O'Malley Scolds EPA for Vehicle Pollution Roadblock

By BEN MEYERSON, Capital News Service

WASHINGTON - Gov. Martin O'Malley told a Senate committee Thursday, Jan. 21, that the Environmental Protection Agency's recent decision to deny California's request to raise emission standards was "shameful."

The Senate Committee on Environment and Public Works called the EPA on the carpet for rejecting California's request to lower limits on automobile greenhouse gas emissions.

The EPA determined late last year that allowing California to set a different limit would create a patchwork of rules that would be a poor substitute for an all-encompassing national standard.

In May 2007, O'Malley signed the Maryland Clean Cars Act, which adopted all of California's stricter emission regulations, including EPA-accepted stricter limits on ozone gases, as well as the rejected greenhouse gas standards.

California's standards, if begun in 2009 as planned, would have reduced vehicle greenhouse gas emissions by 30 percent by 2016. Sixteen other states also planned to use the regulations.

"Every reasonable person in the country wants to see us doing more (emission regulation) and not less"
"Every reasonable person in the country wants to see us doing more (emission regulation) and not less," O'Malley said. "We must move forward to address this challenge."

The EPA, he said, erred in denying California—and by extension, Maryland—the choice of being more stringent in its greenhouse gas standards.

"It amounts, in essence, to the EPA saying to the states, 'How dare you make greater progress against climate change than what we're willing to make in the federal government.'"
"The longstanding agreement that states should have the freedom to do more, if they should so choose, than the federal government to protect the environment has now been abrogated," O'Malley said. "It amounts, in essence, to the EPA saying to the states, 'How dare you make greater progress against climate change than what we're willing to make in the federal government.'"

O'Malley joined the governors of Pennsylvania and Vermont, the Michigan attorney general and a Republican from California to speak on the EPA's decision.

But the Democrat-dominated committee spent much of the hearing criticizing and questioning EPA administrator Stephen Johnson, who issued the original decision. Only Oklahoma Sen. James Inhofe represented Republicans on the committee Thursday.

"I think your decision today really is an affront to federalism, and an affront to our states," said Sen. Ben Cardin, D-Md. "The traditional role of the EPA is to be a leader in protecting our environment, and I think this decision really questions the leadership interest of the EPA in carrying out that historic role."

Sen. Frank Lautenberg, D-N.J., agreed.

"It's bad enough when the federal government fails to lead, but it's even worse when the federal government gets in the way of states that are trying to act in the interest of the public..."
"It's bad enough when the federal government fails to lead, but it's even worse when the federal government gets in the way of states that are trying to act in the interest of the public in the absence of leadership from the EPA," Lautenberg said.

But Johnson said that by rejecting California's request, he was simply following the law. The federal government's main rule for emissions regulation, the Clean Air Act, says states cannot set their own standards unless the state, among other things, has "compelling and extraordinary conditions" that necessitate individual regulations.

"My job is to make the right decision, not the easy decision," Johnson said, though the EPA had never before denied such a request.

In the end, O'Malley simply urged the committee to take action.

"The people of Maryland do not understand why, if the technology is there, . . . why on Earth would we not do this before the Chesapeake Bay is irreparably damaged."

Attorney General Douglas F. Gansler announced that Maryland, along with Attorneys General from 17 other state and local governments sent a letter to Stephen L. Johnson, Administrator of the U.S. Environmental Protection Agency (EPA) regarding the agency's lack of progress in responding to last year's U.S. Supreme Court ruling in Massachusetts v. EPA.

"The EPA has abdicated its authority under the Clean Air Act," said Attorney General Gansler. "On April 2, 2007, the Supreme Court established the EPA's authority to regulate greenhouse gases. With the one year anniversary of the Supreme Court's decision fast approaching, the EPA should obey this landmark decision and issue regulations to curb greenhouse gas emissions without further delay."

Before the EPA can regulate greenhouse gas pollution, the agency must make a formal determination that such emissions threaten public health or welfare. After the Court's decision in April 2007, the EPA said it would propose regulations by the end of the year, but it has failed to do so. Today's letter serves as notice that states are considering further legal action to compel EPA's compliance with the Supreme Court's mandate.


January 23, 2008

Stephen L. Johnson
U.S. Environmental Protection Agency
United States Environmental Protection Agency 1101A
U.S. EPA Headquarters
Ariel Rios Building
1200 Pennsylvania Avenue, NW
Washington, DC 20460

Re: Massachusetts v. EPA remand

Dear Administrator Johnson:

We are writing today because of our concern about the progress of the administrative proceedings on remand from last year’s U.S. Supreme Court ruling in Massachusetts v. EPA, 549 U.S. ___, 127 S.Ct. 1438 (2007). For the reasons set forth below, we believe that EPA is unreasonably delaying action on the remand, and we request a response by February 27, 2008, regarding the agency’s specific intentions for moving that remand forward.

As you know, in Massachusetts v. EPA, we and other parties challenged EPA’s refusal to regulate greenhouse gas emissions from motor vehicles pursuant to the federal Clean Air Act. The Court ruled that EPA had authority to regulate greenhouse gases under the Clean Air Act. 127 S.Ct. at 1459-62. The Court also ruled that EPA had relied on improper policy grounds in denying a rulemaking petition that had been filed under Section 202 of the Act, and it ordered the agency to revisit the rulemaking petition based on proper statutory factors. Id. at 1462-63. As EPA itself described the Court’s mandate just last month:

On April 2, 2007, the Supreme Court ruled that the EPA must determine, under Section 202(a) of the Clean Air Act, whether greenhouse gas emissions (GHG) from new motor vehicles cause or contribute to air pollution that endangers public health or welfare.

72 Fed. Reg. 69934 (December 10, 2007).

In response to the Court’s ruling, you repeatedly indicated that the agency would be moving forward with regulation under Section 202 and other provisions of the Clean Air Act. See e.g., Statement of Stephen L. Johnson, to House Select Committee on Energy Independence and Global Warming (June 8, 2007). In this manner, you acknowledged that the agency has concluded that the endangerment threshold has in fact been crossed. In order to keep the regulatory process on track, we urged you immediately to begin the formal process of making a determination of endangerment through publishing a formal notice to that effect. See e.g., Testimony of Attorney General Martha Coakley to House Select Committee on Energy Independence and Global Warming (June 8, 2007). While you declined to take this step, you did on numerous occasions state that the agency would formally propose new regulations pursuant to the Clean Air Act, including under Section 202, by the end of 2007, with final regulations in place by the end of October 2008. Indeed, you reaffirmed that intent in a formal “regulatory plan” published on December 10, 2007. 72 Fed. Reg. 69934. Nevertheless, the end of 2007 has come and gone without any regulatory action by the agency and without any new commitment as to when the agency would act.

We are aware that Congress has enacted the Energy Independence and Security Act of 2007, which President Bush signed into law on December 19, 2007. That act tightened the fuel economy standards for motor vehicles under the Energy Policy and Conservation Act (EPCA). But such changes to EPCA do not affect EPA’s authority or duties under Section 202 of the Clean Air Act or under the Supreme Court’s remand. As the Supreme Court has emphasized, EPA’s statutory obligation to protect public health and welfare is “wholly independent” from EPCA’s “mandate to promote energy efficiency.” 127 S.Ct. at 1462. Moreover, in enacting the new legislation, Congress could not have been clearer that it was not modifying EPA’s existing obligations under other statutes. See P.L. 110-140, 2007 HR slip, § 3 (“Except to the extent expressly provided in this Act, or an amendment made by this Act, nothing in this Act or an amendment made by this Act supersedes, limits the authority provided or responsibility conferred by, or authorizes violation of any provision of law (including a regulation), including any energy or environmental law or regulation.”).

The rulemaking petition at issue in Massachusetts v. EPA was filed in 1999, now almost a decade ago. EPA’s failure to exercise its clear authority under the Clean Air Act and to act on the petition constitutes an abdication of its regulatory responsibility. We once again urge EPA immediately to begin the regulatory process by publishing formal notice of EPA’s conclusion that greenhouse gas emissions from motor vehicles and other sources “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” See 42 U.S.C. 7521(a). There is no valid reason for EPA to continue to delay moving the regulatory process forward in this manner. We note, for example, that immediately beginning the formal process of making an endangerment determination will still allow the agency additional time to deliberate over regulatory design issues involved in actually setting the applicable emissions standards.

In sum, according to EPA’s own schedule, it is past time for EPA to take action on the Massachusetts v. EPA remand, and we urge you to move forward at once. If EPA continues unreasonably to delay its actions on the remand, we intend to take action to enforce the D.C. Circuit’s mandate. Please let us know in writing by February 27, 2008, specifically what EPA’s plans are to comply with the mandate.

If you would like to discuss this further, feel free to contact us directly or to have your staff follow up with Massachusetts Assistant Attorney General James R. Milkey. [contact info removed]

Thank you very much.

Very truly yours,
[signatures of respective co-authors]

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