[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]




                               before the
                          SELECT COMMITTEE ON
                          ENERGY INDEPENDENCE
                           AND GLOBAL WARMING
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION


                             MARCH 13, 2008


                           Serial No. 110-29

             Printed for the use of the Select Committee on
                 Energy Independence and Global Warming


61-530                    WASHINGTON : 2010
For sale by the Superintendent of Documents, U.S. Government Printing 
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                           AND GLOBAL WARMING

               EDWARD J. MARKEY, Massachusetts, Chairman
JAY INSLEE, Washington                   Wisconsin, Ranking Member
JOHN B. LARSON, Connecticut          JOHN B. SHADEGG, Arizona
HILDA L. SOLIS, California           GREG WALDEN, Oregon
  South Dakota                       JOHN SULLIVAN, Oklahoma
EMANUEL CLEAVER, Missouri            MARSHA BLACKBURN, Tennessee
JOHN J. HALL, New York
JERRY McNERNEY, California

                           Professional Staff

                     David Moulton, Staff Director
                       Aliya Brodsky, Chief Clerk
                 Thomas Weimer, Minority Staff Director

                            C O N T E N T S

Hon. Edward J. Markey, a Representative in Congress from the 
  Commonwealth of Massachusetts, opening statement...............     1
    Prepared Statement...........................................     3
Hon. F. James Sensenbrenner, Jr., a Representative in Congress 
  from the State of Wisconsin, opening statement.................     5
Hon. Jay R. Inslee, a Representative in Congress from the State 
  of Washington, opening statement...............................     5
Hon. Greg Walden, a Representative in Congress from the State of 
  Oregon, opening statement......................................     6
Hon. Emanuel Cleaver II, a Representative in Congress from the 
  State of Missouri, opening statement,..........................     7
    Prepared Statement...........................................     8
Hon. Marsha W. Blackburn, a Representative in Congress from the 
  State of Tennessee, opening statement..........................     9
Hon. John J. Hall, a Representative in Congress from the State of 
  New York, opening statement....................................    10


Panel I:
Hon. Stephen L. Johnson, Administrator of the U.S. Environmental 
  Protection Agency..............................................    11
    Prepared Testimony...........................................    13
    Answers to Submitted Questions...............................   120

Panel II:
Ms. Lisa Heinzerling, Esq., Professor, Georgetown University Law 
  Center.........................................................    48
    Prepared Testimony...........................................    51
    Answers to Submitted Questions...............................    00
Mr. David Bookbinder, Chief Climate Counsel for the Sierra Club..    63
    Prepared Testimony...........................................    65
    Answers to Submitted Questions...............................   131
Mr. Roderick Bremby, Secretary of the Kansas Department of Health 
  and Environment................................................    75
    Prepared Testimony...........................................    77
    Answers to Submitted Questions...............................   134
Mr. Joshua Svaty, Representative of the Kansas House of 
  Representatives, senior member of the Energy and Utilities 
  Committee and ranking minority member on Agriculture and 
  Natural Resources..............................................    82
    Prepared Testimony...........................................    84
    Answers to Submitted Questions...............................    00
Mr. Peter Glaser, partner in the law firm Troutman Sanders.......    92
    Prepared Testimony...........................................    94
    Answers to Submitted Questions...............................   135

                           Submitted Material

Hon. Edward J. Markey, invitation letter of January 15, 2008, to 
  Administrator Stephen L. Johnson, U.S. Environmental Protection 
  Agency.........................................................    20
Hon. Edward J. Markey, letter of March 7, 2008, from 
  Administrator Stephen L. Johnson, U.S. Environmental Protection 
  Agency.........................................................    23
Hon. Edward J. Markey, letter of March 7, 2008, to Administrator 
  Stephen L. Johnson, U.S. Environmental Protection Agency.......    25
Hon. Edward J. Markey, letter of March 11, 2008, from 
  Administrator Stephen L. Johnson, U.S. Environmental Protection 
  Agency.........................................................    27

                         SUPREME COURT DECISION

                              ----------                              --

                        THURSDAY, MARCH 13, 2008

                  House of Representatives,
            Select Committee on Energy Independence
                                        and Global Warming,
                                                    Washington, DC.
    The Committee met, pursuant to call, at 9:30 a.m., in Room 
1334 of the Longworth House Office Building, Hon. Edward Markey 
[chairman of the Committee] presiding.
    Present: Representatives Markey, Inslee, Cleaver, Hall, 
Sensenbrenner, Walden, Sullivan and Blackburn.
    Staff presents: Michal Freedhoff.
    Chairman Markey. Good morning, and welcome to the Select 
Committee on Energy Independence and Global Warming, and thank 
you all so much for being here today for our second hearing to 
focus on the afternoon of the landmark Supreme Court decision 
in Massachusetts v. EPA.
    The Bush administration's approach to climate change policy 
has been to deny the science, delay the regulation, and dismiss 
the critics. The administration's denial of its own authority 
to regulate carbon dioxide as a pollutant under the Clean Air 
Act led to the Supreme Court's decision in Massachusetts v. EPA 
almost one year ago. The Supreme Court decision made a few 
things exceedingly clear.
    Greenhouse gases are pollutants that can be regulated under 
the Clean Air Act. EPA's excuses for its failure to regulate 
greenhouse gas emissions from motor vehicles, including its 
excuse that the Department of Transportation sets fuel economy 
standards were all inadequate.
    Under the Clean Air Act EPA must determine whether these 
emissions cause or contribute to air pollution, which may 
reasonably be anticipated to endanger public health or welfare, 
a determination often referred to as an endangerment finding.
    And, finally, if the EPA does make a positive endangerment 
finding, it must regulate greenhouse gas emissions from motor 
    In May of last year, the President directed EPA along with 
other agencies to prepare a regulatory response to the Supreme 
Court decision. In June the Select Committee held a hearing at 
which EPA Administrator Johnson appeared. He told us he was 
working on both the endangerment finding and the proposed 
regulations, and numerous statements made by him and other 
administration officials during the next six months indicated 
that the EPA was on track to issue a proposed rule by the end 
of last year and have final regulations in place by the end of 
this year.
    Well, that did not happen. Instead, what we have learned 
from a steady stream of press reports and congressional 
hearings is that EPA, in fact, concluded that greenhouse gas 
emissions endanger public welfare and submitted its finding to 
OMB, the Office of Management and Budget, in December.
    EPA, in fact, drafted greenhouse gas regulations for motor 
vehicles and submitted its draft to other agencies in December, 
and then according to numerous reports, EPA stopped all of its 
work in this area, except for its work to deny California, 
Massachusetts and more than a dozen other states the right to 
move forward with their own motor vehicle emissions standards.
    And instead of cooperating with Congress, EPA has answered 
congressional inquiries for information with delays and denials 
that interfere with the work of this Committee and other 
Committees in the House.
    In stark contrast to EPA's failure to lead, we have here 
today two witnesses who have been climate heroes in the State 
of Kansas. Unlike the EPA Administrator, who still cannot 
accept the scientific consensus and declare that greenhouse gas 
emissions are dangerous, Kansas used its own state authority to 
deny a permit for a new coal-fired power plant on just those 
    For its trouble, Governor Sebelius' administration has been 
subjected to an ad campaign comparing it to Vladimir Putin, 
Hugo Chavez, and Mahmoud Ahmadinejad, and the sponsor of the 
coal-fired plant, Sunflower Electric, has engaged in a full 
court press to change the law to its liking because it could 
not show that a new coal plant would not endanger public health 
or welfare.
    Today the Committee seeks answers from Administrator 
Johnson. We are seeking documents we have been requesting for 
almost two months. We want an answer to when the last remaining 
environmental ministry head in the developed world will decide 
whether greenhouse gas emissions are dangerous. We will be 
looking for an answer to the question of when the federal 
government will begin to lead climate change policy by example 
instead of by doing everything possible to thwart the states 
who try to do their part to save the planet.
    I think our witnesses today have an enormous 
responsibility. I thank them for testifying today, and I 
recognize now the Ranking Member, the gentleman from the State 
of Wisconsin, Mr. Sensenbrenner.
    [The prepared statement of Mr. Markey follows:]

    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    Global warming is a complicated and nuanced topic that 
needs smart and carefully devised solutions, and because the 
policies needed to achieve greenhouse gas reduction also stand 
to damage our economy, these policies must be both economically 
and politically feasible.
    Left in the hands of regulators and the courts, greenhouse 
gas reductions could have serious consequences on our economy 
and our way of life, and I am afraid that the Massachusetts v. 
EPA Supreme Court decision runs the risk of putting this 
political question in the hands of unelected regulators.
    Should the EPA determine it should regulate greenhouse 
gases through an endangerment finding, the effects could be far 
more reaching than anyone imagines. We are not just talking 
about new cars and ultimately power plants. As Peter Glazer of 
Troutman Sanders, LLP will testify today, this could include 
several types of buildings, including small factories, assisted 
living facilities, indoor sports centers, and even breweries. 
And where I come from, we do not like the sound of that.
    By focusing on two laws, the Clean Air Act and the 
Endangered Species Act, the courts stand to extend the scope of 
these laws far beyond what they were intended to accomplish. 
Neither of these laws were written to deal with global warming, 
and using them in an effort to regulate greenhouse gases will 
result in a mishmash of policies that will have a heavy hand 
and an unpredictable impact on the economy.
    Regulating greenhouse gas emissions through the Clean Air 
Act is particularly onerous, as anything that qualifies as a 
source like breweries and assisted living facilities I had 
mentioned above would have to receive the proper permits from 
the EPA for any type of expansion. This permitting process is 
expensive and time consuming and would come at a time when 
these expenses could create a heavy drag on the economy. There 
has to be a better way.
    One of my principles in evaluating global warming policy is 
that it must advance technological progress. I am not sure how 
EPA regulations can accomplish this.
    Additionally, I am confident that EPA regulation of 
domestic greenhouse gases would not be emulated by other 
countries, specifically China and India. By unilaterally 
enforcing greenhouse gas restrictions, the EPA could put the 
U.S. at a competitive disadvantage.
    By using the Clean Air Act and other laws not intended to 
regulate greenhouse gases, activists are attempting to use the 
courts to push through heavy handed regulations that will 
result in significant trauma to our already slowing economy. I 
believe through technology we can find ways to control 
greenhouse gas emissions without causing that harm, and it is 
an alternate path that we must pursue.
    I thank the Chair and yield back the balance of my time.
    Chairman Markey. The gentleman's time has expired.
    The Chair recognizes the gentleman from Washington State, 
Mr. Inslee, for an opening statement.
    Mr. Inslee. I am afraid waiting for the Bush administration 
to act on global warming makes waiting for Godot look like an 
action-packed thriller. We are waiting with no action, but the 
planet is not.
    The icecap in the Arctic that melted and lost one million 
square miles of the Arctic the size of six Californias did not 
wait for the Bush administration. The oceans that have 30 
percent more acidity because of dissolved carbon dioxide, which 
may be a partial reason for the destruction of the salmon runs 
in the Pacific Ocean this year, is not waiting for the Bush 
administration. The far west, which is in the seventh or eighth 
year of a drought with consequence damage to the agricultural 
industry, is not waiting for the Bush administration.
    And I just find it inexcusable, reading a quote from 
November 8, 2007, from EPA Administrator Johnson. ``In 
addition, since the Supreme Court decision, we have announced 
that we are developing a proposed regulation to regulate 
greenhouse gas emissions from mobile sources. That is the first 
time in our nation's history, and I have committed to members 
of Congress and to the President that we will have that 
proposed regulation out for public notice and comment beginning 
by the end of this year and work toward a final rule by the end 
of next year.''
    The planet is not waiting, and just to know this is not 
some isolated example of the Bush administration intransigence 
on this, we had Secretary Bodman, just to know, Mr. Johnson, 
you are not alone in this; we had Secretary Bodman in front of 
our Commerce Committee a couple of weeks ago, and I asked him 
if he had read the IPC report, and our Secretary of Energy said 
no. And I asked him if he read the executive summary, and he 
said no. And I asked him if he had ever talked to the President 
of the United States. This is our Secretary of Energy, about 
how to fashion or whether to fashion a cap in trade system, and 
he said no.
    You are not alone in abject failure dealing with this 
mortal threat to the planet Earth. You are on a team of 
failure, and I have to say it bluntly because that is the 
    We do not have a lot of time here, and I just tell you that 
my constituents are most unhappy that the federal government is 
not following the law here.
    Chairman Markey. The gentleman's time has expired.
    The Chair recognizes the gentleman from Oregon, Mr. Walden.
    Mr. Walden. Thank you very much, Mr. Chairman.
    I want to welcome the EPA Administrator here today, and I 
appreciate the work that your agency is doing. I think we are 
all trying to figure out how to work our way through this 
process and do what is right for the planet without destroying 
our economy in the process and letting other major world 
polluters like China and India get a free ride.
    I spent an hour in the former Speaker's office meeting with 
the lead negotiator for China who made it very clear that they 
expected us to do the heavy lift while they continue to 
pollute, while they continue to put new coal-fired plants on 
line, about one a week or one every ten days that are going to 
burn dirty coal, and they want to get away with that.
    And I am not willing to sacrifice the economy for the 
people that I represent. I think there are things that we can 
and should be doing. I think Congress in the last energy bill 
took up the mantle and helped move some of those things forward 
with conservation efforts, emphasis on renewable energy.
    My district is home to a number of options for renewable 
energy. I want to know why we are not doing more to manage 
America's public forests better, why we allow the greenhouse 
gases to go up there when the fires come out. The Forest 
Service spends 47 percent of its budget fighting fire. Nine 
million acres went up last year. That's all emissions into the 
atmosphere. We are not properly managing America's forests, and 
anybody who has studied this issue knows the importance of 
health, green growing forests as carbon sequesters. We need to 
change forest policy as well.
    Now, I know you do not have jurisdiction over that, but as 
we look at these issues, I think it is incredibly important to 
look broadly, not throw stones at each other, but say where can 
we work together to do the right thing for the planet, the 
right thing for the environment, and not self-destruct our 
    Thank you, Mr. Chairman.
    Chairman Markey. The gentleman's time has expired.
    The Chair recognizes the gentleman from Missouri, Mr. 
    Mr. Cleaver. Thank you, Mr. Chairman. Thank you, Ranking 
Member Sensenbrenner.
    In particular, I would like to thank Administrator Stephen 
Johnson for returning to the Select Committee to update us on 
the EPA's endangerment findings. He indicated when he was here 
last summer that that update was proceeding. It is my hope and, 
I believe, the hope of this Committee and the need of this 
nation that Secretary Johnson will be able to give us an 
indication of what the EPA has discovered in their analysis and 
how it will affect future policy.
    I recall that the Administrator acknowledged that global 
warming and greenhouse gas emissions are serious issues, and I 
am encouraged that Mr. Johnson and I agree on that issue.
    However, I am awaiting a commitment by the EPA and the 
administration in general to do something to combat this 
reality. If the Environmental Protection Agency will do what it 
was created to do, it will protect the environment. The 
American people expect and deserve more from their government 
than what the administration is willing to give, even in the 
face of the scientific reality of climate change.
    I look forward to and thank in advance our second panel for 
testifying before this Committee today, and for offering 
insight on the Supreme Court decision and on the future of U.S. 
energy policy and regulations. I anticipate that we can work 
together in forming the effective energy and environmental 
policy in order to protect our citizens and our planet.
    The Supreme Court decision we discussed today was 
monumental, and I hope that we can build on this judgment on a 
national scale.
    I thank all of our witnesses for being here today, and I 
look forward to becoming dialogical after your presentation.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Cleaver follows:]

    Chairman Markey. The gentleman's time has expired.
    The Chair recognizes the gentle lady from Tennessee, Ms. 
    Ms. Blackburn. Thank you, Mr. Chairman, and thank you for 
the hearing today.
    And I want to say welcome.
    Chairman Markey. Is the gentlelady's microphone on?
    Ms. Blackburn. Yes, sir, it is. Maybe I should use the 
voice that I use when I am trying to call the kids to the 
house, right? Speak a little lower.
    Chairman Markey. That mother's voice is the most powerful 
voice ever created.
    Ms. Blackburn. That mother's voice is always the most 
powerful voice on the face of the earth.
    Chairman Markey. Maybe you should move over one microphone.
    Ms. Blackburn. Okay.
    Chairman Markey. I do not think they can hear you back 
    Ms. Blackburn. Let's see. That mic seems to be working a 
bit better.
    We know that we are going to examine the implications of 
the Massachusetts v. EPA decision today, and I think that it is 
of particular interest to all of us about whether the EPA will 
regulate CO2 as a pollutant under Section 202 and 
look at that as a pollutant that endangers the health of the 
American public.
    If it does, then practically every business in every large 
facility is going to be subject to additional regulations. Many 
people know these are going to be heavy regulations and 
permitting requirements, and there is some anxiousness about 
    These facilities that we are discussing emit more than 250 
tons of CO2 per year, and under Section 202, they 
would have to obtain a prevention of significant deterioration 
permit and control technology requirements if they undertake 
any modifications that increases their CO2 
emissions, and I think, sir, you can understand why there is a 
bit of anxiousness around this.
    And any facility would also need to obtain a PSD permit 
before it can be built and would have to comply with technology 
    These effects will go farther than the proposal by former 
President Bill Clinton, who said that we must not slow down the 
economy to reduce greenhouse gas emissions. So there is a 
little bit of head scratching and a little bit of uncertainty 
that is taking place.
    We fear it could shut down the economy, but the U.S. 
currently faces several existing threats to its national 
security. Everyone is concerned about proliferation of weapons 
of mass destruction. They are concerned about terrorism. We 
hear about security every single day, and to drastically change 
our economy and devote significant time and resources to 
speculative dangers, such as CO2 and climate change, 
is something that people are not certain they want to do right 
    If imminent threats are not addressed, the global warming 
issue will be moot. Mr. Chairman, even if the earth continues 
to warm and possibly cause events that threaten national 
security, the predicted outcomes are, at best, tentative, and 
the proposed solutions raise problems of their very own.
    The EPA should resist any attempts to regulate 
CO2 as a pollutant and instead should focus its 
resources on real, immediate, and measurable environmental 
dangers, not on ones that may or may not happen in the future.
    I yield back.
    Chairman Markey. The gentlelady's time has expired.
    The Chair recognizes the gentleman from New York State, Mr. 
    Mr. Hall. Thank you, Mr. Chairman.
    I would say that climate change is a real danger that is 
happening. It is obvious to me and my constituents. It is 
obvious to those who read the literature. It is obvious to the 
vast majority of scientists who have studied the issues, 
especially those who are not being employed by oil companies or 
others who benefit from the current energy policy that we have, 
and it is also, I think, you know, when you talk about national 
security, risks to our national security, probably the main one 
is the fact that we are spending billions of dollars a day to 
buy oil from unstable or despotic regimes in unstable parts of 
the world, and that's money that we do not have that we are 
borrowing from the Chinese and other countries thereby losing 
our sovereignty in the process because we cannot be honest 
with, for instance, the Chinese about Tibet or Darfur or North 
Korea, or they are arresting their own meditators in the park 
and taking them off to be reeducated, quote, unquote.
    And at the same time we cannot be honest with the Saudis 
either about the madrasahs and the funding of Islamic young 
people who are then trained to hate or attack American, 
Israeli, or other interests in the West or in the Middle East.
    And then as Tom Friedman writes in his column, we have to 
finance the other side of the War on Terror, too, by sending 
our troops and spending $12 billion, right at the moment 
fighting the wars that are currently in progress every month, 
and that is one of, I think, the main drivers of the economic 
problems we find ourselves in, as well as the environmental 
problems we find ourselves in. These are both threats to 
national security and to our economic security.
    I contend the course that we are on now is unsustainable. I 
also believe that we can work together and ultimately will work 
together to find solutions that will actually create jobs 
rather than destroying jobs. That is what happened with the 
Clean Water Act, the Clean Air Act, with seatbelts, with the 
airbags, with all of the proposals that industry cried were 
going to kill their economic prospects and, instead, created 
whole new industries and new kinds of jobs in this country. And 
I look forward to our finding those solutions.
    I thank the Chairman and yield back.
    Chairman Markey. The gentleman's time has expired.
    The Chair sees no other members who are seeking recognition 
for the purpose of making an opening statement. So we will turn 
to our first witness, who is Stephen Johnson, the Administrator 
of the Environmental Protection Agency.
    We welcome you back to the Committee, sir. Whenever you are 
ready, please begin.


    Mr. Johnson. Thank you, and good morning, Mr. Chairman and 
members of the Committee. I appreciate the opportunity to 
discuss EPA's response to several important developments 
concerning the challenge of climate change.
    Let me begin by saying I agree that climate change is a 
global challenge, and just as President Bush recognized during 
last September's major economies meeting, I believe the leading 
countries of the world are at a deciding moment when we must 
reduce greenhouse gas emissions instead of allowing the problem 
to grow.
    I also agree that the United States must take the lead in 
reducing greenhouse gas emissions by pursuing new quantifiable 
actions. For example, the President committed the United States 
to reduce greenhouse gas emissions from motor vehicles as part 
of a national approach to address global climate change. And so 
I applaud Congress for answering the President's call to 
increase fuel and vehicle fuel economy standards as part of 
last December's Energy Independence and Security Act.
    Also on the national level, EPA began to work with the 
Department of Energy, the Department of Agriculture, and the 
Department of Transportation last summer to develop regulations 
that would cut greenhouse gas emissions from motor vehicles and 
fuels, and due to the changes in the law created by the Energy 
Act, we are working to implement these new responsibilities.
    As you know, the Energy Act increased the renewable fuel 
standard from 7.5 billion gallons by 2012 to 36 billion gallons 
by 2022. Since there are a number of significant differences 
between the provisions of the Energy Act and the Fuels Program 
EPA was developing under the President's Twenty in Ten Plan, 
EPA must perform substantially new analytical work. This work 
includes analysis of renewable fuel life cycle emissions, costs 
and benefits of Energy Act fuel volumes, and the environmental, 
economic, and energy security impacts of these fuel volumes.
    The Energy Act did not change EPA's general authority to 
regulate air emissions from motor vehicles and from motor 
vehicle engines. However, it did alter the Department of 
Transportation's authority to set mileage standards for cars 
and trucks, which is the primary way emissions of 
CO2 are reduced from new motor vehicles.
    The energy bill directs the Department of Transportation to 
set CAFE standards that ultimately achieve a fleet-wide average 
fuel economy of at least 35 miles per gallon by 2020. This new 
statutory authority has required DOT to review the previous 
regulatory activities that it had undertaken pursuant to an 
executive order. Since both the executive order and the Energy 
Act require close coordination between EPA and other federal 
agencies, it is necessary for EPA to work with DOT on new 
standards to comply with the law.
    The agency recognizes that the new energy law does not 
relieve us of our obligation to respond to the Supreme Court's 
decision in Massachusetts v. EPA, and as we work to develop an 
overall approach to address greenhouse gas emissions, we 
appreciate that a decision regulating greenhouse gas emissions 
from any mobile source would impact other Clean Air Act 
programs and many industrial sources.
    Therefore, it is vitally important that EPA consider our 
approach from this broader perspective. While I continue to 
consider an overall approach, EPA has begun implementing 
mandatory steps to address greenhouse gas emissions, which 
include the renewable fuel standard which significantly 
increases the volume of renewable fuels that has a lower 
greenhouse gas footprint than traditional fuels; collaboration 
with Department of Transportation as it sets the new CAFE 
standards of at least 35 miles per gallon; carbon sequestration 
storage regulations to insure our drinking water is protected 
as we reduce greenhouse gas emissions; and developing the 
greenhouse gas inventory as part of the omnibus appropriation 
    In addition, we are making progress in evaluating the 
availability and potential use of various Clean Air Act 
authorities for greenhouse gas and mitigation efforts. For 
example, we have compiled publicly available data on potential 
greenhouse gas emissions across industrial sectors. We have 
evaluated the use of surrogate data to predict potential carbon 
dioxide emissions.
    In view of these potential effects of Clean Air Act 
regulation, EPA is continuing to evaluate the availability and 
potential use of various Clean Air Act authorities for 
greenhouse gas mitigation to determine the best overall 
approach for handling the challenge of global climate change 
for all sources, both mobile and stationary, and I will keep 
the Committee apprised of our progress.
    Once again, thank you for the opportunity to testify this 
morning. Before I take questions, Mr. Chairman, I would ask 
that my full written statement be submitted for the record.
    Chairman Markey. Without objection, so ordered.
    Mr. Johnson. Thank you.
    [The prepared statement of Mr. Johnson follows:]

    Chairman Markey. The Chair now recognizes himself for a 
round of questions.
    Mr. Johnson, as you well know, the Committee invited you to 
testify at this hearing on January 15th, 2008, and in my letter 
of invitation, I asked you to provide the Committee prior to 
this hearing with a copy of the EPA's draft rule to regulate 
greenhouse gas emissions for motor vehicles. The Committee's 
letter noted that the rule had already cleared internal reviews 
and had been forwarded to the Department of Transportation for 
review in December of 2007.
    By unanimous consent, I move that the Committee's 
correspondence with EPA be made part of the record of this 
hearing. Without objection, so ordered.
    [The correspondence of the Committee follows:]

    Chairman Markey. On January 28th, we spoke by phone, and I 
reiterated my request for a copy of EPA's proposed rule. In 
addition, I requested that you provide me with a copy of EPA's 
proposed endangerment finding, which had been forwarded to OMB 
for review in December. You agreed to do so.
    But late last week your staff informed Committee staff that 
you would not be providing those materials, and in a subsequent 
letter to the Committee, you indicated that you are asserting 
that these materials are, quote, predecisional and hence cannot 
be shared.
    On March 7, the Committee sent you a letter stating, ``If 
the basis for withholding these documents is a claim of 
executive privilege, then please advise on when that 
determination was made and the process you went through to 
substantiate your claim.'' You have yet to respond to that 
    My first question: will you commit to providing the Select 
Committee with copies of both the EPA's proposed rule to 
regulate greenhouse gas emissions for motor vehicles and its 
endangerment finding?
    Mr. Johnson. Well, Mr. Chairman, as I indicated in my 
response of March 11th to the letters that you are referring 
to, I apologize that there was a misunderstanding, but the 
agency has a longstanding practice regarding requests for 
documents that are related to preliminary rulemaking, and the 
documents that you requested fall very much in that category.
    Chairman Markey. Well, as you know, predecisional is a 
concept that comes out of the Freedom of Information Act, but 
the Committee did not request the documents under the Freedom 
of Information Act, but rather under House Resolution 202 and 
the rules of the House. So that concept on its own is simply 
inapplicable to a congressional request.
    Are you asserting that these are subject to executive 
    Mr. Johnson. At this time, no, sir, we are not. I am not 
asserting that these are part of an executive privilege, no.
    Chairman Markey. Do you have any reason to believe that 
President Bush saw the documents that you are refusing to 
supply to the Committee?
    Mr. Johnson. I do not know whether he did or did not. As I 
have already indicated, it is true that the agency was working 
on draft regulations, and as part of those draft regulations 
included endangerment, and as has been the routine practice of 
the agency and certainly our historical practice, that as we 
address the Clean Air Act issue of endangerment, we accompany 
what our proposed regulations would be.
    Chairman Markey. Do you have any----
    Mr. Johnson. We are working on that, and the Energy 
Independence and Security Act changed what steps that we were 
    Chairman Markey. Do you have any reason to believe that 
Vice President Chaney has seen these documents?
    Mr. Johnson. I do not know who has or who has not seen 
these documents. I am aware of that we have prepared drafts. 
They were in preparation for the President's Twenty in Ten 
Plan, and the Energy Independence and Security Act answered the 
call of the Twenty in Ten, and we as an agency began focusing 
our attention on implementing the new legislation that you 
    And by the way, congratulations. As you well know, it has 
been 32 years since our nation has changed its CAFE standard, 
and for obviously energy security as well as environmental 
reasons, it is good that we are focusing our attention on 
renewable fuel.
    Chairman Markey. And I appreciate that.
    So it seems to me that you have presented the Committee 
with a very difficult decision to make. The Committee views 
very seriously your refusal to cooperate and your intent to 
interfere with the work of the Committee on this important 
issue. The House is in recess after tomorrow, but I want to let 
all members know that when we return, we will take up this 
issue with all of our available resources and all of the 
authorities, including extraordinary authority given to this 
Committee under the rules of the House.
    This is a subject that the American public have a right to 
know about, have a right to the documents that deal with this 
very, very important issue, and it is going to be very 
important for us to clarify whether or not there is executive 
privilege which is being exerted here or it is merely the 
Freedom of Information Act, but in either instance, we intend 
on proceeding in a way that insures that the public has access 
to these very important documents.
    My time for the first round has expired. Let me turn now 
and recognize the gentleman from Wisconsin, Mr. Sensenbrenner.
    Mr. Sensenbrenner. Well, Mr. Chairman, let me say that the 
escalation that you have just announced is, I think, extremely 
disappointing. We do have an obligation to find out how the 
public interest is being served and to do oversight over 
agencies of the Executive Branch, but I think there are ways of 
doing oversight where we can make the Executive Branch better 
without escalating the matter into something that may end up in 
a contempt citation and a reference to either the Justice 
Department or the United States District Court for the District 
of Columbia.
    And I would hope that we would cool it and attempt to try 
to get to the bottom of this without a clash between the two 
branches of government on how far executive privilege goes and 
how far the constitutional responsibility for Congress to do 
oversight goes.
    That being said, let's get back to the issue at hand. Mr. 
Johnson, would you agree that the inclusion of a number of 
major sources of greenhouse gas emission that are going to 
potentially fall under the new regulation of greenhouse gases 
could significantly impact economic development and good jobs 
in this country?
    Mr. Johnson. Yes. Depending upon decisions that are made 
under the Clean Air Act could have significant economic 
consequences for our nation.
    Mr. Sensenbrenner. Now, under any law authorizing the EPA 
to take action, is there any provision to allow you to take 
into account the possible negative impact of an EPA decision on 
jobs or on the economy?
    Mr. Johnson. Well, in some parts of the Clean Air Act 
specifically, we are, in fact, required to take costs and 
benefits into consideration. Other parts of the Clean Air Act, 
such as the National Ambient Air Quality Standard, Section 108 
of the Clean Air Act, which I made the decision on ozone 
yesterday, prohibits me by law from considering costs or 
implementation issues in setting a standard.
    So it depends upon what part of the Clean Air Act that a 
pollutant is regulated.
    Mr. Sensenbrenner. Now, assuming we are dealing with the 
regulation of greenhouse gases under the part of the Clean Air 
Act that allows economic impact to be considered, as you are 
working through possible regulations relating to greenhouse gas 
emission, is it possible to include anti-backsliding provisions 
that would not impose new regulations until our competitors in 
the international globalized marketplace, like China and India, 
also do the same thing?
    Mr. Johnson. Well, one, I do not believe our existing Clean 
Air Act provides that kind of authority, but that is a very 
important issue, a very important issue as we consider what we 
do nationally under the Clean Air Act and certainly as members 
of Congress, that you consider legislation.
    The notion of it is sometimes referred to as leakage, in 
other words, those industries and things go to another country, 
the country that is not taking aggressive steps as the United 
States is in regulating greenhouse gases, and so since it is 
global climate change, we lose the businesses; we lose the 
economics; and the environment is not changed.
    And so that leakage is a significant issue that we need to 
make sure we are aware of and deal with.
    Mr. Sensenbrenner. Do you think the Clean Air Act should be 
amended so that you can take into consideration the exodus of 
jobs as a result of the EPA taking action where, as our 
competitors in a globalized marketplace will not be taking 
similar action?
    Mr. Johnson. Well, that is one of the issues that as I am 
taking a step forward and looking at the impacts of the Supreme 
Court decision and what it would mean of an endangerment 
finding and what that means on all parts of the Clean Air Act, 
that is one of the many issues that we are looking at, and 
whether the Clean Air Act is actually the best tool for 
addressing greenhouse gases or whether, in fact, we should----
    Mr. Sensenbrenner. My time is about up. Now, let me make 
the observation that the constructive way to go about dealing 
with these issues is to approach the entire issue of the 
philosophy that we can have a clean environment and a healthy 
economy providing good jobs to American workers at the same 
time. I believe that is what our committee should be working on 
rather than making threats and talking about contempt citations 
and reference to the Justice Department or the District Court 
for the District of Columbia.
    I yield back the balance of my time.
    Chairman Markey. The gentleman's time has expired.
    The Chair recognizes the gentleman from Missouri, Mr. 
    Mr. Cleaver. Mr. Johnson, do you believe that the United 
States now stands on moral high ground with regard to the issue 
of greenhouse gases? Are we in a position where we can discuss 
with India, China, some of the other Asian-Pacific countries 
the need for them to make dramatic changes in what they are 
doing, the enormous number of coal-fired power plans that was 
mentioned earlier that are under construction in China?
    So do we stand on moral high ground on the issue of 
reducing greenhouse gases?
    Mr. Johnson. Mr. Cleaver, I honestly do, and I do for a 
number of reasons. One, as a nation, by the President's 
leadership and by members of Congress passing budgetary 
appropriations, we as a nation from 2001 to today have spent or 
are spending upwards of $45 billion on addressing climate 
change. That is both investing in technologies, investing in 
science, even providing tax incentives for these new 
technologies or for people to do the right thing.
    There is no other nation in the world, no other nation in 
the world that is spending that kind of money and investing 
those kinds of tools.
    In addition, we have set a goal. The President set a goal 
of 18 percent reduction by the year 2012. We are on track to 
not only meet that, but to beat that goal. In addition, when 
you look at the array of programs we have, I just went through 
in my oral testimony a host of mandatory programs from 
renewable fuel to new CAFE standards, which is the primary way 
that we can reduce CO2 emissions from automobiles 
and light trucks.
    Carbon sequestration is the great hope for many of our 
stationary sources. Well, in order for us to be able to do 
that, one, we need the technology, but second, from an EPA 
perspective we need to make sure that there is a regulatory 
framework in place to assure that when it is captured in a cost 
effective way it can be stored safely so that it will not harm 
the environment or people, and we have issued guidance so that 
pilot programs can go forward under the Department of Energy, 
and we are now drafting regulations which I expect to be 
available for public comment later this year.
    And so we are taking aggressive steps, both mandatory as 
well as voluntary, and I hope everybody knows about our 
EnergyStar Program so that consumers can make the right choice, 
save themselves some money and also save the environment, but 
those are all just a short list of things that we are doing at 
EPA and what we are doing nationwide.
    And, yes, more can be done, and that what is what we are 
debating now, and I think that is a healthy debate.
    Mr. Cleaver. I am asking you now to speculate. If that is 
unfair, I apologize in advance. But why do you think that 
leaders in the western world continuously admonish us to take 
the lead in reducing greenhouse gases?
    Chairman Markey and I listened to Ms. Merkel in Germany 
make that statement, the new president in Australia make that 
statement, the members of the European Union make that 
statement, the members of parliament made that statement. Why 
do you think they are encouraging us to take the lead if we 
have this overwhelming picture, overwhelming number of programs 
and projects that the world should be able to see?
    I mean, what is preventing them from seeing the leadership 
we are making?
    Mr. Johnson. Well, I think that they now see and, in fact, 
support the President's efforts under the major economies 
effort to get the major economies, including Germany, including 
the ones that you just mentioned, to work together.
    Mr. Cleaver. Well, we were just in Australia two months 
    Mr. Johnson. Well, I was just going to say to work together 
to establish targets, goals in the future, mandatory targets in 
the future that would require all the nations to meet. But 
there are some fundamental pieces that need to be put in place, 
whether it is registries, making sure that we know how to 
actually and we are all measuring greenhouse gases in the same 
    We understand that each country is perhaps in a different 
economic, certainly in a different energy source. The United 
States, about 50 percent of our electricity comes from coal. We 
have an over 200-year supply of coal. So from an energy 
security and from an environmental standpoint, it is not to 
walk away from coal. It is to clean it up.
    And of course, through the Department of Energy and others, 
investing in clean coal technologies, and that is going to be 
critical not only for energy security, but it is going to be 
critical for----
    Mr. Cleaver. That is a decade away.
    Mr. Johnson [continuing]. Us addressing environmental 
    Mr. Cleaver. That is a decade away at least according to 
    Mr. Johnson. Well, and you raise a good point. We have been 
asked and as an agency we have done some detail analysis of a 
number of pieces of legislation. We are in the process of 
completing an analysis of legislation now, and through that 
analysis it shows that, one, there is no silver bullet to 
addressing, a short-term silver bullet.
    Number two----
    Mr. Cleaver. My time is expiring, sir.
    Mr. Johnson. I am sorry.
    And, two, it is requiring significant investment in 
technologies and from nuclear to clean coal to others, solar 
and wind, are going to be the solutions to the problem.
    Mr. Cleaver. Thank you.
    Chairman Markey. The gentleman's time has expired.
    The Chair recognizes the gentleman from Oregon, Mr. Walden.
    Mr. Walden. Thank you, Mr. Chairman. Thank you, and thank 
you for having this hearing.
    Mr. Johnson, I wanted to ask a couple of questions. One 
involves the issue of carbon sequestration and storage. Is the 
technology available today anywhere in the world to actually 
sequester and store carbon safely underground?
    Mr. Johnson. No.
    Mr. Walden. What is your timeline that you see out there in 
terms of technological advancements to where we would have that 
technology available? What do your experts tell you?
    Mr. Johnson. Well, the experts in the energy field say that 
to have commercially available cost effective technology we are 
at least a decade away, and I would defer to the experts. It is 
certainly not commercially and cost effectively available 
    Mr. Walden. And when we entered into cap and trade to 
reduce other pollutants out of the atmosphere, in America we 
created cap and trade originally.
    Mr. Johnson. That is correct.
    Mr. Walden. How many power plants were involved in that? Do 
you remember?
    Mr. Johnson. I do not remember, but certainly our acid rain 
program and our cap and trade under our Clean Air Interstate 
Rule, which I signed, will result in a 70 percent reduction in 
SO2 and a 60 percent reduction in NOX. So 
it is a very effective program.
    Mr. Walden. Is carbon dioxide a pollutant?
    Mr. Johnson. The Supreme Court has determined that it is, 
and so we accept the Supreme Court's decision.
    Mr. Walden. And if it is a pollutant, can you put a 
pollutant in the ground?
    Mr. Johnson. Well, it is one of the important questions, 
and under our UIC program, under our water program, we believe 
that can be, but it needs to be done, obviously, in accordance 
with EPA law.
    Mr. Walden. And who has the liability if that pollutant 
escapes the ground?
    Mr. Johnson. Well, again, that is an important question 
that we are also addressing as part of our regulation.
    Mr. Walden. Have you run any models or are you aware of any 
models that have been run through the Warner-Lieberman 
legislation regarding cap and trade costs for power production?
    Mr. Johnson. We are finishing up that analysis in the next 
few weeks. We will be sharing that with you and look forward to 
giving a more detailed breakdown on that.
    Mr. Walden. I would like to see that. I was told by a CEO 
of a major power company they have run their power costs 
through that model, and they go from 4.8 cents a kilowatt hour, 
as I recall the number, to 11.5 cents a kilowatt hour, which 
would be more than a doubling of the cost of electricity under 
that proposal.
    These are issues as we address trying to reduce greenhouse 
gases, and you know, I brought a Prius here and over the 
weekend brought a Ford Escape Hybrid, traded in my other SUV. 
So I am trying to do my part, and it is not cheap, but it is, I 
think, the right thing to do.
    But there are economic consequences here. There are 
pollution consequences here, and there are liability issues 
here that are very significant. When we were in Europe as part 
of a trip that Chairman Boucher organized, this issue of 
putting a pollutant underground without proper regulatory 
framework, the issue of liability if that pollutant were to 
escape into the atmosphere, and if you get credit for storing 
the carbon underground and it escapes, do you lose the credit? 
What is the mechanism down the road if that pollutant escapes?
    All of those issues were issues that I know the Europeans 
are trying to deal with, and that is why I asked you those 
questions today. How are we dealing with those? Because you 
could quickly get a regulatory framework or a legal framework 
in place and yet not have the technology, not have the 
liability, not have the storage capacity in place to actually 
make that something we could implement, and we know the costs 
are going to be there in the economy; is that correct?
    Mr. Johnson. Those are all very good observations and why 
it is so critical. While we have a serious issue of climate 
change, it is critical that we work our way through these 
because it can have significant economic consequences for our 
    Mr. Walden. How did the energy bill that we passed and I 
supported that became law and the President signed affect your 
agency as you were working on these rules the Chairman has 
asked you to provide information on?
    Mr. Johnson. Well, it significantly altered what approach 
that we were taking. For example, on the renewable fuels, we 
were looking at an open market system looking at a variety of 
ways of trying to measure the CO2 emissions. 
Congress made a decision, and there are both a mandatory 
requirement on the total volume. There are specific mandatory 
requirements on types of biofuels, for example, and also made 
the decision that we will use a full lifecycle analysis, which 
the United States has never done before.
    And so there are some significant issues, and we're fully 
supportive of renewable fuels, but the work that we've done, 
we've got to do a lot of rework to be able to put out an 
implementing regulation.
    Mr. Walden. And I know my time has expired. I had one other 
line of questions. I will just submit them to your staff. If 
you can get back to me on that, I would appreciate it.
    Mr. Johnson. Please, I would be happy to.
    Mr. Walden. Thank you, Mr. Chairman.
    Chairman Markey. The gentleman's time has expired. Over on 
the House floor at this moment a moment of silence is being 
observed on behalf of our troops wherever they are serving us 
in the world. I think it is appropriate for us for a minute to 
observe a moment of silence in prayer and thought about that.
    Chairman Markey. Thank you all very much.
    The Chair will now recognize the gentleman from the State 
of New York, Mr. Hall.
    Mr. Hall. Thank you, Mr. Chairman, and thank you, 
Administrator Johnson, for being here, and with great respect 
and meaning so in a good way.
    Mr. Johnson. Thank you.
    Mr. Hall. I am just curious. We have seen charts here at 
earlier hearings of the last 20 years' electricity demand in 
California, which is essentially flat, versus the increasing 
electricity demand in the rest of the United States. I am sure 
you have seen the same studies.
    I am curious what your analysis, just a short version of 
what the reasons for that are.
    Mr. Johnson. Well, it is clear that economic growth 
requires energy, and that as our nation continues to grow, as 
we want it to economically, that we need energy supplies. And 
given the energy security issues and a variety of issues, that 
poses problems for the United States.
    And from an environmental standpoint, my area, we want to 
see and make sure that any future energy supplies are moving in 
the direction of clean energy supplies and making sure----
    Mr. Hall. Excuse me. I only have limited time, but my 
question was about the past 20 years. I will just state my 
theory. California has had stricter energy regulation and more 
state incentives and perhaps more of a consciousness about 
efficiency, and they have managed to grow. They have flat 
screen TVs. They have high tech. They have industry. They are 
not a Third World country, and yet their electricity has gone a 
little bit up and down but basically been flat for the last 20 
years, as the rest of the country has been on an incline, 
increased path.
    State Air Resources Board and other regulations done on the 
state level, I think, have contributed to their keeping their 
own demand flat while allowing their economy to grow. Is that a 
wild theory?
    Mr. Johnson. Well, I should not probably speculate on that, 
but what I can say is that from an environmental standpoint, 
while they have made progress in a number of the priority 
pollutants, unfortunately parts of California today have some 
of the worst air in the entire United States, and that is a 
challenge for the state and certainly it is a challenge for our 
    Specifically, since I made my decision on reducing the 
health protective standard, that is, making it more protective 
on ozone yesterday, it makes it more of a challenge for those 
parts of our country, for example, California, to achieve this 
new health protective standard.
    Mr. Hall. Sure, and it is a complicated question. I 
understand. In New York last year for the first time, we had 
several days in the summer when there was an air quality alert 
on the entire state, not just the cities where one might expect 
it, but open forest and farmland in upstate New York was 
looking at warnings for people with respiratory problems and 
elderly people and so on to stay indoors in farm and forest 
country upstate far from any development where you would not 
expect it.
    I understand members of the administration have referred to 
the obligations for cooperation and rulemaking from the Energy 
Independence and Security Act as a reason why the action in 
response to the Supreme Court's ruling was delayed, but short 
of final regulations, EPA has not even made an endangerment 
    Remedies aside, the IPCC, the Supreme Court and numerous 
others have recognized that greenhouse gases contribute to 
climate change, and the climate change presents a severe threat 
to our way of life.
    The passage of legislation does not change those facts, and 
they seem like the only ones you would need to make this 
determination. So my question is why hasn't EPA taken this 
    Mr. Johnson. Well, as I have already testified, with the 
passage of the Energy Independence and Security Act, we have 
now focused our attention on implementing that legislation. As 
I said, for cars, the primary source of carbon dioxide, the way 
to reduce that carbon dioxide is through improved fuel economy, 
and of course, we now have a 35 mile per gallon standard. So we 
think that it is important for us to work with the Department 
of Transportation to make that happen.
    Mr. Hall. Yes. I am driving an American, Detroit built 
hybrid that is rated at 33 today, 12 years out from that 2020 
goal. So I believe that we can exceed the two miles per gallon. 
This is an SUV, full-time four-by-four. It is not a teeny tin 
can. I believe we can exceed the margin, just as Texas exceeded 
the renewable electricity standard that President Bush signed 
into law when he was governor of Texas, and partly as a result, 
Texas is now the leader in the nation in wind power.
    And when I heard T. Boone Pickens had said that he is more 
excited about wind now than he is about any oil field he ever 
discovered, I know things are really changing.
    I want to encourage you and offer you all the help that I 
can. There is way more to talk about than there is, you know, 
time that I have. So I am afraid I have to yield back.
    Mr. Johnson. I look forward to it.
    Mr. Hall. But thank you again for being here, and I yield 
back, Mr. Chairman.
    Mr. Johnson. Thank you.
    Chairman Markey. The gentleman's time has expired.
    The Chair recognizes the gentleman from Oklahoma, Mr. 
    Mr. Sullivan. Thank you, Mr. Chairman.
    And I appreciate you being here today. A lot of people have 
asked the questions I was wanting to ask, but I just have a 
couple. When you go through this, and it is complicated, and it 
is tough, and you are looking at the regulatory regime, 
framework that you are looking to implement; is there any 
consideration about how those will impact the economy or jobs 
or anything like that? Is that done in your office?
    Mr. Johnson. Well, ultimately if the agency makes a 
decision to regulate, again, depending upon what part of the 
Clean Air Act, as I said, that under the NAAQS, or National 
Ambient Air Quality Standards, I am prohibited from considering 
cost or implementation, and the standard that I set on ozone 
yesterday was just purely health based, requisite to protect 
public health with an adequate margin of safety.
    Other parts of the Clean Air Act allow that, and that is 
one of the pieces, and I think it is so important, and that is 
why I have taken a step forward in looking at the entire Clean 
Air Act, because a decision on one part of the Clean Air Act 
could have lasting consequences and significant economic and 
unforeseen economic consequences.
    For example, one part of the Clean Air Act that as it is 
described as significance levels, we do not have significance 
levels established for carbon dioxide. So the significance 
level would be zero. So that means any facility that would emit 
any carbon dioxide or any greenhouse gas, and remember there 
are six of them, would then trigger all of the regulatory 
framework of the Clean Air Act.
    And I think as Administrator it is responsible; in fact, I 
think the public demands that I take a look at and understand 
before we rush to judgment on using the Clean Air Act tool and 
sorting through important issues. I understand we have a 
responsibility in Mass. v. EPA to respond, but it is important 
for us to look at that.
    In the meantime obviously I describe all of the significant 
things that we are doing to address greenhouse gases and also 
putting in place the necessary framework as we move forward as 
a nation.
    Mr. Sullivan. That is good.
    And I guess just one other. When Congressman Walden was 
talking about the carbon sequestration, which I think is 
interesting, and you did state that when it is used, it is 
several years away before that is developed in a way, that we 
do not even know where to store it. Where do you see as 
potential places to store it? Like what kind of formations in 
the earth or anything like that?
    And also, could you address another application of carbon 
sequestration that would be in my state; you mentioned some 
pilot programs. We are going to do one on enhanced oil 
recovery, injecting it into old wells, and can you comment on 
how that all works, too?
    Mr. Johnson. Well, yes. As a nation we have decades of 
experience and around the world a number of countries do as 
well have decades of experience of using CO2 as 
enhanced oil recovery, and in looking at long-term storage, we 
are learning from that experience. And the type of formation is 
a hard rock formation that does not have, if you will, the 
leaks and crevices so that it would escape.
    And so as we have looked at what are those kinds of 
formations, we have a pretty good idea, but there are still a 
number of issues that we have to sort through.
    And the other part of it is that when you look at the world 
at large, let alone the United States, and certainly the 
rapidly developing economies that we are well aware of, we are 
literally talking about gigatons, gigatons of carbon dioxide 
that we are going to have to deal with, and you can translate 
those gigatons into, well, how many nuclear power plants would 
the world be required to build to address those gigatons or how 
many zero emission coal-fired power plants?
    The numbers are staggering, and so as I said to Congressman 
Cleaver, unfortunately, there is no silver bullet. Clearly, in 
the long term it is technologies. It is investing in nuclear 
and solar and wind and hydroelectric and all of these sources, 
and taking incremental steps, the kind of incremental steps 
that we are taking.
    Mr. Sullivan. Is there some CO2 or carbon 
already injected in some formation that is being monitored now 
to see if it works? I mean, is that happening?
    Mr. Johnson. Yes. In fact, we recently issued some guidance 
so that the Department of Energy can do--I am not sure of the 
number of pilots, whether it is six to 12, but certainly a 
number of pilots on the issue of carbon sequestration and 
storage, and so we have provided guidance to allow those pilot 
programs to proceed, and of course, on the liability issue that 
was issued, it is my understanding that as part of those pilots 
that government is helping on that issue of liability.
    Mr. Sullivan. Thank you very much.
    Chairman Markey. The gentleman's time has expired.
    The Chair recognizes the gentleman from Washington State, 
Mr. Inslee.
    Mr. Inslee. Thank you.
    I have been told that on November 8, 2007, you said, ``I 
have committed to members of Congress and to the President that 
we will have that proposed regulation out for public notice and 
comment beginning by the end of this year, and to work toward a 
final rule by the end of the next year.''
    Did you say that?
    Mr. Johnson. Yes, I did.
    Mr. Inslee. And were you just teasing at that time?
    Mr. Johnson. Well, I don't necessarily appreciate the way 
that you characterized that, but, no, I was not.
    Mr. Inslee. So somebody got to you between you saying that 
and between now when you do not intend to have this done. Is 
that the situation?
    Mr. Johnson. Well, actually you correctly noted that 
somebody got to me, and it was Congress and the President by 
passing the Energy Independence and Security Act.
    Mr. Inslee. So do you think the Supreme Court basically or 
you thought the Supreme Court is teasing then. You think they 
are teasing when they said you have got a legal obligation to 
do this whether or not Congress enacted something in the CAFE 
    Do you think they are teasing?
    Mr. Johnson. No. Again, when you pass and said, 
``Congratulations. It is good that Congress and the President 
signed the energy legislation,'' but it clearly changed the 
path that the agency was on.
    Also, as I stated in my testimony, I recognize the agency 
still has an obligation to respond to the Supreme Court, and as 
I also stated in my testimony, it is that it is very evident 
that as one looks at the Clean Air Act, there are many 
interconnections, and a decision on one part of the Clean Air 
Act could have significant consequences both in how greenhouse 
gas is regulated as well as other unintended consequences, 
perhaps such as significant harm.
    Mr. Inslee. Well, I am sorry, but that just does not wash 
with my constituents, and I will tell you why. You are telling 
us that you intended to have a regulation and then Congress did 
one of the things that perhaps you could have regulated, and 
the fact that they had already checked off that box made it 
slower for you to do the regulation, the fact that we had 
already accomplished one of the steps regarded your ability to 
move forward?
    That makes no sense whatsoever. If you have got five things 
you need to do and Congress already did the first one, it 
should not make you slower. It should make you faster, and you 
should have been back here and say, ``Thanks, Congress. You did 
one of the things. You have accelerated my ability to get this 
regulation out.''
    Something happened here that you have just decided not to 
do this, and it is pretty clear, and I am disappointed by that 
because you are the fireman. You are the fireman, and the 
planet is on fire right now, and you do not pick up a hose. You 
do not pick up an ax. You do not pick up a water bucket. You do 
nothing. Your administration has done nothing about this before 
the Supreme Court decision or after the Supreme Court decision.
    No, you could at least take some action, for instance, 
dealing with coal plants that are continuing to be built with 
no sequestration. You have not done that. You have not done 
anything. I mean isn't that true? You have not issued any 
regulation at all, have you?
    Mr. Johnson. Well, sir, I would respectfully disagree. As I 
said, I appreciate and applaud Congress for passing the 
legislation, but in doing so you require us to write 
regulations, and that is what I just testified. That is exactly 
what we are doing. We are writing regulation. We are writing a 
regulation to implement the renewable fuel standard.
    We are writing a regulation to implement through the 
Department of Transportation, through the CAFE Program. We are 
working with them. You have required us through our omnibus 
appropriation to write and establish a greenhouse gas registry. 
We are doing that, and as I have also testified, that we 
recognize that carbon sequestration is important, is going to 
be a critical component as we look to the future of addressing 
greenhouse gases.
    We have issued guidance so pilots can go forward. We are 
writing regulations. I have said that later this year you will 
see the draft regulations on that. So we are not idly sitting 
by, and that is just on the domestic front. I can talk more 
about the international.
    Mr. Inslee. Will you be writing regulation on a cap and 
trade system?
    Mr. Johnson. We have made no decision as to what the next 
steps we are going to take with regard to Mass. v. EPA and the 
Supreme Court decision. That is an important question which we 
have not answered yet.
    Mr. Inslee. Well, I can tell you a no decision in March of 
2008 is a decision. A no decision today is a decision by the 
Bush administration to finish its term without taking 
meaningful greenhouse gas action, and this was the last gasp 
effort or chance for this administration to salvage a positive 
legacy of its failures in seven years, a last chance, and you 
are letting it go by.
    And history is going to record this administration and your 
term in office if you do not act on this as a failure and an 
existential threat to civilization on this planet. And I just 
hope maybe some day you personally wake up to that effect and 
march into the White House and say, ``I am doing a reg. and I 
am going to get it done and it is going to go into effect,'' 
and if not, tender your resignation.
    That is the responsible thing to do and you have not done 
it yet, and I hope you start to rethink your obligations.
    Chairman Markey. The gentleman's time has expired.
    We will go to a second round of questions, and the Chair 
will recognize himself.
    When you last appeared before the Select Committee, you 
would not say whether or not you believed that greenhouse gas 
emissions cause or contribute to air pollution, which may 
reasonably be anticipated to endanger public health or welfare.
    Nine months have gone by since you last appeared before the 
Select Committee. You put three or four full-time staff members 
on this question for several months. Your staff has told 
Congress that you reviewed all materials and agreed to forward 
a positive finding of endangerment to OMB in December.
    Are you prepared to tell the Select Committee right here, 
right now, that greenhouse gas emissions cause or contribute to 
air pollution which may reasonably be anticipated to endanger 
public health or welfare? Yes or no?
    Mr. Johnson. The answer is no, and it would be 
inappropriate for me to prejudge a preliminary draft regulatory 
decision that has not gone through the appropriate process or 
been published for notice and comment.
    Chairman Markey. So you are saying that you cannot even 
tell the Select Committee when you will be ready to make this 
determination, though you spent all of last summer and fall 
assuring Congress that it would be done by the end of the year.
    Why can't you even give us a date?
    Mr. Johnson. Well, the reason is, and I tried to be very 
clear today, is that was we move forward with evaluating 
endangerment, that it has implications for not only mobile 
sources, but it also has implications for stationary sources.
    And I understand my responsibility to address the concerns 
by the Mass. v. EPA, but I also understand my responsibility to 
recognize potentially the widespread implication and impact of 
such a decision, and that is what I am evaluating.
    Chairman Markey. Well, isn't it true that the only 
regulatory requirement, the publication of the endangerment 
finding triggers, is the requirement to regulate greenhouse gas 
emissions from motor vehicles?
    Mr. Johnson. Again, what is before the agency is the issue 
of the Mass. v. EPA, and as part of that the very important 
question of endangerment and that there are significant 
implications as to how, if, what the endangerment finding is 
addressed given the intricacies and the interconnected of the 
Clean Air Act.
    Chairman Markey. I understand what you are saying, but no 
stationary sources would be automatically or immediately 
subject to greenhouse gas regulations as a result of concluding 
that greenhouse gas emissions cause or contribute to air 
pollution which may reasonably be anticipated to endanger 
public health or welfare; isn't that right?
    Mr. Johnson. Well, that is actually one of the questions 
that I am looking at.
    Chairman Markey. So let me continue to move forward then. 
The energy bill did not in any way alter your obligation to 
make the determination on whether greenhouse gas emissions 
cause or contribute to air pollution, which may reasonably be 
anticipated to endanger public health or welfare. In fact, the 
energy bill says, ``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 
any violation of any provision of law, including a regulation, 
including any energy or environmental law or regulation.''
    That includes the Clean Air Act, Mr. Johnson. So let me ask 
you again. Since you already completed your work on the 
endangerment finding and nothing in the energy bill impacts 
your responsibility to publish it or alters in any way the 
outcome of the simple question of whether greenhouse gas 
emissions cause or contribute to air pollution, which may 
reasonably be anticipated to endanger public health or welfare; 
when will the EPA publish its endangerment finding?
    Mr. Johnson. Well, as I have already stated, that in 
addressing the issue of endangerment, it was part of a 
regulatory package that was focused on addressing and 
implementing the President's Twenty and Ten Plan. So while it 
is true that the Energy Independent and Security Act did not 
alter certainly that portion of the Clean Air Act, what is true 
is that it did alter what regulatory steps the agency is now 
taking with regard to renewable fuels and the government is 
taking with regard to the CAFE standard, and so the issue of 
endangerment, which as I said historic practice is it 
accompanies the regulatory effort, we are now looking at what 
are the appropriate next steps.
    Chairman Markey. Well, you recently denied California's 
request to implement its greenhouse gas regulations for motor 
vehicles because you said California had not demonstrated ``a 
compelling and extraordinary need'' for the regulations.
    You did, however, say, again, ``Warming of the climate 
system is unequivocal,'' and cited numerous adverse impacts of 
climate change, such as rising sea levels, which is the 
Massachusetts case that was ruled upon by the Supreme Court, 
heat waves, more intense hurricanes, and increased wildfires 
and insect outbreaks, and even said that some of these impacts 
could lead to increases in mortality.
    Do you not believe that any of these factors you mentioned 
may reasonably be anticipated to endanger public health or 
    Mr. Johnson. Well, Mr. Chairman, as I clearly point out 
both in my testimony as well as in my California waiver 
decision, the greenhouse gas emissions and global climate 
change is just that. It is global, and it is a serious 
    I also very clearly point out in my decision document that 
the California waiver does not reflect and should not be 
construed as my judgment on endangerment.
    Chairman Markey. Well, again, there is a profound 
difference of opinion between the Select Committee and the EPA 
over this question, your responsibilities, the urgency of the 
problem, and whether or not you are discharging your 
responsibilities pursuant to a Supreme Court decision in 
Massachusetts v. EPA, and we intend on pursuing this question 
vigorously in the weeks and months ahead.
    Let me now turn once again and recognize the gentleman from 
Wisconsin, Mr. Sensenbrenner.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    Mr. Johnson, first of all, let me say I am very 
disappointed that this hearing has become overly adversarial. I 
think we are all in the business together to try to provide a 
healthy environment and to try to figure out a way that the 
regulations can be promulgated in a manner consistent with the 
law, as well as consistent with not only the Massachusetts v. 
EPA Supreme Court decision, but other decisions of the court.
    Let me say that Congress bears a part of the culpability of 
the confusion that is being discussed here. First of all, the 
Clean Air Act has varying degrees and methods and modalities of 
regulation. You mentioned that yourself, where in some areas 
the Clean Air Act has a different regulatory mode than in other 
areas of the Clean Air Act.
    However, what is in the air is something that we all 
breathe, and as an Administrator, it is your job to figure out 
how to go through the maze that Congress has given you because 
the law was passed by Congress, and your job is only to 
administer the law.
    The other thing is that the energy bill that was passed 
late last year, which I did not vote for, I think, has 
complicated the issue and has required you maybe not to go all 
the way back to square one in making this determination, but 
certainly has required a retooling to make sure that the 
regulations comply with the new law that Congress passed.
    You know, it is kind of like you are ordering somebody to 
build a house for you and the house goes up and then you and 
your wife decide to have a whole lot of change orders. Well, 
you are not going to be able to move into the house as quickly 
as you wanted until the builder is able to accomplish the 
change orders which you have ordered and which you will pay 
    And then we get to the business of a cost-benefit analysis, 
which you alluded to in response to my earlier questions where 
in some cases you cannot look at the impact on jobs for 
Americans, and in other cases you have to do that.
    So I can understand why there has been a delay in figuring 
out how all of this fits together and the fact that the rules 
changed at least slightly with the passage and signature by the 
President of the energy bill. Now, I do not think we in 
Congress should be berating Administrators for not getting 
things done on time. We have a pretty poor record of getting 
things done on time ourselves.
    The appropriations bill, including the one that funded your 
agency, ended up passing months late, and last year was not the 
only time that it was done. So I guess I can say that the one 
question that I have and maybe it will calm the two colleagues 
sitting to my right down, and it probably will not, but do you 
see light at the end of the tunnel in getting these regulations 
out, even though maybe some in the Congress are trying to turn 
the lights out?
    Mr. Johnson. I am very optimistic, and I do see light at 
the end of the tunnel, and I see light at the end of the tunnel 
that as we have committee meetings such as this, oversight 
hearings such as we have the debate, that people recognize 
that, yes, climate change is a serious challenge for our 
nation, and it is one that needs to be thought through, yes, 
expeditiously, but it needs to be thought through deliberately, 
and to make sure that as we consider tools such as the Clean 
Air Act or other tools, as Congress considers legislation, that 
we do so with all of the foreknowledge and experience so that 
we can make the best informed decisions so that we can address 
the issue, but do so in a way that does not hurt our economy, 
does not hurt our nation, and in fact, ends up helping the 
global challenge.
    Mr. Sensenbrenner. What can Congress do to keep the light 
at the end of the tunnel on?
    Mr. Johnson. Well, I think certainly give me some time to 
think through under the Clean Air Act what is an appropriate 
approach. I know that there is a desire for me to rush to 
judgment. This is a very complex issue, and it is a very 
difficult issue and one that has been debated since 1978.
    Mr. Sensenbrenner. My time is about up. If you would do 
things prematurely and you make a mistake, is there a danger 
that court will enjoin you from implementing a mistake and then 
we have a further delay?
    Mr. Johnson. Well, in my 27 years at EPA, one of the things 
that I clearly note is that our agency is frequently subject to 
litigation, and I am a true believer that the air nor the water 
nor the land get any better or improve when we are sitting in a 
courtroom. So my preference is let's work together to address 
the problem. In my experience working collaboratively you can 
address the problem faster and even cheaper, and I think it 
ends up better for the nation.
    Mr. Sensenbrenner. Thank you, sir.
    Chairman Markey. The gentleman's time has expired.
    The Chair once again recognizes the gentleman from 
Washington State, Mr. Inslee.
    Mr. Inslee. Thank you.
    Some of us believe that when a fellow has been in the White 
House since January, I think, 20th, 2001, it is not a rush to 
have expected some action to deal with the planetary emergency 
by March 2008, and I am trying to figure out why the Director 
of the Environmental Protection Agency is not acting as a 
fireman here, but in fact just as, frankly, sort of a defender 
of a bureaucracy that has not moved in seven years, and I am 
trying to figure that out. So I am going to ask you a couple of 
    We had Dr. Pachauri of the International Panel on Climate 
Change here a couple of months ago. He sat just where you are 
sitting right now. He told us that 20 to 30 percent of the 
world's species could be extinct if we do not reduce our 
emissions by about 20 percent below 1990 levels by around 2020, 
a pretty stunning statement.
    Have you read the IPCC report, the most recent IPCC report?
    Mr. Johnson. Yes, I have.
    Mr. Inslee. And do you think Dr. Pachauri is right in that 
    Mr. Johnson. Well, as part of the IPCC process, in fact, we 
have very well respected EPA scientists that participate, and 
so I believe that the IPCC report represents among the best 
available science that is available to the government.
    Mr. Inslee. And do you think we should be making policy 
decision on that basis?
    Mr. Johnson. Well, I think that the IPCC reports are 
important data sources, scientific analyses on which the 
countries can use to help base their decision, but the good 
news is that, and certainly as the IPCC points out, that 
additional research needs to be done, and in fact, we are all 
doing that. Additional work needs to be done in emerging 
technologies. That is being done, and so all of those factors 
need to be taken into consideration as whether the United 
States or a rapidly developing economy decides what is the best 
approach for it in addressing this issue.
    Mr. Inslee. Isn't it true that under the path that your 
administration is now on we do not have a hope in the world of 
preventing those dire consequences if we continue on the path 
that your agency is now on?
    Mr. Johnson. Well, I would disagree with the 
characterization because we are on a path to improve the fuel 
economy standards since the first time in 32 years. That is the 
primary tool producing greenhouse gases from automobiles and 
light trucks. We are on a path to implement a significant, 36 
billion gallon requirement for renewable fuels.
    Mr. Inslee. Are you on a path to achieve 20 percent 
reductions in CO2 emissions below 1999 levels by 
2020? Are you telling American taxpayers that your policies are 
going to achieve that?
    Mr. Johnson. Well, the target that the President has set is 
an 18 percent greenhouse gas intensity reduction by the year 
2012, and as a nation we are on track to meet or exceed that.
    Mr. Inslee. So your answer to my question is no then; is 
that right?
    Mr. Johnson. Well, I do not know whether given the recent 
changes, what specific number that achieves, but what I can say 
with confidence is that the steps that we are taking as a 
    Mr. Inslee. That is disappointing that----
    Mr. Johnson [continuing]. That we are taking as a nation 
actually move us in the direction that we all know we need to 
    Mr. Inslee. It is disappointing----
    Mr. Johnson [continuing]. And that is slowing down----
    Mr. Inslee. Excuse me, sir.
    Mr. Johnson [continuing]. And stopping and then ultimately 
reversing greenhouse gas emissions.
    Mr. Inslee. It is disappointing that the Director of the 
Environmental Protection Agency cannot tell the citizens of 
this nation whether or not his policies are going to achieve 
that goal of 20 percent reductions below 1990 levels that the 
IPCC basically said we have got to have or have cataclysmic 
    And you are telling me that you cannot tell me whether your 
policy is going to achieve that or not? I can tell you and 
anybody who knows sixth grade arithmetic knows the answer to 
that, which is the answer is no.
    Now, I am going to give you a moment to think about this 
just for a second, realize the path we are on, and tell me: is 
the answer yes or no, or you are just telling me the Director 
of the EPA does not know the answer to that? Which is that?
    Mr. Johnson. Well, what I have told you repeatedly is that 
we are still sorting through what path we as a nation should be 
on, and that is the process that we are in right now, and I 
have also said that we have taken significant steps and again 
acknowledge the great work of Congress in passing this 
legislation that actually is directionally in that direction of 
    So at this point while we are trying to sort through what 
steps make sense for the nation, I cannot say what percentage 
we should or should not. Certainly that will be a part of the 
outcome. Certainly as you debate issues of legislation, that 
will be a significant issue that you are going to have to 
address as to what the target and what the requirements would 
be if you choose to proceed with legislation.
    Mr. Inslee. Well, that was a long ``no,'' but I will take 
    Have you read the Six Degrees: Our Future on a Hotter 
Planet by Mark Lynas? Have you read that book?
    Mr. Johnson. I have not.
    Mr. Inslee. I would commend it to you. If you read it and 
if you follow the science in it, I think you will conclude that 
your administration is woefully failing in its obligations to 
our grandkids.
    Chairman Markey. The gentleman's time has expired.
    The Chair recognizes the gentleman from Missouri, Mr. 
    Mr. Cleaver. Thank you, Mr. Chairman.
    Mr. Johnson, do you have any idea how many lawsuits on 
greenhouse gas emissions, permits and petitions there are 
facing the agency?
    Mr. Johnson. I know that, for example, we have seven 
petitions that are pending before the agency that cover 
aircraft, ongoing marine vessels, non-road engines, for 
example, agriculture, farm construction, lawn and garden 
equipment, recreational vehicles, recreation and smaller 
commercial, marine vessels, locomotives. That is just on the 
mobile sources.
    In addition, as I have said, we have the issues and 
implications on stationary sources.
    Mr. Cleaver. I want to get to that.
    Mr. Johnson. There are, in fact, 90 stationary source 
categories ranging from grain elevators to utility boilers and 
a lot in between.
    Mr. Cleaver. I guess where I am going, you mentioned 
earlier about the CAFE standards.
    Mr. Johnson. Yes.
    Mr. Cleaver. The truth of the matter is the CAFE standards 
that were approved in the energy bill was a result of work with 
the Chairman of this Committee, Mr. Dingell, and the Speaker of 
the House.
    Mr. Johnson. Congratulations. That is great. That is a 
great success story.
    Mr. Cleaver. I agree. We did a great job, if I have to say 
so myself. However, it seems to me that that would have been 
the role of the EPA, to push the government, the Congress in 
the direction of higher CAFE standards, and as a result the EPA 
is serving as the tail light after the headlights have already 
    And so I cannot get past the issue of the United States 
have a high moral ground to talk to other nations about this 
    You mentioned a lot of money that has been spent.
    Mr. Johnson. Yes.
    Mr. Cleaver. And that beckons an ideological discussion 
because the administration says that when you throw a lot of 
money at a problem, particularly when we are talking about 
social issues, that it is wasteful, and so when you just talk 
about all of the money that is being spent, what is the 
difference between what you are saying about energy and what 
people say about our money we spend in HHS?
    Mr. Johnson. Well, we are seeing the fruits of that 
investment, whether it is the science so that we can better 
understand climate change----
    Mr. Cleaver. But you do not believe in the science.
    Mr. Johnson. Well, sir, I just have said over and over 
again that climate change, global climate change is a serious 
    Mr. Cleaver. Does the White House believe that?
    Mr. Johnson. Yes.
    Mr. Cleaver. Where can we find that?
    Mr. Johnson. Actually I would be happy to provide for the 
record the President's statements that acknowledge that.
    But let me just point out one thing to make it clear. EPA 
does not administer the CAFE standard.
    Mr. Cleaver. I understand.
    Mr. Johnson. That is the responsibility of the Department 
of Transportation.
    Mr. Cleaver. Okay. I understand that. The point I was 
trying to make and perhaps poorly is that we need the EPA to be 
the headlight, and I am in disagreement with you that it is the 
headlight on these matters of environment.
    Mr. Johnson. Well, sir, I like the headlight analogy 
because that is precisely what I am doing, is shining light on 
all of the aspects of the Clean Air Act, including the 
endangerment, in looking at what is the best approach, 
recognizing the science, recognizing multiple petitions, the 
Mass. v. EPA, and illuminating light as to what is the best 
direction that we as a nation should proceed with, given all of 
    I understand people want me to drive into that dark alley 
because they think it is the right alley.
    Mr. Cleaver. Yes.
    Mr. Johnson. I really am shining a light on and looking at 
what is the best approach, and I am doing it deliberately, and 
I am doing it expeditiously, and I would ask for your 
indulgence to stay tuned.
    Mr. Cleaver. Well, I appreciate the analogy. In my real 
life, I am a preacher, and I like analogies, and that was 
pretty good.
    Mr. Johnson. Thank you, sir. [Laughter.]
    Mr. Cleaver. The alleyway, the light in the alley.
    What recommendations can we expect from the EPA as a 
Committee, as a Congress, that will move us toward reducing 
greenhouse gases?
    Mr. Johnson. Well, I think several. One is, as I said, the 
steps that we are taking, the renewable fuel standard, that 
list of things, those mandatory responsibilities. You can 
expect that.
    Second is you can expect to hear from me as I have looked 
at and I am looking at the Clean Air Act, what do I believe is 
the best approach for the nation, given all of those factors, 
and so you can expect to hear from me again on that.
    And then lastly, you can expect from me to continue to work 
with you, members of Congress, as you sort through the very 
important issue of legislation. We are doing some of the 
world's most extensive scientific and economic analysis that 
has ever been done on the issue of climate change, and I look 
forward to my staff having the opportunity to share, such as 
the Warner-Lieberman bill, so that you can be very, very 
informed as you have this important debate on legislation.
    Chairman Markey. The gentleman's time has expired.
    Mr. Cleaver. Thank you, Mr. Chairman.
    Chairman Markey. I thank you.
    And all time for questions by members of the Committee has 
expired. Mr. Johnson, you are a scientist with a unique charge. 
The planet is sick. There are no hospitals for sick planets.
    The Congress has told you to do something about it. The 
Supreme Court has told you to do something about it. You have 
told this Committee that you do not want to, in fact, make a 
rush to judgment. The problem is that the planet is on a rush 
to ruin, a rush to catastrophe, even as you say that you do not 
want to make a rush to judgment.
    This Committee is very concerned that you do not understand 
that there are no emergency rooms for planets. We have to 
engage in preventative health care for the planet. We will not 
be able to deal with the catastrophic consequences once they 
occur. We have to stop them from happening.
    You have less than a year left to go, Mr. Administrator, to 
make the decisions that put the United States on a path of 
leadership rather than being the laggard in the world. The 
world is asking us to be the leader. Nothing in the energy 
bill, nothing in law prevents you from making these decisions.
    We urge you to make those decisions. We hope that you do 
not waste these last ten months of your administration, but 
because of your testimony today and your lack of willingness to 
provide the documents which this Committee needs, we are going 
to continue to pursue very aggressively this subject because 
time is of the essence.
    We are going to be asked in subsequent generations whether 
or not we tried, we really tried to prevent that catastrophe 
from occurring, and the least that we should be able to say is 
that we tried. Right now there is no evidence on this question 
of endangerment to the public health and welfare that the EPA 
is acting consistent with the urgent threat to our planet that 
is clear from all scientific evidence.
    So we thank you for testifying before us today. We are 
going to be in frequent communication with you on this subject, 
which goes to the central issue of our generation: have we 
dealt with this urgent threat to the planet? That is how we are 
going to be viewed by history.
    All other issues will be merely a footnote in history to 
the question of whether or not we dealt with this catastrophic 
threat to our planet. We urge you to act and to act soon on the 
    And we thank you for being before our Committee today.
    Mr. Johnson. Thank you, Mr. Chairman.
    Chairman Markey. Now we are going to turn to our second 
panel. We welcome the second panel on this very important 
subject. We are notified that there are two roll calls on the 
House floor. So what we will do is we will begin by hearing 
testimony from our first witness on the second panel, and then 
we will take a brief recess and come back and complete the 
    Our first witness, Ms. Lisa Heinzerling is a professor at 
Georgetown University Law Center. She formerly served as 
Assistant Surgeon General for my home state, the Commonwealth 
of Massachusetts, where she specialized in environmental law 
and in which capacity she was the primary author of the 
successful Massachusetts v. EPA brief.



    Ms. Heinzerling. Thank you very much.
    Chairman Markey. And if you could move that microphone up a 
little bit closer.
    Ms. Heinzerling. Thank you.
    In Massachusetts v. EPA, as we have already heard this 
morning, the Supreme Court held that the EPA has the authority 
to regulate greenhouse gases. The Supreme Court also held that 
any response to that----
    Chairman Markey. Have you turned on the microphone down 
    Ms. Heinzerling. The microphone button.
    Chairman Markey. Ah, could you move that other microphone 
over, please? Thank you.
    Mr. Cleaver. The EPA broke it. [Laughter.]
    Ms. Heinzerling. Now, how is that? All right.
    Chairman Markey. Thank you.
    Ms. Heinzerling. In Massachusetts v. EPA, the Supreme Court 
held that the EPA has the authority to regulate greenhouse 
gases. It also held that any response to the Supreme Court's 
decision and to that authority to regulate greenhouse gases 
must sound in the criteria of the statute itself, that is, 
cannot stray beyond the statutory criteria to other matters.
    The Supreme Court also gave the EPA very limited options on 
remand from that decision. Utter inaction was not one of those 
    Chairman Markey. Again, could you move that microphone in a 
little bit closer, and maybe lower it a little bit. I think 
that might help.
    Ms. Heinzerling. Utter inaction was not one of those 
    Chairman Markey. Great.
    Ms. Heinzerling. Yet that is what we have gotten from EPA. 
Indeed, the reasoning from Mr. Johnson this morning was exactly 
the kind of reasoning that the Supreme Court rejected in 
Massachusetts v. EPA. There the EPA said that the problem of 
climate change was very big. It was very complicated. It might 
need a solution other than the Clean Air Act. The EPA was 
worried about the international context, and so on. These are 
the very kinds of reasons we heard from Administrator Johnson 
this morning. These are the very kinds of reasons the Supreme 
Court rejected almost a year ago.
    The Supreme Court held, again, EPA must hue its reasoning 
to the language of the statute, not stray beyond that and cite 
other policy concerns in making its decision.
    On endangerment, the Supreme Court made clear that EPA's 
job is to assess the science and to follow the science where it 
leads. This morning Mr. Johnson gave no justification for not 
doing that, for not making a finding that greenhouse gases may 
reasonably be anticipated to endanger public health or welfare.
    He conceded, I think, that the energy bill signed in 
December 2007 does not affect authority under the Clean Air 
Act, as well he should. He also though suggested that that bill 
affects his decision on remand from Massachusetts v. EPA. Yet 
there is no explanation from Mr. Johnson as to why he may not 
at this moment, right now make a finding that greenhouse gases 
endanger public health and welfare.
    And, indeed, there is no real explanation from Mr. Johnson 
as to why his February 29th decision denying California the 
authority to regulate greenhouse gases did not make such a 
finding. In that decision he claimed it was likely that 
greenhouse gases were endangering all sorts of different 
aspects of human health and welfare. The finding was very 
    This morning he tells us it is not an endangerment finding. 
He may not avoid the consequences of his decision in February 
simply by giving it a label that he chooses.
    It was surprising to me to hear Mr. Johnson say he did not 
want to prejudge the issue of endangerment when in February, I 
believe, that is exactly the decision he made. That is a 
judgment that greenhouse gases are endangering public health 
and welfare.
    In addition, the consequences we have heard of regulating 
that Mr. Johnson referred to this morning are not part of the 
statutory framework for finding endangerment. They simply are 
not part of that statutory scheme. Science is what he is 
supposed to follow, not the consequences of a regulatory 
    And here I ask you simply to imagine you go to a doctor. 
The doctor tells you you have symptoms, has even told you on 
February 29th you are very, very ill, but he says some of the 
treatments, some of them, are very painful and expensive, and 
so he has decided he is not even going to tell you whether you 
are sick.
    That would be a bad doctor. I believe that is not a way an 
agency should behave. The EPA is our environmental expert. Many 
entities, businesses, states, other agencies depend on EPA's 
judgment about whether greenhouse gases are endangering public 
health or welfare. That finding would also, I think, I hope, 
influence EPA's own attitude towards regulation and change it 
from one of obduracy to urgency.
    They might change the attitude of EPA from asking how can 
we avoid doing too much to how can we find a way to do enough.
    Thank you.
    Chairman Markey. I will tell you what we are going to have 
to do right here. We will stop. We will come back to the other 
witnesses. We will give you a minute to summarize your opening 
statement, and then we will go to the second witness. We are 
going to take a brief recess.
    Ms. Heinzerling. Thank you.
    Mr. Inslee [presiding]. There has been a putsch during the 
interim, and I have assumed the Chair. So I look forward to Ms. 
Heinzerling. If you will continue your address in maybe three 
minutes, if that would work for you. We hope that you can help 
us out.
    Ms. Heinzerling. Oddly enough, I actually had seen the time 
running and I had finished, but I had spoken very quickly. So 
if you do not mind I would just like to summarize the things I 
    Mr. Inslee. Thank you, thank you.
    Ms. Heinzerling. Absolutely. So the first point I wanted to 
make was that EPA clearly had not learned from the decision in 
Massachusetts v. EPA; that the justifications we heard this 
morning for EPA's failure to act in response to that decision 
are the very kinds of justifications the Supreme Court rejected 
in that decision.
    And so that I think that those justifications and those 
reasons are unlawful.
    The second point that I would like to make is that EPA has 
every reason now, today, to issue a finding that greenhouse 
gases endanger public health and welfare. Arguably, as I 
mentioned before, EPA has already done so in its February 29th 
denial of California's ability to regulate greenhouse gases 
from automobiles. In that decision, EPA made very formal, very 
explicit, very confident findings about the effects of 
greenhouse gases on public health and welfare.
    So, arguably, I believe that finding has already been made. 
EPA's labeling it as not an endangerment finding is not enough 
to save it.
    Secondly, the finding, as we heard this morning, had 
already been prepared. Quite apart from the February 29th 
decision there has already been a positive endangerment finding 
prepared. They can simply mail it in. There is nothing else to 
be done.
    Third, I think it would benefit many people, businesses, 
states, other entities, are awaiting work from EPA, formal, 
final word from EPA about endangerment, and I think it would 
give them certainty and predictability if EPA would make a 
decision on this matter.
    Last, I believe a decision on this matter would affect 
EPA's regulatory attitude. As I mentioned in a metaphor with 
the doctor, the idea is that if you go to a doctor and the 
doctor says, ``Well, we think you are sick, but we think the 
treatments might be painful and expensive. So we are not going 
to tell you what you have,'' that would be crazy. That would be 
a very bizarre statement on the part of the doctor.
    I think that is essentially what EPA is saying to us, and 
that seems to be both unwise and, in light of Massachusetts v. 
EPA, unlawful.
    I would like to ask that my written statement be admitted 
into the record.
    [The prepared statement of Ms. Heinzerling follows:]

    Mr. Inslee. Certainly, and we always hope for an attitude 
adjustment in this case.
    Our next witness, Mr. David Bookbinder, who is Chief 
Climate Counsel for the Sierra Club. He is responsible for 
climate litigation, including the global warming legislation, 
and we want to commend the whole club and Mr. Bookbinder in 
some recent successes.
    Mr. Bookbinder.


    Mr. Bookbinder. Thank you very much.
    First, I am afraid I am going to start my testimony by 
correcting you. You had said that we had seen seven years of 
inaction from EPA on global warming and climate change. In 
fact, that is not quite correct because they, in addition to 
not acting on their own, they have affirmatively worked to 
block others from acting. So you cannot say they have been 
completely inactive.
    Their rejection of California's request for a waiver of 
federal preemption so that California and 12 other states could 
finally begin the first program to regulate greenhouse gas 
emissions in the United States was an example of their blocking 
the efforts of other parties who want to address this problem.
    When it comes to delay itself, they have delayed for the 
seven years of this administration and the Massachusetts case 
is a perfect example of this. The petition at the root of 
Massachusetts was filed in 1999. The administration refused to 
take any action on it until we sued them simply to get them to 
answer the petition. We did that in 2002. They answered it with 
a resounding no in 2003, and here we are five years later still 
trying to get an answer to the question are greenhouse gases 
reasonably anticipated to endanger public health or welfare, 
and by welfare, Congress wrote explicitly into the statute, 
``Do greenhouse gases endanger wildlife, plants, weather or 
    That is a no brainer. That is truly a no brainer, and as 
the only person who cannot seem to answer that question is 
Administrator Johnson, even though, as Professor Heinzerling 
has pointed out, the conclusions that EPA reached in rejecting 
California's waiver was, my God, climate change is going to 
hammer the entire United States.
    Administrator Johnson summarized it as saying global 
climate change is a substantial and critical challenge for the 
environment. There is little question that the conditions 
brought about as a result of global climate change are serious, 
whether reviewing the issue as a global, national, or state 
specific issue. Nevertheless, he cannot figure out whether or 
not we are endangered by greenhouse gases.
    The biggest problem we face in terms of regulation is that 
EPA says we cannot regulate any source, motor vehicles, power 
plants, anything until we have an endangerment finding, but as 
you heard Administrator Johnson say today, we are not going to 
do an endangerment finding because we might have to regulate 
people as a result.
    We are in a perfect Catch-22 with these folks, and we need 
something to break this logjam. The latest bogeyman that they 
have raised is what is called the PSD program, the Prevention 
of Significant deterioration. And we heard a lot of discussion 
about the 250 ton threshold, that if we have an endangerment 
finding, EPA is going to have to start regulating every source 
in the United States that emits more than 250 tons of carbon 
    The short answer is no one wants that. The environmental 
community does not want it. The regulated community does not 
want it. Congress does not want it. No one wants it, and this 
is a completely empty threat that EPA is using as a transparent 
excuse to prevent themselves from regulating the significant 
sources of GHGs, of greenhouse gases of motor vehicles, power 
plants, industrial facilities and the like.
    We have coming up in front of us the next regulatory 
deadline for EPA is they are under a consent decree, a court 
order to come up with standards for emissions from petroleum 
refineries, and petroleum refineries are one of the most 
significant sources of greenhouse gas emissions in the United 
States, and they must publish those standards by April 30th.
    None of us are holding our breath as to what EPA is going 
to do. Clearly, those emissions contribute to the endangerment 
we all know that exists, but the only suspense is what new 
dodge will EPA come up with in order to avoid imposing such 
    We saw in Massachusetts that EPA took a statute that says 
if something has an adverse effect on climate you have to 
regulate it and turn it around to say, well, Congress did not 
want us to regulate to protect the climate. In the waiver 
decision they took the words ``compelling'' and ``extraordinary 
circumstances'' and read it to mean unique in order to prevent 
California from regulating, and most recently in a case 
designed to stop regulation of greenhouse gases from new power 
plants, in a case called Bonanza, EPA is saying that Section 
821 of the Clean Air Act is not actually part of the Clean Air 
Act. It is an endless litany of transparent excuses to avoid 
    We have ten more months of this administration. Hopefully 
something good will happen in that time.
    Mr. Inslee. We can only hope, and thanks for your criticism 
that I have been too gracious. That is the first time I have 
been accused of being too gracious to the administration.
    Mr. Bookbinder. No one has accused me of that, and I would 
like to move my testimony to be formally admitted.
    [The prepared statement of Mr. Bookbinder follows:]

    Mr. Inslee. Thank you.
    Our next witness, Mr. Roderick Bremby, who is Secretary of 
the Kansas Department of Health and Environment. As Secretary, 
his primary goal is of improving health and environmental 
conditions for Kansans. He served prior to that as Associate 
Director of the Work Group on Health Promotion and Community 
Development at the University of Kansas and Assistant City 
Manager of Lawrence, Kansas.
    There are some great things happening in your state. Thanks 
for joining us, Mr. Bremby.


    Mr. Bremby. Thank you, Mr. Chairman.
    We appreciate the opportunity to testify this morning.
    Mr. Inslee. If you want to pull that mic a little closer it 
will be helpful.
    Mr. Bremby. On the Supreme Court decision, Mass. v. EPA, 
and the decision related to my denial of Sunflower Electric 
Power Corporation's permit for an additional two 700 megawatt 
coal-fired generators. I also want to briefly address the legal 
and policy implications of the EPA's failure to regulate 
greenhouse gases.
    Mass. v. EPA was very influential in our decision to deny 
the petition. The Supreme Court's finding that greenhouse gases 
are an air pollutant within the meaning of the federal Clean 
Air Act supports and confirms my own understanding that 
CO2 constitutes air pollution within the meaning of 
the Kansas Air Quality Act.
    Under the Kansas Air Quality Act, there are two specific 
provisions that provide for broad authority to protect the 
health of Kansas citizens and the environment. For example, 
under KSA 65-3008 and KSA 65-3012, it allows us to either 
modify, to approve, or to reject a petition after public 
hearing. Sixty-five, thirty, twelve requires information that 
the emission of air pollution presents a substantial 
endangerment to the health of persons or the environment. 
Endangerment may be a threatened or potential harm, as well as 
an actual harm.
    So it is under that rubric then that we were able to strike 
the petition.
    In Mass. v. EPA, the Court's recognition of the significant 
national and international information available on the 
deleterious impact of GHG on the environment and its conclusion 
that GHG CO2 meets the broad definition of air 
pollutant under the Clean Air Act provided support for the 
position that I took that CO2 also meets the 
similarly broad definition of air pollution under the Kansas 
Air Quality Act.
    The EPA's failure to determine one way or the other whether 
GHGs cause or contribute to air pollution which may reasonably 
be anticipated to endanger public health or welfare has 
impacted the State of Kansas' ability to enforce and maintain 
the authority stemming from state law to protect public health 
and environment from actual, threatened or potential harm from 
air pollution.
    Unless and until the EPA acts, its failure to regulate GHG 
has significantly and adversely affected Kansas. Kansas 
legislature recently passed a bill that will serve to tether 
GHG emission control in our state directly to what the EPA will 
do or fail to do.
    The Sunflower bill promulgates that I as Secretary cannot 
promulgate any rule, regulation, or issue in any order that 
takes any other action other than any provision of the Kansas 
Air Quality Act that is more stringent, restrictive, or 
expansive than required by the Clean Air Act or any rule or 
regulation adopted thereunder by the EPA. Our Governor Sebelius 
has expressed her intention to veto the bill, which passed with 
votes insufficient for an override, but that may change.
    Given the unambiguous requirement in the CAA that 
CO2 emissions be regulated and reduced, it would 
make sense from both a human health and business perspective 
for EPA to issue its regulations as quickly as possible.
    The EPA's issuance of an endangerment finding or notice of 
any intent to promulgate federal rules and regs. would further 
support my decision to regulate CO2 in Kansas, which 
was appealed to the Kansas Court of Appeals, the District Court 
of Finney County, Kansas, and the Office of Administrative 
Hearings in the State of Kansas.
    The Supreme Court has taken up the appeals filed in the 
Court of Appeals on its own motion. The proceedings in the 
District Court and the Office of Administrative Appeals are 
stayed pending deposition of the appeals by the Supreme Court.
    The EPA's notice of intent to regulate would support my 
exercising the authority granted to me by Kansas law, but it is 
not necessary to it. The EPA's decision to regulate GHG 
emissions would be critical to alleviating the so-called 
regulatory uncertainty, and thus economic uncertainty, I have 
been alleged to create by denying the Sunflower Electric 
    In the absence of federal legislation in this area with the 
potential for enactment of the legislation currently pending in 
Kansas, it would be impossible for Kansas to protect the health 
of its citizens and the environment from the effects of 
    So I thank you for the opportunity to present this morning. 
I ask that the written statement be added to the record, and I 
will stand for any questions that our legal staff would clear 
me to answer.
    [The statement of Mr. Bremby follows:]

    Mr. Inslee. Thank you, and please pass on our commendation 
to your great governor for her great leadership in this field.
    Ms. Heinzerling. Thank you.
    Mr. Inslee. We really appreciate it. It helps us 
    Our next witness, Representative Joshua Svaty, who is a 
member of the Kansas House of Representatives, is a senior 
member of the Energy and Utilities Committee, and ranking 
minority member on agriculture and natural resources. He has 
also been appointed by the governor to her Kansas Energy 
Council planning a long-term future for the great state.
    Mr. Svaty, thanks for coming up here.


    Mr. Svaty. Thank you. It is certainly a pleasure.
    It does not sound like it is on. I have never been accused 
of being----
    Mr. Inslee. It is working.
    Mr. Svaty. Okay. That is fine.
    Anyhow, it is a pleasure. I do farm east of Ellsworth, 
Kansas, and I appreciate the opportunity to testify.
    This is a very interesting issue for Kansas, and I wanted 
to respond to some of the comments that were made about the 
respective states and the potential economic impact with 
greenhouse gas controls that were made earlier this morning.
    Kansas probably almost more so than any other state is 
acutely aware of the benefits of a fossil fuel economy. We have 
thin coal seams east of what is the geologic ridge known as the 
Nemaha line. We have the first oil well drilled west of the 
Mississippi. We also had the Hugoton gas field, which at the 
time of its discovery was the largest natural gas field in 
North America.
    So we understand the benefits of a fossil fuel economy. 
That being said, I have seen a marked increase among my 
constituents and constituents across the State of Kansas that 
want to see an expanded generation portfolio. They also want us 
to begin a transition into more renewables and more clean 
energy technology as we move forward as a state.
    What has happened then is when Secretary Bremby made his 
decision in October of last year, this issue has landed 
squarely in our lap, and I was somewhat amused by the comments 
of the Ranking Member this morning that said this political 
issue should not end up in the hands of unelected regulators 
and the unelected courts.
    That is exactly the scenario we have in Kansas right now. 
We have it as a political issue, and I say for my own personal 
view, it has been an absolute mess.
    Furthermore, I would also though venture to say ask anyone 
in this issue, both for and against those plants, and they 
would say the political process that this bill has undergone 
has not been clean and has not done justice to the democratic 
process itself.
    We started out with a bill that would have included some 
low and easily reached limits on greenhouse gases. Those were 
immediately thrown out the minute we discovered it would be 
very difficult for a state as far as politically to determine 
    We then went to more of a budgetary process where they 
began adding in green things here, green things there to see if 
they could find the right mix of votes. That process may work 
for the budget, but it does not work for long-term energy 
policy whether at the state or at the federal level.
    So what has happened is the end bill that we have that now 
sits on the governor's desk is basically a bill that makes the 
legislature the de novo court for issuing permits. Issuing 
permits should be the job of the Kansas Department of Health 
and Environment, and as you are acutely aware as Congressmen, 
Congress or any legislature has a host of different opinions, 
and we should be the last place that would be actually issuing 
permits because it would be an even more uncertain process than 
the regulatory uncertainty that has been claimed at the state 
    Finally, I would also like to say that I was concerned when 
I heard the Environmental Protection Agency this morning say 
that they were disappointed that they could not consider cost, 
and that was also a concern that I heard echoed from members of 
this Committee.
    I am just a farmer from central Kansas, but I thought the 
Environmental Protection Agency's job was to consider the 
environment first, both for the safety and health of the 
citizens of the United States and also for the sake of the 
natural resources for this country.
    It is our job as legislators to then consider within the 
parameters that the Environmental Protection Agency sets how to 
find a course through this crisis so that we do not harm the 
economy. We allow businesses to expand and flourish within the 
State of Kansas and elsewhere, but we also find a solution to 
protect the citizens of the state.
    That is what I have in mind to do, but without direction 
from the Environmental Protection Agency, without parameters, 
the theoretical collective genius that should be the 
legislature acting on the part of all of the citizens has no 
boundaries whatsoever and we end up all over the place, which 
is what you would see in the legislation that is currently 
making its way through the process in Kansas.
    I would hope to see more direction from the Environmental 
Protection Agency. I think that it would have a very positive 
effect on the debate in Kansas and in other states that are 
having this debate simultaneously. It gives us direction. It 
gives us parameters. It gives us opportunities as legislators 
to work to find solutions for all interests involved.
    I thank you for the time. I would also ask that my written 
comments be admitted.
    [The statement of Mr. Svaty follows:]

    Chairman Markey [presiding]. Without objection, your 
written comments will be included in the record.
    And our final witness is Mr. Peter Glaser, a partner at 
Troutman Sanders. Mr. Glaser specializes in environmental 
regulation and litigation, and you have been involved in the 
litigation of Massachusetts v. EPA.
    We welcome you and whenever you are ready, please begin.

                  STATEMENT OF PETER S. GLASER

    Mr. Glaser. Thank you very----
    Chairman Markey. And, again, please move the microphone in 
closer and lower it a little bit so that it is closer to where 
the words are coming out of your mouth.
    Mr. Glaser. Okay. How does that sound?
    Chairman Markey. No, just move it in a little bit closer, 
    Mr. Glaser. That sounds okay? I can also raise my voice.
    Chairman Markey. That will help. Thank you.
    Mr. Glaser. Thank you very much, Mr. Chairman.
    Let me begin by saying that the views that I am expressing 
here are my own and not necessarily those of any company or 
group that I currently----
    Chairman Markey. Okay. Can you move the microphone over in 
front of your mouth if that is possible? Okay. Good. Thank you.
    Mr. Glaser. So the views that I am expressing today are my 
own and not necessarily those of any company or group that I 
have represented or represent currently.
    Let me begin by addressing the first issue that the 
Committee raised, which was the effect of EPA regulation of 
motor vehicle greenhouse gas emissions on stationary sources. 
The effect would be a very significant one and not just on 
large stationary sources. And this is no bogeyman. 
Unfortunately this is the way the Clean Air Act works.
    If EPA promulgates motor vehicle regulations, carbon 
dioxide, and other greenhouse gases will become regulated Clean 
Air Act pollutants for purposes of the Clean Air Act prevention 
of significant deterioration or PSD Program. As a result, as I 
discuss in my written testimony, hundreds of thousands of small 
stationary sources, at least hundreds of thousands across the 
economy that have not been regulated in the past under the 
Clean Air Act will become subject to onerous PSD permitting 
requirements, and this could have extremely serious 
implications for capital investment across the economy as any 
building of approximately 100,000 square feet that is heated by 
oil or natural gas will be affected. That is about a ten-story 
office building, and in my testimony I enumerate some examples 
of the type of facilities that are likely to trigger that 100 
to 250 ton per year trigger.
    The Committee, in my view, should take no comfort from Mr. 
Bookbinder's suggestion that EPA could possibly avoid the PSD 
problems that I refer to by adopting what he refers to as a 
general permit program that would essentially exempt sources 
emitting below a 5,000 to 10,000 ton per year threshold.
    And I am, frankly, very surprised at this proposal, given 
its source. The Sierra Club and others in the environmental 
community have spent the last several years vociferously 
attacking EPA for in their view departing from plain statutory 
language in an attempt to develop creative and flexible 
regulatory mechanisms, and now they suggest that the 
administrator could exempt sources from explicit statutory 
language if they do not emit above a threshold that he 
considers to be ``a more appropriate'' one than the 100 to 250 
ton per year threshold set forth in the statute.
    I know exactly the arguments that the Sierra Club and 
others would raise against such a proposal if industry made it. 
In any event, the fact that he calls the suggestion merely a 
``possibility'' reveals the uncertainty of whether the 
suggestion would pass legal muster.
    From a business standpoint because legal uncertainty 
disincents capital investment, business would have difficulty 
relying on the proposal that he makes, if adopted by EPA. So 
any way you look at it, immediate Clean Air Act regulation of 
greenhouse gases, regulation that the Sierra Club is loudly 
calling for, is going to result in a potentially debilitating 
impediment to business activity, and I am not sure of how to 
get around it.
    The Committee's second issue had to do with the effect of 
the recently enacted EISA. I think this issue is particularly 
relevant in light of the PSD impacts that I have enumerated. 
There has been a lot of discussion about why EPA did not issue 
its proposal at the end of last December, but given the 
enactment of the EISA and given the impacts under the PSD 
program that I have discussed above, EPA's decision to have a 
pause makes perfect sense.
    The EISA addressed the President's Twenty in Ten agenda, 
and it will achieve significant reductions in motor vehicle 
greenhouse gas emissions. Congress required EPA to act within 
one year, and EPA must do so.
    I would also say that as a legal matter, EPA is well within 
its legal authority to pause before formulating a response to 
Massachusetts. The Supreme Court did not establish a deadline 
for EPA action on remand. The Sierra Club and others did not 
even ask for one as far as I know, and to the contrary, the 
Court stated that EPA ``has significant latitude'' as to the 
timing of its regulations.
    I appreciate the opportunity to make these remarks. I thank 
you, and ask that my written testimony be entered into the 
    [The prepared statement of Mr. Glaser follows:]

    Chairman Markey. Thank you, Mr. Glaser, very much. And we 
thank each and every one of you for your questions on this very 
distinguished panel. Thank you.
    Mr. Johnson said that he is being asked to make a rush to 
judgment on this endangerment finding. Do any of you want to 
comment upon that in terms of your perspective of whether or 
not at this late date we are asking him to engage in a rush to 
    Ms. Heinzerling, would you like to comment on that, please?
    Ms. Heinzerling. I would like to comment on that. It has 
been nine years, as I said since EPA was petitioned to regulate 
greenhouse gases. EPA has spent billions we heard this morning 
on research on climate change. It has issued a very formal 
finding about the effects of climate change on public health 
and welfare.
    The idea that this is a rush to judgment is bizarre to me. 
I was very surprised to hear that. They could make that finding 
today as I mentioned earlier. Today they could make that 
    Chairman Markey. In your opinion, do you believe that this 
is no longer a scientific decision inside of the EPA, but now a 
political decision?
    Ms. Heinzerling. As I understand it, EPA had prepared a 
positive endangerment finding. As I have mentioned a couple of 
times, EPA in February issued a decision that very formally 
declared that climate change is upon us and that it is having 
harmful effects right now. And so I cannot imagine there would 
be a scientific reason why EPA has not issued this decision.
    Chairman Markey. Let me go to Kansas here for a second. You 
know, maybe I am wrong, but I know that 5,400 new megawatts of 
wind were constructed in the United States last year. Let me 
summarize. Last year in the United States in electricity 
generation, 56 percent of all new electrical generation that 
was built in the United States in just 2007 was natural gas. 
Ten percent was coal, but 30 percent was wind, 30 percent in 
    Does Kansas have any wind? And would it be possible for the 
electric utility in Kansas to find some way of capturing the 
wind that last year led to 30 percent of all new electrical 
generation in the country being from wind?
    Any of you wish to take it?
    Mr. Svaty. Thank you. I would be happy to.
    I, in fact, have the newest and largest wind project in the 
State of Kansas being built in my district. The Sunflower 
Electric, which, of course, wants to build the coal plan, was 
actually the first purchaser off of that plant. I will say in 
their defense they are buying wind to offset their natural gas.
    That being said, we are not moving as fast as our neighbor 
Texas to the south. There is tremendous potential in western 
Kansas especially to move forward. I think also a lot of our 
concern from the coal plant perspective is that Kansas wants 
more generation from wind. We are not getting there, but the 
coal issue, 85 percent of the energy that was going to be 
produced from those two plants was going to Colorado and points 
west of us anyhow. It was not going to be used in the State of 
Kansas at all.
    Chairman Markey. Mr. Bremby, would you like to comment on 
    And, by the way, congratulations on your heroic stand on 
this issue.
    Mr. Bremby. Thank you, Mr. Chairman.
    Chairman Markey. I really do want to point that out.
    Mr. Bremby. Our governor took a leadership on wind energy 
production and worked with utility companies----
    Chairman Markey. Could you speak up just a little bit?
    Mr. Bremby. Sure. And took the leadership position in 
working voluntarily with the energy companies. By the end of 
next year, we will be at 12 percent of electrical energy by 
wind in Kansas without any requirements whatsoever. We are on 
tap for 2020.
    But fundamentally, Kansas has wind energy as a source. We 
are number three in the nation. It is available to us. We just 
need the right credits and incentives for this to happen.
    One of the arguments that we have used in terms of or that 
I have heard been used in terms of supporting the decision on 
Sunflower, which we did not use because ours was solely based 
on health and environmental issues, was that by production of 
this new coal-fired facility, it would then absorb the energy 
market in the west part of the state to preclude wind energy 
from being relevant or capable or available.
    So, yes, we can use more wind.
    Chairman Markey. Great. Thank you very much.
    And what do you think is going on in the minds of utilities 
in 2008, in Kansas, that wants to go to coal when wind is an 
industry that Texas and other states are now developing? Why 
wouldn't they just grasp it as the future?
    You know, sometimes there is ancestral worship, and you 
feel that you have to bow down to the past even when the future 
not only is in front of you, but has engulfed you, you know, 
from Texas even to your own state. What is it about this 
utility, this misnamed Sunflower utility, that has them 
pursuing coal rather than wind?
    Mr. Svaty. I do think part of it, and this would just not 
be in the case of Sunflower, but part of it might be ancestral 
worship. I also would say there are transmission constraints to 
putting a lot of wind onto the transmission grid. It does 
present some issues, although we as a state are trying to 
address the transmission constraint issues so that we have a 
better ability to have more wind.
    But I would also say that this particular utility may be in 
the sort of financial straits in which it needs investment from 
an outside investor, which they have found in their Colorado 
tri-state investment, their generation and transmission 
company, and they want coal. They want that steady base load, 
and they also could not get it in their home State of Colorado. 
So they came to Kansas looking for an opportunity to have the 
cheap base load.
    Chairman Markey. You are saying this is really a Colorado 
company setting Kansas policy to generate from coal and not 
from wind.
    Mr. Svaty. I would not necessarily say that it was Colorado 
setting our policy, but Colorado and Colorado's needs for 
energy have certainly been central in our conversation in 
    Chairman Markey. Okay, and I will take the last word there, 
Mr. Bremby.
    Mr. Bremby. Mr. Chairman, of the 1,400 megawatt facility or 
that this facility would produce, 15 percent would be for 
Kansas. The balance of that would go to Colorado and Oklahoma.
    Chairman Markey. So Kansas is going to be asked to be an 
environmental sacrifice zone so that electricity can be 
generated to send to other states, even as wind is plentiful 
across the plains of Kansas.
    Mr. Bremby. Fifteen percent of the total megawatt produced, 
so about 220 megawatts, would be all that Kansas would have.
    Chairman Markey. That is just unbelievable.
    Okay. My time has expired. Let me turn and recognize the 
gentleman from Washington State, Mr. Inslee.
    Mr. Inslee. Thank you.
    Mr. Glaser, I have listened to your testimony. I want to 
put it in sort of a metaphor if I can. If you went to a doctor 
and the doctor concluded that you have cancer and that 
treatment of that cancer may involve surgery, and that surgery 
may involve discomfort, would you want your doctor to wait 
seven years and not tell you that you had cancer in order to 
avoid the discussion of the surgery?
    Mr. Glaser. Congressman, I am not sure how to respond to 
that analogy because I am not sure it is particularly apt here. 
EPA did, in fact, respond to the petition for rulemaking. It 
did take an action under the Clean Air Act. It is an action 
that was in good faith, and we know this because it split the 
courts. The D.C. Circuit confirmed the action two to one. The 
Supreme Court overturned the D.C. Circuit, but that was five to 
four. So this was a very close decision.
    It has been sent back to the Environmental Protection 
Agency for further consideration. The remand, the actual legal 
document, was only received back at EPA in late September. So 
it has not really been a great deal of time since this case was 
back before the agency.
    Mr. Inslee. Well, I appreciate your challenging my 
metaphor, but let's talk about it. In fact, I think it is not a 
bad metaphor because there is a two-step process in dealing 
with global warming. First you have got to recognize you have 
the disease. Then second, you have got to figure out how to 
treat the disease.
    Now, isn't it true that Ms. Heinzerling and Mr. Bookbinder 
are entirely correct that today the EPA has authority to issue 
a statement, a statement to Americans that is very important, 
that, in fact, these greenhouse gases endanger public health? 
Can't they do that today?
    Mr. Glaser. Well, as the Supreme Court said, EPA has three 
choices. It can make an endangerment finding and regulate. It 
could determine no endangerment and not regulate, or it can 
explain why under the statute it declines to make that 
    Mr. Inslee. So you would agree with me today they can make 
a finding of endangerment today, and they can take a little 
more time to figure out what the response is, but today they 
can make a statement to America and to the world that the 
United States Government recognizes that these gases endanger 
human health.
    Now, I will just take yes or no. I appreciate lawyers. I 
used to be one, but I will just take yes or no on that one. Can 
they or not?
    Mr. Glaser. Well, they can make such a finding if, if after 
appropriate notice and comment rulemaking they make the 
appropriate findings. So I would not disagree with that. I 
would hope that they would not because when you speak about 
remedies for diseases, I really think the Clean Air Act is the 
wrong remedy for the particular global warming issue that we 
are talking about. It is a----
    Mr. Inslee. Well, I appreciate you to lobby Mr. 
    Mr. Glaser [continuing]. Square peg for a round hole.
    Mr. Inslee. I would appreciate you lobbying Mr. 
Sensenbrenner for a cap in trade system, and I will give you a 
call when we need that.
    Now, let me ask you. You said that you have this train of 
disaster, in fact. You apparently fear the cure more than the 
disease, as I listen to your testimony. You are not worried 
about the oceans becoming more acidic and destroying fish. You 
are not worried about, you know, rising sea levels. You are not 
worried about the melting of the ice in the polar icecap. What 
you are worried about is we might do something about this in a 
way that you consider untoward. That is what keeps you up at 
    I have different nightmares than you do apparently, but I 
want to understand if the EPA in response to an endangerment 
decision, in fact, say now we are going to change this to make 
it a 1,000 ton per year threshold rather than 250 ton, if they 
raise that to avoid some of the inconvenience that you have 
described, you are not going to sue them and say they do not 
have authority to do that, are you, on behalf of your clients?
    Mr. Glaser. I would call it considerably more than an 
inconvenience to be subject to PSD permitting. The experience 
with PSD permitting is that it takes a year to 18 months from 
the day you file your permit, not including all of the time 
that it takes to prepare the permit, to get your permit issued.
    Mr. Inslee. Well, I appreciate that, but I want an answer 
to what you are going to do. If the EPA in order to reduce the 
inconvenience or harm or injury, whatever you want to call it, 
if they want to raise the threshold to 1,000 tons a year, you 
are not going to assume and tell them they do not have 
authority, are you?
    Mr. Glaser. Here is what the problem is though. If I as a 
lawyer advising the client that wants to build an office 
building in downtown Washington, the client comes to me and he 
says, ``Do I need a permit?'' Now EPA has put out this 
regulation, but can we rely on this regulation? What do I do?
    And my response is going to have to be I do not know 
    Mr. Inslee. You are not going to assume and tell them that 
they have authority, are you?
    Mr. Glaser. I personally would not bring that lawsuit.
    Mr. Inslee. Because you know exactly what is going to 
happen if there is an endangerment finding. One way or another 
there is likely to be some resolution of that issue that does 
not distort the U.S. economy, and the EPA is fully capable 
legally to do that themselves or Congress can do it. Now, don't 
you agree with that?
    Mr. Glaser. I do not believe--well, let me put it this way. 
I am really uncertain about what EPA can do about this problem, 
and I can tell you that this issue sends ripples of panic 
through the business community as they consider what could 
happen here if this kind of regulation is issued. That is what 
the problem is because----
    Mr. Inslee. Well, I can assure you----
    Mr. Glaser [continuing]. It creates so much uncertainty.
    Mr. Inslee. I can assure you that if there is an 
endangerment finding, as they should be, I can assure you one 
case you will not be taking, and that is to challenge their 
ability to lighten up on this restriction.
    Thank you very much.
    Chairman Markey. Thank you very much.
    The Chair will recognize himself for another round of 
    You know, Sunflower Electric burning coal is like an 
oxymoron. It is a contradiction in terms, like jumbo shrimp or 
Salt Lake City nightlife. I mean, you know, there is no way a 
utility trying to burn coal in what has now become the wind era 
has the correct name, and I think that we should have a contest 
maybe nationally, you know, to rename the utility so that it 
reflects its dedication to fossil fuels rather than to sun 
power, you know, to wind power, to what the future holds out 
for Kansas and for every state and for every country in the 
    But it is a clearly misnamed utility, and I myself am going 
to try to find a new name for that utility and try to run it by 
    Yes, sir.
    Mr. Glaser. Mr. Chairman, would it be okay if I just took a 
quick crack at why Sunflower might be considering resources 
other than just wind resources?
    Chairman Markey. Why it might what?
    Mr. Glaser. Why it might be considering electric generating 
resources other than just wind resources.
    Chairman Markey. Sure. I would like to hear it, and why it 
is burning coal for 85 percent of its electrical generating 
capacity to go outside of the State of Kansas.
    Mr. Glaser. Sure, sure, and I am not speaking for Sunflower 
here. I do not represent Sunflower. I am just speaking 
generally in the industry.
    Wind is great. Wind is going to be developed very rapidly, 
but wind, at east, will only generate 30 to 40 percent at best 
of the hours in a day, and wind disproportionately does not 
blow when it gets really hot and when electric generation is 
needed the most.
    And so no utility can rely on wind exclusively. There has 
to be back-up or firming power behind wind for the times when 
the wind does not blow, and there have been some unfortunate 
experiences in the country, in the upper Midwest, in 
California, and recently in Texas where there have been extreme 
needs for electricity when the wind is not blowing.
    Chairman Markey. You know, what I would say? I would 
recommend, Mr. Glaser, that you and perhaps Sunflower like 
travel to Denmark, travel to Germany and learn a little bit 
more about how wind can be effectively integrated into an 
electrical grid system without endangering reliability.
    I do not think actually from the testimony that I am 
hearing that Sunflower has actually gone through that exercise 
right now. So I think what your suggestion is is that you are 
trying to get inside the mind of this electric utility, this 
coal-burning electric utility and project what they are 
thinking, but I think the problem is that they are not thinking 
about the future.
    If only ten percent of all new electricity in the United 
States in 2007 came from coal and 30 percent came from wind, I 
would argue, especially since we are talking about Kansas here, 
okay, that there has not been a full exploration of the 
potential, which wind can play in the electrical generating mix 
inside of that state.
    And so I thank you for your attempt to mind read this 
utility, but I think this is one of those res ipsa loquitur 
situations where the thing speaks for itself. They are 
absolutely just taking an older corporate perspective rather 
than a newer, more innovative, and technology savvy perspective 
to try to deal with the actual assets that are inside of Kansas 
rather than having an agenda that actually does not even 
benefit it from an environmental perspective.
    So I just want to be perfectly clear here on this issue of 
whether enactment of the energy bill alters any of EPA's 
obligations under the Clean Air Act or the Supreme Court 
decision. Does anything in the energy bill remove EPA's 
obligation to determine whether greenhouse gas emissions cause 
or contribute to air pollution, which may reasonably be 
anticipated to endanger public health or welfare?
    Mr. Glaser.
    Mr. Glaser. Oh, thank you.
    No, actually I agree with Administrator Johnson that the 
bill does not as a matter of law affect, and I say this also in 
my testimony; that EPA still----
    Chairman Markey. So that is a no.
    Mr. Glaser [continuing]. Still has to address it.
    Chairman Markey. Is there anything in the energy bill? That 
is all I asked. Is there anything in the energy bill that 
    Mr. Glaser. Well, the answer would be yes, with an 
explanation. The explanation is that although the energy bill 
as a matter of law does not prevent EPA from responding to the 
Massachusetts remand, it certainly affects how it will respond 
to the Massachusetts remand, and so I also agree with 
Administrator Johnson about why enactment of that legislation 
appropriately caused EPA to pause before going further.
    Chairman Markey. All right. Ms. Heinzerling, you just heard 
Mr. Glaser's comments about restrictions which the energy bill 
might place upon the EPA in making its decision.
    Ms. Heinzerling. Yes. My answer would be no, and if I may 
explain my answer.
    Chairman Markey. Please.
    Ms. Heinzerling. The answer is both. Massachusetts v. EPA 
made clear that fuel economy standards are different from 
standards under the Clean Air Act, that they may coexist 
    Secondly, the energy bill itself explicitly says that 
nothing in that act, as you mentioned, undoes any authority or 
obligation under any other statute, and so that EPA's 
obligation to find endangerment and determine whether 
endangerment exists is completely left intact by the energy 
bill, and its obligation to set standards for greenhouse gases 
once endangerment is found is left intact by the energy bill.
    Chairman Markey. Okay. Now, some of you have mentioned the 
potential implications of the endangerment finding or the motor 
vehicle regulations might have on other emitters of greenhouse 
gases, and particularly the potential implications of these 
proposals to the new source review program have been brought 
up. Some have said that it is possible that large apartment 
buildings, schools, hospitals, and other large retail buildings 
might be subject to Clean Air Act requirements known as 
prevention of significant deterioration as a consequence of EPA 
moving forward on the motor vehicle side.
    So I have a few questions about this. Isn't it true that 
the only regulatory requirement the publication of the 
endangerment finding triggers is the requirement to regulate 
greenhouse gas emissions from motor vehicles? No stationary 
sources would be automatically or immediately subject to 
greenhouse gas regulations as a result of concluding that 
greenhouse gas emissions cause or contribute to air pollution 
which may reasonably be anticipated to endanger public health 
or welfare; is that right Ms. Heinzerling?
    Ms. Heinzerling. I would add one qualification to that, 
which is that I believe that new sources under Section 111 
become subject to regulation once endangerment is found. There 
is a bit of a step where the sources category has to be listed 
and then regulation follows.
    And so I believe you are technically correct, but I would 
add that I think regulation would have to follow fairly 
expeditiously from an endangerment finding.
    Chairman Markey. Okay. So is there at least a year to solve 
the problem? In other words, is there time between the 
endangerment determination, how it affects the automotive 
industry and then how it might affect other industries?
    Would there be a time spacing that would allow for some 
comment and implementation of any sort?
    Ms. Heinzerling. Yes, absolutely.
    Chairman Markey. Can you talk to that?
    Ms. Heinzerling. Yes. If EPA makes an endangerment finding, 
let's say, today, then EPA has to, as I say, I think regulate 
motor vehicles, decide about regulation about motor vehicles 
and in a couple of quick steps have to decide about stationary 
sources under Section 111 of the Clean Air Act.
    But that step takes a little bit of time. That is standard 
within agencies, and indeed, I have been surprised to hear Mr. 
Johnson talk about how little discretion his administration and 
his agency have in enacting regulations once endangerment is 
found. Agencies enjoy a lot of discretion in figuring things 
out, taking a little bit of time.
    So once endangerment was found, yes, there would be a time, 
a pause perhaps where the administration could settle on 
appropriate regulations.
    Chairman Markey. Okay. So we know that the only regulation 
that would be automatically triggered by an endangerment 
finding is the one related to greenhouse gas emissions from 
motor vehicles, but some of you have cited various additional 
petitions and rulemakings before the EPA that relate to 
greenhouse gas emissions. From a legal perspective, do you 
think that a positive endangerment finding makes it more 
difficult for EPA to deny, fail to act, or otherwise refuse to 
regulate other sources of greenhouse gas emissions under the 
Clean Air Act or even other statutes, such as the Clean Water 
    And if so, do you think that one of the reasons EPA might 
be stalling on releasing its already completed endangerment 
findings could be because of the potential for other regulatory 
or legal proceedings?
    And do you believe that that is a valid reason for EPA to 
delay its response on Massachusetts v. EPA?
    Ms. Heinzerling. Yes, I believe that making an endangerment 
finding triggers other regulatory activities under the Clean 
Air Act, makes it more difficult to say no to the many 
petitions before EPA to regulate cars, aircraft, power plants, 
and so forth, and I believe that if EPA, as circumstances do 
suggest and as Mr. Johnson's own testimony suggests, EPA is 
stalling on the endangerment finding because it is afraid of 
the consequences of that finding, I believe that is illegal.
    Chairman Markey. Okay. Great. Thank you.
    My time has expired again. I yield again to the gentleman 
from Washington State, Mr. Inslee.
    Mr. Inslee. Thank you.
    Ms. Heinzerling, Mr. Bookbinder, Mr. Glaser contested this 
metaphor I talked about of the two-stage process of the 
diagnosis of the disease and then the second stage of figuring 
out how to respond to it. I just want you to give a response.
    Is that a fair metaphor to what is going on here? And does 
the EPA have the ability to diagnose the disease today?
    Ms. Heinzerling. Absolutely. I think it is a fair metaphor, 
and I think EPA should and could diagnose the disease today, 
and that talking about endangerment will help it to understand 
why some of the consequences if things are unacceptable that 
flow from regulation might be acceptable because inaction will 
be worse.
    Mr. Bookbinder. Well, I am not surprised that Mr. Glaser's 
testimony seemed to focus on a possible solution that I and 
other people have advanced to this one particular problem. 
There will be others.
    If we overcome this one, there will be further objections 
from industry and from EPA, but let's focus on this one problem 
of the PSD permitting procedures and the 250-ton limit. My 
testimony said we could have a regulatory program that could 
address this, that Congress could amend the act, and the first 
words out of Mr. Glaser's mouth were, ''Here is why that cannot 
work. Here is why that is a problem.''
    It is clear to us that these are just once we fix the PSD 
problem, they will come up with another problem, and they will 
keep claiming there are problems until it is way too late. We 
need action, and the only reason that EPA is not doing the 
endangerment finding is quite explicitly that they are afraid 
of the consequences of them having to act and address 
greenhouse gases.
    Mr. Inslee. I think we should have confidence that should 
that happen Mr. Glaser will bring his considerable talents to 
bear to help us find a resolution of that, one that I am 
confident that we could do.
    And, by the way, Mr. Glaser, I wanted to commend a book, a 
questionable author but not a bad book, Apollo's Fire: Igniting 
America's Clean Energy Economy, that talks about the multiple 
solutions that are available. It gives a sense of optimism that 
we should share.
    I just want to thank all of the witnesses, and I just tell 
you as one member, I have displayed a little maybe anger is the 
right word at the federal government's refusal to act on this, 
but the reason is that the science that is coming in is so 
disturbing, so alarming that it is totally irrational and 
irresponsible for the administration to fail to act in this 
    And as a father, I am just telling you I am angry about 
this, and if I have displayed that, so be it because we have 
got to get off the dime and act here or the planet is in deep, 
deep trouble.
    Thank you.
    Chairman Markey. You know what I would like to do here at 
this point is to ask each of you to give us a one-minute 
    You know, before we go to that, I want to go back to wind 
in Kansas, and I would like you, Mr. Bremby, to talk about this 
issue of whether or not wind can be generated and additional 
megawattage that still would not endanger the reliability of 
the Kansas electric grid. Could you give us some estimation as 
to what you think might be possible in that area?
    Mr. Bremby. I do not know the complete projection on 
megawattage for wind energy. Perhaps Representative Svaty is 
more aware than I am, but what we are aware of is that the 
capacity is there to----
    Chairman Markey. Could you speak up just a little bit?
    Mr. Bremby [continuing]. Sure. To add a considerable amount 
to our energy opportunities.
    We are also looking at new technology as you mentioned 
abroad. The EU under the supergrid scenario is looking at wind 
energy as a redundant source as well as for storage capability 
across the continent of Europe.
    So there are new technologies related to wind. GE is 
looking at new turbines. It is an opportunity for us to grow a 
better green economy based upon where we are today.
    So in terms of the capacity, Josh?
    Chairman Markey. Representative Svaty.
    Mr. Svaty. Thank you, Mr. Chairman.
    The Southwest Power Pool, which is our regional 
transmission organization, is already preparing for thousands 
of new megawatts not only in Kansas, but in the whole region, 
which includes Oklahoma and other states. So we do have a great 
    If I could return briefly, I think one of the reasons 
Sunflower wants to go to coal is because it is currently 
cheapest because there is no value on carbon, and so as we talk 
about the EPA, I think the central question is if they 
determine that there is an injury, in fact, that carbon has a 
price on it, we create a market and suddenly coal is not the 
cheapest source of power anymore and they consistently return 
to coal. They begin to look at wind mixed with natural gas and 
other options.
    The key question or the key issue I am hearing is I am 
asking for the EPA to make that determination. Find a way to 
determine some things that we have some sort of price or value 
placed on the deleterious substance.
    Chairman Markey. Now, is Peabody Coal any part of this 
project at all?
    Mr. Svaty. If I may, Mr. Chairman, I cannot speak directly, 
although I do think that they have invested money in 
advertising in the state. I am not sure if it was directly 
Peabody Coal, but they may have had some hand in the 
advertisement that was going on.
    Chairman Markey. You know what I have to do is I have to 
learn more about Peabody Coal and what they are doing across 
the whole country and make a little bit of a project out of 
that. They seem to be making a project out of building coal-
fired plants across the country even in places that could 
generate electricity from alternative sources.
    And I think as a result, we should probably make a project 
out of what their project is and so that we can understand 
Peabody Coal, who they are, and what they are doing.
    You know what I would like to ask right now is for each of 
you to give us your one-minute summation of what it is you want 
our committee to remember. We are going to do it in reverse 
order of the original speakers just to kind of be fair on this 
thing, and we will try to have more than one microphone at the 
next hearing in this room.
    But we thank each of you and whenever you are ready, Mr. 
Glaser, please begin. One minute.
    Mr. Glaser. Thank you.
    Clean Air Act regulation of greenhouse gases is and has 
always been a bad idea. It is an inflexible act. If you 
regulate under one section, it has rippling effects under other 
sections. The main point that I would like to leave with the 
Committee is that the matter is not as simple as EPA going 
forward, making an endangerment finding, and regulating motor 
vehicle greenhouse gas emissions. EPA has appropriately figured 
out that if it does that, there is going to be a ripple effect 
under the PSD program.
    This is not being somebody that just raises a whole bunch 
of negative issues. This creates tremendous uncertainty for 
business if that happens, and EPA has to think about this and 
has to figure out what to do in light of that issue.
    And I would ask that the Committee take this issue with 
great seriousness because, as I said, it is causing great 
concern throughout the economy.
    Thank you.
    Chairman Markey. Thank you, Mr. Glaser, very much.
    Representative Svaty.
    Mr. Svaty. Thank you, Mr. Chairman.
    The debate in the Kansas legislature has been not about 
public health and welfare, but it has, in fact, been about 
regulatory certainty. We as legislators can help the economic 
realm move forward and ease that burden, but we cannot move 
forward if we have not heard from the EPA or if we have 
received mixed signals from the EPA, and that is exactly what 
we are getting in Kansas right now.
    If we had direction, if we had parameters and boundaries, 
we could find a way to soften the landing for the business 
community, but without that direction from the EPA, we have 
nothing to go on, and we end up running in multiple directions, 
which is exactly what we are doing in Kansas right now.
    Direction from the EPA would be an extraordinary boost to 
state legislatures, and it would allow us to move forward to 
soften the landing for everyone and to help us move forward in 
the process.
    Chairman Markey. And we thank you on that, and that is why 
obviously we are pressing on this endangerment finding. It just 
leads to calamitous consequences in places like Kansas because 
there is no official ruling on that question with regard to 
    All right. Mr. Bremby.
    Mr. Bremby. Without the official ruling, it means that me 
and other regulators have to reflect this regulatory 
uncertainty within our own states. We cannot protect our 
citizens to the utmost of our capability.
    I read something just recently that to regulate this carbon 
in some way would de-industrialize America, and nothing would 
be further from the truth. We know that we are going to need to 
transition to a low carbon economy. The EU has already said 
that they are going to lead the world. America needs to get out 
in front and lead the world on this issue, and it holds great 
promise for expanding the manufacturing sector that some of us 
thought had reached its peak in America.
    So it is time for us to unleash the innovation that is 
possible through technology to regulate and to achieve a better 
energy future.
    Chairman Markey. Thank you, Mr. Bremby, very much.
    Mr. Bookbinder, I made a mistake in the questioning of the 
panel, and I did not come to you.
    Mr. Bookbinder. That is quite all right.
    Chairman Markey. No, but I did not come to you on a couple 
of the questions which I asked Ms. Heinzerling. So I would like 
to give you just a couple of additional minutes to comment on 
the issues that relate to what happens when an endangerment 
finding happens in terms of the rest of the regulatory process 
that it triggers.
    Could you go through that?
    Mr. Bookbinder. Well, it does two things. There are certain 
provisions of the act that would be triggered as Professor 
Heinzerling described. Section 111, the new source performance 
standards, also has mandatory language that once there is an 
endangerment finding, EPA shall go forth and begin to regulate 
those sources for that particular pollutant.
    And in this case we have a petition sitting in front of the 
EPA asking for just those sorts of CO2 emission 
controls on power plants, the source of 40 percent of U.S. 
greenhouse gas emissions. EPA has been sitting on that petition 
since well before Massachusetts. Back then they said we have no 
legal authority. Since then they clearly do have legal 
authority, and on that one there has been not a peep out of 
    Forget vehicles. Vehicles are half of what power plants 
are. Vehicles we also have other means of getting at them. 
Power plants, EPA is completely sitting on its hands, and I 
think that is one of the reasons they do not want to make the 
endangerment finding. They would have to address that.
    In addition to that, there are several provisions of the 
act that authorize EPA once an endangerment finding is made to 
then go forth and regulate. It is the difference between you 
shall and you may.
    Other petitions are sitting out there asking for action 
under those sections for non-road vehicles, for airplanes, 
although airplanes may also be a ''shall,'' but in essence, we 
are seeking regulation from virtually every major source of 
greenhouse gases in the United States because we have no 
alternative. We need to do something.
    Now, ultimately we would prefer to have Congress come up 
with a comprehensive legislative solution, but until that time 
and perhaps in conjunction with that, we need EPA to begin the 
regulatory process, and what they are doing is just as in 
Massachusetts they tied their own hands by saying we have no 
legal authority, now they are tying their own hands by saying, 
''Well, we have not made an endangerment finding yet. So we 
cannot do anything.''
    So it is symptomatic of an agency that has refused 
steadfastly to do anything substantive or materially about 
climate change.
    Chairman Markey. So you are saying then, Mr. Bookbinder, 
that once an endangerment finding is made, that CO2 
is CO2.
    Mr. Bookbinder. That is correct.
    Chairman Markey. A rose is a rose by any other name, and so 
whether it is coming out of an exhaust pipe or coming out of a 
utility smokestack, that the effect of the decision would be 
the same, although the timing then on what to do about it or 
when to make a subsequent decision as to how to handle the 
utility issue would still be in question, but there would be no 
doubt that some action had to be taken.
    Mr. Bookbinder. Well, you know, that is a very good 
question. I think there is no doubt for anyone who reads the 
plain words of the Clean Air Act, but I am willing to bet 20 
bucks right here and now that if EPA comes out and says we have 
endangerment from CO2 emissions from vehicles, it 
then says we have to go back and very carefully think for the 
next four years whether that same gas coming out of power 
plants at twice the rate also endangers.
    I have no doubt that they will try that little game, but 
that is just the way this administration acts.
    Chairman Markey. That would really make it difficult, don't 
you think, for just about every high school chemistry teacher 
to explain that to their students who are 16 in the class?
    Mr. Bookbinder. It is not the first time that this EPA 
would have defied the science. Just yesterday we saw a 
wonderful example with the ozone NAAQS standards, when EPA set 
a new standard that lowered, tightened and made more protective 
the standard. It did not go as far as the unanimous 
recommendation of its own scientists. So we are quite used to 
this administration and this EPA defying reality.
    Chairman Markey. Thank you so much.
    And, Ms. Heinzerling, we will give you the final word.
    Ms. Heinzerling. EPA can and should make a finding on 
endangerment. It can and should do so today.
    It is the height of irony for this administration to come 
before this Committee and to say that it is hesitant to make 
that finding because if it makes that finding, regulation under 
one provision of the Clean Air Act becomes imperative.
    This is an administration that is second to none in 
avoiding regulatory obligations, in finding ways around 
statutory language, in finding exceptions, and so that I have 
absolutely every confidence that if they make an endangerment 
finding, they can find a way to make the PSD program work.
    Chairman Markey. Thank you very, very much, and we thank 
each one of you.
    Just going back to your point, Mr. Bookbinder, my fear is 
that what your apprehension is about how they might want to 
revisit the smokestack issue, the utility issue is of grave 
concern to me, and my hope is that the Bush EPA is not on the 
same timetable as the Catholic Church was in apologizing to 
Galileo. It took them until 1990 to finally admit that they had 
made a mistake in their censure of Galileo.
    My fear is that the Bush administration is on that same 
timetable, and it is dealing with the scientific question of 
the endangerment of CO2 and whether or not not just 
automobiles, vehicles, but also power plants and buildings are 
contributing to that problem.
    And your testimony, each of you, today is helping us to 
telescope the time frame, to bring down the Galileo coefficient 
to a point where that decision is made before George Bush 
leaves office.
    We thank each of you, and this hearing is adjourned.
    [Whereupon, at 1:02 p.m., the Select Committee meeting was