The Dog Ate Our Homework
Last week 18 states sued the EPA after the agency refused to act on last year's Supreme Court ruling in Massachusetts v. EPA. The court had ordered the EPA to determine whether greenhouse gases presented a danger to public health and welfare, and if so to plan how to regulate them. The states' action was the latest move in the long tussle between the EPA and the states, the EPA and multiple Congressional committees, the EPA and various non-profits speaking on behalf of citizens, even the EPA and businesses who have a keen interest in slowing climate change.
On March 27th, EPA administrator Steven L. Johnson sent Congressman Henry Waxman's (D-CA) Oversight Committee a letter outlining his plan to seek public comment on greenhouse gases and potential regulation. It was a short letter but an elaborate Victorian lacework of excuses. The decision, he wrote, involved sifting through "options", "potential effects", "pending petitions","possible regulations", "careful considerations", "comment periods", "relevant data","drafts", "solicit[ations]" and "extensive briefings".
The Supreme Court ordered a ruling on the implications of CO2 from mobile sources, but administrator Johnson chose to expand consideration to more stakeholders, agencies and courts, "experts", "schools", "hospitals," "factories", "power plants", "aircraft and ships", more "on-road vehicles", "off-road vehicles", "petroleum refineries", "Portland cement", "authorities", "power plants" and "industrial boilers". Procrastinators and students in the prime of their dog-ate-my-paper years could study this document for inspiration.
The science is on CO2 is conclusive and the EPA knows it. In response to the Supreme Court ruling, the EPA recruited 60-70 employees from various agencies to investigate the question of greenhouse gas implications for public welfare (summary, PDF). The EPA investigators found that global warming did endanger public welfare and in 300 pages detailed the risks. (This was not the first investigation that documented this). Johnson then signed a proposal which would have reduced carbon dioxide from motor vehicles, and brought fleet fuel economy to 35 mpg by 2018. The proposal would have bested by two years the timeline in the energy bill recently signed by President Bush. Congressman Waxman and his committee are now investigating what became of these EPA decisions and plans.
The EPA was working on the issues at stake in Massachusetts v. EPA in 1999. Now in 2008, nearly ten years after the initial request was given to the EPA, Johnson decides that rather than "rushing to judgment", the EPA must continue to look at "complex issue[s]", "interconnections" , "lawsuits", "deadlines", possible "changes" and "ramifications", "permits", "thresholds", "requirements", "relevant information", "complexity", and "implications". The world is anxious for action on global warming. Why now, with the pressing urgency of climate change bearing down, is the EPA is overtaken by omphaloskepsis. Or is it mendacity?
Public Comment
Congress wrote the Clean Air Act in 1970 to safeguard public health and welfare. Air quality regulation deserves public comment. But Johnson is proposing a comment period in the Advance Notice of Proposed Rulemaking (ANPR), despite having already received 50,000 public comments in 5 months, when the EPA previously solicited comment. This new "public comment period", seems like an unnecessary stalling mechanism, which will only solicit "public" comment from organizations who have already weighed in with the EPA.
Before Bush signed the energy bill and the EPA denied the California waiver, the EPA, OMB and the White House met regularly with stakeholders. The Detroit News reported last year that Cheney and/or Bush met with "Detroit's three automakers" multiple times in 2006 and 2007. Public Citizen wrote in a 54 page report last August (PDF) documenting how from 2001 to 2003, senior administration officials met with DOT's National Highway Traffic Safety Administration (NHTSA) 45 times in order to produce an attributes model for determining fuel economy. Their considerations were incorporated into the CAFE standards.
As well, according to meeting records, the OMB held five "20-in-10" meetings last year and more in 2006, when the (OMB), the EPA and DOE and the DOT/NHTSA gnashed over the President's proposal to raise fuel economy by 20% in 10 years. Commenters at these meetings included Shell, the American Petroleum Institute, Frontier Oil, Occidental Petroleum, BP, ExxonMobil, Chrysler, Honda, Toyota, Nissan, Hyundai, and Porsche.
The LA Times wrote in a March 28th article, that Johnson's suggestion for more comment followed a memo circulated by the Heritage Foundation, an industry lobby group, to "everyone that we could think of" in the White House and Congress. The memo urged decision makers to pressure the EPA for the ANPR because this would make legislators look like they were doing something. The memo remarked that a public comment session:
"would allow all interested parties to send the EPA relevant information and start a record on important topics such as the cost and burden of carbon caps and Clean Air Act expansion without triggering the costly new regulations."
When the EPA found on endangerment (that GHG were a public health hazard) last year it conducted "extensive analysis....about costs and benefits" before producing the plan that Johnson signed off on. Now, the industry and its agent, the EPA, propose to expand the pool of stakeholders in order snag the regulatory process in a morass of bureaucracy. What's curious is how the interested parties quickly drop their ideological attachment to efficiency and small government when advocating for an obstructive processes that suit their own ends.
EPA/OMB/Industry Meet and Bleat
If we dig into what more corporate "public comment" might look like with respect to "costs and benefits", we could get insight from glancing back at a memo presented to the OMB and its Office of Information and Regulatory Affairs (OIRA) in a meeting November 15th with Chrysler executives.
There are hundreds of other memos to the EPA, of course, but this one, "Regulation of Motor Vehicle Greenhouse Gas Emissions under the Clean Air Act and the Energy Policy Conservation Act", (Whitehouse.gov/omb..) reads like an industry wish list for the EPA's role in regulating greenhouse gases emitted from moving vehicles. After reading this, it doesn't take a vivid imagination to see the industry's prints on the EPA's actions. The "simplest" solution, the authors say, "...is for the EPA to abstain from attempting to set carbon dioxide standards" from vehicles "already subject to the NHTSA regime." [emphasis ours]
Politicians use the word "technology" because of its magical properties. It's modern, smart, and forward leaning. "Technology" solves unsolvable problems and no one argues with it. But often it just means nothing. The Chrysler meeting document defines the EPA's "primary mission" under the Clean Air Act as determining "requisite technology", that will "address the potential problem of climate change" -- as if technology were the solution (and the entire thrust of the Act). The "technology" argument has been quite successful in staving off progress on global warming, as we mentioned in a previous post.
The document advises that if the EPA find endangerment, which they did, then the agency should coordinate with NHSTA "a series of clearly defined steps, each of which involv[es] public participation", and successive "public comment" periods. The document describes the political maneuvering today and no one is surprised. But long after this document was made public, the press and politicians expressed shock over EPA actions like the denial of the California waiver. Sometimes the press should pay more attention to the evidence. There was no room for surprise given this history.
With regard to climate change, the two government agencies that regulate motor vehicles are the NHTSA in the Department of Transportation, which sets gas mileage through CAFE standards, and the EPA, charged with regulating motor vehicle emissions.The energy bill that Congress passed and Bush signed (H.R. 6) last December pertains to mileage standards. Carbon dioxide emissions are primarily responsible for global warming. Industry argues that the EPA should not regulate emissions because of "regulatory overlap" between the NHTSA and EPA -- even though Supreme Court has rejected this overlap argument.
The Chrysler meeting document repeatedly cites the NHTSA's Energy Policy & Conservation Act of 1975 ("EPCA" or "the 1975 Act"), and its "balanced goals". The reason for the auto industry's adoration of the 33 year old NHTSA standard over the Clean Air Act and the EPA's updates to it, is because the EPCA considered things like "technological feasibility" and "economic practicability", which allow for more input from the industry.
A favorite concept from the "1975 Act" is "maximum feasibility". The Chrysler document insists that the EPA carbon dioxide standards should be "no more stringent" that the "maximum feasible" standards for fuel economy set under the NHSTA. Although the phrase "maximum feasible" seems straightforward, it's anything but. As if to emphasize this the authors provide the reader a definition. It's not, they say, "the highest level of fuel economy that can be achieved by a single vehicle, or even by a fleet of vehicles, through the application of available technologies". "Maximum feasible" gives the auto industry leeway to consider employment, consumer choice, and the overall health of the industry. In their interpretation, the 1975 Act "ensured wide consumer choice by leaving maximum flexibility to the manufacturer".
The authors emphasize the part of the Clean Air Act 202(a)(2), that says the EPA should give "appropriate consideration to the cost of compliance". Chrysler predicts that costs like "investment in tooling engineering research, and development" are a "primary constraining factors on the industry's ability to achieve higher average fuel economy levels on a fleet-wide basis", and that "NHTSA's own standard setting process under EPCA would...be the upper limit of what EPA could properly determine to be the most stringent standards".
The Chrysler document says Clean Air Act should allow the EPA: "set standards that take account of the limits on the investment capabilities and product cycles of the industry, just as NHTSA does...", and advise the EPA to consider the financial resources of the industry, and weigh the "potential trade-offs between more stringent requirements in the near-term, and investments in longer-term strategies that seek to commercialize vehicles that do not require" carbon fuels. Citing a petroleum industry case, Chrysler recommends that whatever the EPA does, standards shouldn't require costs and if "additional technology" is needed, than the EPA can "properly decide to not adopt standards under the Clean Air Act".
The Chrysler document outlines all the ways the EPA can not regulate greenhouse gases, including "abstain from attempting..." regulation, to which the EPA seems compliant.
Automotive "Modernization" -- Back to the 70's?
Of course back in the 1970's the fuel efficient cars looked like the Plymouth Duster or the Chevy Chevette and the charge of innovating for customer choice was real. Today customer choice is an encrusted artifact of advertising cynically used by auto manufacturers, especially when faced with regulation. Despite seductive rhetoric about "new technology", the auto industry is clinging to the good 'ole days and the loose regulatory framework of a 33 year old standard.
The Chrysler document presented to the EPA in November, 2007 document lays out "what the Congress sought to achieve in the [1970's] EPCA and how those objectives should shape EPA's action under the Clean Air Act." The authors quote Phil Sharp, former D-IN (now the president of Resources for the Future, an energy policy thinktank) who sponsored the 1975 Act. Sharp apparently said during Congressional debate that "serious unemployment in the auto industry" called for considerations to "preserve this important segment of the economy". This authors quote Sharp in urging the EPA to maintain "the health of the industry."
However, Mr. Sharp referred to the health of the auto industry in the 1970's. In the 1980's, when one auto company president suggested controlling the regulators, Reagan replied "Get control of them? We need to get rid of them." For the last 35 years deregulation spared the auto industry manufacturers, who chose to use the government's leniency and improvements in fuel efficiency to innovate gas consuming features rather than mileage standards that surpassed what the "1975 Act" mandated.
Today in 2008 the auto industry is wallowing in losses. When sales sink up to 18%. unemployment follows. Would today's crisis been averted if a less permissive policy had been employed?1
"Mid-century" is all the rage in fashion and home decorating. But while we tolerate scaly old orange plastic chairs and brown shag rugs as retro fashion statements, we're not so keen on mid-century policy for 21st century problems.We need an evolved policy to preserve the auto industry. In 1975, the Chevy Chevette got 40mpg highway, 28mpg city. Surely we can do better with mileage and emissions?
Otherwise, if the health of the American auto industry is truly still a goal, maybe the government's kindest move would be to shoot it, or drown it in the bathtub, or whatever libertarian types do these days with ponderous, surly sectors they want to put out of their misery.
Johnson Magic
In a post last week we questioned the New York Times assumption that Congress would never alter the Clean Air Act to include costs benefit analysis.2 But perhaps they don't have to, if the Heritage Foundation is successful at urging members of legislator to bog down EPA action on global warming. (Were they?)
Asking industry whether a particular environmental regulation to reduce pollution or remove a toxin is too costly is a well rehearsed event which elicits a predictable response -- YES, yes; way, way too costly! Although costs and benefits must be considered, there are many criticisms of cost benefit analysis for public health and welfare. As with previous Clean Air Act provisions, analysts point out that costs are often overestimated.
The document prepared for the Chrysler/OMB meeting underlines one of the points of our previous post: that costs and benefit analysis done by industry will prioritize industry profits often forsaking clean air, water, health and welfare.3
To run out the clock, the EPA broadened the emissions issue addressed by the Supreme Court to all greenhouse gas emitters. Stephen jump-how-high Johnson who works for the Environmental Protection agency perhaps confuses his employer's acronym for the NBA. Broadening the Supreme Court's mandate will allow corporations and their lobby groups, maybe even some newly minted ones with deceptive names like 'Citizens for Fresh Air', to make wide swinging estimates of costs, or attempt to freak the public out about lost jobs, economic gloom and doom and the exorbitant cost of regulation.
Choices, Sea to Shining Sea
The US has national songs about the country's natural resources. But sometimes it seems like these resources are not really the citizens', rather they belong to industry. Industry uses and in some cases pollutes air and water, then when pollution burdens public health, as with smog in California, industry reacts as if fouling the public's air and water were its right -- how dare citizens overstep their rights by demanding industry control its pollution? Trotting out the "costs" of regulation, industry rebuffs citizens as if they were encroaching, stealing its property. Once citizens and politicians subscribe to this paradigm, business drags jobs onto the set, lays them out on its bargaining table, and presents a coercive choice. Regulation or jobs? Clean air or jobs? Water or jobs? Glaciers or jobs? Species or jobs? Your health or jobs? Your kids health or jobs? Is the public conned when they instinctively recoil and snatch at the jobs as if this were really the choice?
Global warming is not a simple problem, but the Supreme Court has many times laid the groundwork for how the EPA needs to act. The Environmental Protection Agency flouts the court, congress, states and citizens.
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1Deregulation that impacted environmental resources didn't start in the 1980's, but Reagan amassed huge gains in this direction, including cost benefit considerations. Many politicians are attentive to these analyses and some ascribe to more radical sentiments. Senator Tom Delay and Senator James Inhofe would dismantle agencies like NOAA, NEH, DOE, OSHA and the EPA, which they liken to the "Gestapo". (See for instance Delay, T., "No Retreat, No Surrender: One American's Fight" (p13)). Inhofe puts out regular press releases as ranking minority member of the Committee for the Environment and Public Works (EPW) led by Barbara Boxer stating that any global warming measure will cost jobs and wreak economic havoc.
2We previously wrote about Johnson's request to Congress that the Clean Air Act be "refurbished" to include "benefits, costs, risk tradeoffs, and feasibility in making decisions about how to clean the air".
3A 2007 draft report for Congress on costs and benefits of government legislation used Heritage Foundation information and the example of failed communist states to show how regulation can wreak havoc on an economy. Of course the Soviet Union was famous for disasters like Chernobyl and for leaving a devastating, costly pollution legacy, so the example is flawed on many levels. Not to mention how ludicrous it is to write a 2007 report to Congress which stoops to waste even one sentence linking clean air and water security with communism.
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