Analysis of the Energy Bill, the EPA's Refusal to Grant Waivers and State Laws With Respect to Climate Change

As the United Nations Bali climate talks wound down December 15, Kevin Conrad, the delegate from Papua New Guinea, leaned into his microphone, and speaking to the U.S. representatives stated:

We seek your leadership. But if for some reason you are not willing to lead, leave it to the rest of us. Please get out of the way.

California has been asking the same of the current administration, having  passed 2002 emission standards known as the Pavley law, unsuccessfully challenged in the courts by the auto industry and the Federal government, but requiring EPA waivers. 

Seventeen other states - Arizona, Colorado, Connecticut, Florida, Iowa, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Washington - have adopted, or are in the process of adopting California's emissions standards. EPA approval of California's waiver would have meant automatic approval for these states' standards, which taken together represent almost 50% of the U.S. population. [Editor's note: Press release - Governor Arnold Schwarzenegger...announced (December 20, 2007) his intention to file a lawsuit in the District of Columbia Court of Appeals to challenge the U.S. Environmental Protection Agency's (EPA) denial of California's tailpipe emissions waiver request. The lawsuit will be filed as soon as possible, which is expected to be within the next three weeks."]

December 19, the same day that President Bush signed the Energy Independence and Security Act of 2007 (H.R. 6), which included fuel efficiency standards  short of those enacted by these states, the Environmental Protection Agency hastily called a news conference to announce its refusal to grant a waiver, although it has never refused to do so on over 50 previous occasions. 

Henry Waxman (D-CA), Chairman of the House Oversight and Government Reform Committee, sent a letter December 20 requesting that the agency preserve and produce all documents relating to Administrator Johnson’s decision to block California’s efforts to reduce greenhouse gas emissions from automobiles.

Your decision not only has important consequences to our nation, but it  raises serious questions about the integrity of the decision-making process. Accordingly, the Committee has begun an investigation into this matter. ...You should produce to the Committee all responsive documents from your office by January 10, 2008. All responsive documents from the Office of Transportation and Air Quality and the Office of General Counsel should be produced by January 17, 2008, and all other responsive documents should be produced by January 23, 2008.

Janet Wilson of the Los Angeles Times reported December 21 that sources within and outside the agency complained that staff had been ignored in refusing the waiver.  Some speculated that the the juxtaposition of the two events reflected Administration support for the industry's lobbying position.   Some autoworkers and dealers had actually opposed the industry and supported increased mileage standards as improving the U.S.'s competitive position.

The federal energy bill, although including emissions standards laxer than those set by the states, faced an arduous path.  Nick Rahall (D-WV) introduced the H.R. 6 on January 12, 2007, which passed on a vote of 228-193 on January 18. The enrolled version of this measure is here. The Senate started to consider its substitute in June 12, which after numerous amendments passed the Senate by a vote of 65-27 on June 22. This version of the bill is here.

Three Democrats voted against the measure: Landrieu (D-LA), McCaskill (D-MO) and Stabenow (D-MI). Twenty Republicans voting for the measure: Alexander (R-TN), Coleman (R-MN), Collins (R-ME), Corker (R-TN), Craig (R-ID), Crapo (R-ID), Domenici (R-NM), Ensign (R-NV). Grassley (R-IA), Gregg (R-NH), Lugar (R-IN), Murkowski (R-AK), Sessions (R-AL), Smith (R-OR), Snowe (R-ME), Specter (R-PA), Stevens (R-AK), Sununu (R-NH), Thune (R-SD) and Warner (R-VA).

The Washington Post's Sholnn Freeman summarized the bill, which then went back to the House for a vote. He had also covered the attempt to water down fuel efficiency standards, as well as the defeat of coal-to liquid provisions and Virginia offshore drilling.

The House vote stalled until December 6, passing 235-181 after John Dingell (D-MI) acceded to fuel efficiency standards (bill text). The Senate failed to gain enough votes to stop a filibuster on December 7 by a vote of 53 to 43. Stripping one sticking point--clean energy requirements for electric utilities as lobbied against by Giuliani's law firm--still proved insufficient:  the Senate failed to invoke cloture by one vote, 59-40, on December 13. This time the issue was tax incentives for wind and solar energy funded through the elimination of tax breaks for the oil industry.  Ironically, one of those voting against cloture was John Warner (R-VA), who was taken to task by the Roanoke Times in a December 14 editorial, "Hot, then cold on global warming."

The Senate finally passed a December 13 version on a vote of 86-8, after this provision was also eliminated.  While Carl Levin (D-MI) voted for the measure, including fuel efficiency standards, Debbie Stabenow (D-MI) was the sole Democrat voting nay. In December 14, Renewable Energy Access reported that,

After the vote, some Democratic Senators said they would revisit both the RPS and tax provisions in the next session of Congress.

While the omission of those provisions is considered a setback by the industry, Congressional leaders are hailing the passage of the Bill as a bipartisan success. Trade groups in Washington such as the American Wind Energy Association and the Solar Energy Industries Association have promised they will continue to lobby Congress for tax credit extensions before they expire in December of 2008.

November 8, California had sued the EPA for failing to issue a waiver, saying the agency had delayed unreasonably in reaching a decision.  On December 21, the Environmental News Service reported that California Attorney General Ed Brown, Jr. said December 19 he and Governor Arnold Schwarzenegger are preparing for a lawsuit.  They were joined on December 20 by Washington state's Governor Chris Gregoire, who said his state would also pursue action against the federal government over clean air laws designed to reduce global warming pollution from that state's automobiles.  Pennsylvania Governor Ed Rendell said that his state was also committed to working with the other states.

Thus, as the calendar turns to 2008, it will fall to the courts and Congress, not the Bush Administration, to lead the way in fighting climate change.