EPA emissions-law decision draws fire

WASHINGTON - The Bush administration's rejection of state efforts to tighten rules on greenhouse gas emissions touched off a flurry of counterattacks yesterday.

Democrats in Congress launched an investigation. Governors, led by California's Arnold Schwarzenegger, said they would sue, and environmental groups demanded to see the government's rationale for its decision.

Those were the opening moves in what is shaping up to be a fierce legal and political battle over the Environmental Protection Agency's decision to block California and at least 16 other states from regulating greenhouse gases that come from new cars and trucks.

Environmental lawyers and congressional aides were focusing on whether EPA Administrator Stephen L. Johnson denied California's waiver request without relying on the legal and technical documentation they said should accompany such a decision. His statement that his position was based on a legal analysis of the Clean Air Act appeared at odds with the way other government officials characterized the process.

Johnson's decision overruled a consensus among EPA's legal and technical staff that denying the waiver was unlikely to stand up in court, according to government officials familiar with the decision. Johnson's advisers told him that granting California the waiver would put the agency in a much more defensible legal position should automakers take EPA to court.

The officials, speaking on condition of anonymity because they were not authorized to discuss the matter, confirmed a report in the Washington Post that a Power Point presentation prepared for Johnson included the prediction, "EPA likely to lose suit," if taken to court for denying the waiver.

Critics also pointed to a sentence in a letter Johnson sent to Schwarzenegger this week: "I have decided that EPA will be denying the waiver and have instructed my staff to draft appropriate documents setting forth the rationale for this denial."

Environmental lawyers said such after-the-fact reasoning was unusual and predicted it would not stand in court. "Here they've decided to deny without figuring out what the proper reason for denial should be," said Dan Galpern, an attorney with the Western Environmental Law Center in Oregon who is representing a coalition of environmental groups in the case.

EPA spokeswoman Jennifer Wood said it wasn't unusual for the EPA chief to make a decision on a Clean Air Act waiver request and then ask staff to draft technical documentation to back it up. In this case Johnson provided early notification to meet his commitment to Schwarzenegger to issue the decision by the end of the year, Wood said.

She said a decision document would be published in the federal register "as soon as possible," but couldn't say when that might be.

"As a 26-year career scientist and EPA veteran, the administrator clearly values legal and technical expertise of his staff," Wood said. "The Clean Air Act states the authority rests with administrator, and Administrator Johnson evaluated the waiver according to the criteria in the Clean Air Act and made his decision."

Schwarzenegger announced the state would file an appeal within three weeks.

"I have no doubt that we will prevail because the law, science and the public's demand for leadership are on our side," said Schwarzenegger, as officials in Vermont, Washington and other states also announced lawsuit plans.

It was the first time EPA had completely denied California a Clean Air Act waiver request, after granting more than 50.

The tailpipe standards California adopted in 2004 would have forced automakers to cut greenhouse gas emissions by 30 percent in new cars and light trucks by 2016.

Under the Clean Air Act, the state needed a federal waiver to implement the rules, and other states could then adopt them too.

Twelve other states - Connecticut, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington - have adopted the standards, and the governors of Arizona, Colorado, Florida and Utah have said they also plan to adopt them. The rules were also under consideration in Iowa.

Johnson said California's emissions limits weren't needed because Congress just passed energy legislation raising fuel economy standards nationwide to an average of 35 miles per gallon by 2020. California officials said their law was tougher and acted faster.

Rep. Henry Waxman, D-Calif., who is chairman of the House Oversight and Government Reform Committee, wrote to Johnson yesterday demanding "all documents relating to the California waiver request, other than those that are available on the public record" by Jan. 23. Sen. Barbara Boxer, D-Calif., chairwoman of the Senate's environment committee, also was demanding to see the documents.

President Bush stood behind his EPA administrator.

"The question is how to have an effective strategy," Bush said at a news conference yesterday. "Is it more effective to let each state make a decision as to how to proceed in curbing greenhouse gases or is it more effective to have a national strategy?"

The National Resources Defense Council filed a Freedom of Information Act request demanding EPA produce the records it used to make the decision. *