though the EPA took the contrary position. It is at least
one of the most significant environmental issues facing our
Nation and our world. Wouldn't it be prudent in a situation
like that to prepare a little bit in advance so you are not
starting on day one after the decision comes down? Wouldn't it
be prudent to have in place some of the administrative
infrastructure ready to move forward in the event that the
decision went against you?
Mr. Johnson. Senator, I think what is prudent is to focus
on the decision that was made and what our next steps are, and
that is where I am focusing my attention. What was done in the
past, whether it was under Administrator Browner's tenure or
Administrator Reilly's, is interesting historically, but what
is before the Agency now is a decision by the Supreme Court.
How that is carried out under the Clean Air Act is my
responsibility and I take it very seriously. I am working on it
very carefully, but expeditiously and responsibly.
Senator Whitehouse. But how it is carried out under the
Clean Air Act now--my apologies. My time is exceeded.
Senator Boxer. Thank you.
Senator Lieberman.
Senator Lieberman. Thanks, Madam Chair.
Mr. Johnson, thanks for your testimony. I want to ask you a
couple of questions emanating from the Supreme Court decision.
In your written testimony today, you say, ``that the Court
left open the question of what procedure EPA is to follow on
remand regarding a potential endangerment finding.'' I was
troubled by that, and let me put it in this context. As I have
followed EPA decisionmaking processes in these regards, once
the Agency has found an endangerment, which is to say that a
pollutant endangers public health and welfare, then it has
generally speaking acted to eliminate the factors that caused
that endangerment, by its regulations.
So why would the procedure in this matter be any different
than the ones EPA has followed to date with respect to other
pollutants that it finds endangers public health and welfare?
Mr. Johnson. Well, Senator, you are absolutely right. In
fact, the procedure, the process is that we need to look at all
of the science, look at what the Clean Air Act directs us to do
under the various sections. In this case, the Supreme Court
focused on Section 202(a) dealing with motor vehicles.
So what does that mean with regard to the Clean Air Act?
And has an endangerment finding been made? So just like we have
done for other pollutants, that is one of the key steps to
address, is there endangerment. And so we are following that
same process on that very important question of endangerment,
and then if there is, certainly the Supreme Court has directed
us that we must regulate.
Of course, if they say that isn't endangerment, then we
should not regulate.
Senator Lieberman. Right. So tell me what you meant when
you said in your statement, then, that the Court left open the
question of what procedure the Agency is to follow on remand
regarding the potential endangerment finding? In other words,
in what way would you contemplate, and I know you have to make
a finding. I am obviously not asking what your finding will be
at this point. But how might you change the procedure from what
it has been traditionally been under your leadership or that of
your predecessors?
Mr. Johnson. Again, we would follow the same procedure that
we have for other rulemakings. If we chose to go down that path
and there was an endangerment finding made, again, the first
question, which the Supreme Court clearly left to me: is there
an endangerment finding or not? And if there is, then proceed
with regulation. But as they point out, the Supreme Court also
uses the phrase, even in that, there is ``significant
latitude,( that is the point in that phrase, in developing regs
under Section 202 of the Clean Air Act.
Senator Lieberman. OK, I've got you. So in some sense what
you have answered alleviates some of my concerns, as I
understand your answer, which is to say that while the Court
left open the question of what procedure you would follow on
remand regarding the endangerment finding, that it is your
intention to follow the procedures that you generally follow.
Mr. Johnson. Yes.
Senator Lieberman. Thank you.
I have one final question. In writing for the majority of
the Court, Justice Stevens noted, ``EPA does not dispute the
existence of a causal connection between manmade greenhouse gas
emissions and global warming.'' Is that correct?
Mr. Johnson. That is correct.
Senator Lieberman. OK. So it would seem then that the only
way you as EPA Administrator could avoid finding that manmade
greenhouse gas emissions endanger public health and welfare
would be if you determined that global warming does not
endanger public health and welfare. As a scientist, and a
respected scientist, surely you acknowledge that global warming
does endanger public health and welfare; that there is enough
evidence to suggest it. Is that not correct?
Mr. Johnson. Senator, global warming is a serious issue,
and I certainly support, as does the President, the two IPCC
reports that have been referenced earlier. Taking into context
what the Clean Air Act directs me to do, and making the
endangerment finding, is precisely what I am in the process of
doing. And so, again, I am not prejudging that decision. It is
complex, but that is certainly the heart of the first step of
the process that I need to go through in making the decision,
because if I make an endangerment finding, then we must
regulate. If I don't make an endangerment finding, then we
don't regulate.
Of course, the Court also, if you will, identifies a third
option, which then says you have to explain why we chose the
third approach.
Senator Lieberman. Thanks. My time is up.
Thank you.
Senator Boxer. Thank you, Senator.
Senator Warner, welcome.
Senator Warner. Thank you, Madam Chairman. I welcome this
opportunity with our distinguished Administrator. In the next
row behind us there are many familiar faces that have been in
this room in years past. So I look forward to their testimony.
I am down on the Armed Services Committee running that
hearing with the Chairman this morning, so I am sorry not to
have been here earlier.
So you are about to make this endangerment to public health
decision. What sort of timeframe are you looking at?
Mr. Johnson. Senator, that has been the million dollar
question all morning.
Senator Warner. If you have answered it, then I have kindly
contributed a worthwhile question to this hearing. Is that it?
[Laughter.]
Senator Boxer. From my perspective, absolutely.
Mr. Johnson. Senator, I answered the question. I am not
sure that everyone on the Committee likes my answer.
Senator Warner. I want to give a little bit of preamble to
the question. Because our Country, on this Administration, is
spending quite a substantial amount of money trying to
stimulate, private sector and everybody else, to sort of on
their own do certain things. So it seems to me that two trains
moving along, a rather heavy expenditure on our taxpayers,
moving in this direction, and now your key finding, and back to
the question of what is your timeframe.
Mr. Johnson. Senator, my response is that I am moving very
expeditiously, but I am going to move responsibly before making
a decision. Clearly, this is an issue of great importance.
Global climate change is a serious issue. But I believe that I
need to take all the science, the policy implications, the
legal implications into account before I make a decision as to
what the next steps are, given the Supreme Court decision.
This is an issue that has been debated since the late
1970's. There have been multiple legal opinions, there have
been multiple analyses done. Having said that, that is not an
excuse for not addressing what the Supreme Court said. I am
just merely pointing out that there is a lot of history. Again,
my interest is to move expeditiously, but move responsibly.
This is a major decision by the Supreme Court, and what
follows, whatever decision I end up making, will be a major
decision as well. I want to make sure that I have sufficient
time, but at the same time I want to be responsible.
Senator Warner. I have your answer very clearly in mind.
Let me suggest that, I hope you are not just going to take
everything that you recounted, all the money, opinions and so
forth, you will assess those. But what new initiatives might
you take that probe other areas of knowledge to bring into this
difficult equation, all aspects of it? In other words, aren't
there some areas that independently you might go out and seek
some advice and some ideas? Let's move beyond the frontiers as
they are now and try and find other opinions.
Mr. Johnson. Those are among the options that we are
considering. Again, I am considering all options, given the
Supreme Court decision. Again, the Supreme Court decision, as
you know, was focused on motor vehicles. But it has potential
implications for other areas of the Clean Air Act, from
stationary sources to other parts of the Clean Air Act. I want
to make sure we are considering those before making a decision.
Senator Warner. Lastly, how are you proposing to work
through the complex issues leading to the rest of the world?
Therein, the Secretary of State is primarily responsible. We
have to act in concert with the other nations. We cannot simply
push America so far ahead that we begin to jeopardize our
economic stability in the world and competitiveness.
How do you factor that in?
Mr. Johnson. Sir, you are asking the very question that I
am asking my staff and my colleagues across the Government:
What are the requirements under the Clean Air Act, how or
should these other factors be taken into consideration? Those
are very important questions. Again, I am emphasizing why this
is a complex decision and one, in my opinion, that we should
not rush to judgment. We need to move expeditiously, which I
am, but let's not rush to judgment.
Senator Warner. Thank you very much.
Thank you, Madam Chairman and our distinguished Ranking
Member.
Senator Boxer. Next is Senator Klobuchar.
Senator Klobuchar. Thank you, Madam Chairman and
Administrator Johnson.
As I am listening to this and you correctly acknowledge
that the Supreme Court decision is about Section 202 and the
emissions from mobile sources. But you are also saying it is
possible as you perceive it, some kind of rulemaking, you would
include stationary sources as well?
Mr. Johnson. What I said, Senator, is that we are
evaluating the implications, not only for the motor vehicle
section, Section 202, as you point out, but also for other
sections of the Clean Air Act, which include stationary
sources. We are evaluating what are the implications of the
Supreme Court decision for these other areas.
Senator Klobuchar. But you are evaluating it, but is it
possible that you would promulgate some sort of rules regarding
stationary sources? Is that one of the things you are
considering, or are you just seeing what effect doing something
about emissions would have, mobile sources would have on
stationary ones?
Mr. Johnson. My first focus is dealing with the petitions
before the Agency, actually not yet before the Agency. The
Court has not remanded or, if you will, sent the decision
officially to the Agency, which I expect soon. We don't even
have the decision officially before the Agency. So my focus is
on the motor vehicle piece and also considering other
implications.
Senator Klobuchar. So it could require another Supreme
Court decision to get you to the place of looking at the
stationary sources?
Mr. Johnson. Again, I am looking at what are all the
implications. This decision is complex. Then determining what
our next steps are under the Clean Air Act.
Senator Klobuchar. Do you consider yourself as some kind
of, as the EPA, independent mission by virtue of your job to
move on this outside of the Supreme Court decision? You
personally just in answer to one of the questions that you and
the President support the findings of the scientists for their
reports that I addressed in my opening comments. So is there
something outside of the Supreme Court decision that would give
you the authority you would need to start moving on this?
Mr. Johnson. Senator, under the Clean Air Act, the
responsibility for making the decision on the Clean Air Act
rests with the Administrator. But just as all administrators, I
think good government includes working with my other Federal
colleagues, including the White House.
Senator Klobuchar. OK. In your opening comments, you talked
about how you had seen the growth of greenhouse gas, it went up
by less than 1 percent in 2005. You said it showed the
Administration's program to address global warming is
delivering real results. Then I saw this report released by the
Department of Energy that said that the slow growth in
emissions from 2004 to 2005 can be attributed mainly to higher
energy prices that suppressed demand, low or negative growth in
several energy-intensive industries, and weather-related
disruptions such as Katrina.
So how do you respond to their take on why we saw slower
growth, compared to your take?
Mr. Johnson. I think there are many reasons why we see a
reduction. One of those, which we have talked about before is,
for example, our ENERGY STAR program. We keep track of that.
This past year, Americans saved $14 billion in energy bills and
prevented greenhouse gas emissions equivalent to 25 million
cars. We track that. So we think that program and other
programs are making a difference.
Clearly there are other factors that make a difference, as
the Department of Energy has pointed out as well.
Senator Klobuchar. And I just want to again reiterate that
this report said that that slow growth could be attributed
mainly to these other factors, beside any kind of program.
Because it says mainly to higher energy prices, suppressed
energy demand, low or negative growth in several energy-
intensive industries, and weather-related disruptions in the
energy infrastructure along the Gulf Coast that shut down both
petroleum and natural gas operations.
Mr. Johnson. I would also ask you to take a look at what
our trends are, not just over 1 year. Certainly, as you look
year to year at the trends of greenhouse gas intensity, in
fact, it is not just that one snapshot of 1 year, as the
Department of Energy said, but the long-term reduction in
greenhouse gas intensity.
Senator Klobuchar. Thank you.
Senator Boxer. Thank you, Senator.
Senator Carper and then Senator Cardin. And then, what I am
going to do, because Administrator Johnson has to go to a
meeting, I am going to ask unanimous consent if it is OK,
rather than just decree this, that Senator Inhofe and I would
have an additional round, and if members don't mind, we will
then go to the former EPA Administrators, who have been waiting
patiently.
Is that all right?
Senator Inhofe. I object. Let me explain why. Never in the
years I have been on this Committee and in the 4-years that I
chaired it, witnesses always, most of the time, tell us what
time they are available. He was available until 11:30. And I
don't recall one time I had my staff check on it, that we have
not kept our commitment to a witness. I don't think we should
do it. I think at 11:30, that witness should be excused and we
should go to the next panel.
Senator Boxer. Well, Senator, his staff has agreed he can
stay and extra 10 to 15 minutes.
Senator Inhofe. If that is the case, that is different.
Senator Boxer. The point is, I don't want to get into an
argument about this. But let's just move on. Otherwise everyone
else will have a round, and if the Administrator leaves in the
middle, I can't help that. But we are going to move forward
with Senator Carper.
Senator Inhofe. I just want to find out----
Senator Boxer. I wouldn't say it if it wasn't accurate.
Thank you.
Senator Carper. I don't object to moving forward. Mr.
Johnson, welcome again. I talked about this a little bit
before, and I just want to come back to it again.
I would be interested in us finding out what we can do now,
not next year, not in the next Administration, but what can we
do now? Not necessarily what we can do, but to some extent what
you can do, what you and the folks you have at EPA can do, that
none of us are going to quarrel with that would help lay the
groundwork for moving forward. I have introduce legislation
that focuses on the utility sector, as you know. You and your
folks were good enough to model that proposal, along with the
President's proposal and the earlier proposal by Senator
Jeffords. We are grateful for that.
Mr. Johnson. Thank you.
Senator Carper. Here is what I am interested in finding
out. In terms of things that can be done now, we have heard
from several people that among the steps that can be taken, the
first one could be developing a detailed registry of an
inventory of greenhouse gas sources in the U.S., having a
better understanding of the major sources of greenhouse gases.
My view is to help us target our regulations better.
Another important first step would be to develop health and
safety standards for carbon sequestration. As you may know, I
am an advocate, a strong advocate for clean coal. I want us to
be able to use coal to generate electricity, and I would like
to do it in a way that puts out a lot less CO2 and
other bad stuff into our air.
One of the things that is going to make sure that happens
is the ability to inject carbon dioxide gases into the ground.
If we are going to ask people to do that, we ought to have a
proper set of rules governing that practice.
The third item I am going to ask you to comment on deals
with whether or not EPA could help us with agriculture
sequestration and carbon dioxide. We have talked about this,
our farmers can be part of the solution to global warming. The
bill that I have introduced with some of my colleagues seeks to
promote those efforts and to reward them.
I would like to see EPA develop standards and practices for
our farmers to begin implementing, so they can sell offsets in
a cap and trade system.
Those are really small, but I think not insignificant steps
that could be useful in helping us to answer the question how
to regulate greenhouse gases. What I want you to do, I am not
going to ask you to commit to a time table here to say, this is
when we will promulgate regulations or this is when we are
going to start writing the regulations or this is when I am
going to invite the comment on proposed regulations.
But what I am looking for is your reaction. Those three
areas, are those three areas that could be potentially
fruitful, potentially beneficial, that are not full of
controversy, that we could actually get started? And if we pass
legislation this year, and that is great, whether we do or not,
having done those things, make progress on those things, better
inform the legislative process?
Mr. Johnson. Those are three very important issues.
Certainly, again, as part of our overall decision as to next
steps after we sort through the endangerment findings, carbon
sequestration, whether it is geologic or agriculture driven,
and what kind of additional guidance, besides the guidance we
put out in March in terms of regulation, those are all very,
very important questions. I look forward to working with you,
Senator, and certainly I will have my staff followup with you
as to next steps.
Senator Carper. Again, there are three that I am interested
in focusing on. One, implementing a detailed registry and
inventory of greenhouse gas sources here in the United States,
that would be No. 1. No. 2 is to establish health and safety
standards for the operation of geological sequestration of
greenhouse gases. That would be No. 2. And the third we would
like to work with you on is to establish standards and
practices for the measurement and verification of emissions
offsets for agricultural sequestration.
I just want us to get started.
Mr. Johnson. I look forward to future conversations.
Senator Carper. Thanks. I look forward to that as well.
Senator Boxer. Thank you very much. Senator Cardin.
Senator Cardin. Thank you, Madam Chair.
Administrator Johnson, I have listened very carefully to
your answering my colleague's questions. There is no question
that you have the responsibility to carry out the Supreme Court
decision. I hear you say that. But you also have the
responsibility to implement the authority of Congress and the
intent of Congress and to carry that out.
I think another key responsibility you have as the
Administrator, you have the opportunity given to you by
Congress, given to you by your position as Administrator, and I
see Administrator Browner, who served in a Democratic
administration, and Administrator Reilly, who served in a
Republican Administration. I think both of those individuals
carried out that responsibility, knowing what they could do to
help future generations as far as the environment of our
Country with great distinction.
I just would hope that you would talk with them and use
this opportunity you have as Administrator to say at the end of
the day what you want to make sure you have accomplished,
within the authority given to you by Congress, a better
environment for future generations. I understand you have to
make a decision on the California waiver, that you need to go
through a process in making that decision. And we want you to
go through that process. It has a direct effect on the people
of Maryland. As you know, Maryland is one of those States whose
legislature passed the California standards, and we need the
California waiver to be granted in order for our State to move
forward.
To me, I think it is kind of an easy decision, quite
frankly. I know that you are in a comment period that, I
believe you said expires on June 15th, starts today, by the
signing and then ends on June 15th.
Mr. Johnson. The 15th, right.
Senator Cardin. So I am just going to say what I think is
reasonable. I know I can't pin you down to a specific time. But
I think it is reasonable, within 30 days after the comment
period ends, for us to have a decision on the California
waiver. I am just letting you know how I think we are going to
be judging your time schedule on that. Thirty days seems
reasonable to me. Any objections?
Mr. Johnson. As I said earlier, I want to withhold judgment
on a timeframe until I have seen what the nature and the extent
of the comments are.
Senator Cardin. But understand how we are going to be
looking at this.
Mr. Johnson. I understand, sir.
Senator Cardin. No. 2, in the endangerment determination,
listening to Senator Lieberman make the connection between, we
have already acknowledged the problems with greenhouse gases
and global warming and climate change. So I think that also is
going to be a kind of easy decision for you to make, that there
clearly is an endangerment. You go back in the EPA, as early as
1998, when there were determinations made about the danger of
greenhouse gases, and the scientific information since 1998 has
only gotten stronger and more dramatic.
So I would hope that that timeframe would also be done in a
rather quick way. But I just urge you, as you are going through
that process, don't slow down. In fact, speed up as to ways in
which you can use the regulations over motor vehicles,
automobiles, as you have said, which was the Supreme Court
decision, but also in other sources to deal with this. So you
already have a game plan in place that you can aggressively
move forward. I expect that you are going to make the right
decision on endangerment.
But I hope then we don't have to go through another lengthy
process before we can start implementing changes, so that we
can really make a start. That is important, not only for
America, U.S. direct interests. But as has been pointed out by
so many of my colleagues, if we are going to have the
credibility internationally, we have to lead by example. If we
just keep dragging our feet, saying, OK, we have finished this
process, let's go through the next process and that is going to
take another couple hundred years before we get there, I think
it compromises America's standing internationally. You have
that opportunity, as the Administrator, to set the leadership.
I really do believe not only Americans are looking at this,
but the international community. And the Supreme Court has
given all of us hope that we can come together as a Nation to
exercise our responsibility. I understand you have to go
through your procedures. But I would hope it is not going to
be, well, we have to wait for A to be done before we can plan
for B. Because right now, we should be having, on the planning
stages, working with us, working with the Congress, working
with the different interest groups.
What we are going to do to really change the impact that
Americans have by their automobiles on greenhouse gases and
what impact we have on the other sources. As important as motor
vehicles may be to the solution, I think close to one third of
the greenhouse gas problems, we need to look at the other
sources of problems as well.
So I just urge you to carry out your responsibility as the
Administrator, and I look forward again to working with you.
Thank you, Madam Chair.
Mr. Johnson. Thank you.
Senator Boxer. Thank you.
We will have you out at a quarter of, as your staff said
you wanted to be. So I will take my last 5 minutes, and if
Senator Inhofe wants his, that is fine.
I have been listening carefully to you. You have used the
word complex many times during this hearing. I have been around
here since 1983. I was in the House for 10 years, then I came
over here. I have been to so many hearings, and you kind of get
used to when people use words like difficult to understand,
difficult to comprehend, complex, confusing, that sometimes it
is a code word for, we are just going to take our sweet time.
It is an impression that I sense throughout the Committee
here, that we are a little worried about slowing up. Senator
Carper talks about, let's not wait until a long time, Senator
Cardin was very clear on, he expected action in 30 days.
Senator Warner asked a question to you about this. And of
course there are some who I think agree with the fact that it
ought to take a long time. But I would have to say that most of
us are looking forward to your acting.
As far as I know, search the record, we didn't wait for
another country to act before we passed the Clean Air Act. We
didn't wait for another country to act before we passed the
Clean Water Act, even though other countries did contribute to
the pollution in both cases. So the fact is, we need to act,
and we shouldn't hide behind China. I am offended by that.
Since when do we wait for China to do the right thing before we
act, whether it is in foreign policy or labor regulations or
environment or anything else?
First, it seems to me the EPA under George Bush the second,
not the first, has hidden behind legalistic arguments. Those
arguments were shot down by the courts. Let me tell you what
they said about China, you went in there, not you personally,
your lawyers went in and said, we can't act until China and
India act. Listen to what they said, they took it on. They
said, ``It is not dispositive that developing countries such as
China and India are poised to increase greenhouse emissions. A
reduction in domestic emissions would slow the pace of global
emissions increase, no matter what else happens elsewhere.''
So get out behind China, get out from behind India and
let's get going. So with that in mind, you have said that you
are looking at a number of options of what to do. And those are
all being discussed by your staff since the day after the
Supreme Court case, which is heartening to know that you went
right to it.
So I am asking you that at the end of May, would you come
forward and let us know what those options are that you are
considering? Not your final conclusions, but what are those
options.
Mr. Johnson. Senator, I will be happy to discuss with you
where we are in our decision process. Again, it is complex.
[Laughter.]
Senator Boxer. We get it.
Mr. Johnson. Good. Thank you.
Senator Boxer. I am not asking you about where you are in
the process. I am asking you, will you come before us or put in
writing by the end of May all the things you are now discussing
behind closed doors? Your salary and mine, paid for by
taxpayers. Will you come and let us know at the end of May,
either personally or in writing, as to what are the options
your staff is considering to do about global warming?
Mr. Johnson. I would be happy to share with you
considerations, and wherever we are in our discussions.
Senator Boxer. So I will take that as a yes, that we will
have from you by the end of May what options you are
considering to addressing greenhouse gas emissions?
Mr. Johnson. That by the end of May, we may not be ready
for evaluating----
Senator Boxer. No, no, I wasn't asking you for an
evaluation. I want to know what you are considering, what is
the laundry list that you are considering. I think this
Committee has an interest in that, because frankly, if there
are things on that, for example, Senator Carper gave you three
very interesting ideas. We want to know, are those on the list.
I am going to take it as a yes, you said you would, so let's
just not waste a lot of time, and hopefully you will be able to
do that, because you are going to come here in June to discuss
where you are on the waiver, so we will ask you about that as
well.
I want to ask you about the coal to liquid fuel. Isn't it
true that coal to liquid fuel emit more CO2 than
traditional petroleum products?
Mr. Johnson. With present technology, that is correct.
Senator Boxer. OK, very good. Because that is important as
we look at any fuels bill looking forward. We want to make sure
we don't go ahead with fuels that commit us to even more
greenhouse gas emissions. We want to have some standards in
that.
Also, are you aware that your plans for reducing greenhouse
gas emissions using the intensity as your central focus means
there will be more global warming and not less?
Mr. Johnson. Senator, just a few weeks ago I was meeting
with the other environment ministers as part of a G8 plus 5
environment ministers meeting. Among the conclusions that they
reached as environment ministers was the need to consider
sustainable economic development in the equation as we address
global climate change. Addressing greenhouse gas intensity is
one of the ways of doing that. That is why we are doing that,
because it is important to consider economic sustainability.
Senator Boxer. Well, let me just make a point here. You
have praised the IPCC report. We have to start reducing, not
reducing the increase. That is the trick. We have to actually
start reducing.
Senator Inhofe, you have a minute--five minutes, 5 minutes
and a half.
Senator Inhofe. I appreciate Senator Carper bringing up the
farmers and how it affects this. I come from a farm State. When
I look at what has happened, the price of natural gas going
from $2 to about $7.6 just in the last 4 years, which is one of
the main ingredients of the price of fertilizer and the other
things, I think that the farmers really need to be a part of
this, and need to understand how this is all affecting them.
I won't take any more time, because you have been very
patient and very honest in your answers and I appreciate it
very much. But I think we made a commitment to you to be out of
here 12 minutes ago, and I am going to keep that commitment.
Well, it is too late to keep that, but I will do the best I
can. Thank you.
Mr. Johnson. Thank you.
Senator Boxer. Thank you very much, Administrator Johnson.
See you soon.
Mr. Johnson. Thank you, Madam Chairman.
Senator Boxer. And if we could move along and have our two
very patient former EPA Administrators come forward. We are
going to go right into your testimony.
Which one of you would like to proceed first? Is there an
order that you have decided upon? Well, why don't we start with
Mr. Reilly, because he was the first EPA Administrator, before
Administrator Browner. We will start there and move forward.
And the former General Counsel of EPA is going to join you, so
please, do. Ann Klee is coming.
Mr. Reilly, we really welcome you. We are so appreciative
to the whole panel for being here and being so patient. Go
ahead.
STATEMENT OF WILLIAM K. REILLY, SENIOR ADVISOR, TGP CAPITAL
FOUNDING PARTNER, AQUA INTERNATIONAL PARTNERS
Mr. Reilly. Thank you, Madam Chair, Senator Inhofe, members
of the Committee. It is a great honor----
Senator Boxer. Is your mic on? I know, you haven't done
this in a while.
Mr. Reilly. I haven't done this in a while, no. This is the
Committee for whom I did it. Senator Lautenberg and Senator
Lieberman were here at that time.
I am very pleased to testify here, and I salute you for
organizing this hearing so promptly after the Supreme Court's
decision.
I would say at the outset that were I the EPA
Administrator, I would welcome this decision. I think that the
decision farmers the issue of planetary protection in a
somewhat limited but a very useful way, limited to the extent
that it applies to the Environmental Protection Agency. But
essentially I think what this decision does is put the ball,
frankly, in your court. It calls for action. We will not
regulate carbon dioxide or the other greenhouse gases
adequately without the full range of interests being involved,
without the kind of attention to the complexities of the
questions that Administrator Johnson was referring to being
addressed by the Congress.
Nevertheless, the specific responsibility now is very
clear. It does rest on the Environmental Protection Agency to
respond to the Court's decision. It has huge ramifications. I
might say that I am appearing in a private capacity, but for
the last several years, I have been co-chair of the National
Commission on Energy Policy. It has had a highly inclusive
membership, very extensive research financed by Hewlett
Foundation and others. It in my view has, and it has been
analyzed by the Energy Information Agency, its costs have been
found to be reassuringly modest.
I suggest that that could be a starting point for the
Country with respect to addressing the full range of issues
involved in carbon dioxide regulation. I think frankly it has
the best prospects for enactment of any of the depending bills
at this time.
The EPA has a number of responsibilities now, and I will
suggest several areas in which I think they ought to
concentrate. First of all, what this Country, what the world
needs very urgently is a sequestration rule. Industry needs it.
The utility industry particularly needs it. China needs it.
Beginning on the development of a sequestration rule ought to
be the primary objective, priority in response to this
decision.
Second, I would say that, with respect to sequestration,
too, EPA has tremendous experience in underground injection.
The Department of Energy has a good deal of money that is now
engaged in looking at the issues with respect to sequestration.
It would be extremely helpful if some of that funding were
available to the professionals who deal with underground
injection at EPA and could bring that expertise fully to bear
on the Energy Department's activities.
Turning to the States, my advice to the Environmental
Protection Agency is, collaborate with them, and in some cases,
get out of the way of them. I am very pleased to hear that
there will be action now with respect to the waiver for the
regulation of CO2 for vehicles in California. I
would also encourage the Agency to work with Governor
Schwarzenegger on the executive order policy he established, to
have low carbon fuels. I would point out, both of these matters
have tremendous public support, bipartisan support in
California, including from Conoco Phillips, the Nation's
largest refiner, with respect to the low carbon fuels.
I would look very carefully at what the European Union has
done, particularly with respect to allocation. They have over-
allocated in the first instance. We need to learn from their
mistakes. That has had pernicious effects on the effectiveness
of their regulations, it has caused the price of permits to
plummet and has created windfalls for some firms and
disillusion on the part of many. We need to understand what
they have done, so that we don't repeat it.
China and India are key, as has been said today. Someone
has referred to the issue as involving coal cars, China and
America. That is how the carbon dioxide, and that is how the
planetary protection from greenhouse gases will be achieved. In
my time we had a great deal of experience with China, technical
assistance to the Chinese for recovery of methane from coal
mines, CFC elimination. The Chinese, in my experience with
them, and I have a good bit, would welcome this technical
assistance. They are themselves trying to improve the energy
efficiency of their economy. They will learn, I think, from
experience with us and be more ready to accept sequestration
when the time comes.
The final point I would make, if I might, Madam Chairman,
is when I took office in February 1989, we immediately began
work to try to implement, to develop a comprehensive Clean Air
Act. That included several provisions: upper atmospheric ozone
protection; ground level ozone; toxics; and the very path-
breaking acid rain program. Four months later, we submitted
that legislation to the Congress.
You will find, I believe, if you consult, and the
Administrator does, the very savvy, experienced professional
staff at the Environmental Protection Agency, who have been
preparing for this day for the better part of 20 years, that
they are much more prepared than we might imagine. Challenge
them to respond.
One other point I would make is, the recommendations I have
made to you are all actions the Administration and the
Administrator can take, irrespective of their decision with
respect to endangerment. I very much hope that the
Administrator makes that decision. But essentially, I believe
that, as I said, we are asked now to get on the right side of
history. We have an extraordinarily important opportunity. The
Supreme Court has identified it for us. The rest of us, I
think, need to respond. Not just the Agency, but I hope very
much the Congress as well. Thank you.
[The prepared statement of Mr. Reilly follows:]
Statement of William K. Reilly, Senior Advisor. TGP Capital Founding
Partner, AQUA International Partners
Madame Chairman, Senator Inhofe, Members of the Committee,
my name is William K. Reilly. I served as Administrator of the
U.S. Environmental Protection Agency under President George H.
W. Bush, from 1989 to early 1993.
Thank you for the opportunity to appear before the
Committee. I applaud your initiative on this urgent and
compelling matter. And I am pleased to appear with my
distinguished successors, Administrators Johnson and Browner.
With your permission, I will submit my formal statement for the
record.
Though I am appearing on my own behalf, I note for the
record that since 2002 I have co-chaired the bipartisan
National Commission on Energy Policy. Our 2004 report
recommended a mandatory program to reduce greenhouse gases with
various safeguards, as well as addressing many other issues in
energy policy, including oil security, supply, efficiency,
technology, and more. The Commission's staff continues to
confer widely with Members of the Senate and the House on these
matters. Were I the EPA Administrator, or a Member of Congress,
I would recognize the extensive research and inclusive
membership of the Commission, and take the Commission's
recommended policy on climate change as both an effective
national starting point and also as the policy proposal that
stands the most realistic chance of being enacted. Extensive,
detailed research financed generously by the Hewlett and other
foundations underlies the Commission's recommendations. The
Energy Information Agency has analyzed the costs of the
Commission's proposals and concluded they are reassuringly
modest. So my advice to the Congress and the Administration is,
take a hard look at the Commission's report.
You've asked me to discuss EPA's role in the wake of the
Supreme Court decision holding that EPA has authority as a
matter of law to regulate carbon dioxide. I'm not going to
delve into the legal reasoning or the language of the Court's
decision. I read it as expansive with regard to taking action
on harmful pollutants. Suffice to say, the law has now been
settled and EPA does have the authority. I might add that if I
were EPA Administrator, I would welcome that authority.
The Court's decision is of immense consequence and signals
the growing significance of concern about climate change. The
decision represents the intersection of science and public
policy. All that follows must be grounded in good science.
Indeed, the science is becoming increasingly compelling. This
Administration, as well as those of President Clinton and of
President Bush, whom I served, deserves great credit for their
support for the scientific research underpinning our
understanding of climate change. The nation has spent billions
of dollars to get to this point. This year's reports of the
Intergovernmental Panel on Climate Change (IPCC) affirm the
high degree of confidence that hundreds of participating
scientists have in the scientific findings.
When I was named EPA Administrator, one of my first
briefings was on climate change, by Dr. Frank Press, then
president of the National Academy of Sciences. EPA also had
underway in the policy office a couple of reports on the
effects of climate change and policy options to address them.
Most of this work and the work of others was premised on
computer modeling and projections, and the findings were
subsequently subjected to a lively debate about the assumptions
inherent in the models and their accuracy.
We are no longer limited to relying on computer models. As
the IPCC reports made clear, we are already seeing signs of
climate change and variability associated with the buildup of
greenhouse gases in the atmosphere. The models have been
greatly refined and it is my understanding that they now
comport well with the mounting evidence from field observations
and related research in any number of areas, from wildlife
behavior to snow pack and melting glaciers, to sea level rise,
changes in precipitation, temperature records that cannot be
dismissed as merely the result of urban heat island effect, and
more.
Not all matters are resolved, of course. Questions remain
about the timing, the magnitude, and the local impact of the
effects, and there is still much to learn about how the systems
function to shape climate on earth. But given what the IPCC
reported, we cannot afford to wait until all matters are
resolved. That was the thrust of the amicus brief that I
submitted in concert with Administrators Browner, Costle and
Train. We have not required in the past, nor should we require
in the future, an unrealistic level of certainty in addressing
serious and urgent problems such as climate change, even as we
acknowledge that we may have to change course, to take more or
less aggressive action as further information becomes
available. To delay action on climate change means that down
the road, what we do will necessitate more expensive and more
draconian measures.
In light of this evidence and the Supreme Court's decision,
what should EPA do?
The Court's decision confronts the EPA with a choice of
contesting the scientific consensus regarding the causes of
global warming, which it has conceded, and then of asserting or
rejecting in its judgment the merits of regulating what the
Court has determined to be a ``pollutant.'' It is difficult to
see how the Agency can now refrain from moving forward to
regulate greenhouse gases from automobiles and by implication
from other sources as well. The practical realities must be
faced, however. The regulation of greenhouse gases is hugely
consequential for many sectors of the economy, as for the
health and well-being of Americans and others. To ask EPA to
assume the full burden of recommending in a regulatory program
the full gamut of measures necessary to the task is
unrealistic. It is particularly so given that the Agency is
part of an Administration that has consistently declined to
embrace the regulation of carbon dioxide. One cannot expect a
robust rulemaking in such a circumstance. The situation cries
out for Congressional action and that, in my view, is a
principal merit in the Court's decision.
So it is enormously ambitious to expect that a regulatory
agency alone, even one as well-versed as U.S. EPA, can craft a
regulatory regime governing something so far-reaching with such
substantial impacts on our economy and industry, on the natural
resources on which we depend, on U.S. foreign policy and the
prospects for development in the world's poorest countries. And
yet that is the challenge.
I would note that regarding the Clean Air Act of 1990, with
which I had something to do, it took more than a decade for
this legislation to come together on acid rain, standards for
air toxics, upper atmospheric ozone depletion, and the other
issues it addressed and for the political context to ripen. EPA
staff had spent the 1980s preparing the analyses which they
knew would one day be needed when the moment came that clean
air legislation stood a serious chance of passage. Between my
swearing in and the President's submission of a comprehensive
legislative proposal to Congress, we required just four months.
That we could move so quickly is a tribute to the
substantial and rigorous work done by the Agency during the
1980s, including seminal work on emissions trading with
Environmental Defense Fund and Resources For the Future,
analyses of costs and benefits, and more. The acid rain trading
program, which emerged from the 1990 clean air law and which by
all accounts has been a resounding success, is the reference
case for our way into a cap-and-trade regime for carbon
dioxide.
I would be remiss if I didn't state my high regard for the
senior career staff in the EPA's Air Office and those who
served in what was our Office of Policy, Planning and
Evaluation. Contrary to the belief in some quarters, they are
not eco-cowboys who find something to regulate under every rock
they lift. They are smart, creative, experienced, and dedicated
people, and they grasp full well the implications and
tradeoffs, the costs and benefits associated with fulfilling
their mission to clean up and safeguard our nation's air. The
country has been well served by these civil servants, and I
expect no less from them in dealing with climate change.
During the past few years they have been carrying out the
research and analysis of options for regulating greenhouse
gases just as in the 1980s they prepared analysis of directions
a new clean air act might take. What are realistic targets and
timetables? Would analysis show a carbon tax to be more
effective? Or a cap-and-trade system? What are the downsides?
Clearly, a carbon tax is beyond EPA's jurisdiction and I would
be wary of recommending one if the implication was that EPA
would therefore take no steps to regulate carbon pursuant to
the Agency's authority.
For an emissions trading program, do we want a safety valve
to contain costs? What is the point of regulation, which
sectors? How would permits be distributed, how many, and based
on what criteria? What are the implications of these
approaches? What is the state of technology, the connections
with other emissions of concern, notably mercury, sulfur
dioxide and other criteria pollutants? EPA staff are more
prepared than we know to put forth the options for designing a
carbon policy. They have spent more than 15 years preparing for
this moment. So my advice is, challenge them to present the
policy options.
I do not expect that even with heroic efforts, these
matters will translate immediately into a regulatory program.
There is a lengthy regulatory process, as you know, involving
not just interagency reviews, but consultations with States and
industrial sectors and others outside the federal family. There
are formal administrative procedures to follow and a record to
prepare, and that could be substantial for an issue as complex
as regulating carbon dioxide. And of course, there is the
potential for litigation once a rule is adopted. Bill
Ruckelshaus once observed that 4 of every 5 major EPA decisions
wind up in court.
To be sure, there is much activity in Congress, both in the
Senate and the House, and I believe that ultimately the issue
of climate change needs to be addressed by Congress. That said,
there is no reason for EPA to delay. On a parallel track, EPA
should begin the regulatory process for carbon dioxide. This
would be a timely and useful step, and would both inform the
legislative debate and keep pressure on Congress to continue
its work. At the same time, EPA's efforts now will prepare the
Agency for quick progress in implementing any legislation after
enactment, as was the case after passage of the 1990 Clean Air
Act.
I would welcome the full involvement of the President and
the Administration in these deliberations. Indeed, that would
help engage some who are still skeptical about the science or
the nation's ability to take the issue head on, and would help
ensure that economic impacts, foreign policy concerns, and
other important considerations are taken into account. I do not
support the case for awaiting the arrival of a new President
and a new Administration to address this issue.
Besides beginning this process, there are a number of other
important steps the Agency should take.
First, California has a request pending for a waiver to
reduce CO2 emissions from automobile fuels by 30 per cent,
beginning with the 2016 model year. I understand that process
is getting underway, and I would urge all due speed.
California's proposal is the product of a bipartisan effort and
has tremendous public support. The Supreme Court's decision
should remove any roadblocks with respect to the review
process.
Second, I would urge EPA to take a good look at what
Governor Schwarzenegger of California has called for, via
Executive Order, to set a low carbon standard for fuels. This
seems to me a very innovative approach to ensure that, as we
struggle with the very real issue of oil security, we do not
substitute for what we now use new fuels with worse greenhouse
gas impacts. I doubt any regulatory entity has the experience
with fuels that EPA does, with a world-class mobile source
laboratory in Michigan, and from the Agency's prior experience
in removing lead from gasoline, and the work regarding
particulates, ozone, and the recent well-regarded rule lowering
sulfur content in diesel fuel. I applaud Administrator
Johnson's decision and the support he had from the
Administration in getting this rule out. It is one of the most
significant contributions to clean air. I should point out that
the low carbon standard for fuels initiative also enjoys
widespread support in California, including that of
ConocoPhillips, the nation's largest refiner.
Third, I would like to see EPA develop the regulatory
approach for carbon capture and sequestration. That is the key
to using our abundant coal resources and to ensuring that other
countries with substantial coal reserves do not undo all that
we might accomplish in reducing greenhouse gases. Because of
its experience and its record in dealing with underground
injection, EPA's Water Office in partnership with other parts
of the Agency, and most importantly with the Department of
Energy, is well-suited to undertake this task. It is my
understanding, however, that although the Energy Department has
substantial funding to develop this critical technology, EPA
has little, making it difficult to draw on the Agency's
experience and credibility with the various stakeholders. I
would add that many in the power industry want to see a
regulatory program for carbon capture and sequestration
quickly, lest the absence of a regulatory framework delay
testing and deployment of this promising, indeed, essential
technology. Not just America, but China, India and other coal-
rich nations stand in urgent need of carbon sequestration
technology.
Fourth, a number of States are taking action on greenhouse
gas reductions and I would ensure that EPA is well-versed on
these actions and the regional compacts that are beginning to
emerge. A national program invariably invites the question of
federal pre-emption and that will surely surface with respect
to regulating carbon dioxide. Moreover, it behooves us to learn
from what the States are doing. I would add that virtually
every law in the EPA administrator's portfolio had origins at
the State level, none more so than California and air quality.
I would also call your attention to the good work of the
Center for Climate Strategy, which has been working with a
couple of dozen states to prepare greenhouse gas inventories,
consider policy options, costs, and associated measures, with
an eye toward State action and the role of states in
implementing a national program.
Fifth, I would urge EPA to become fully versed in the
European Union's emissions trading program. There is evidence
that too many credits were distributed in the first round of
permit allocations, resulting in less than optimal performance,
a drop in permit values, and a windfall for some firms. We need
to learn from that experience in this area of allocation, lest
we repeat it.
Sixth, I would encourage EPA and others in the federal
government to remain on top of climate developments in China
and India, two critical countries with respect to greenhouse
gas emissions. My experiences in China with the Energy
Foundation's China Sustainable Energy Program suggest that
although not now party to any international protocols requiring
it to reduce greenhouse gases, China is well aware of the
potential impacts and is taking measures to improve efficiency
of energy use. We will need to engage these countries in
international forums and we would be well-served by following
developments in those countries closely, and by establishing
contacts at the technical level which I believe the Chinese
would welcome.
In closing, let me state that as important as a mandatory
national program is to reduce carbon dioxide emissions, it is
but one measure we need. If scientists are right about the
impact of doubling carbon dioxide in the atmosphere over pre-
industrial levels, which is where we are heading under business
as usual indeed, we may see a tripling or more if we don't take
action soon then we will be called on to make far more drastic
cuts in greenhouse gas emissions, well below today's level,
even while we continue to grow in population and economic
activity.
That goal would be achievable only with a suite of policies
and programs going beyond a cap-and-trade system. We will need
substantially improved mileage standards for automobiles,
trucks, and other vehicles, which will help on oil security as
well. We will want a national renewable portfolio standard to
advance deployment of renewable energy technologies, much as a
couple of dozen States have already enacted. We will need to
invest heavily in technology research, development, and
deployment. I mentioned carbon capture and sequestration.
Cellulosic ethanol and other promising bio-fuels also merit
increased funding. We will want to move aggressively on
efficiency standards. Some 22 or so are currently under
development at the Department of Energy. We will need to
involve the States, for they have a major role in building
codes, water resource management, land use and transportation
planning. They build and operate public buildings and
institutions, and we now know that for all of the design
techniques to improve energy efficiency, most of the savings
come in operations over the life of a facility.
And as important as mitigation is in fending off the worst
scenarios, we will need to prepare to adapt, for the science is
telling us that we are seeing the effects today and we know
that carbon dioxide and other greenhouse gases are long-lived
in the atmosphere, so more elevated concentrations are already
built into the system.
Congress has engaged the climate issue in a direct and
serious way. Within the next several months, there may be a
window of opportunity for legislation on climate change. You
know better than I. After that, we may well see 2008 campaign
politics adding to the hurdles. That would make EPA's endeavors
all the more important. I wish you and your colleagues success.
The country, indeed the entire world, is counting on it.
Thank you.
------
Response by William K. Reilly to an Additional Question From Senator
Boxer
Question Earlier this year, a buyout of Texas Utilities
Corporation was led by an investor group primarily led by
Kohlberg Kravis Roberts & Company, Texas Pacific Group, and
Goldman Sachs & Company. Articles written at the time indicate
that conversations about TXU's coal plants occurred prior to
the buyout bid. When was the first time you discussed TXU's
proposed coal plant constructions with Fred Krupp, President of
Environmental Defense, as well as any other environmental
organization representatives? Also, when did you communicate
with any of them about the investor group's plans to reduce the
number of coal plants built?
Response. I first communicated the investor group's
interest in negotiating future TXU power plant development
plans with Natural Resource Defense Council's Ralph Cavanagh on
Saturday, February 10, 2007. I described generally the
framework of the investor group's thinking about future plans
of Texas Utilities affecting the environment, should the
investor group succeed in acquiring the company. I later
communicated the same message of interest in negotiating with
Fred Krupp of Environmental Defense and Dave Hawkins of NRDC on
Monday, February 19, 2007.
Senator Boxer. Thank you so much, former Administrator
Reilly. I think your words were very straightforward and
eloquent.
Now we will hear from former EPA Administrator Browner, who
was appointed by the Clinton Administration and served well. We
are going to add another minute thirty, so you will have six
thirty.
STATEMENT OF CAROL M. BROWNER, PRINCIPAL, THE ALBRIGHT GROUP,
LLC
Ms. Browner. Thank you very much, and thank you, Madam
Chair, for the opportunity to be here, Senator Inhofe and
members of the Committee.
Madam Chair, if I might begin by applauding your leadership
specifically on the issue of climate change and particularly
the introduction of the Sanders-Boxer legislation. Let me also
join with my predecessor, Mr. Reilly, in recognizing the
tremendous people who work at the EPA, the long-serving, career
scientists, engineers and lawyers. As he has said, they have
been thinking about this day for a very, very long time.
I am here today to speak to you about the most important,
the most pressing environmental public health issue the world
has ever faced. I am very pleased with all the things I was
able to accomplish during my tenure, my 8 year tenure at EPA,
including the fact that in 1998, in response to a question from
Congressman DeLay, we wrote a legal memorandum reviewing the
Clean Air Act and determined that the Clean Air Act on the
books, passed by Mr. Reilly's leadership in 1990, does in fact
allow EPA to regulate greenhouse gas emissions.
Mr. Reilly, myself and two other Administrators joined
together to file an amicus brief in the Supreme Court matter. I
am very, very proud of the fact that the legal memorandum was
actually referenced in the Supreme Court's opinion. This is a
landmark decision. There are a number of things EPA can and
should do.
I am encouraged that Administrator Johnson today announced
that they will commence a process with respect to the
California waiver. Let me say, as someone who made a lot of
regulatory decisions, it is not unreasonable, as Senator Cardin
suggested, that they could be done by the middle of this
summer, as apparently the EPA's staff themselves has suggested.
That is not an unreasonable timeframe. The States have been
waiting. They deserve an answer.
Second, I think they can make an endangerment finding. I
made several during my tenure at EPA. They have more science
than any decision EPA has ever sought to make. They have an
overwhelming amount of science on which they can base an
endangerment decision. Again, I think they can do this in a
timely manner. This is not something that should take years. It
make take several months, but certainly not years. If they move
forward in a manner which suggests years, they are simply
dragging their feet.
In addition to what EPA can do today, and there are many
other things, I do believe, as Mr. Reilly said, that it is
incumbent upon Congress to act. The magnitude of this problem
is such, it will take the leadership of this body to put in
place the kind of programs that I ultimately think will be
important.
It is interesting, when you look at our 30, 35 years of
history with respect to environmental protection in this
Country, of the Clean Air Act, the Clean Water Act, there are
really three things that have always guided our efforts. First
is the science. As I already said, we have an abundance of
science. Second, we have been guided by a belief that American
innovation and ingenuity will rise to the occasion, will find
the answers.
Someone spoke previously about chlorofluorocarbons. In
1990, when this body, when the Congress decided to ban
chlorofluorcarbons, there were debates about there are no
replacements, what are we going to do, we won't have
refrigeration. Well, guess what? Once Congress said, they're
banned, and Mr. Reilly played an important role in that, once
that was said, good old American innovation and ingenuity found
a solution. We found it more quickly and for less money than we
anticipated. We can meet this challenge.
The third principle that has guided us is a moral
imperative, an imperative that we protect our environment, that
we protect the health of our people. And so we should be guided
here. I believe that EPA has the morals, and with the Supreme
Court decision, the clear legal authority to set greenhouse gas
standards in accordance with the Clean Air Act, to limit
climate change, to protect the health of future generations.
It is said that nine-tenths of wisdom is being wise and
kind. Congress also had the prerogative to ensure that EPA does
its duty, to hold EPA accountable and ultimately to take bold
action on its own. We have the science. The will has been
summoned. The technology will follow. Have no doubt: we can
address this problem. Anything else would be a felony against
the future, a failure to meet our responsibility to our
children and theirs.
I thank you for the opportunity to be here to talk about,
again, what I believe is the greatest threat to environmental
and public health and a security threat to this world. Thank
you.
[The prepared statement of Ms. Browner follows:]
Statement on Carol M. Browner, Principal, The Albright Group, LLC
Good morning, Madam Chairman, Senator Inhofe, and members
of the Committee. I appreciate the opportunity to speak to you
today on the most pressing environmental and public health
issue that our country, and for that matter the world, has ever
faced. That is, climate change.
During my 8 years as the Administrator of the EPA, I worked
hard to protect the environment and public health, both for our
generation and future generations. Today, I would like to
discuss how the current EPA can use the mandate given by the
Supreme Court in Massachusetts v. EPA to respond to the climate
change crisis immediately.
First--the EPA can grant California its federal waiver to
enforce its own greenhouse gas standards. California has thus
far outpaced the Federal Government on greenhouse gas
regulation--it has ignored critics and naysayers, moving ahead
with an aggressive plan. The EPA should in turn recognize this
plan by granting California the authority to put it into place.
Second--EPA should act now on setting greenhouse gas standards
for vehicles and power plants, two significant sources of
emissions.
These are a few things EPA can do right now to regulate
emissions, but it is not enough. The magnitude of the Supreme
Court decision warrants Congressional leadership and immediate
action as well.
As we seek to address climate change, both through the
actions of EPA and through Congress, three realities should
guide us. First, that the science on climate change cannot, at
this point, be in doubt. Second, that we can find common-sense,
cost-effective ways to regulate greenhouse gas emissions. And
third, that EPA and Congress now have the undisputed authority
and responsibility to regulate the emission of greenhouse
gases.
When it comes to science, the facts continue to roll in,
and the scientific community has reached a consensus. The
considered judgment of twenty-five hundred of the world's top
climate change scientists, 11 national scientific academies,
and hundreds of scientists contributing to the IPCC is simply
this: climate change is real, it is caused by human activities,
it is rapidly getting worse, and it will transform both our
planet and humanity if action is not taken now.
Such action need not bankrupt us or disrupt our economy. We
can and we must find cost- effective ways to meet greenhouse
gas standards. Historically, American innovation and ingenuity
have served us well. Let us harness them now. In the past, we
have been willing to set standards without having in hand the
actual technology necessary to meet such standards. For
example, when Congress decided to ban chlorofluorocarbons,
there
was no technology to replace CFCs. But once Congress made
the decision, there was a guaranteed market for replacement;
companies competed with each other and, within a relatively
short time, there was a replacement, and at far less cost than
had been anticipated. We may not have a perfect formula for
cutting greenhouse gas emissions yet, but that is no reason to
hold off on setting regulations and enforcing them.
The EPA has the moral--and now the legal--authority to set
greenhouse standards in accordance with the Clean Air Act to
limit climate change and protect the heath of future
generations. It is said that nine-tenths of wisdom is being
wise in time. Congress also has the prerogative to ensure that
EPA does its duty and to take bold action on its own.
We have the science; the will has been summoned; the
technology will come. Have no doubt - we can stop global
warming. Anything less would be a felony against the future, a
failure to meet our responsibility to our children and theirs.
My request is that we do our duty.
Thank you very much. Now I would be pleased to respond to
any questions you might have.
Thank you.
Attachment A: ``EPA's Authority to Regulate Pollutants
Emitted by Electric Power Generation Sources'' Memorandum from
Jonathan Z. Cannon to Carol M. Browner, April 10, 1998.
Attachment B: Testimony of Gary S. Guzy before a joint
hearing of the Subcommittee on National Economic Growth,
Natural Resources and Regulatory Affairs of the Committee on
Government Reform and the Subcommittee on Energy and
Environment of the Committee on Science, US House of
Representatives, October 6, 1999.
ATTACHMENT A:
i. introduction and background
This opinion was prepared in response to a request from
Congressman DeLay to you on March 11, 1998, made in the course
of a Fiscal Year 1999 House Appropriations Committee Hearing.
In the Hearing, Congressman DeLay referred to an EPA document
entitled ``Electricity Restructuring and the Environment: What
Authority Does EPA Have and What Does It Need.'' Congressman
DeLay read several sentences from the document stating that EPA
currently has authority under the Clean Air Act (Act) to
establish pollution control requirements for four pollutants of
concern from electric power generation: nitrogen oxides
(NOx), sulfur dioxide (SO2), carbon
dioxide (CO2), and mercury. He also asked whether
you agreed with the Statement, and in particular, whether you
thought that the Clean Air Act allows EPA to regulate emissions
of carbon dioxide. You agreed with the Statement that the Clean
Air Act grants EPA broad authority to address certain
pollutants, including those listed, and agreed to Congressman
DeLay's request for a legal opinion on this point. This opinion
discusses EPA's authority to address all four of the pollutants
at issue in the colloquy, and in particular, CO2,
which was the subject of Congressman DeLay's specific question.
The question of EPA's legal authority arose initially in
the context of potential legislation addressing the
restructuring of the utility industry. Electric power
generation is a significant source of air pollution, including
the four pollutants addressed here. On March 25, 1998, the
Administration announced a Comprehensive Electricity Plan
(Plan) to produce lower prices, a cleaner environment,
increased innovation and government savings. This Plan includes
a proposal to clarify EPA's authority regarding the
establishment of a cost-effective interstate cap and trading
system for NOx reductions addressing the regional
transport contributions needed to attain and maintain the
Primary National Ambient Air Quality Standards (NAAQS) for
ozone. The Plan does not ask Congress for authority to
establish a cap and trading system for emissions of carbon
dioxide from utilities as part of the Administration's
electricity restructuring proposal. The President has called
for cap-and-trade authority for greenhouse gases to be in place
by 2008, and the Plan States that the Administration will
consider in consultation with Congress the legislative vehicle
most appropriate for that purpose.
As this opinion discusses, the Clean Air Act provides EPA
authority to address air pollution, and a number of specific
provisions of the Act are potentially applicable to control
these pollutants from electric power generation. However, as
was made clear in the document from which Congressman DeLay
quoted, these potentially applicable provisions do nor easily
lend themselves to establishing market-based national or
regional cap-and-trade programs, which the Administration
favors for addressing these kinds of pollution problems.
ii clean air act authority
The Clean Air Act provides that EPA may regulate a
substance if it is (a) an ``air pollutant,''and (b) the
administrator makes certain findings regarding such pollutant
(usually related to danger to public health, welfare, or the
environment) under one or more of the Act's regulatory
provisions.
A. Definition of Air Pollutant
Each of the four substances of concern as emitted from
electric power generating units falls within the definition of
``air pollutant. under section 302(g). Section 302(g) defines
air pollutant'' as
any air pollution agent or combination of such agents,
including any physical, chemical, biological, [or]--radioactive
. substance or matter which is emitted into or otherwise enters
the ambient air. Such term includes any precursors to the
formation of any air pollutant, to the extent that the
Administrator has identified such precursor or precursors for
the particular purpose for which the term ``air pollutant'' is
used.
This broad definition States that ``air pollutant''
includes any physical, chemical, biological, or radioactive
substance or matter that is emitted onto or otherwise enters
the ambient air SO2, NOx, CO2,
and mercury from electric power generation are each a
``physical [and] chemical . . . substance which is emitted into
. . . the ambient air,'' and hence, each is an air pollutant
within the meaning of the Clean Air Act.\1\
---------------------------------------------------------------------------
\1\See also section 103(g) of the Act (authorizes EPA to conduct a
basic research and technology program to develop and demonstrate
nonregulatory strategies and technologies for air pollution prevention,
which shall include among the program elements ``[i]mprovements in
nonregulatory strategies and technologies for preventing or reducing
multiple air pollutants, including sulfur oxides, nitrogen oxides,
heavy metals, PM----10 (particulate matter), carbon monoxide, and
carbon dioxide, from stationary sources, including fossil fuel power
plants.'')
---------------------------------------------------------------------------
A substance can be an air pollutant even though it is
naturally present in air in some quantities. Indeed, many of
the pollutants that EPA currently regulates are naturally
present in the air in some quantity and are emitted from
natural as well as anthropogenic sources. For example,
SO2 is emitted from geothermal sources; volatile
organic compounds (precursors to ozone) are emitted by
vegetation and particulate mater and NOx, are formed
from natural sources through natural processes, such a
naturally occurring forest fires. Some substances regulated
under the Act as hazardous air pollutants are actually
necessary in trace quantities for human life, but are toxic at
higher levels or through other routes of exposure. Manganese
and selenium are two examples of such pollutants. EPA regulates
a number of naturally occurring substances as air pollutants,
however, because human activities have increased the quantities
present in the air to levels that are harmful to public health,
welfare, or the environment.
B. EPA Authority to Regulate Air Pollutants
EPA's regulatory authority extends to air pollutants,
which, as discussed above, are defined broadly under the Act
and include SO2, NOx, CO2, and
mercury emitted into the ambient air. Such a general Statement
of authority is distinct from an EPA determination that a
particular air pollutant meets the specific criteria for EPA
action under a particular provision of the Act. A number of
specific provisions of the Act are potentially applicable to
these pollutants emitted from electric power generation.\2\
Many of these specific provisions for EPA action share a common
feature in that the exercise of EPA's authority to regulate air
pollutants is linked to determination by the Administrator
regarding the air pollutants' actual or potential harmful
effects on public health, welfare or the environment. See also
sections 108, 109, 111(b), 112, and 115. See also sections
202(a), 211(c), 231, 612, and 615. The legislative history of
the 1977 Clean Air Act Amendments provides extensive discussion
of Congress' purposes in adopting the language used throughout
the Act referencing a reasonable anticipation that a substance
endangers public health or welfare. One of these purposes was
``to emphasize the preventative or precautionary nature of the
act, i.e., to assure that regulatory action can effectively
prevent harm before it occurs, to emphasize the predominant
value of protection of public health.'' H.R. Rep. No. 95294
95th Cong., 1st Sess, at 49 (Report of the Committee on
Interstate and Foreign Commerce). Another purpose was ``No
assure that the health of susceptible individuals, as well as
healthy adults, will be encompassed in the term 'public
health,' . . .'' Id. at 50. ``Welfare'' is defined in section
302(h) of the Act, which States:
---------------------------------------------------------------------------
\2\See. e g., section 108 (directs Administrator to list and issue
air quality criteria for each air pollutant that causes or contributes
to air pollution that may reasonably be anticipated to endanger public
health or welfare and that is present in the ambient air due to
emissions from numerous or diverse mobile or stationary sources);
section 109 (directs Administrator to promulgate national primary and
secondary ambient air quality standards for each air pollutant for
which there are air quality criteria, to be set at levels requisite to
protect the public health with an adequate margin of safety (primary
standards) and to protect welfare (secondary standards)), Section 110
(requires States to submit State implementation plans (S1Ps) to meet
standards); Section 111 (b) (requires Administrator to list, and set
Federal performance standards for new sources in, categories of
stationary sources that cause or contribute significantly to air
pollution that may reasonably be anticipated to endanger public health
or welfare); section 111(d) (States must establish performance
standards for existing sources for any air pollutant (except criteria
pollutants or hazardous air pollutants) that would be subject to a
performance standard if the sources were a new source), section. 112(b)
(lists 188 hazardous air pollutants and authorizes Administrator to add
pollutants to the list that may present a threat of adverse human
health effect or adverse environmental effects); section 112(d)
(requires Administrator to set emissions standards for each category or
subcategory of major and area sources that the Administrator has listed
pursuant to section 119(c)); section 112(n)(1)(A) (requires
Administrator to study and report to Congress on the public health
hazards reasonably anticipated from emissions of limited hazardous air
pollutants from electric utility steam generating units, and requires
regulation if appropriate and necessary); section 115 (Administrator
may require State action to control certain air pollution if, on the
basis of certain reports, she has reason to believe that any air
pollutant emitted in the United States causes or contributes to air
pollution that may be reasonably anticipated to endanger public health
or welfare in a foreign country that has given the United States
reciprocal rights regarding air pollution control) Title IV
(establishes cap-and-trade system for control of SO2 from
electric power generation facilities and provides for certain controls
on NOx).
---------------------------------------------------------------------------
[a]ll language referring to effects on welfare includes,
but is not limited to, effects on soils, water, crops,
vegetation, man-made materials, animals, wildlife, weather,
visibility, and climate, damage to and deterioration of
property, and hazards to transportation, as well as effects on
economic values and on personal comfort and well-being, whether
caused by transformation, conversion, or combination with other
air pollutants.\3\
---------------------------------------------------------------------------
\3\The language in Section 302(h) listing specific potential
effects on welfare, including the references to weather and climate,
dates back to the 1970 version of the Clean Air Act.
---------------------------------------------------------------------------
EPA has already regulated SO2, NOx,
and mercury based on determinations by EPA or Congress that
these substances have negative effects on public health,
welfare, or the environment. While CO2, as an air
pollutant, is within EPA's scope of authority to regulate, the
Administrator has not yet determined that CO2 meets
the criteria for regulation under one or more provisions of the
Act. Specific regulatory criteria under various provisions of
the Act could be met if the Administrator determined under one
or more of those provisions that CO2 emissions are
reasonably anticipated to cause or contribute to adverse
effects on public health, welfare, or the environment.
C. EPA Authority to Implement an Emissions Cap-and-Trade Approach
The specific provisions of the Clean Air Act that are
potentially applicable to control emissions of the pollutants
discussed here can largely be categorized as provisions
relating to either State programs for pollution control under
Title I (e.g., sections 107, 108, 109, 110, 115, 126, and Part
D of Title I), or national regulation of stationary sources
through technology-based standards (e.g., sections 111 and
112). None of these provisions easily lends itself to
establishing market-based national or regional emissions cap-
and-trade programs.\4\
---------------------------------------------------------------------------
\4\Title 1V of the Act provides explicit authority for a cap and
trade program for SO2 emissions from electric power
generating sources.
---------------------------------------------------------------------------
The Clean Air Act provisions relating to State programs do
not authorize EPA to require States to control air pollution
through economically efficient cap-and-trade programs and do
not provide full authority for EPA itself to impose such
programs. Under certain provisions in Title I, such as section
110, EPA may facilitate regional approaches to pollution
control and encourage States to cooperate in a regional, cost-
effective emissions cap-and-trade approach (see Notice of
Proposed Rulemaking: Finding of Significant Contribution and
Rulemaking for Certain States in the Ozone Transport Assessment
Group Region for Purposes of Reducing Regional Transport of
Ozone, 62 F.R. 60318 (Nov. 7, 1997)). EPA does not have
authority under Title Ito require States to use such measures,
however, because the courts have held that EPA cannot mandate
specific emission control measures for States to use in meeting
the general provisions for attaining ambient air quality
standards. See Commonwealth of Virginia v. EPA, 108 F.3d 1397
(D.C. Cir. 1997). Under certain limited circumstances where
States fail to carry out their responsibilities under Title I
of the Clean Air Act, EPA has authority to take certain
actions, which might include establishing a cap-and-trade
program.\5\ Yet EPA's ability to invoke these provisions for
Federal action depends on the actions or inactions of the
States.
---------------------------------------------------------------------------
\5\For example, section 110(c) requires EPA to promulgate a Federal
implementation plan where EPA finds that a State has failed to make a
required submission of a SIP or that the SIP or SIP revision does not
satisfy certain minimum criteria, or EPA disapproves the SIP submission
in whole or in part in addition, section 126 provides that a State or
political subdivision may petition the Administrator for certain
findings regarding emissions from certain stationary sources in another
State. If the Administrator grants the petition, she may establish
control requirements applicable to sources that were the subject of the
petition.
---------------------------------------------------------------------------
Technology-based standards under the Act directed to
stationary sources have been interpreted by EPA not to allow
compliance through intersource cap-and-trade approaches. The
Clean Air Act provisions for national technology-based
standards under sections 111 and 112 require EPA to promulgate
regulations to control emissions of air pollutants from
stationary sources. To maximize the opportunity for trading of
emissions within a source. EPA has defined the term
``stationary source'' expansively, such that a large facility
can be considered a ``source.'' Yet EPA has never gone so far
as to define as a source a group of facilities that are not
geographically connected, and EPA has long held the view that
trading across plant boundaries is impermissible under sections
111 and 112. See, e.g., National Emission Standards for
Hazardous Air Pollutants for Source Categories; Organic
Hazardous Air Pollutants from the Synthetic Organic Chemical
Manufacturing Industry, 59 Fed. Reg. 19402 at 19425-26 (April
22, 1994).
iii. conclusion
EPA's regulatory authority under the Clean Air Act extends
to air pollutants, which, as discussed above, are defined
broadly under the Act and include SO2,
NOx, CO2, and mercury emitted into the
ambient air. EPA has in fact already regulated each of these
substances under the Act, with the exception of CO2.
While CO2 emissions are within the scope of EPA's
authority to regulate, the Administrator or has made no
determination to date to exercise that authority under the
specific criteria provide under any provision of the Act.
With the exception of the SO2 provisions focused
on acid rain, the authorities potentially available for
controlling these pollutants from electric power generating
sources do not easily lend themselves to establishing market-
based national or regional cap-and-trade programs, which the
Administration favors for addressing these kinds of pollution
problems. Under certain limited circumstances, where States
fail to carry out their responsibilities under Title I of the
Act, EPA has authority to take certain actions, which might
include establishing a cap-and-trade program. However, such
authority depends on the actions or inactions of the States.
ATTACHMENT B:
Statement of Gary S. Guzy, General Counsel, U.S. Environmental
Protection Agency
Thank you, Chairman McIntosh, Chairman Calvert, and.
Members of the Subcommittees, for the invitation to appear here
today. I am pleased to have this opportunity to explain the
U.S. Environmental Protection Agency's (EPA) views as to the
legal authority provided by the Clean Air Act (Act) to regulate
emissions of carbon dioxide, or CO2.
Before I do, however, I would like to stress, as EPA
repeatedly has Stated in letters to Chairman McIntosh and other
Members of Congress, that the Administration has no intention
of implementing the Kyoto Protocol to the United Nations
Framework Convention on Climate Change prior to its
ratification with the advice and consent of the Senate.' As I
indicated in my letter of September 17, 1999 to Chairman
McIntosh, there is a clear difference between actions that
carry out authority under the Clean Air Act or other domestic
law, and actions that would implement the Protocol. Thus, there
is nothing inconsistent in assessing the extent of current
authority under the Clean Air Act and maintaining our
commitment not to implement the Protocol without ratification.
Some brief background information is helpful in
understanding the context for this question of legal authority.
In the course of generating electricity by burning fossil
fuels, electric power plants emit into the air multiple
substances that pose environmental concerns, several of which
are already subject to some degree of regulation. Both industry
and government share an interest in understanding how different
pollution control strategies interact. These interactions are
both physical (strategies for controlling emissions of one
substance can affect emissions of others) and economic
(strategies designed to address two or more substances together
can cost substantially less than strategies for individual
pollutants that are designed and implemented independently).
EPA has worked with a broad array of stakeholders to evaluate
multiple-pollutant control strategies for this industry in a
series of forums, dating back to the Clean Air Power Initiative
(CAPI) in the mid-1990's. While the CAPI process focused on
SO2 and NOx, a broad range of
participants, including representatives of power generators,
the United Mine Workers, and environmentalists, expressed
support for inclusion of CO2 emissions, along with
SO2, NOx, and mercury, in subsequent
analyses. One conclusion that emerged from these analytical
efforts is that integrated strategies using market-based ``cap-
and-trade'' approaches like the program currently in place to
address acid rain would be the most flexible and lowest cost
means to control multiple pollutants from these sources.
On March 11, 1998, during hearings on EPA's fiscal year
appropriations, Representative DeLay asked the Administrator
whether she believed that EPA had authority to regulate
emissions of pollutants of concern from electric utilities,
including CO2. She replied that the Clean Air Act
provides such authority, and agreed to Representative DeLay's
request for a legal opinion on this point.
Therefore, my predecessor, Jonathan Z. Cannon, prepared a
legal opinion for EPA Administrator Carol Browner on the
question of EPA's legal authority to regulate several
pollutants, including CO2 emitted by electric power
generation sources. The legal opinion requested by Rep. DeLay
was completed on April 10, 1998. It addressed the Clean Air Act
authority to regulate emissions of four pollutants of concern
from electric power generation: nitrogen oxides
(NOx), sulfur dioxide (SO2), mercury, and
CO2. Because today's hearing is focused exclusively
on CO2, I will summarize the opinion's conclusions
only as they relate to that substance.
The Clean Air Act includes a definition of the term ``air
pollutant,'' which is the touchstone of EPA's regulatory
authority over emissions. Section 302(g) defines ``air
pollutant'' as any air pollution agent or combination of such
agents, including any physical, chemical, biological, [or]
radioactive . . . substance or matter which is emitted into or
otherwise enters the ambient air. Such term includes any
precursors to the formation of any air pollutant, to the extent
that the Administrator has identified such precursor or
precursors for the particular purpose for which the term ``air
pollutant'' is used.
Mr. Cannon noted that CO2 is a ``physical [and]
chemical substance which is emitted into. . . the ambient
air,'' and thus is an ``air pollutant'' within the Clean Air
Act's definition. Congress explicitly recognized emissions of
CO2 from stationary sources, such as fossil fuel
power plants, as an ``air pollutant'' in section 103(g) of the
Act, which authorizes EPA to conduct a basic research and
technology program to include, among other things,
``[i]mprovements in nonregulatory strategies and technologies
for preventing or reducing multiple air pollutants, including
sulfur oxides, nitrogen oxides, heavy metals, PM--10
(particulate matter), carbon monoxide, and carbon dioxide, from
stationary sources, including fossil fuel power plants.''
(Emphasis added.)
The opinion explains further that the status of
CO2 as an ``air pollutant'' is not changed by the
fact that CO2 is a constituent of the natural
atmosphere. In other words, a substance can be an ``air
pollutant'' under the Clean Air Act's definition even if it has
natural sources in addition to its man-made sources. EPA
regulates a number of naturally occurring substances as air
pollutants because human activities have increased the
quantities present in the air to levels that are harmful to
public health, welfare, or the environment. For example,
SO2 is emitted from geothermal sources; volatile
organic compounds (VOSs), which are precursors to
harmful ground-level ozone, are emitted by vegetation. Some
substances regulated under the Act as hazardous air pollutants
are actually necessary in trace quantities for human life, but
are toxic at higher levels or through other routes of exposure.
Manganese and selenium are two examples of such pollutants.
Similarly, in the water context, phosphorus is regulated as a
pollutant because although it is a critical nutrient for
plants, in excessive quantities it kills aquatic life in lakes
and other water bodies.
While CO2, as an ``air pollutant,'' is within
the scope of the regulatory authority provided by the Clean Air
Act, this by itself does not lead to regulation. The Clean Air
Act includes a number of regulatory provisions that may
potentially be applied to an air pollutant. But before EPA can
actually issue regulations governing a pollutant, the
Administrator must first make a formal finding that the
pollutant in question meets specific criteria laid out in the
Act as prerequisites for EPA regulation under its various
provisions. Many of these specific Clean Air Act provisions for
EPA action share a common feature in that the exercise of EPA's
authority to regulate air pollutants is linked to a
determination by the Administrator regarding the air
pollutant's actual or potential harmful effects on public
health, welfare or the environment. For example, EPA has
authority under section 109 of the Act to establish National
Ambient Air Quality Standards for any air pollutant for which
the Administrator has established air quality criteria under
section 108. Under section 108, the Administrator must first
find that the air pollutant in question meets several criteria,
including that:
it causes or contributes to ``air pollution which may
reasonably be anticipated to endanger public health or
welfare;'' and its presence in the ambient air ``results from
numerous or diverse mobile or stationary sources . . . .''
Section 302(h), a provision dating back to the 1970 version
of the Clean Air Act, defines ``welfare'' and States:
all language referring to effects on welfare includes, but
is not limited to, effects on soils, water, crops, vegetation,
man-made materials, animals, wildlife, weather, visibility, and
climate, damage to and deterioration of property, and hazards
to transportation, as well as effects on economic values and on
personal comfort and well-being, whether caused by
transformation, conversion, or combination with other air
pollutants.
Thus, since 1970, the Clean Act has included effects on
``climate'' as a factor to be considered in the Administrator's
decision, as to whether to list an air pollutant under section
108.
Analogous threshold findings are required before the
Administrator may establish new source performance standards
for a pollutant under section 111, list and regulate the
pollutant as a hazardous air pollutant under section 112, or
regulate its emission from motor vehicles under Title II of the
Act.
Given the clarity of the statutory provisions defining
``air pollutant'' and providing authority to regulate air
pollutants, there is no statutory ambiguity that could be
clarified by referring to the legislative history.
Nevertheless, I would note that Congress' decision in the 1990
Amendments not to adopt additional provisions directing EPA to
regulate greenhouse gases by no means suggests that Congress
intended to limit pre-existing authority to address any air
pollutant that the Administrator determines meets the statutory
criteria for regulation under a specific provision of the Act.
I would like today to reiterate one of the central
conclusions of the Cannon memorandum, which Stated: ``While
CO2, as an air pollutant, is within EPA's scope of
authority to regulate, the Administrator has not yet determined
that CO2 meets the criteria for regulation under one
or more provisions of the Act.'' That Statement remains true
today. EPA has not made any of the Act's threshold findings
that would lead to regulation of CO2 emissions from
electric utilities or, indeed, from any source. The opinion of
my predecessor simply clarifies--and I endorse this opinion--
that CO2 is in the class of compounds that could be
subject to several of the Clean Air Act's regulatory
approaches. Thus, I would suggest that many of the concerns
raised about the statutory authority to address CO2
relate more to factual and scientific, rather than legal,
questions regarding whether and how the criteria for regulation
under the Clean Air Act could be satisfied.
I also want to note, however, EPA has strongly promoted
voluntary partnerships to reduce emissions of greenhouse gases
through the EnergyStar and Green Lights programs and other non-
regulatory programs that Congress has consistently supported.
These successful programs already have over 7,000 voluntary
partners who are taking steps to reduce greenhouse gas
emissions, reduce energy costs and help address local air
pollution problems. These programs also help the United States
meet its obligations under the United Nations Framework
Convention on Climate Change, which was ratified in 1992. I
would also note, as EPA has indicated in past correspondence
with Chairman McIntosh and others, in the course of carrying
out the mandates of the Clean Air Act, EPA has in a few
instances directly limited use or emissions of certain
greenhouse gases other than CO2. For example, EPA
has limited the use of certain substitutes for ozone-depleting
substances under Title VI of the Act, where those substitutes
have very high global warming potentials. I wish to stress once
more, however, that while EPA will pursue efforts to address
the threat of global warming through the voluntary programs
authorized and funded by Congress and will carry out the
mandates of the Clean Air Act, this Administration has no
intention of implementing the Kyoto Protocol prior to its
ratification on the advice and consent of the Senate.
This concludes my prepared Statement. I would be happy to
answer any questions that you may have.
Senator Boxer. Thank you so much for your eloquence as
well.
Ms. Klee, we welcome you. You are now with a private firm,
but you were the counsel----
Ms. Klee. I was the General Counsel of EPA through July
2006.
Senator Boxer. We welcome you. Go right ahead. You will
also have 6 minutes.
STATEMENT OF ANN R. KLEE, PARTNER, CROWELL AND MORING
Ms. Klee. Thank you, Madam Chair, Senator Inhofe, members
of the Committee. My name is Ann Klee, and as Senator Boxer
noted, I was the former General Counsel of EPA. I am now a
partner in a private law firm, Crowell and Moring, in
Washington, DC.
Before I begin, I would like to emphasize that the views
that I express today are purely my own. I am not here on behalf
of any client or any industry sector.
I would like to make three points about the Supreme Court's
decision. First, I think as both former Administrators have
alluded to, the Massachusetts decision has clearly changed the
regulatory landscape with respect to greenhouse gases, by
increasing significantly, I think, the likelihood of more
regulation of new motor vehicles and ultimately stationary
sources.
That does not mean, however, that it will have a meaningful
effect in terms of reducing the global atmospheric
concentrations of greenhouse gases. I do not believe that it
will.
At best, the Massachusetts decision forces the square peg
of greenhouses gases through the round holes of EPA's existing
regulatory tools under the Clean Air Act. Although that may
reduce U.S. emissions over time, it makes little sense from a
regulatory perspective.
We have all heard about the Supreme Court's decision and
the fact that it puts to rest the question of whether not
greenhouse gases are air pollutants under the Clean Air Act.
The Court held that they are, and therefore are potentially
subject to regulation.
But that is not the end of the analysis. Under Section 202
of the Clean Air Act, EPA is required to set standards for new
motor vehicles only if in the judgment of the Administrator
those gases cause or contribute to air pollution that can
reasonably be anticipated to endanger public health and
welfare.
To date, and this is important to note, EPA has never made
that finding with respect to greenhouse gas emissions or carbon
dioxide. Nor did the Court concluded that greenhouse gas
emissions endanger public health or welfare. So until that
timing is made, while EPA may regulate greenhouse gas
emissions, it is under no legal obligation to do so.
It is also true, however, that the Court's narrow
interpretation of what the Administration may consider when he
makes that endangerment finding may very lead to an affirmative
finding and ultimately regulation. It is equally true that the
reasoning of the Supreme Court's decision will likely
eventually be applied by proponents of regulation to support
additional controls on stationary sources.
The fact that EPA has the authority under existing law to
regulate carbon dioxide for climate control purposes does not
mean that regulation, at least not regulation using existing
regulatory tools, will be effective. To the contrary, it is my
view that the Clean Air Act in its current form simply isn't
well suited to deal with a global air pollutant like
CO2. That view is shared by my predecessors in the
Office of General Counsel at EPA. Administrator Browner has
referred to the Cannon memo that the Supreme Court cited that
was prepared during her tenure at EPA. The fact that they
shared that view I think may account for why the previous
Administration also did not seek to regulate carbon dioxide
under the current Clean Air Act.
While both of my former predecessors were of the view that
the Clean Air Act provided EPA with the authority to regulate
carbon dioxide, both concluded that revisions to the law would
serve to clarify EPA's authority to craft the most effective
regulatory mechanisms to deal with carbon dioxide emissions and
climate change. The National Ambient Air Quality Standards
program is a very good illustration of why the fundamental
structure of the Clean Air Act may not be well suited to
address carbon dioxide.
Under the current law, EPA could certainly make an argument
to list carbon dioxide as a criteria pollutant and then set
national standards, which would have to be achieved. But in
order to trigger the regulatory mechanism that would then
prompt reductions in emissions, EPA would have to set the
standard essentially at a level below current atmospheric
concentrations. That in turn would mean that the entire Country
would be designated a non-attainment area. No State would ever
be able to achieve attainment, and certainly not within the 12
year statutory deadline, simply because greenhouse gas
emissions are going to continue to grow dramatically in
countries like India and China. That is just one example of why
the Clean Air Act structure may not work.
Climate change is an international issue and calls for an
international solution. That is not to say that the United
States should act, or that the United States should hide behind
the country of China. Of course, we should act. But the reality
is that we are. Businesses across the United States are
significantly reducing their carbon footprint. They are
increasing energy efficiency, investing in new technologies and
reducing emissions. Administrator Johnson has articulated just
a few examples of the programs that the Administration is
currently pursuing. Those programs, those combined efforts are
having an impact.
While we are slowing the growth of greenhouse gas emissions
domestically and working toward reversing the trend line, China
is dramatically increasing its greenhouse gas emissions at a
pace commensurate with its rapidly growing and largely
unregulated economy. It is a magnet for more cars, more
manufacturing, more emissions. Whatever we do here must not
result in the relocation of U.S. businesses and U.S. jobs in
countries that are not also reducing their emissions. Unless
our trading partners are part of the global effort to address
climate change, piece-meal regulation in the United States will
achieve little and may in fact result in increased global
emission.
The Supreme Court has answered one question, but it has not
solved the problem. To do that, we need to identify the best
tools to effectively address climate change. We need to develop
the new technologies that are necessary for clean energy
production, advanced coal technology, ICC, nuclear. And we need
to work with China and India to ensure that they, too, are part
of the international effort to reduce greenhouse gas emissions.
Thank you, Madam Chair, for the opportunity to testify on
this very important issue.
[The prepared statement of Ms. Klee follows:]
Statement of Ann R. Klee, Partner, Crowell and Moring
Madam Chairman, Members of the Committee, I am pleased to
be here today to testify on the issue of EPA's authority to
regulate greenhouse gas emissions under the Clean Air Act in
the wake of the Supreme Court's decision in Massachusetts v.
EPA, No. 05-1120, 549 U.S. -------- (2007). Before I begin,
however, I would like to make clear that my testimony today
reflects my personal views and analysis of the law based upon
my experience as General Counsel of the U.S. Environmental
Protection Agency (from 2004 until August 2006), as Chief
Counsel of this Committee (from 1997 until 2000), and most
recently as a lawyer in private practice.
overview
On April 2, 2007, the U.S. Supreme Court issued its
landmark vacating the Environmental Protection Agency's (EPA's)
denial of a petition to regulate greenhouse gas emissions from
new motor vehicles. The Court's majority found that greenhouse
gas emissions are ``air pollutants'' under the Clean Air Act
and, therefore, potentially subject to regulation if, in the
judgment of the Administrator, they ``cause or contribute to
air pollution which may reasonably be anticipated to endanger
public health or welfare.'' The Court did not reach the issue
of whether greenhouse gases from new motor vehicles, in fact,
endanger public health or welfare, but it potentially
significantly constrained EPA's discretion with respect to that
determination.
Undoubtedly, the decision has changed the regulatory
landscape. The determination that greenhouse gases are air
pollutants will likely lead EPA to regulate greenhouse gas
emissions, and carbon dioxide (CO2) in particular,
from new motor vehicles. It also likely will lead to regulation
of stationary sources of greenhouse gases since the Clean Air
Act's stationary source provisions are also triggered by an
``endangerment'' finding. In this respect, the decision is a
significant one--an endangerment finding under one program will
make it very difficult for EPA not to regulate under other
programs.
The decision will not, however, have any meaningful impact
in terms of addressing global climate change. Forcing the
square peg of greenhouse gas emissions through the round holes
of EPA's existing regulatory tools--tailpipe standards,
national ambient air quality standards, new source performance
standards, etc.--may have the effect of reducing U.S. emissions
over time, but it will do nothing to reduce atmospheric
concentrations of greenhouse gases, which is the true measure
of effectiveness of regulation for climate change purposes.
Unless our trading partners, China and India in particular, are
also part of the effort to reduce global emissions of
greenhouse gases, piece-meal regulation in the United States
will not only achieve little; it may, in fact, have the
unintended effect of leading to increased emissions by
encouraging the relocation of U.S. businesses to countries not
subject to greenhouse gas regulation.
the massachusetts v. epa decision
The Massachusetts case involved a challenge to EPA's denial
of a petition to regulate greenhouse gas emissions from new
motor vehicles under section 202 of the Clean Air Act. EPA
denied the petition on the grounds that it lacked the authority
under the Act to regulate emissions for climate change purposes
and, in the alternative, that even if it had the authority to
set greenhouse gas standards, it would not be ``effective or
appropriate'' to do so at this time. On appeal to the Supreme
Court, petitioners raised two central questions: (1) whether
EPA has the statutory authority to regulate greenhouse gas
emissions from new motor vehicles under section 202 of the
Clean Air Act; and (2) if the Agency does have the authority,
whether its stated reasons for declining to regulate greenhouse
gas emissions from new motor vehicles was consistent with the
statute.\1\
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\1\A substantial portion of the Majority's opinion focuses on the
issue of standing and, in particular, whether the petitioners in this
case have satisfied the elements of Article III standing under the
Constitution. After setting forth a novel theory of standing premised
upon ``a special solicitude'' for the State of Massachusetts based upon
its ``stake in protecting its quasi-sovereign interests,'' the Stevens
Majority concludes essentially that loss of Massachusetts coastline
constitutes sufficient injury in fact that might be traced, in some
small part, to climate change and redressed, again in some small part,
by future regulation of emissions from new motor vehicles. Chief
Justice Roberts, in a dissenting opinion joined by Justices Scalia,
Thomas and Alito, would have rejected the challenge to EPA's action as
nonjusticiable. The dissent notes that there is no basis in law for the
Majority's ``special solicitude'' for the State of Massachusetts in its
standing analysis. Furthermore, as the dissent sets forth in some
detail, the State's injury is neither particularized, nor imminent; the
injury cannot reasonably be traced to the lack of regulation of
greenhouse gas emissions from new motor vehicles, particularly given
the numerous and complex factors that affect all predictions with
respect to climate change; and, finally, the injury cannot be
meaningfully addressed by the action sought--regulation of new motor
vehicles--because emissions from new motor vehicles account for only a
minute percentage of the global atmospheric concentration of carbon
dioxide. For these reasons, the State of Massachusetts and the other
petitioners cannot meet the three requirements of Article III standing.
---------------------------------------------------------------------------
Writing for the Majority in a 5-4 decision, Justice Stevens
answered the first question in the affirmative, concluding that
the Clean Air Act's language is unambiguous and that carbon
dioxide is an ``air pollutant'' within the meaning of the Act
and, therefore, potentially subject to regulation. Justice
Stevens went on to reject the basis upon which EPA had decide
not to regulate greenhouse gas emissions at this time. Justice
Scalia filed a dissenting opinion on the merits on behalf of
himself, Chief Justice Roberts, and Justices Alito and Thomas.
The dissenting opinion reached the opposite conclusion with
respect to both questions.
The term ``air pollutant'' is defined in the statute as
``any air pollution agent or combination of such agents,
including any physical, chemical,. . . substance or matter
which is emitted into or otherwise enters the ambient air.''
Focusing solely on the language following the word
``including,'' Justice Stevens adopts the view that carbon
dioxide is a chemical or physical substance emitted into the
air and must therefore be an air pollutant.\2\ His opinion does
not address whether carbon dioxide meets the first element of
the definition, namely whether it is first an ``air pollution
agent.'' As EPA argued in its brief, and as Justice Scalia
noted in his dissenting opinion, the fact that the statutory
definition uses the words ``any'' and ``including'' does not
end the analysis. As he points out, ``in order to be an air
pollutant' under the Act's definition, the substance or matter
[being] emitted into the . . . ambient air' must also meet the
first half of the definition--namely it must be an ''air
pollution agent or combination of such agents.'' The phrase
following the term ``including'' can be illustrative of the
kind of substances that might also be air pollution agents, but
does not necessarily substitute for the first element of the
definition. EPA provided the following example, quoted by
Justice Scalia, in support of this point: ``The phrase any
American automobile, including any truck or minivan,' would not
naturally be construed to encompass a foreign-manufactured
[truck or] minivan.'' Scalia Dissent at 9.
---------------------------------------------------------------------------
\2\As Justice Scalia noted in footnote 2 of his dissenting opinion,
this interpretation of the language of the definition of ``air
pollutant'' would make little sense as it would then follow that
``everything airborne, from Frisbees to flatulence, qualifies as an air
pollutant.'' Scalia dissent at 10.
---------------------------------------------------------------------------
Having concluded that greenhouse gas emissions are ``air
pollutants'' within the meaning of the statute, Justice Stevens
has ``little trouble concluding'' that EPA is ``authorize[ed]
to regulate greenhouse gas emissions from new motor vehicles in
the event that it forms a ``judgment'' that such emissions
contribute to climate change.'' Slip op. at 25. Section
202(a)(1) of the Act provides that EPA ``shall by regulation
prescribe . . . standards applicable to the emission of any
air pollutant from any class or classes of new motor vehicles
or new motor vehicle engines, which in [the Administrator's]
judgment cause, or contribute to, air pollution which may
reasonably be anticipated to endanger public health or
welfare.'' To date, EPA has never made an endangerment finding
with respect to carbon dioxide.
Finally, the Court rejected EPA's alternative basis for its
decision not regulate greenhouse gas emissions from new motor
vehicles at this time. EPA had argued that even if the Clean
Air Act did authorize the Agency to regulate greenhouse gas
emissions from new motor vehicles, that it appropriately
exercised its discretion not to make an endangerment finding
and regulate those emissions at this time. The Agency based its
decision on, among other things, the continuing scientific
uncertainties that were summarized in a 2001 National Academy
of Sciences Report, as well as legitimate policy
considerations, including the President's comprehensive
approach to addressing climate change through investment in
technology and voluntary actions. As EPA noted, ``establishing
[greenhouse gas] emissions standard for U.S. motor vehicles at
this time would . . . result in an inefficient, piecemeal
approach to addressing the climate change issue. . . . .A
sensible regulatory scheme would require that all significant
sources and sinks of [greenhouse gas] emissions be considered
in deciding how best to achieve any needed emissions
reductions.'' 68 Fed. Reg. 52,929-931.
The Court, however, concluded that EPA''s exercise of its
``judgment'' in this case was based upon ``reasoning divorced
from the statutory text'' and therefore invalid. Slip op. at
30. Even though the statute is silent with respect to how the
Agency shall exercise its ``judgment'' in the context of an
endangerment finding, and even though the term ``endanger'' is
not defined in the statute, the Court substantially constrained
the Agency's ability to exercise its judgment, at least with
respect to a determination under section 202 of the Act. In
effect, the Court held that ``EPA can avoid taking further
action only if it determines that greenhouse gas emissions do
not contribute to climate change or if it provides some
reasonable explanation as to why it cannot or will not exercise
its discretion to determine whether they do.'' Slip op. at 30.
With respect to the latter, the Court suggests that the only
basis for not exercising its discretion would be if ``the
scientific uncertainty is so profound that it precludes EPA
from making a reasoned judgment as to whether greenhouse gases
contribute to global warming.'' Slip op. at 31.
Significantly, the Court did not reach the question of
whether EPA must actually make an endangerment finding, only
that its explanation for making, or not making, such a finding
must be based upon permissible statutory grounds--i.e., the
relationship between greenhouse gas emissions from new motor
vehicles and public health or welfare.
implications of the massachusetts decision
In the wake of the Supreme Court's decision, there has been
both a call for EPA to take immediate action to begin
regulating carbon dioxide emissions from motor vehicles and,
perhaps more interestingly, intensified lobbying for
Congressional action on climate change legislation. The former
is hardly surprising. The Supreme Court held that carbon
dioxide is an air pollutant, thereby setting the stage for EPA
to initiate the regulatory process, or at least the process for
deciding whether or not to make an endangerment finding. The
latter, however, suggests that even advocates of regulation
recognize that the victory of the decision may be a hollow one.
If the goal is truly to reduce the atmospheric concentration of
carbon dioxide and other greenhouse gases that scientists
indicate are causing or contributing to global warming, and all
of its attending effects, regulation under the Clean Air Act is
not the answer. As discussed in greater detail below, the tools
of the Clean Air Act are simply not well suited to address a
global pollutant like carbon dioxide.
First, it is important to understand exactly what the
Court's decision does, and does not, require.
As noted above, the Court did not reach the issue of
whether EPA must make an endangerment finding. On remand,
however, if the Agency opts not to make an endangerment
finding, it must articulate why there is such profound
scientific uncertainty that it cannot make that finding.
If the Agency does make an endangerment finding, it must
then propose regulations to address greenhouse gas emissions
from new motor vehicles. That is really the only true
regulatory mandate of the Supreme Court's decision.
Significantly, the Agency retains substantial discretion
with respect to the content of any regulation. The Majority
opinion states that ``EPA has no doubt significant latitude as
to the manner, timing, content and coordination of its
regulations with those of other agencies.'' Slip op. at 30.
The Supreme Court's decision does not address stationary
sources and therefore does not require that EPA undertake any
action with respect to the regulation of stationary sources.
epa's existing statutory authority to regulate air pollutants
As noted above, the Court's decision could have far-
reaching implications beyond simply the regulation of mobile
sources under section 202 of the Clean Air Act. First, the
Court's holding that greenhouse gases are ``air pollutants''
means that EPA has broad authority to regulate greenhouse gases
under all the significant Clean Air Act programs, including the
National Ambient Air Quality Standards (NAAQS), New Source
Review (NSR), New Source Performance Standards (NSPS),
Prevention of Significant Deterioration (PSD), stratospheric
ozone (Title VI), and mobiles sources and fuels (Title II)
programs. Second, the Court's constrained approach to the
endangerment finding may limit, although not preclude, EPA's
ability to decide not to regulate greenhouse gas emissions
under those programs since they, like section 202, are
triggered when the Administrator determines that an ``air
pollutant'' causes or contributes to air pollution that ``may
reasonably be anticipated to endanger public health or
welfare.'' Having the authority to regulate under existing law,
however, does not mean that regulation will be effective.
national ambient air quality standards
Section 108 of the Clean Air Act requires the Administrator
to publish and, ``from time to time thereafter revise,'' a list
of air pollutants: (1) emissions of which, in his judgment,
cause or contribute to air pollution which may reasonably be
anticipated to endanger public health or welfare; and (2) that
are emitted from numerous or diverse mobile or stationary
sources.\3\ Once a pollutant is listed, EPA is required to
establish primary and secondary air quality standards for that
pollutant.
---------------------------------------------------------------------------
\3\The six listed criteria pollutants are: ozone, nitrogen dioxide,
particulate matter, sulfur dioxide, carbon monoxide and lead.
---------------------------------------------------------------------------
States deemed to be in attainment must develop State
Implementation Plans (``SIPs'') demonstrating how they will
maintain compliance; nonattainment States must develop SIPs
demonstrating how they will come into attainment with the
standards ``as soon as practicable'' but no later than five
years after designation.\4\ States that fail to submit SIPs or
to come into attainment within the statutory deadlines attain
face potential sanctions, including the potential loss of
highway funding, and a federal takeover of their CAA programs.
---------------------------------------------------------------------------
\4\The statute provides that States must come into attainment
within five years, but it authorizes EPA to grant one five-year
extension. Additionally, states can seek two additional one-year
extensions. Thus, under the CAA, can get up to twelve years to attain
the (non-ozone) NAAQS.
---------------------------------------------------------------------------
Although the argument could be made that CO2
meets the statutory threshold for designation and regulation as
a criteria pollutant, it is evident that this would make little
sense from a regulatory perspective. If the standard were set
at a level intended to force reductions in emissions, i.e., at
some atmospheric concentration below current levels
(approximately 370-380 parts per million CO2, then
the entire country would be designated as being in
nonattainment.\5\ This would trigger the regulatory mechanisms
of the NAAQS program--SIPs, NSR, reasonably available control
technologies (RACT )to reduce emissions--but the reality is
that none of the measures will have any effect in terms of
bringing any individual State or county into attainment. Unless
international emissions are also reduced, global CO2
concentration will continue to increase and the entire United
States would remain in nonattainment status. Even with
international reductions, which are not currently occurring,
the statutory deadline for compliance--a maximum of 12 years--
is patently unrealistic and unachievable. This should be of
concern to States that face potentially significant penalties
for persistent nonattainment. For these reasons, it should be
clear that the NAAQS program is ill suited to address a global
pollutant like CO2.
---------------------------------------------------------------------------
\5\Alternatively, if the standard were set above current levels of
CO2, the entire country would, at least for the short term,
be classified as an attainment area and no regulatory mechanisms to
reduce emissions would be triggered. This result, would be short-lived,
however, as emissions from China and India continue to increase
dramatically. Thus, regardless of what individual States or counties do
with respect to their CO2 emissions, global atmospheric
concentrations will continue to increase.
---------------------------------------------------------------------------
new source performance standards
Section 111(b)(1)(a) of the Clean Air Act requires the
Administrator to adopt new source performance standards for
categories of emission sources that ``cause[], or contribute[]
significantly to, air pollution which may reasonably be
anticipated to endanger public health or welfare.'' EPA is also
required to review, and, if appropriate, revise, the NSPS every
eight years to ensure that the standards continue to protect
public health and the environment. CAA 111(b). These
standards are developed on a specific unit-by-unit basis, and
apply to both attainment and nonattainment areas. Emission
standards under the NSPS program must reflect ``the degree of
emission limitation achievable through the application of the
best system of emission reduction'' that has been ``adequately
demonstrated,'' while considering the ``costs of achieving such
reductions and any non-air quality health and environmental
impact and energy requirements.'' CAA 111(a)(2).
In the wake of the Supreme Court decision, EPA could issue
sector-specific emissions standards for CO2,
assuming that it makes the necessary endangerment finding.
These standards, however, by definition would not be economy-
wide and furthermore would generally apply only to new sources.
It is true that the Agency could, through multiple rulemakings,
ultimately seek to regulate a number of industry sectors, but
the process would certainly be a lengthy one extending over a
period of many years. The standards themselves must be based
upon the best demonstrated technology, which EPA has
interpreted to mean technology that is in existence and widely
commercially available. This could further limit the value of
NSPS in terms of achieving significant and immediate reductions
in emissions.
cap and trade programs
Most proponents of regulation or legislation to address
greenhouse gas emissions argue that the most effective means of
achieving reductions is through a market-based cap and trading
program. In a more limited context, EPA has successfully
implemented a trading program to reduce sulfur dioxide (SO2)
from utilities under the Acid Rain program specifically
authorized by Title IV of the Clean Air Act. It subsequently
developed a cap and trade program for nitrogen oxides (NOx)
under the NOx SIP call using its authority under section 110 of
the Act. More recently, the Agency promulgated the Clean Air
Interstate Rule (CAIR) pursuant to its authority under section
110, to further reduce NOx and SO2 from power plants. These
programs have generally been upheld by the courts or not
challenged.
Whether or not EPA has the authority to develop a cap and
trade program for greenhouse gases, however, may still be at
issue. Experience with the NOxSIP call and CAIR
suggest that a trading program under section 110 of the Act
would likely survive judicial challenge. That would first
require the listing and regulation of CO2 as a
criteria pollutant, which as discussed above, makes little
sense. Alternatively, EPA could use its authority under the
NSPS provisions of section 111 of the Act to create a cap and
trade program, as it did recently for mercury in the Clean Air
Mercury Rule. However, the mercury rule, and specifically EPA's
assertion of authority under section 111 to create a cap and
trade program rather than unit-specific standards, is being
challenged in the D.C. Circuit. Until that fundamental legal
question is resolved, EPA's ability to craft an effective cap
and trade program under existing law remains unclear.
conclusion
While the Massachusetts v. EPA decision put to rest the
question of whether greenhouse gases are ``air pollutants''
under the Clean Air Act, this in and of itself, will do little
to address climate change in a meaningful way. The Clean Air
Act's existing regulatory tools were simply not designed to
address global pollution. Climate change is an international
problem; it demands an international solution. It is a national
policy issue; it demands a national policy solution.
Senator Boxer. Thank you so very much.
I am going to take 5 minutes, we are each going to take 5
minutes and then we are going to go to the next panel.
Thank you to the full panel. I want everyone to listen for
the two Cs--complex and China. Just listen for the two Cs. That
is the code word here for doing as little as possible.
OK. Administrator Browner, in 1997, you were required by
court order to set a new National Ambient Air Quality Standard
within 6 months. The Agency rose to the challenge, set a
standard for both particulate matter, PM, and ozone. By the
way, particulate matter in my State is a huge problem. The way
you handled it was ultimately upheld in the Supreme Court.
Do you see any reason why the Agency couldn't rise to the
challenge in this situation, set a national standard for
greenhouse gases for motor vehicles within 6 months' time?
Ms. Browner. I do not. I think that they can certainly act
within 6 months. I would think they could act probably in a
slightly shorter timeframe, but certainly within 6 months.
There is not reason they cannot be done.
Senator Boxer. Administrator Reilly, you helped write and
pass the Clean Air Act amendments in 1990. Thank you for that.
At that time, one of the key problems was acid rain. There were
arguments made in those days that more study of acid rain was
needed. The Congress took action with you. We never looked
back, and we know we are having a good impact here. Can we
afford to wait until every last question regarding global
warming is settled? Or do we have more than enough information
to act?
Mr. Reilly. I think before we acted, we had the National
Acid Precipitation study that had been strongly supported for
some years. The Intergovernmental Panel on Climate Change has
reported several times now, three times, I think. We have 11
national academies of science that have supported this as well.
We are ready to move, I think.
Senator Boxer. Thank you. Administrator Browner, if we
listen to Ms. Klee, who is very articulate, she is saying
essentially that great things, good things are happening, good
things are happening, we are reducing the amount that we
expected to increase in terms of greenhouse gas emissions.
Well, the Bush Administration has said, a voluntary intensity
reduction goal of 18 percent by 2012. However, under their own
intensity approach, actual emissions could rise by 12 percent
or more, even if the voluntary goal is met.
In your time as an administrator, do you recall trying to
attack a major threat to public health through a voluntary goal
that allowed the situation to become worse? Or did you look for
real benefits and decreases in the pollutants?
Ms. Browner. I agree that voluntary programs and
partnerships can be an important part of how the Agency does
its job. However, there will always be companies, there will
always be sectors of the economy that will not join in those
programs. So that is why we have a regulatory scheme. That is
why Congress has given EPA the authority to set rules so that
all companies who are contributing to a problem, all polluters
who are part of the problem, can be held accountable and can be
required to do their fair part.
And I don't even say it is fair. If I am a company that
decides to invest to meet a regulatory standard and make the
kinds of capital investments that are required to meet that
standard, I want to make sure that my competitor is similarly
making those kinds of investments. I don't doubt we can do some
good things, and we have done some good things in partnership.
But when it comes to this issue of climate change, it will not
be enough. We need a set of regulatory programs that everyone
is held accountable to.
Senator Boxer. Well, my question is a little bit different.
My question is, even if everybody joined in, emissions could
rise by 12 percent or more, even if the voluntary goal was met.
So in other words, they are reducing the increase. I am just
wondering if, when you were Administrator and you were faced
with a public health question, you felt it would be progress to
keep emissions rising rather than actually going down.
Ms. Browner. Absolutely not. Slowing the amount of fine
particles you put into the air, rather than dramatically
reducing the amount of fine particles put into the air, this
would have been two very different decisions. Slowing the
progress or the increase would not have provided the public
with the level of protection that they are entitled to under
the Clean Air Act.
Senator Boxer. Thank you.
Administrator Reilly, since leaving EPA, you have served in
many capacities, including on the boards of some major
businesses. Recently, the U.S. Climate Action Partnership urged
Congress to enact mandatory global warming limits which would
reduce emissions significantly by 2050.
Do you think that taking action on global warming is
something that business should support?
Mr. Reilly. One of the points, Madam Chairman, that the
chairman of Dupont made in testimony before this Congress was
that Dupont has been regulated under the Kyoto Protocol in all
but two of the countries in which it operates. And it is doing
fine. Conoco Phillips has recently joined U.S. Climate Action
Partnership, first major U.S. oil company to do so, indicates
support for mandatory regulation of carbon dioxide.
I think these companies are to some extent out ahead of the
rest of us. They have been looking at the need to promote more
efficiency, they have been looking at higher fossil fuel costs,
they are as sensitive themselves, because they have significant
scientific resources to the overwhelming evidence of planetary
impact of greenhouse gases, and they are proposing the policy
give them a clear sense of the future and the playing field on
which everyone will have to respond.
Senator Boxer. Thank you very much.
Senator Inhofe.
Senator Inhofe. Thank you, Madam Chairman.
Let me just mention, Mr. Reilly, since I am from Oklahoma,
and that is Conoco Phillips, they did have a proviso that said,
provided it would not be damaging to the economy, which I think
is very significant.
Ms. Browner, in 1997, you talked about in a speech before
at Florida State University that based on years of rigorous
science analysis to know that we must begin dealing with this
problem, we have to start dealing with this problem now. Then
just a few minutes ago, you talked about how you submitted a
brief saying you had the authority to do it.
Well, if you said we needed to do it now, and you had the
authority to do it, why didn't you do it?
Ms. Browner. We were working on it. If we had been given
another 4 years, I am sure we would have done it. We were
engaged in the scientific work that was going on, both in the
United States and around the world. We were extremely active,
as you are well aware, in preparing international agreements.
Senator Inhofe. Very good. That answers the question.
Let me ask you, Ms. Klee, you said something just a minute
ago, and I have to ask you this question as a result of that.
Does the decision, Massachusetts v. EPA decision, require the
EPA to regulate greenhouse gas emissions from cars and trucks?
Ms. Klee. No, Senator it does not. It does, however,
require EPA to make an endangerment finding or provide a
reasonable explanation as to why it cannot do so.
Senator Inhofe. All right. And did the decision give the
EPA the discretion to develop a reasonable and effective
approach to addressing greenhouse gas emissions?
Ms. Klee. Yes, absolutely. In fact, if EPA makes the
endangerment finding, the majority opinion expressly noted that
EPA retains wide latitude as to the manner, the timing, the
content of the regulation, and in coordination with other
Federal agencies. So EPA would have wide discretion at that
point.
Senator Inhofe. You have heard me talk about the costs of
this. Does EPA have the authority under the Clean Air Act or
other legal authority to raise revenues, like a carbon tax, to
fund the development of the technologies that are necessary to
reduce the emissions of carbon dioxide?
Ms. Klee. No, EPA does not have that authority. As both
former Administrators know, EPA also has very limited resources
for the development of the new technologies that are necessary.
That is really important, because the solution to climate
change in the long term will depend on the development of clean
coal technology, not just for the United States, which has an
ample supply of coal and relies very heavily on the use of
coal, but China's coal consumption will double.
So they don't have the resources, they don't have the
inclination that we have seen so far, to invest in those
technologies. So if we don't develop those technologies and
work with them to export those technologies, nothing we do in
the United States will make any difference. So having that
funding for technology is critical.
Senator Inhofe. I think the key word there is they are not
inclined, the inclination to do it. They are not inclined to do
it. I have heard statement after statement, when we talked
about how many coal-fired plants are coming out with every 3
days or so, that they have no intention, in fact they actually
have talked about, one of them said, if you think you have seen
job flight before, you wait until we are the ones that have the
energy.
I would ask you, does EPA have the legal tools under the
Clean Air Act to efficiently and effectively regulate
greenhouse gas emissions?
Ms. Klee. No, Senator, I really don't believe that the
current regulatory tools are very effective. I mentioned the
ambient air quality standards. There has been some discussion
about setting New Source Performance Standards for stationary
sources. But even there, I would note that there are
significant shortcomings or challenges for the Agency, these
New Source performance standards are sector specific, they are
not economy-wide. They apply only to new sources unless EPA
goes through a NOx sip-call process.
And it doesn't clearly authorize EPA to undertake a cap and
trade program, which I think most of the major bills that are
currently pending would provide for. Certainly again referring
back to the Cannon memo, that was the factor, I think, that was
very influential in his thinking.
Section 111 of the Clean Air Act, I believe, could give EPA
the authority to develop a cap and trade program. But that
issue is currently being challenged in the context of the
mercury rule in the D.C. Circuit. So if the D.C. Circuit takes
that tool away, you will be losing, or the Agency will be
losing a very significant tool.
Senator Inhofe. There is a tendency to try to say, this can
be done, this can be done fast. Were you here when I read the
list of provisions in the Clean Air Act and the Titles I, II, V
and VI, some 17 sections that could be, could deal with this
issue? Do you agree with his answer to that?
Ms. Klee. Yes, absolutely. All of those could come into
play.
Senator Inhofe. All right. And last, Administrator Browner,
there were a couple of years in the Clinton Administration,
after the Kyoto was signed, how come you never sent it to the
Senate for ratification?
Ms. Browner. As the President himself said at the time, he
recognized that this body was not prepared to ratify and that
there were things that would need to be done, and that he would
work to try and do those things. He did take the step of
signing it, and we did obviously take the step of engaging in
the international debate to try and secure an agreement, and we
were successful in that regard.
Senator Inhofe. Thank you.
Senator Boxer. Thank you very much.
Senator Lautenberg, the vote just started, so we will
conclude with the two, and then we will vote. I will come back,
I don't know who else will, for the last panel. Go ahead,
Senator.
Senator Lautenberg. Thanks, Madam Chairman, thank you all
for being here and challenging, effectively, the fact that we
can't get EPA off its protective cover that it creates to make
these decisions, to really search beyond the ordinary and as
our Chair said before, that we've got to stop hiding behind
everybody else's contributions and get on this ourselves.
Each of you had interesting periods of time when you served
as administrators, and each of you, I think, contributed
substantially to the general well-being of our society, and
recognized problems that we were having with our environment.
I look at it through the eyes of my grandchildren. This is
kind of an interesting story around here, but I talk about my
grandkids, the oldest of whom is 13, the youngest of whom is 3.
It is what I want for them that propels so much of my activity
here, anti-violence, better air quality, less war, peaceful
Country, opportunity to get an education, all of those things.
And if it is good for my grandchildren, it has to be good for
everybody's grandchildren. That is the way I see things.
I have visitors, I have families come in with autistic
children, I have families that come in with diabetic children,
I have families come in with asthmatic children. My oldest
grandchild has a fairly severe asthmatic condition, and it
really is a terrible thing to see him wheezing and sometimes
choking, gasping for air. My daughter, when she takes him to
play baseball or whatever, always looks for the nearest
emergency clinic among the first things she does in the area,
just in case he needs attention.
So I have to tell you, it offends me to hear these excuses
blamed about the complexity, as you said, Senator. There has
been incredible misbehavior in these last few years, altered
reports, redacted statements. We have them here. Word changes
that say, will cause, may cause, silly things like that.
So when we try to, and I think it is a short jump from the
evidence at hand that endangers the environment, to go right to
public health endangerment. At what point you say, oh, fish are
dying and animals are dying, and coral is dying and this, but
we don't see any direct effects on health. And I look at the
Court document, the Supreme Court. And they say, you know,
climate change is dangerous, it does not minimize
Massachusetts' interest in the outcome of this legislation.
This is what the Court said, and they continue, ``These rising
seas have already begun to swallow Massachusetts' coastline.''
I think it was remarked about before.
So Massachusetts is one of 50, and the land is being
swallowed up and the ecology is changing, what does it take to
say, I ask either, any one of you, all three of you, to go from
there to say that this is an endangerment, a future
endangerment of public health? Ms. Browner?
Ms. Browner. I don't think it takes very much. If I might
just quote from the Clean Air Act about what you have to look
at or what findings you can make, welfare includes but is not
limited to effects on soils, water, crops, vegetation, man-made
materials, animal or other wildlife, disability, climate,
damage to and deterioration of property, and the list goes on
and on. They don't have to find all of those things are
occurring. They can simply find that some of those things are
occurring. And then you have an endangerment.
Senator Lautenberg. Mr. Reilly.
Mr. Reilly. I would be very surprised if they do not
conclude it, if the Administrator does not conclude that
endangerment is involved here. The box that they are in,
particularly having conceded the significance of the science,
not having disputed the science, that is to say, as the
Administrator himself said today, that they concede the impact
of greenhouse gases, humanly caused greenhouse gases on the
environment, I think leads very directly to an endangerment
decision.
I would just say, during our administration, Bob Teter, who
was the President's principal pollster, commented that
something happened with respect to environmental views and
values in the previous 15 to 20 years. He said they entered the
core values of the American people. I think that is essentially
what has happened in the last year to 3 years with respect to
climate change.
It seems to me the environment we are in, the larger
environment, is one in which the endangerment is conceded by
the vast portion of Americans, who want to see a more forward-
leaning policy with respect to climate change. I don't disagree
with Ms. Klee about the complexity of addressing this problem,
or the Administrator. Nor that the Clean Air Act is not the
optimal instrument for solving the problem. But it is the
instrument for solving the one problem that the Supreme Court
has recognized. I don't see that there is a way around that.
Senator Boxer. We have 5 minutes to go vote. Senator
Cardin, we are going to have put your questions into the
record. Will you answer those questions? Do you have a 10
second answer?
Ms. Browner. I just wanted to say, with the Supreme Court,
Mick Jagger once said, you don't always get what you want, but
sometimes you get what you need. Well, what EPA got in that
Supreme Court decision is what they need, the opportunity to
move forward. What we all want is for Congress to act, I
suspect.
Senator Cardin. Senator Boxer, my question, and I will put
it into the record. First of all, I think the courts, the
Judiciary is ahead of the Legislative and executive branches on
the seriousness of global climate change. My question is, on
the authority they have now, the determination that is made,
what could they do? What were the options that you believe EPA
could come up with to deal with greenhouse gases with the
authority they have currently, assuming the determination is
made?
If I could have that answer for the record.
Senator Boxer. Senator, we will. I want you to know that
our staff here has done some research. They said right now they
could just grant this waiver by summer, make the endangerment
finding right away, move on clean coal. There are a whole host
of things I think would be wonderful to hear from our, well,
frankly our three witnesses, if our third one is interested in
participating.
Ms. Klee. I would be happy to.
Senator Boxer. Tell us what you think we could do right
now, it would be great.
Since we now have 4 minutes, I just want to say, Ms. Klee,
I know you have read the Supreme Court case. I am not a lawyer,
but I am married to one and I'm the mom of one. But I have read
this. The thing that is so beautiful about this decision is, it
is so not complex. It is so clear. On the question of China,
that everyone on the other side hides behind, they take on
China head-on, in two paragraphs. I am going to make sure those
go in the record right now.
They say, forget about China, those are my words, but they
basically say, they say that, judged by any standards, U.S.
motor vehicle emissions make a meaningful contribution. They
say that China and India are not dispositive to the case; a
reduction in domestic emissions would slow the pace of global
emissions increase, no matter what else happens.
[The referenced material was not received at time of
print.]
Senator Boxer. So please, I mean, I hope your side can get
some new arguments. Because China and complexity, we just
really see through that.
I want to thank all of you very much. I will be back for
the final panel. You two were just great, you are continuing
the bipartisan momentum for action.
[Recess.]
Senator Boxer. The Subcommittee will come to order and we
will resume our hearing.
Our final panel is Mr. David Doniger, Policy Director,
Climate Center, at the NRDC; and Mr. Peter Glaser, Partner,
Troutman Sanders LLP.
Why don't we start with you, Mr. Doniger.
STATEMENT OF DAVID DONIGER, POLICY DIRECTOR, CLIMATE CENTER,
NATURAL RESOURCES DEFENSE COUNSEL
Mr. Doniger. Thank you, Madam Chair, and thank you for
having the fortitude to come back for this panel.
I am David Doniger. I represent the Natural Resources
Defense Council and its 1.2 million members and supporters in
the Massachusetts case and in related global warming
litigation. I want to salute the coalition of States, cities
and environmental organizations which were engaged in the
Massachusetts case and engaged in the other global warming
cases. We couldn't have done it without everybody else's help
and I salute them.
We began this case during the coldest part of the little
ice age in global warming policy in Washington. The President
had broken his campaign pledge to control CO2, the
Congress was inactive, the States weren't moving yet. This
Administration tried to nail the door shut on the use of the
Clean Air Act. We went to the last available place, the
independent judiciary, to upheld the Nation's laws.
Much has been said about the Massachusetts decision. I
won't repeat it in summarizing my testimony. But it is clear
that there are four immediate results. The first, Administrator
Johnson has to decide afresh whether to set greenhouse gas
emission standards for new motor vehicles. That has to start
with a determination on the basis of the science only, the
Supreme Court said, whether there is a contribution from those
emissions to global warming. We don't see how he could reach
anything other than a positive determination.
The same thing is true with respect to power plants. There
is another case pending in the D.C. Circuit which is bout the
Administrator's refusal to regulate CO2 from new
power plants under Section 111. And they gave as their sole
basis the lack of authority. So that decision also will be
reversed very soon by the D.C. Circuit, I predict, and the
Administrator will have to make the endangerment decision for
power plants as well.
The third area which has received a lot of attention today
is the waiver for California. I am pleased that the
Administrator has signed the notice, undoubtedly prompted by
the appearance here in front of you. So the hearing has had one
enormous beneficial impact already. You set a relatively quick
schedule for having the hearing and the comment period, and I
applaud your efforts to hold him to account for a quick
decision after that, as well as the court decision on the
endangerment findings.
My written testimony goes into some of the other kinds of
litigation which the Supreme Court case will affect. Suffice it
to say that it knocks the legs out from under most of the
arguments the auto makers are making in a series of district
court cases, one of which is on trial now in Vermont,
challenging the California standards on preemption theories. We
predict that those cases will be favorably resolved before
long.
There is a nuisance case pending in the Second Circuit, on
a theory that stems right from the Georgia v. Tennessee Copper
case that the Supreme Court relied on and cited with favor in
its decision. So I think we have new life in that case, too.
As others have said, there is now a two-track process, what
EPA must do under existing law, and I think renewed more fuel
under the kettle for congressional action created by this
decision. So you have more and more companies, as has been
noted, the forward-leaners who are embracing the need for
legislation. Some of the backward-leaners may have concluded
that it would be better to have Congress resolve these issues
in the near term than leave these decisions for Stephen
Johnson, or worse, the next Administrator.
In the NRDC's view, global warming legislation needs to
include a mandatory declining cap on multi-sector initiatives
that start cutting emissions now and reduces from 80 percent by
2050. There needs also to be performance standards for
vehicles, fuels, power plants, buildings, appliances and other
equipment, to quickly deploy today's emissions-cutting
technology and promote the rapid development of tomorrow's.
The third element of the legislation is targeted incentives
drawn mainly from the value of emissions allowances to promote
that technology to protect consumers and workers and
communities, and help manage adaptation to the climate changes
we can't avoid. There is still time, only a little time, to
avoid the worst effects of global warming. NRDC looks forward
to working with this Committee and all stakeholders to pass
this legislation in this Congress.
Thank you.
[The prepared statement of Mr. Doniger follows:]
Statement of David Doniger, Policy Director, Climate Center, Natural
Resources Defense Counsel
Madame Chairman, members of the Committee, thank you for
the opportunity to testify today on Massachusetts v. EPA, the
Supreme Court's decision upholding the Environmental Protection
Agency's authority to regulate global warming pollution under
the Clean Air Act. I am policy director and senior attorney for
the Natural Resources Defense Council's Climate Center. I
represent NRDC and its 1.2 million members and supporters in
the Massachusetts case and in related global warming
litigation. I work closely with the broad coalition of States,
cities, and environmental organizations engaged in these cases.
In the 1990's, I served as director of climate change policy in
the EPA air office, under Carol Browner.
We began this case during the coldest part of the Little
Ice Age in global warming policy in Washington. The President
had broken his campaign pledge to control carbon dioxide. The
Congress was inactive. The States were not yet moving. Yet the
science was growing ever clearer on the dangers of global
warming, and the nation's Clean Air Act already empowered the
government to react to that science. When the Bush
Administration tried to nail this door permanently closed, our
coalition of States, cities, and environmental organizations
took the last step available, appealing to the independent
third branch to uphold our nation's laws.
The Supreme Court's April 2, decision in Massachusetts v.
EPA repudiates the Bush administration's legal strategy for
doing nothing on global warming. The nation's highest court set
the White House straight: Carbon dioxide is an air pollutant.
EPA has--and has always had--the power and responsibility to
start cutting the pollution that is wreaking havoc with our
climate. We need EPA to act now.
The Court's decision has four immediate game-changing
consequences:
First, Administrator Johnson now must decide afresh whether
to set greenhouse gas emission standards for new motor vehicles
under Section 202 of the Clean Air Act. The Court clearly
stated that this decision must be based on the science, and the
science only:
Under the clear terms of the Clean Air Act, EPA can avoid
taking further action only if it determines that greenhouse
gases do not contribute to climate change or if it provides
some reasonable explanation as to why it cannot or will not
exercise its discretion to determine whether they do.\1\
---------------------------------------------------------------------------
\1\127S.Ct. 1438, 1462 (2007).
---------------------------------------------------------------------------
The Court rejected all of the Administration's ``laundry
list of reasons not to regulate''-preferences for voluntary
action, concerns about piecemeal regulation, claimed
interference with foreign policy. No, the Court said, the
decision must be made on the science only: ``To the extent that
this constrains agency discretion to pursue other priorities of
the Administrator or the President, this is the congressional
design.''\2\
---------------------------------------------------------------------------
\2\Id.
---------------------------------------------------------------------------
The Court was especially clear that ``while the President
has broad authority in foreign affairs, that authority does not
extend to the refusal to execute domestic laws.''\3\ The Court
also observed that while economic considerations figure into
the level and timing of standards under the Clean Air Act, they
are not relevant to determining the need for such standards.\4\
---------------------------------------------------------------------------
\3\Id. at 1462-63.
\4\Id. at 1461.
---------------------------------------------------------------------------
The Court found that ``EPA has not identified any
congressional action that conflicts in any way with the
regulation of greenhouse gases from new motor vehicles.''\5\
Specifically, the Court found no conflict with the Energy
Policy and Conservation Act, under which the Corporate Average
Fuel Economy (CAFE) standards are set: ``[T]hat DOT sets
mileage standards in no way licenses EPA to shirk its
environmental responsibilities. EPA has been charged with
protecting the public's ``health'' and ``welfare,'' . . . a
statutory obligation wholly independent of DOT's mandate to
promote energy efficiency.''\6\
---------------------------------------------------------------------------
\5\Id. at 1461.
\6\Id. at 1462.
---------------------------------------------------------------------------
Given the Administration's embrace of the Intergovernmental
Panel on Climate Change (IPCC)--more than 90 percent certainty
that anthropogenic emissions are causing global warming--it is
difficult to imagine how Administrator Johnson could not now
conclude that vehicular emissions of these pollutants are
contributing to climate change. He must act, and now.
Since the Supreme Court's decision, however, the
Administration has made statements that give reason for concern
about their intentions to comply with the Court's decision. On
April 3d, while acknowledging that the Court's decision is
``the new law of the land,'' President Bush himself went right
back to the well of extraneous considerations that the Court 1
day before had declared illegal: research, voluntary action,
waiting for other countries to act.\7\ Administrator Johnson
sounded the same notes at a press conference on April 10th. And
Council on Environmental Quality Chairman James Connaughton
declared the Court's decision ``somewhat moot'' and
``inconsequential'' because ``the President is already
committed to regulatory action''--by which he meant that the
Administration had asked Congress for new laws on fuel economy
and alternative fuels.\8\
---------------------------------------------------------------------------
\7\http://www.whitehouse.gov.news.releases/2007/04/20070403.html.
\8\Jeff Bernard (AP), ``Rulings Go Against Bush Administration,''
Casper Star-Tribune (Apr. 18, 2007)(attached).
---------------------------------------------------------------------------
This Committee will no doubt hear about a long list of
voluntary programs and initiatives. Some of EPA's programs,
such as EnergySTAR labeling, have brought about real changes in
the energy-consuming products we purchase. Other programs, such
as the Asia-Pacific Partnership (on which I have testified
before), are utterly ineffective efforts just to look busy.
Altogether, these voluntary efforts have failed to stop the
steady growth in U.S. emissions, which has continued during the
Bush years at the same rate as in the prior decade--about 14
percent per decade. The Administration cloaks its statistics in
the deceptive metric of ``emissions intensity.'' Celebrating
improvements in emissions intensity is like a dieter's claiming
victory when he succeeds only in slowing his weight gain.
This Committee has a special role and responsibility to
hold Administrator Johnson's feet to the fire. Demand that Mr.
Johnson give you a specific schedule for determining that
vehicles' heat-trapping emissions are in fact contributing to
global warming. Do not accept procedural dodges and delays.
There is no more legal basis, and no more time, for these lame
excuses.
Second, and equally important, the Massachusetts decision
removes the major obstacle to State initiatives, led by
California, to cut global warming pollution from vehicles.
California and 11 other States--Connecticut, Maine, Maryland,
Massachusetts, New Jersey, New York, Oregon, Pennsylvania,
Rhode Island, Vermont, and Washington--have adopted clean car
standards to cut heat-trapping emissions by 30 percent by model
year 2016. Arizona and New Mexico--and perhaps others--will
soon join. Together, these States account for more than a third
of the U.S. vehicle market. The Clean Air Act allows California
to set its own air pollutant standards, provided only that it
gets a routine waiver from EPA. California asked for the waiver
nearly 16 months ago, but EPA has been dragging its feet.
I welcome Administrator Johnson's recent commitment to
Governor Schwarzenegger that he will now allow the waiver
process to start, and that EPA will soon publish a notice
scheduling the required hearing. But the Administrator has
declined to give California any schedule for making the waiver
decision itself. The standards apply starting in the 2009 model
year, which is fast approaching. This Committee should demand a
clear and near-term deadline from Administrator Johnson for his
decision. It is time for the Administration to stop stalling
and get out of California's way.
Third, the Supreme Court's decision has implications for
other pending global warming litigation. At the top of the list
is a parallel case on power plants. A coalition of States and
environmental organizations has challenged EPA's refusal to add
a CO2 emission standard to the new source
performance standards and emission guidelines for new and
existing power plants under Section 111 of the Clean Air Act in
a case called New York v. EPA.\9\ EPA's sole reason for
refusing to regulate was the claim that it had no legal
authority to control CO2--the very issue now settled
by Massachusetts. The D.C. Circuit stayed that case pending the
Supreme Court's decision, and now we intend to seek an
immediate reversal of the EPA position.
---------------------------------------------------------------------------
\9\No. 06-1322 (D.C. Cir.)
---------------------------------------------------------------------------
So Administrator Johnson now will also have to decide
whether CO2 emissions from power plants contribute
to global warming. Again, based on the clear scientific
evidence, we cannot see how he could reach any other
conclusion. As with vehicles, Administrator Johnson must act on
power plants, and now. We hope this Committee will press him
for action here too.
The Massachusetts decision will very helpfully affect other
cases also. It knocks the legs out from under cases brought by
the auto industry in California, Vermont, and Rhode Island,
alleging that those States lack Clean Air Act authority to set
clean car standards, and alleging conflict with the CAFE
standards. Massachusetts also strengthens the States' position
in Connecticut v. American Electric Power, a case pending in
the Second Circuit Court of Appeals. In that case, eight
States, New York City, and two land conservation trusts allege
that the five electric power companies with the highest
CO2 emissions are creating a public nuisance. Their
theory stems directly from Georgia v. Tennessee Copper,\10\ the
case relied on by the Supreme Court in Massachusetts to
buttress States' standing and States' right to go to Federal
court to abate pollution outside their borders.
---------------------------------------------------------------------------
\10\206 U.S. 230 (1907)
---------------------------------------------------------------------------
Fourth, and most important, the Supreme Court's decision
has added new momentum to the legislative process. Even before
April 2, the legislative kettle was nearing a boil. Since
Hurricane Katrina, and since the November elections, public
sentiment has shifted dramatically on global warming.
Congress's new leaders and committee chairs have expressed the
strong commitment to pass comprehensive global warming
legislation. Many forward--looking business leaders have come
forward to embrace the desirability--or at least the
inevitability--of new legislation. Perhaps motivated by the
prospect that this Administrator--or the next one--will use his
Clean Air Act powers, even more industry leaders are coming to
the table now to help hammer out new global warming
legislation. As they say, ``If you're not at the table, you're
on the menu.''
NRDC supports placing every ounce of pressure you can on
the Administration to faithfully execute the existing law of
the land. The actions already within EPA's power would take a
big bite out of global warming. At the same time, we also
support enactment of new economy-wide legislation to
comprehensively address global warming.
In NRDC's view, solving global warming requires three
things:
A mandatory declining cap on national emissions that
starts cutting emissions now and reduces them by 80 percent by
2050.
Performance standards--for vehicles, fuels, and power
plants, as well as buildings, appliances, and other equipment--
to quickly deploy today's emission-cutting technology and
promote rapid development of tomorrow's.
Incentives--drawn mainly from the value of emissions
allowances--to promote new technology, to protect consumers
(especially low-income citizens), workers, and communities, and
to help manage adaptation to climate impacts that we cannot
avoid.
There is still time--though only a little time--to avoid
the worst effects of global warming. If the United States and
other industrial countries commit to action on this scale, and
if key developing countries also reduce their emissions growth
and follow suit with similar reductions later in the century,
then we can still keep greenhouse gas concentrations from
exceeding 450 parts per million (CO2 equivalent) and
maintain at least a 50/50 chance of avoiding warming of more
than another 2 Fahrenheit. Exceeding this level, more and more
scientists tell us, is extremely dangerous.
NRDC looks forward to working with this Committee and with
all stakeholders to pass this legislation in this Congress.
Senator Boxer. Thank you so much, Mr. Doniger.
Mr. Glaser.
STATEMENT OF PETER GLASER, PARTNER, TROUTMAN SANDERS, LLP
Mr. Glaser. Thank you, Madam Chair. My name is Peter
Glaser. I am a partner in the Washington office of the Troutman
Sanders law firm. I practice in the areas of environmental and
energy law, and represented the Washington Legal Foundation in
the filing of an amicus brief in the Massachusetts v. EPA case.
I appreciate the opportunity to testify before the
Committee this morning.
Let me begin by stating that I am not here before the
Committee representing or advocating the particular position of
any particular company or industry in views that I am
expressing today on my own. In addition, I am not here to
recommend any particular course of action by this Committee or
Congress, but simply to offer my views as a practicing attorney
on issues pertaining to the potential regulation of greenhouse
gases by EPA under the Clean Air Act.
Under the Court's decision in Massachusetts v. EPA, EPA
will be required to decide whether greenhouse gases emitted by
new motor vehicles may reasonably be anticipated to endanger
public health and welfare. Based on its analysis of the
science, EPA's options are to make an endangerment finding,
make a non-endangerment finding or decide that the science is
insufficiently certain to decide either way.
Although the Massachusetts case concerned potential
regulation of greenhouse gas emissions from new motor vehicle
sunder Title II of the Clean Air Act, the Court's ruling that
greenhouse gases are air pollutants under the statute may have
implications for other Clean Air Act regulatory programs.
Indeed, the question of EPA regulation of greenhouse gas
emissions from power plants under the Section 111 New Source
Performance Standard program is likely to be before the Agency
shortly. There may be requests for regulatory action as to
other sources as well.
However, whatever regulatory choices EPA may make,
greenhouse gas regulation is likely to be, I am sorry to say, a
highly complex undertaking. For instance, and without trying to
be comprehensive, attempting to regulate greenhouse gas
emissions from power plants and other large stationary sources
under the Section 111 New Source Performance Standards is
likely to involve--and here are some more adjectives--
difficulty, lengthy and controversial administrative hearings.
In the first place, EPA's ability to use cap and trade as a
regulatory mechanism under Section 111 is currently in
litigation in the context of the Agency's power plant mercury
regulations. In addition, whether or not cap and trade is
authorized under Section 111, EPA would not be authorized under
that section to create regulations based solely on a desire to
reduce greenhouse gas emissions.
Under Section 111, EPA can only require sources to move for
what is called best demonstrated technology, or BDT. As
interpreted by the D.C. Circuit, BDT means technology that is
achievable in the real world. The standard may be set at a
level that is technology forcing, but in the end, the
technology EPA prescribes must be adequately demonstrated as
being an available technology.
This could be a difficult standard for EPA to apply in the
near term as the basis for regulating power plants and other
large sources. While there are many promising new technologies
in development, neither the Department of Energy nor the
Electric Power Research Institute expects technologies to be
ready for widespread use in the industry until after 2020. This
is the case not just for technologies that capture
CO2 from the emissions stream; it is also true for
very long-term reliable underground storage of the
CO2 once captured.
Thus, while industry appears more than capable of
addressing the CO2 issue over the long term,
questions arise as to whether the necessary technology can be
adequately demonstrated as being available now. Moreover,
according to the D.C. Circuit, the analysis EPA must undertake
in setting BDT involves weighing ``cost, energy and
environmental impacts in the broadest sense at the national and
regional levels, and over time as opposed to simply at the
plant level in the immediate present.'' The Court said that the
analysis could be essentially the functional equivalent of an
environmental impact statement.
Obviously this type of broad consideration of potential
greenhouse gas regulations by EPA will be no easy task, to say
the least. A wide variety of evidence will be relevant and a
very large number of parties are likely to be interested in
wanting to be heard. So this will be a highly challenging
undertaking at EPA and at best, an uncertain conclusion.
Certainly, in my view, quick action cannot reasonably be
expected. Thank you.
[The prepared statement of Mr. Glaser follows:]
Statement of Peter Glaser, Partner, Troutman Sanders, LLP
My name is Peter Glaser. I am a partner in the Washington,
D.C., office of Troutman Sanders LLP. I received a B.A. from
Middlebury College in 1975 and a J.D. from the George
Washington University National Law Center in 1980. I practice
in the areas of environmental and energy law. I represented the
Washington Legal Foundation in filing an amicus brief before
the Supreme Court in the Massachusetts v. EPA litigation.
Let me begin by stating that I am not here before the
committee representing or advocating the position of any
particular company or industry. I am not receiving remuneration
from anyone for my testimony, and the views expressed in my
testimony are my own and not necessarily those of any company
or group that I currently represent or have represented.
In addition, I am not here to recommend any particular
course of action by this Committee or Congress. I have been
asked to offer my views as a practicing attorney of issues
pertaining to the potential regulation of greenhouse gases
(GHGs) for global warming purposes by the U.S. Environmental
Protection Agency (EPA) under the Clean Air Act (CAA).
Under the Court's decision in Massachusetts v. EPA, EPA
will be required to decide whether GHGs emitted by new motor
vehicles may reasonably be anticipated to endanger public
health or welfare. The Court did not require EPA to make an
endangerment finding. It remanded the case to EPA for further
consideration of the endangerment issue. Therefore, based on
its analysis of the science, EPA's options are to make an
endangerment finding, make a nonendangerment finding, or decide
that the science is insufficiently certain to decide either
way.
Although the Massachusetts case concerned potential
regulation of GHG emissions from new motor vehicles under Title
II of the CAA, there is no doubt that the Court's ruling that
GHGs are ``air pollutants'' under the statute may have
implications for other CAA regulatory programs. Indeed, EPA was
asked to set New Source Performance Standards for carbon
dioxide (CO2) from fossil-fuel-fired electric generating units
under Section 111 of the CAA. EPA declined that request last
year, stating it had no authority to regulate GHGs for global
warming purposes, and the matter was appealed to and is pending
in the U.S. Court of Appeals for the D.C. Circuit. It can now
be expected that the case will be remanded to EPA for further
action in light of the Massachusetts v. EPA decision.
Thus, it is likely that EPA will have two formal cases
before it in the near term in which it will be examining
potential GHG regulation. One of the cases will address motor
vehicles under Title II, and the other will address electric
generating units under Title I. In addition, it is possible
that EPA on its own motion or in response to further petitions
may consider potential GHG regulation for other sources.
However, the character of any such regulation remains
uncertain. Although the Court's decision clearly provides for
EPA regulation under Title II if an endangerment finding is
made, the decision does not say anything at all about what that
regulation should be or when it should become effective. Those
matters are left to EPA judgment confined by the specific CAA
provisions under which EPA would invoke regulation. One of the
arguments made by EPA and supporting parties in the
Massachusetts litigation was that the CAA was not designed to
address an issue such as global climate change. While the Court
ruled that GHGs meet the CAA's definition of ``air pollutant,''
the fact remains that GHG regulation under the CAA is likely to
be an uncomfortable fit.
The most obvious example is the National Ambient Air
Quality Standards (NAAQS) program, the program the Courts have
termed the ``cornerstone'' of Title I of the CAA. One of the
prerequisites for the establishment of air quality criteria and
NAAQS in Sections 108 and 109 of the CAA is similar to the
regulatory trigger language the court construed in
Massachusetts.
Yet it is hard to imagine how NAAQS regulation would work
for a GHG. The establishment of a NAAQS triggers a process
whereby attainment and nonattainment areas are designated,
States are required to submit implementation plans to attain or
maintain the NAAQS, and severe sanctions are mandated for non-
compliance. Yet, given the nature of globally-circulating GHGs,
where a ton of GHG emitted in, for instance, Maryland has the
same impact on GHG concentrations over Maryland as a ton
emitted in China, there is nothing Maryland could do about
attaining or maintaining a GHG NAAQS. Maryland could literally
cease emitting any GHGs tomorrow and it would have no
discernable impact on GHG concentrations over the State.
Similarly, GHG emissions are not a pollutant transport
issue, such as ozone, where groups of States can combine to
reduce emissions for the purpose of regional attainment. Given
the nature of the issue, not even the most draconian multi-
state emission reductions could ensure attainment or
maintenance of a GHG NAAQS.
I do not conclude that, if EPA makes an endangerment
finding for motor vehicles under Title II, it has authority to
establish a GHG NAAQS since the trigger language in Section 108
is not identical to the Section 202 trigger language construed
in Massachusetts. Nevertheless, given the similarities, it is
not a stretch to imagine a petition alleging that EPA not only
has authority to establish a NAAQS, it must establish a NAAQSs.
That issue would be a difficult one for the agency and the
courts to resolve.
Perhaps a more likely initial battleground for EPA CAA
regulation, assuming an endangerment finding is made, is the
NSPS program under Section 111. Yet this program too is likely
to create regulatory difficulties. A first issue might be
whether Section 111 authorizes EPA to create a market-based cap
and trade program, or whether EPA's authority is limited to
imposing more inefficient command-and-control technology
requirements on individual sources. In the Clean Air Mercury
Rule, now being litigated before the U.S. Court of Appeals for
the D.C. Circuit, EPA interpreted Section 111 as allowing it to
implement a cap and trade program to control mercury emissions
from coal- and oil-fired utility units. However, a group of
environmental parties has filed a brief challenging EPA's
authority to utilize a cap and trade program under Section 111,
claiming that a cap and trade program does not meet the
definition of a ``standard of performance'' under that section.
Thus, the ability to utilize cap and trade under Section 111
is, at least for the moment, uncertain. Section 111 creates
additional regulatory difficulties for controlling GHG
emissions. A ``standard of performance'' is defined under
Section 111(a)(1) as ``a standard for emissions of air
pollutants which reflects the degree of emission limitation
achievable through the application of the best system of
emission reduction which (taking into account the cost of
achieving such reduction and any nonair quality health and
environmental impact and energy requirements) the Administrator
determines has been adequately demonstrated.'' This standard
has come to be known as ``best demonstrated technology'' or
BDT. As can be seen, under BDT, both the availability of
technology and the cost of technology are factors the
Administrator must consider in setting a standard of
performance. It is true that the standard can be set to be
``technology forcing.'' On the other hand, the standard cannot
be based on results achieved short-term at a small-scale
``pilot'' plant. EPA must show that the standard is
``achievable'' in the real world, that para. 5 is, it ``must be
'adequately demonstrated' that there will be 'available
technology.''' Portland Cement Ass'n v. Ruckelshaus, 486 F.2d
375, 391 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974),
quoting the statutory text. It is EPA's burden to make this
demonstration; it cannot be passed off to industry. National
Lime Ass'n v. EPA, 627 F.2d 416, 432 (D.C. Cir. 1980). These
standards will be difficult to apply to the nation's coal-fired
electric generation fleet. While I do not offer myself up as an
expert on carbon control technologies, cost-effective
technologies do not appear to exist today for controlling
carbon emissions from coal-based electric generating plants on
a large-scale basis. Certainly many promising technologies are
in development, and both the Department of Energy and the
Electric Power Research Institute expect these technologies
will become cost-effective at some point after 2020. But for
purposes of developing standards of performance for coal-based
generation today, new source performance standards are likely
to prove controversial. For instance, carbon-scrubbing at a
pulverized coal plant may consume a very large percentage of
that unit's total electric power.
This is likely to be problematic given the requirement in
determining standards of performance for considering the energy
requirements of the control technology. Controlling emissions
from coal-based generation through the NSPS program is also
likely to prove difficult because of the need not only to
capture carbon dioxide but to store it safely indefinitely.
Again, the results of initial testing are promising and, in the
not too distant future, sufficient testing is expected to be
accomplished to demonstrate the ability to store large
quantities of carbon dioxide underground over the long-term. In
the meantime, however, given the lack of large-scale storage
data, and the very difficult liability issues presented by
underground storage, an attempt to establish a standard of
performance for carbon capture and storage may be difficult to
justify.
Other possibilities for application of the NSPS program to
control carbon emissions from the electric power sector might
be requirements for the use of IGCC technology or even fuel
switching to natural gas. Even under Section 111(h), there are
significant legal issues as to whether such requirements would
be valid. Section 111(h) provides that, if EPA determines that
it not feasible to prescribe a standard of performance, EPA may
prescribe ``a design, equipment, work practice, or operational
standard, or combination thereof, which reflects the best
technological system of continuous emission reductions which
(taking into consideration the cost of achieving such emission
reduction, and any non-air quality health and environmental
impact and energy requirements) the Administrator determines
has been adequately demonstrated.'' Use of this section to, for
instance, set a standard for carbon emissions from a coal plant
that would require switching to natural gas would be
unprecedented. EPA has regulated sulfur dioxide and nitrogen
oxide emissions from coal plants for many years, but has never
determined that gas plant emissions should set the standard for
emissions from coal such that coal would have to be replaced by
gas. It is hard to imagine EPA attempting to utilize Section
111 to, in essence, order that coal plants convert to gas
technology. The economic impacts of such decisions could be
staggering. The fact that new source performance standards must
be technology- and cost-based creates further difficulties in
utilizing Section 111 to implement a cap and trade program for
GHG emissions, even assuming a cap and trade program represents
a valid standard of performance. In CAMR, for instance, EPA was
constrained in choosing the two-phase mercury caps by the
Section 111 requirement that a standard of performance be
achievable. EPA's methodology for calculating the cap thus
involved essentially determining the mercury emission
reductions achievable at individual units, summing those
reductions up nationwide, and setting para. 7 the cap on that
basis. A GHG cap would have to be set on the same basis, that
is, based on a determination of what is achievable nationwide
based on technology and cost considerations. EPA could not
simply choose a cap based solely on its views of desirable
emission reductions. Finally, the U.S. Court of Appeals for the
D.C. Circuit, has stated that the Best Demonstrated Technology
standard is a very broad standard indeed. According to the
Court, ``[t]he language of section 111 . . . gives EPA
authority . . . to weigh cost, energy, and environmental
impacts in the broadest sense at the national and regional
levels and over time as opposed to simply at the plant level in
the immediate present.'' Sierra Club v. Costle, 657 F.2d 298,
330 (D.C. Cir. 1981). The Court stated that ``'section 111 of
the Clean Air Act, properly construed, requires the functional
equivalent of a NEPA impact statement.''' Id. at 331, quoting
Portland Cement, 486 F.2d at 384. Moreover, in 1980, in a case
involving the limestone industry, the Court noted the
``rigorous standard of review under section 111'' applied by
reviewing courts. National Lime, 627 F.2d at 429. The Court
stated that the ``sheer massiveness of impact of the urgent
regulations,'' considered in that and other cases had
``prompted the courts to require the agencies to develop a more
complete record and a more clearly articulated review for
arbitrariness and caprice'' than had been applied in previous
cases. Id. at 451 n.126.
If massiveness of regulatory impact was a concern in a
limestone industry case, that concern would be magnified many
times in promulgating GHG standards of performance. A plethora
of issues would be relevant in setting GHG standards, with EPA
weighing the cost, energy and, and environmental impacts of GHG
regulation ``in the broadest sense at the national and regional
levels and over time'' as if it were preparing an Environmental
Impact Statement. A large number of parties would be interested
given the overweening importance of the issues.
Thus, an EPA rulemaking to establish NSPS for utility units
would be highly complex, controversial and time-consuming.
Quick results, to say the least, cannot reasonably be expected.
In conclusion, back when the issue that ultimately led to the
Massachusetts decision first began, then EPA General Counsel
Jonathan Z. Cannon wrote an April 10, 1998 memorandum to then
Administrator Carol M. Browner examining potential regulation
of GHGs under various provisions of the CAA. He concluded that
``[n]one of these provisions easily lends itself to market-
based national or regional emissions cap-and-trade programs.''
It is also true that attempting to utilize Section 111 to
control the nation's GHG emissions, either through command or
control or cap and trade, would be complicated and
controversial. In the aftermath of the Massachusetts decision,
EPA may undertake proceedings to determine whether a sound
basis exists to make an ``endangerment'' finding and, if so, to
then determine what kind of regulations it may intend to
propose under which specific CAA program. But the ability of
EPA to utilize the CAA to create an ambitious regulatory regime
is likely to prove very difficult indeed.
------
Responses by Peter Glaser to Additional Questions from Senator Inhofe
Question 1. Would it be your opinion that EPA could order
fuel switching as a way to lower CO2 emissions? In
other words, could EPA require utilities to switch from coal to
gas or nuclear or renewables?
Response. This question presupposes that EPA determines
that greenhouses gases (GHGs)may reasonably be anticipated to
endanger public health or welfare and that EPA further
determines there is an appropriate regulatory mechanism, for
instance the New Source Performance Standards (NSPS) program
under Section 111 of the Clean Air Act, to regulate utility GHG
emissions. If EPA made those determinations and decided to
regulate utility GHG emissions under Section 111, it would be
my opinion that EPA could not mandate fuel switching.Under
Section 111, the EPA Administrator lists categories of
stationary sources which, in his/her judgment, cause or
contribute significantly to air pollution which may reasonably
be anticipated to endanger public health or welfare. EPA has
previously listed the category of electric utility steam
generating units. EPA has established standards of performance
for particulate matter, nitrogen oxide, sulfur dioxide, and
mercury for this source category. EPA has never set these
standards at a level that coal-fired generation could not meet
and that would, in effect, require fuel-switching. Instead, EPA
has either set different standards depending on the type of
fuel burned or set a standard for all fuel types based on the
ability of coal-fired units to meet the standard. I do not
believe it would be within the contemplation of Section 111 to
set standards that would essentially require a complete
redesign of the facility, for instance, from a coal-fired
facility to a gas- fired, nuclear or renewable
facility.Moreover, even if one were to assume for the sake of
argument that EPA could require fuel switching under Section
111, EPA is unlikely reasonably to conclude that such a result
is justified. As stated in my written comments to the
Committee, Section 111 requires consideration of costs, and the
cost of fuel switching is likely to be very high.
Question 2. Mr. Glaser, Carol Browner stated in 1997 that
despite scientific uncertainties,enough was known to take
action against global warming. She also said she hadthe
authority to act under the Clean Air Act. Given these two
facts, can you think of any reason why she would have chosen
not to regulate CO2?
Response. I can't. Indeed, given those two statements,
under the view of those whoadvocate quick EPA GHG regulation,
Ms. Browner was in violation of the law by not regulating. As I
understand the view of advocates of quick EPA GHG regulation,
the Massachusetts decision mandates GHG regulation if EPA
determines that GHGs may reasonably be anticipated to endanger
public health or welfare. In this regard, in 2003, when the
original regulatory petition that ultimately led to the
Massachusetts decision was still pending before EPA, the
attorneys general of Massachusetts, Connecticut and Maine tried
to circumvent the regulatory process by seeking to compel EPA
to regulate GHGs through judicial intervention. In
Massachusetts et al. V. Horinko, No. 3:03-CV-984 (D. Conn. June
4, 2003), these attorneys general sought an injunction
compelling EPA to regulate on the theory that (1) EPA had
authority to do so and (2) EPA (in their view) had already
determined that GHGs endangered public health or welfare. The
suit was voluntarily dismissed after EPA denied the rulemaking
petition and various states and environmental interest groups
sought review of that denial in the U.S. Court of Appeals and
ultimately the Supreme Court. However, under the view of the
law expressed in that lawsuit, if enough was known in 1997 to
justify an endangerment finding, then EPA was required at that
time to regulate.
Question 3. I'm going to list provisions of the Act that
are potentially relevant to CO2. For Title 1, there
are Sections 108 & 109, 110, 111, 112, 129, 165, 172 & 173.For
Title 2, there are Sections 202, 209, 211,213 and 231. And for
Titles 5 & 6, there arc Sections 506, 612 and 615. Were you
surprised how long the list of relevant provisions are? How
long and how complicated would EPA proceedings likely be to
promulgate CO2 regulations?
Response. I'm not surprised because I have seen this list
before. However, it does serve tounderscore how complicated a
rulemaking proceeding could be. In terms of timing, I note that
EPA recently announced that it would respond to the
Massachusetts mandate by the end of next year. As EPA stated,
that is a highly expeditious schedule. EPA, of course, cannot
know at this time, whether it will issue substantive
regulations, because it must first consider the endangerment
issue and there arc other complicating issues as well.
The Massachusetts remand will be directed to potential new
motor vehicle regulation. Without intending to minimize the
complexities of such potential regulation, any kind of economy-
wide GHG regulation would be many orders of magnitude more
complex. For instance, just a potential NSPS regulation for
coal-fired electric generation would be immensely difficult. As
stated in my testimony, the U.S. Court of Appeals for the D.C.
Circuit, stated that ``Nile language of section 111 . gives EPA
authority. . . to weigh cost, energy, and environmental
impacts in the broadest sense at the national and regional
levels and over time as opposed to simply at the plant level in
the immediate present.'' Sierra Club v. Castle, 657 F.2d 298,
330 (D.C. Cir. 1981). The Court stated that ``section 111 of
the Clean Air Act, properly construed, requires the functional
equivalent of a NEPA impact statement.'' Id. at 331, quoting
Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 384 (D.C.
Cir. 1973), cert. denied, 417 U.S. 921 (1974). The Sierra Club
v. Costle case reviewed EPA's 1979 NSPS for utility unit sulfur
dioxide emissions. As a review of that decision indicates, the
process of setting those NSFS and the issues involved were
highly complicated and controversial. Setting an NSPS for GHGs
would likely be far more complicated and controversial.
As a comparison, EPA's recent Clean Air Mercury Rule and
Clean Air Interstate Rule each took about 16 months from the
time the notice of proposed rulemaking was published in the
Federal Register to the time the final rule was issued. The
actual regulatory process, however, was much longer, because it
took many months to develop the proposed rules, which in both
cases consisted of extensive regulatory language and extensive
regulatory preamble language explaining the proposal. In both
cases, EPA granted petitions for reconsideration after the rule
was finalized, entailing many more months of regulatory
consideration. Thus, these two relatively targeted rulemaking
affecting a single industry each took more than two years--and
both arc now being litigated in court. Again, GHG regulation
would be a far more complicated undertaking.
Question 4. Could you comment further on the cost and
technology factors that EPA wouldhave to consider if it
proposed to adopt a new source performance standard under
section 111, as well as the use of this provision to regulate
carbon through a new source performance standard?
Response. A ``standard of performance'' is defined under
Section 111(a)(1) as ``a standard foremissions of air
pollutants which reflects the degree of emission limitation
achievable through the application of the best system of
emission reduction which (taking into account the cost of
achieving such reduction and any nonair quality health and
environmental impact and energy requirements) the Administrator
determines has been adequately demonstrated.'' This is commonly
referred to as Best Demonstrated Technology, or BDT. As can be
seen, under BDT, both the availability of technology and the
cost of technology are factors the Administrator must consider
in setting a standard of performance. While the standard can be
set to be ``technology forcing,'' the standard cannot be based
on results achieved short-term at a small-scale ``pilot''
plant. EPA must show that the standard is ``achievable'' in the
real world, that is, it ``must be 'adequately demonstrated'
that there will be 'available technology.'' Portland Cement Ass
'n v. Ruckelshaus, 486 F.2d 375, 391 (D.C. Cir. 1973), cert.
denied, 417 U.S. 921 (1974), quoting the statutory text. It is
EPA's burden to make this demonstration; it cannot he passed
off to industry. National Lime Ass'n v. EPA, 627 F.2d 416, 432
(D.C. Cir. 1980). In the previous question, I addressed how
broad this cost/technology analysis will be.
As applied to carbon, there would be both cost and
technology issues. With respect to coal-based electric
generation, there do not appear to be cost-effective
technologies available today for controlling carbon emissions
on a large-scale basis. Many promising technologies are in
development. However, both the Department of Energy and the
Electric Power Research Institute expect these technologies
will become cost-effective at some point after 2020. Thus, for
purposes of developing standards of performance for coal-based
generation today, new source performance standards are likely
to prove controversial. For instance, carbon-scrubbing at a
pulverized coal plant may consume a very large percentage of
that unit's total electric power. This is likely to be
problematic given the requirement in determining standards of
performance for considering the energy requirements of the
control technology.
Controlling emissions from coal-based generation through
the NSPS program is also likely to prove difficult because of
the need not only to capture carbon dioxide but to store it
safely indefinitely. Again, the results of initial testing are
promising and, in the not too distant future, sufficient
testing is expected to be accomplished to demonstrate the
ability to store large quantities of carbon dioxide underground
over the long-term. In the meantime, however, given the lack of
large-scale storage data, and the very difficult liability
issues presented by underground storage, an attempt to
establish a standard of performance for carbon capture and
storage may be difficult to justify.
Question 5. Explain to me the consequences of a State
failing to comply with ambient air quality standards.
Response. Under Section 179 of the Clean Air Act, a State
that does not submit an acceptablestate implementation plan
containing measures that will lead to attainment of National
ambient air quality standards is subject to the loss of federal
highway funding. In addition, under Section 110(c)(1) of then
Clean Air Act, EPA has authority to implement a federal
implementation plan if the state does not submit a timely,
acceptable SIP. In essence, such an action federalizes control
over air quality administration in the affected state for the
affected action.
Senator Boxer. Sir, how do you know at best an uncertain
conclusion? How do you make that determination? Certainly Mr.
Johnson didn't say that. He said he was going at it, he took it
seriously, he is going to start with the waiver, he is looking
at all the approaches.
How do you know there will be an uncertain conclusion?
Mr. Glaser. All I am saying, Senator, is that given the
broad variety of evidence----
Senator Boxer. And how complex it is.
Mr. Glaser. --that must be weighed, it is a very difficult
question. First of all, we have a two part question.
Senator Boxer. How do you know that at best, what will
happen? How do you know that? Are you in discussions with them
now as to what they can do about what the Clinton
Administration and all their memos said they could do? We have
laid it out here what they could already do today, without any
complexity.
Look, if you are standing waiting to cross the street and
all of a sudden you look up, and you are on the edge of a
sidewalk and a truck is coming at you full speed, you jump out
of the way. You don't discuss, well, if I do it at a certain
angle, it is complex, you don't wait to see what the other
people who are in the way are doing. You jump out of the way.
Now, we know this is coming at us. And we can sit here and
legalize our way into no action. That is exactly what I sense
from you, is that you are working at a pace here that, your
opinion is that nothing good could come out of this. I just
reject that.
I guess I have two questions, I am going to give the gavel
over to Senator Carper. I have two questions for you, Mr.
Doniger, and thank you for your testimony. It was very
encouraging. And thank you for your work.
The Administration seems to think that we need to develop
technology first and then require its use. That is what we
heard from the former legal counsel and that is what we keep
hearing over and over again, along with complexity, China, we
don't have the technology.
But won't regulation speed technological progress? Because
if we have the legislation, or had the regulation, there will
be certainty, there will be longevity. We won't have to have
business communities saying, oh, my God, like certain tax
breaks, will they only be here for 5 years. So wouldn't you
agree, and I don't mean to put words in your mouth, but I just
think, from what I heard you say, that if we sit around waiting
for technology, that truck is going to hit us.
Mr. Doniger. Madam Chairman, the beauty of the acid rain
program and the CFC program is that by setting out clear
targets, and quantitative reductions and deadlines, the signal
was there. The investment was targeted by companies. They knew
what they had to do. We got a lot of things done that had been
near commercialization, that had been only on the drawing
board, and some things that nobody had ever thought off.
So you send those signals on global warming, the same thing
will happen. You will liberate that American spirit and we will
have a lot of successful cost reduction and innovation.
But just under the Clean Air Act itself, EPA has the power
to go beyond what it has already demonstrated. I quote one
sentence from a case with a great name, Lignite Energy Council
v. EPA. The court said with respect to Section 111 that it
looks toward what may be fairly projected for the regulatory
future, rather than the State-of-the-art at present.
So even Administrator Johnson has the authority to look at
carbon caps from storage technology at IGCC and look at the
experience that has been had in the different industries where
that has been applied, put it all together and say, power
companies can do this within a certain timeframe in the future.
And he can set a standard predicated on those improvements.
Senator Boxer. Right. Right. Exactly.
So in closing my remarks, and then as I say, I am handing
the gavel over to Senator Carper, Mr. Glaser has I think put it
forward very clearly from his perspective. I know he has
represented a lot of power companies in his private business.
But he is here as an individual. And basically, the message I
get from him is, complex, very difficult, the best we can hope
for is nothing.
And I don't, I reject that on its face. Because let me tell
you, Mr. Glaser, if you were in charge during the Clean Air
Act, we would never have it, if you were sitting here. If you
were in charge during the Safe Drinking Water Act, we wouldn't
have it. If you were in charge during Superfund, we wouldn't
have it. We wouldn't have the Endanger Species Act because it
was all complex, difficult and the technologies, et cetera,
weren't there.
The fact is when there is a harm coming to society, we need
to act without special interest motivation. Our motivation has
to be the health and safety of the people. And of course, we
consider all the other ramifications. We want to move on this
in a wise fashion. But I just I just reject this negative
thinking that you bring to the table here.
I guess finally, I would say, Mr. Doniger, how does the
scientific evidence available on global warming compare in
amount and quality to the evidence EPA used in the past to make
endangerment findings?
Mr. Doniger. It is overwhelming. And as I think
Administrators Browner and Reilly said, it is much more than
they had for some of the key decisions they took in the past.
It is much more than we knew about CFCs. It is more than we
knew about lead. It is more than we knew about particles.
It is beyond, you know, the EPA is allowed to act at an
early stage. The handwriting is starting to show up on the wall
but not everything is really written. We are way beyond that.
So the evidence on global warming is, I hate to use this
phrase, because it was so, it has gotten such a bad rap on
another subject, but it is a slam-dunk.
Senator Boxer. Yes, it has gotten a bad rap.
So what I am going to do as I get ready for our next
hearing, I want to say to my good staff and also the minority
staff, what I want to do, I want to look at, because I think
that question, I say to my staff, is a very important question.
The evidence used in the past to make endangerment findings in
a whole host of other areas was much less than the evidence we
have now. I think that is important as this case moves forward
in the courts, we are going to go back, et cetera, that, we are
going to be on top of this and we are going to make the case,
at least the people who care about this issue, are going to
make the case. If you look at history as precedent, which we
always are told we should do, especially in legal proceedings,
the evidence is overwhelming.
I just want to thank both of you. I am going to hand over
the gavel to you, Senator. I don't think you actually need the
gavel itself.
Senator Carper. I am going to decline the gavel, Madam
Chair. These guys look like they are probably ready for lunch,
and I think our caucus is waiting for us to join them.
So gentlemen, thank you for being here and for your
responses today.
Senator Boxer. Thank you, and we do stand adjourned. Thank
you for your gracious patience.
[Whereupon, at 1 p.m., the committee was adjourned.]