[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
MASSACHUSETTS V. U.S. EPA, PART II: IMPLICATIONS OF THE SUPREME COURT
DECISION
=======================================================================
HEARING
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
globalwarming.house.gov
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SELECT COMMITTEE ON ENERGY INDEPENDENCE
AND GLOBAL WARMING
EDWARD J. MARKEY, Massachusetts, Chairman
EARL BLUMENAUER, Oregon F. JAMES SENSENBRENNER, Jr.,
JAY INSLEE, Washington Wisconsin, Ranking Member
JOHN B. LARSON, Connecticut JOHN B. SHADEGG, Arizona
HILDA L. SOLIS, California GREG WALDEN, Oregon
STEPHANIE HERSETH SANDLIN, CANDICE S. MILLER, Michigan
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
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Page
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
Witnesses
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
HEARING ON MASSACHUSETTS v. U.S. EPA, PART II: IMPLICATIONS OF THE
SUPREME COURT DECISION
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--------
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
vehicles.
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
grounds.
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
circumstance.
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
economy.
Thank you, Mr. Chairman.
Chairman Markey. The gentleman's time has expired.
The Chair recognizes the gentleman from Missouri, Mr.
Cleaver.
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.
Blackburn.
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
there.
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
that.
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
requirements.
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
now.
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.
Hall.
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.
STATEMENT OF THE HONORABLE STEPHEN L. JOHNSON, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY
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
legislation.
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
request.
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
privilege?
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
taking.
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
passed.
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.
Cleaver.
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
ago.
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
way.
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
problems.
Mr. Cleaver. That is a decade away at least according to
scientists.
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
today.
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
nation.
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.
[Pause.]
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
nation.
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
determination.
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
step.
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.
Sullivan.
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
standard.
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
welfare?
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
challenge.
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
for.
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
questions.
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
regard?
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
nation----
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
be----
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
events.
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
reducing.
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
it.
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.
Thanks.
Chairman Markey. The gentleman's time has expired.
The Chair recognizes the gentleman from Missouri, Mr.
Cleaver.
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
flashed.
And so I cannot get past the issue of the United States
have a high moral ground to talk to other nations about this
issue.
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
challenge.
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
this.
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
issue.
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
testimony.
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.
Welcome.
STATEMENT OF LISA HEINZERLING, ESQ., PROFESSOR, GEORGETOWN
UNIVERSITY LAW CENTER; ACCOMPANIED BY DAVID BOOKBINDER, CHIEF
CLIMATE COUNSEL, SIERRA CLUB; THE HONORABLE RODERICK BREMBY,
SECRETARY, KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENT; THE
HONORABLE JOSHUA SVATY, MEMBER OF THE HOUSE OF REPRESENTATIVES
OF THE STATE OF KANSAS; PETER S. GLASER, PARTNER, TROUTMAN
SANDERS
STATEMENT OF LISA HEINZERLING
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
there?
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
options.
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
options.
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
formal.
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
scheme.
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.
[Recess.]
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
said.
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.
STATEMENT OF DAVID 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
climate?''
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
dioxide.
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
restrictions.
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
regulation.
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.
STATEMENT OF THE HONORABLE RODERICK 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
permit.
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
CO2.
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
nationally.
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.
STATEMENT OF THE HONORABLE JOSHUA SVATY
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
those.
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
level.
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,
please.
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
record.
[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
judgment?
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
finding.
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
2007.
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
that?
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
Topeka.
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
determination.
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.
Sensenbrenner----
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
night.
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
because----
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
questions.
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
world.
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
you.
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
would----
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
peacefully.
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
act?
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
regard.
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
summation.
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
capacity.
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
coal.
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
EPA.
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
adjourned.]