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


 
  EPA APPROVAL OF NEW POWER PLANTS: FAILURE TO ADDRESS GLOBAL WARMING 
                               POLLUTANTS

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 8, 2007

                               __________

                           Serial No. 110-78

                               __________

Printed for the use of the Committee on Oversight and Government Reform


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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                 HENRY A. WAXMAN, California, Chairman
TOM LANTOS, California               TOM DAVIS, Virginia
EDOLPHUS TOWNS, New York             DAN BURTON, Indiana
PAUL E. KANJORSKI, Pennsylvania      CHRISTOPHER SHAYS, Connecticut
CAROLYN B. MALONEY, New York         JOHN M. McHUGH, New York
ELIJAH E. CUMMINGS, Maryland         JOHN L. MICA, Florida
DENNIS J. KUCINICH, Ohio             MARK E. SOUDER, Indiana
DANNY K. DAVIS, Illinois             TODD RUSSELL PLATTS, Pennsylvania
JOHN F. TIERNEY, Massachusetts       CHRIS CANNON, Utah
WM. LACY CLAY, Missouri              JOHN J. DUNCAN, Jr., Tennessee
DIANE E. WATSON, California          MICHAEL R. TURNER, Ohio
STEPHEN F. LYNCH, Massachusetts      DARRELL E. ISSA, California
BRIAN HIGGINS, New York              KENNY MARCHANT, Texas
JOHN A. YARMUTH, Kentucky            LYNN A. WESTMORELAND, Georgia
BRUCE L. BRALEY, Iowa                PATRICK T. McHENRY, North Carolina
ELEANOR HOLMES NORTON, District of   VIRGINIA FOXX, North Carolina
    Columbia                         BRIAN P. BILBRAY, California
BETTY McCOLLUM, Minnesota            BILL SALI, Idaho
JIM COOPER, Tennessee                JIM JORDAN, Ohio
CHRIS VAN HOLLEN, Maryland
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
JOHN P. SARBANES, Maryland
PETER WELCH, Vermont

                     Phil Schiliro, Chief of Staff
                      Phil Barnett, Staff Director
                       Earley Green, Chief Clerk
                  David Marin, Minority Staff Director


















                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on November 8, 2007.................................     1
Statement of:
    Curry, Ron, Secretary, New Mexico Environment Department; 
      David Doniger, policy director, Climate Center, Natural 
      Resources Defense Council; Daniel M. Kammen, director, 
      Renewable and Appropriate Energy Laboratory, University of 
      California Berkeley; and John Cline, partner, Troutman 
      Sanders LLP................................................    84
        Cline, John..............................................   170
        Curry, Ron...............................................    84
        Doniger, David...........................................    91
        Kammen, Daniel M.........................................   154
    Johnson, Stephen L., Administrator, Environmental Protection 
      Agency.....................................................    10
Letters, statements, etc., submitted for the record by:
    Cline, John, partner, Troutman Sanders LLP, prepared 
      statement of...............................................   172
    Curry, Ron, Secretary, New Mexico Environment Department, 
      prepared statement of......................................    86
    Davis, Hon. Tom, a Representative in Congress from the State 
      of Virginia, prepared statement of.........................     9
    Doniger, David, policy director, Climate Center, Natural 
      Resources Defense Council, prepared statement of...........    94
    Issa, Hon. Darrell E., a Representative in Congress from the 
      State of California, memo dated November 27, 2007..........   191
    Johnson, Stephen L., Administrator, Environmental Protection 
      Agency:
        Letter dated March 11, 2008..............................    64
        Prepared statement of....................................    12
    Kammen, Daniel M., director, Renewable and Appropriate Energy 
      Laboratory, University of California Berkeley, prepared 
      statement of...............................................   156
    Watson, Hon. Diane E., a Representative in Congress from the 
      State of California, prepared statement of.................    42
    Waxman, Chairman Henry A., a Representative in Congress from 
      the State of California:
        Followup questions and responses.........................    75
        Prepared statement of....................................     3


  EPA APPROVAL OF NEW POWER PLANTS: FAILURE TO ADDRESS GLOBAL WARMING 
                               POLLUTANTS

                              ----------                              


                       THURSDAY, NOVEMBER 8, 2007

                          House of Representatives,
              Committee on Oversight and Government Reform,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10 a.m., in room 
2154, Rayburn House Office Building, Hon. Henry A. Waxman 
(chairman of the committee) presiding.
    Present: Representatives Waxman, Towns, Kucinich, Tierney, 
Watson, Yarmuth, McCollum, Hodes, Sarbanes, Davis of Virginia, 
Shays, Platts, Issa, and Sali.
    Staff present: Karen Lightfoot, communications director and 
senior policy advisor; Greg Dotson, chief environmental 
counsel; Alexandra Teitz, senior environmental counsel; Erik 
Jones, counsel; Earley Green, chief clerk; Teresa Coufal, 
deputy clerk; Caren Auchman, press assistant; Zhongrui ``JR'' 
Deng, chief information officer; Leneal Scott, information 
systems manager; Kerry Gutknecht and William Ragland, staff 
assistants; Larry Halloran, minority deputy staff director; 
Ellen Brown, minority legislative director and senior policy 
counsel; A. Brooke Bennett, minority counsel; Howie Denis, 
minority senior professional staff member; Kristina Husar, 
minority counsel; John Cuaderes and Larry Brady, minority 
senior investigator and policy advisors; Patrick Lyden, 
minority parliamentarian and member services coordinator; Brian 
McNicoll, minority communications director; Benjamin Chance, 
minority clerk; Ali Ahmad, minority deputy press secretary; and 
John Ohly, minority staff assistant.
    Chairman Waxman. The committee will please come to order.
    Today's hearing will examine carbon dioxide emissions from 
new coal-fired power plants. Pending before the Environmental 
Protection Agency and State agencies are dozens of applications 
to build new coal-fired power plants. These power plants are 
huge and they are enormous sources of greenhouse gas emissions.
    A single plant, the White Pine Plant proposed in Nevada, 
will emit over a billion tons of CO2 over its 
lifetime. If approved without carbon controls, this one plant 
will emit as much carbon dioxide as all of the vehicles, 
factories and power plants in South Dakota.
    Scientists say that we need to reduce CO2 
emissions by 80 percent from today's level to avoid 
catastrophic global warming. This is a big challenge. It will 
require all sectors of our economy to become more efficient and 
cut their emissions. But these changes are absolutely necessary 
to prevent irreversible climate change. The very last thing we 
should be doing is making the problem worse by approving 
massive new sources of uncontrolled CO2 emissions.
    But that is exactly what the Bush administration is doing. 
The administration's policy is the climate equivalent of 
pouring gasoline on a fire. The approval of new power plants 
without carbon controls is irresponsible, it is indefensible, 
and it is illegal.
    Our lead witness today is EPA Administrator Stephen 
Johnson. For most of his tenure, he has been able to avoid 
climate change issues by saying the EPA lacks the legal 
authority to regulate CO2 emissions. This changed in 
April, when the Supreme Court ruled that Administrator Johnson 
does have the authority to regulate greenhouse gases under the 
Clean Air Act.
    Two of the largest sources of greenhouse gases are motor 
vehicles and power plants. To date, public attention has been 
focused primarily on EPA's record on vehicles. It is not an 
encouraging record. Administrator Johnson has yet to take any 
action to control CO2 emissions from cars and 
trucks, and he has been ignoring a request by California to 
regulate these emissions for almost 2 years.
    Today we are going to look at EPA's policy on power plants. 
In August, EPA took its first regulatory action since the 
Supreme Court ruled. EPA granted a permit to a new coal-fired 
power plant, the Desert Plant in Utah. EPA didn't require any 
pollution controls for greenhouse gases, and it didn't consider 
other alternatives, such as renewable energy sources. It is as 
if the Supreme Court never ruled, and EPA never heard of global 
warming.
    We will learn today that the potential consequences of this 
business as usual policy are enormous. The Desert Plant is a 
relatively small one, but there are dozens of applications for 
much larger power plants pending before EPA and State air 
pollution agencies. If these plants are approved without carbon 
controls, they will emit billions of tons of CO2 
emissions.
    Let me put these emissions into context. Eight northeastern 
States have shown great leadership by adopting the first 
regional program in the United States to cap and reduce 
greenhouse gas emissions. But the approval of just one of the 
pending power plants would wipe out all of the gains these 
States are trying to achieve. These power plants can cost $1 
billion to build. They last for 50 to 60 years, and we don't 
have the technology yet to retrofit them with carbon controls.
    As a Nation, we will do irreversible damage to our climate 
change efforts if we follow this short-sighted policy. 
Addressing the threat of climate change poses many difficult 
and complex issues. But permitting the construction of massive 
new sources of uncontrolled CO2 emissions should not 
be one of them.
    While we struggle to develop the right policies for 
reducing our emissions, we should not be making our problems 
worse by approving a new generation of unregulated coal-fired 
power plants.
    Before we move on, I want to recognize Mr. Davis for his 
opening statement.
    [The prepared statement of Chairman Henry A. Waxman 
follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Mr. Davis of Virginia. Thank you, Mr. Chairman.
    Climate change is a critical and complex issue that poses 
profound global challenges. Chairman Waxman and I share similar 
views regarding the importance of mitigating the effects of 
carbon dioxide buildup in the atmosphere and reducing 
production of greenhouse gases. When I sat in his chair, our 
committee began the thoughtful, constructive inquiries into 
climate change issues that continue today.
    But agreement on broad principles and goals doesn't mean we 
necessarily see eye to eye on every specific proposal to 
address climate change. Responsible policies will recognize 
that fragility and inter-dependence of environmental and 
economic ecosystems balance emission mitigation steps against 
the net effect on energy production and take account of 
downstream consequences and long-term implications.
    The premise of this hearing, that the EPA should use a 
recent Supreme Court decision on regulation of mobile source 
carbon dioxide emissions as the basis for a broad new 
regulatory regime over stationary sources fails to meet those 
standards of responsible climate change strategy. And the focus 
on an ongoing energy facility permit decision inappropriately 
interjects Congress into judicial proceedings. Once again, the 
committee has opted for advocacy rather than oversight, 
choosing to litigate by show trial, rather than examining the 
issue in depth.
    The call to apply current Clean Air Act regulatory and 
permitting standards to stationary source CO2 
emissions may be well-intentioned, but in my judgment, it is 
inapt. It would be a painfully uncomfortable fit to subject a 
huge swath of the American economy, including many small 
businesses, for the first time, to Clean Air rules and 
limitations designed to control well-understood pollutants, not 
a widely diffused, naturally occurring chemical compound.
    Energy is the lifeblood of our economic vitality, and the 
onus of meeting climate change goals should not fall 
disproportionately or destructively on that group or any 
productive sector. Nor should current environmental protection 
tools be subverted or distorted to meet broader climate change 
objectives. If this hearing contributes anything constructive 
to the climate change debate, I hope it will begin to describe 
the sensible, workable and affordable restrictions on carbon 
dioxide emissions and other greenhouse gases not found in 
current law that Congress should move to enact.
    Thank you.
    [The prepared statement of Hon. Tom Davis follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Waxman. Thank you very much, Mr. Davis.
    For our first witness today, we have Stephen Johnson. Mr. 
Johnson has served as Administrator of the Environmental 
Protection Agency since May 2005. He has been working for the 
EPA in different capacities for the past 27 years.
    Mr. Johnson, we want to welcome you to our hearing today. 
It is a practice of this committee that all witnesses who 
testify do so under oath, so if you wouldn't mind standing and 
taking the oath.
    [Witness sworn.]
    Chairman Waxman. Let the record indicate you answered in 
the affirmative.
    We are pleased to have you. Your full statement will be 
made part of the record. We would like to ask if you would 
limit your statement, if you could, to around 5 minutes. We 
will have a clock there to remind you. It will turn yellow, 
that will indicate a minute, then when it is red, the 5-minutes 
have concluded.

 STATEMENT OF STEPHEN L. JOHNSON, ADMINISTRATOR, ENVIRONMENTAL 
                       PROTECTION AGENCY

    Mr. Johnson. Good morning, Chairman Waxman and members of 
the committee. I am pleased to be here today to update you on 
EPA's response to the Supreme Court decision on greenhouse 
gases and to discuss our recent decision to issue a permit to 
the Desert Power Electric Cooperative in Utah.
    On August 30th, EPA's regional office in Denver issued a 
final prevention of significant deterioration permit to allow 
Desert Power to add a 110 megawatt waste coal-fired boiler to 
its existing Bonanza Power Plant in northeastern Utah. Desert 
Power will used the increased generation capacity to supply 
electricity to several Utah municipalities. These include St. 
George, which the U.S. Census Bureau recently identified as the 
fastest-growing metropolitan area in the country.
    EPA issued the Desert permit only after a comprehensive 
analysis and review which took more than 3 years to complete. 
This review included research to identify and evaluate 
available emissions control technology, discussions with Desert 
Power about applying that technology and the consideration of 
public comment. The permit enables Desert Power to move forward 
in providing a reliable and secure supply of electricity, while 
at the same time making use of a previously untapped reserve of 
waste coal.
    The final permit includes stringent emission limits for 
regulated pollutants, such as particulate matter, nitrogen 
oxides and sulfur dioxide. It does not, however, include 
emission limits for carbon dioxide, which we believe is the 
proper decision for this permit. While the Supreme Court's 
decision in Massachusetts v. EPA makes clear that carbon 
dioxide and other greenhouse gases are pollutants under the 
Clean Air Act, it also makes clear that the agency must take 
certain steps and make certain findings before a pollutant 
becomes subject to regulation under the law. Those steps 
include making a finding that a pollutant endangers public 
health or welfare, and developing the regulations themselves. 
The EPA plans to address the issue of endangerment when we 
propose regulations on greenhouse gas emissions for motor 
vehicles and fuels later this year.
    EPA is firmly committed to addressing the long-term 
challenge of global climate change. While we are directing 
substantial resources toward meeting President Bush's 
aggressive goal of finalizing regulations on greenhouse gas 
emissions for motor vehicles and fuels by the end of next year, 
we are also evaluating the potential effects of the Supreme 
Court decision on a variety of Clean Air Act programs, 
including stationary-source programs. We believe it is critical 
that we develop an approach to addressing greenhouse gases 
under the Clean Air Act as a whole, and not under individual 
clean air programs or through individual permitting decisions.
    EPA is conducting this effort in an orderly and thoughtful 
fashion, so our policies will both achieve genuine 
environmental results and sustain the country's economic 
health. Thank you, Mr. Chairman. I would be happy to take any 
questions you have.
    [The prepared statement of Mr. Johnson follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Waxman. Thank you very much. You certainly came 
within the 5-minute period, so I guess you are really expecting 
to answer questions.
    Mr. Issa. Mr. Chairman.
    Chairman Waxman. Yes.
    Mr. Issa. I would ask unanimous consent that our opening 
statements be admitted into the record, as we were not able to 
deliver them.
    Chairman Waxman. That is certainly reasonable. Without 
objection, all Members will have an opportunity to submit for 
the purposes of the record an opening statement. Without 
objection, that will be the order.
    Administrator Johnson, there are really two questions here. 
One is whether global warming impacts of these massive new 
power plants are a concern or not; and second, what authority 
do you have to address these impacts? I would like to put the 
authority question to the side and focus on what the real world 
impacts of these plants will be if they are built without any 
controls on greenhouse gas emissions. The Desert Rock Plant 
pending in New Mexico will emit 12.7 million tons of 
CO2 per year. To put that in context, I earlier 
pointed out that eight States in the northeast have come 
together, created a regional cap and trade program for 
CO2 emissions. It is called the Regional Greenhouse 
Gas Initiative, RGGI. You are familiar with that program, 
aren't you?
    Mr. Johnson. Yes.
    Chairman Waxman. OK. Now, a decision to permit the Desert 
Rock Plant, without requiring CO2 controls, will 
negate the entire annual reductions that will be achieved by 
the northeastern States through this initiative. While these 
States are making sacrifices to address the threat of global 
warming, you are making permit decisions that undo all the good 
they are accomplishing. The proposed White Pine Plant pending 
in Nevada would have even greater emissions: 20 million tons 
each year. And these types of plants are massive capital 
investments that can cost $1 billion and they will last 50 to 
60 years. Over its lifetime, the White Pine Plant would emit 
over a billion tons of CO2. That is a stunning 
amount.
    Are you aware of this, Administrator Johnson?
    Mr. Johnson. Mr. Chairman, I am aware the White Pine permit 
is currently pending in the State of Nevada. I am also----
    Chairman Waxman. Are you aware of the emissions that are 
going to come from these power plants?
    Mr. Johnson. I am aware that the permit is pending and that 
there are a number of issues that the State will work its way 
through with regard to that permit.
    Chairman Waxman. OK. Let's compare this impact to the 
effect of the voluntary programs that you and President Bush 
repeatedly promote. You have strongly advocated using voluntary 
programs, such as EnergyStar, to reduce energy use and achieve 
greenhouse gas reductions. You have said these programs are one 
of the highlights of the administration's climate policy.
    EPA's major voluntary initiatives are EnergyStar, the 
methane program, the green power partnerships, the combined 
heat and power partnership, and the high GWP gas programs. 
Together, all of these programs have avoided 1.3 billion tons 
of greenhouse gas emissions since President Bush took office. 
Yet the lifetime emissions of just two new power plants, Desert 
Rock and White Pine, would more than wipe out the past decade 
of benefits from all of these voluntary programs. Can you 
understand why members of this committee would be so concerned 
about the impacts of your failure to require CO2 
reductions from these two new coal-fired power plants?
    Mr. Johnson. Mr. Chairman, we share your concern. In fact, 
when we go back to April, as you mentioned in your opening 
remarks, indeed, the Supreme Court decision is historic, it is 
complex. We are working our way through and thoughtfully 
considering the impacts, first on mobile sources and then on 
stationary sources. I am very proud of the fact that our 
voluntary or partnership programs are achieving real 
environmental results.
    Chairman Waxman. But they will be wiped out. Those results 
will be lost if these power plants are permitted without any 
requirements to reduce CO2 emissions. I think the 
problem is that the administration has no reservoir of 
credibility left on this issue. Global warming is an enormous 
threat to public health and the environment, yet virtually 
every action the administration has taken has been designed, 
first of all, to sow seeds of doubt about the science, oppose 
mandatory controls and undermine the activities of States that 
are trying to deal with these issues. The President withdrew 
from the Kyoto Protocol. He declared that carbon dioxide is not 
a pollutant. His political advisors edited government 
scientific reports to instill uncertainty about scientific 
conclusions and you still have not regulated CO2 
emissions.
    If you were serious about addressing climate change, you 
wouldn't allow these new power plants to be built with no 
CO2 controls. You would understand what an enormous 
threat these plants are and require them to use state-of-the-
art pollution controls like coal gasification and carbon 
capture. What do you say to that?
    Mr. Johnson. Mr. Chairman, as a Nation we have devoted $37 
billion to investment in science, technology and even tax 
incentives. That is more than any other country in the world. 
With regard to EPA, in addition to our partnership programs, 
just a few weeks ago I announced that we are drafting 
regulations to regulate, to set up a regulatory framework for 
carbon sequestration storage, particularly the storage, as part 
of our underground control program, which is a necessary step 
as we move forward with capture and storage of carbon dioxide.
    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 to work toward a final rule by the 
end of next year.
    Chairman Waxman. Well, I appreciate all of that.
    Mr. Johnson. Which is a very aggressive pace, as you are 
well aware.
    Chairman Waxman. Well, but you don't dispute my statistics 
of what will happen if these two power plants have no 
CO2 emissions restrictions.
    Mr. Johnson. Mr. Chairman, I have not personally looked at 
the statistics on those two power plants. But I am certainly 
well aware, and as I mentioned, that we are working very 
diligently to develop an overall approach, overall strategy, 
for addressing greenhouse gas emissions, given the Supreme 
Court decision under Massachusetts v. EPA, under the Clean Air 
Act. And that includes stationary sources.
    Chairman Waxman. My time has expired, but I would hope that 
you, as the head of the EPA, would take a look at the amount of 
emissions that would come from those power plants if you 
approve them over a 50 or 60 year period. And if we can get 
these reductions, we ought to get them before we agree to have 
new sources of such magnitude.
    Mr. Davis.
    Mr. Davis of Virginia. I will yield to Mr. Issa.
    Mr. Issa. Thank you, Mr. Chairman, thank you, Ranking 
Member Davis.
    Administrator, I want to make sure we get one thing 
understood in the record. If I read correctly the Massachusetts 
decision, not only did it only apply to mobile, but really all 
it says is that you have this authority to deal with a huge, 
naturally occurring, clearly essential part of our air. Without 
carbon dioxide life on Earth stops. So it is not an element 
that you can eliminate. It is an element that, if you have too 
much of it, might cause a very bad side effect. If you have 
none of it, life ends. Is that correct?
    Mr. Johnson. That is correct.
    Mr. Issa. OK. So what they have said is simply that you 
have the authority, but of course you have the authority 
subject to sane, properly worked out science, is that correct?
    Mr. Johnson. When the Supreme Court made the decision, they 
made the decision that said CO2 and other greenhouse 
gases are pollutants as defined under the Clean Air Act. They 
did not make the determination whether or not it was necessary 
to regulate them. They merely called them, or I should say not 
merely, but they defined them as pollutants, and then left the 
decision to me as Administrator as to whether they should or 
should not be regulated under the Clean Air Act.
    Mr. Issa. So essentially, if we would ask the question 
about nitrogen, oxygen, any of the other elements on the entire 
table and combinations of molecules, the answer would have been 
the same, which is if it possibly could adversely affect air 
quality for life on Earth, then you have authority to regulate 
it. That is really what it said, very broad. It could be a 
pollutant, therefore you can regulate it.
    Mr. Johnson. That is precisely my response to the chairman, 
why the Supreme Court's decision was not only historic, but 
complex. Not only in terms of mobile sources and what it means 
for mobile sources, but also what it may mean for other parts 
of the Clean Air Act.
    Mr. Issa. When Chairman Waxman sent you a letter on 
September 17th, quoting, and I won't go into every one of 
these, but ``Yet despite the urgent need to act, your agency is 
ignoring the threat of climate change in approving new coal-
fired plants. This is both illegal under the Clean Air Act and 
an enormous missed opportunity.'' Is that accurate, his 
assertion that it is illegal?
    Mr. Johnson. No, sir. I would beg to differ with the 
chairman's characterization. In fact, our decision on Desert 
Bonanza PSD permit certainly follows what the law is of today. 
And certainly that is my responsibility under the Clean Air 
Act. Certainly as a matter of record, it goes through and 
discusses issues such as advanced technology, such as IGCC, and 
other technologies. So I think that I would not agree with that 
characterization.
    Mr. Issa. Administrator, have you had the opportunity to 
look at the NRDC's testimony for today?
    Mr. Johnson. I have not.
    Mr. Issa. Well, then, would it surprise you that NRDC's 
testimony states, for example, the Kansas decision to deny a 
permit because of carbon dioxide emissions highlights the lack 
of EPA leadership on this issue? Would that surprise you that 
they would make an assertion that there was somehow a lack of 
leadership by your administration?
    Mr. Johnson. It would not surprise me, but I think it is 
important to look at the factual record on the Kansas Sunflower 
permit. In fact, the decision to deny the Kansas Sunflower, or 
to approve or deny was in fact, a decision to deny was made at 
the Kansas State authority level. In fact, when you read the 
staff recommendations, and I do have a copy.
    The Kansas Department of Health and Environment Bureau of 
Air and Radiation and Air Permitting Section, ``The Kansas 
Department of Health and Environment Bureau of Air and 
Radiation recommends the issuance of an air quality 
construction permit to Sunflower Electric Power Corporation for 
construction of two new 700 megawatt coal-fired steam 
generating units.''
    Mr. Issa. Administrator, does it surprise you that the 
NRDC, which sues you practically every day, I mean, that is a 
regular relationship you have with them, is that they sue you, 
is being featured here in testimony in spite of the Fifth 
Circuit when it said, ``When a Congressional investigation 
focuses directly and substantially on the mental decision 
process of a commission,'' like yourself, ``in which a case is 
pending before it, Congress is no longer intervening in the 
agency's legislative function, but rather in its judicial 
function.'' Would it surprise you that in fact the combination 
of litigants who sue you regularly and their testimony and your 
testimony on this process and the Fifth Circuit's fairly 
unusual statement pushing back on what we are doing here today, 
does that surprise you that is all coming together here today 
to interfere with your legitimate execution during a time of 
pending decision?
    Chairman Waxman. The gentleman's time has expired, but 
please answer the question.
    Mr. Johnson. Thank you, Mr. Chairman.
    My concern is that as Administrator of the EPA, I depend 
and in fact enjoy a highly qualified, in fact, I think the 
world's best, environmental protection staff. I depend upon 
them providing me candid comments without the fear of having a 
chilling effect on their ability to provide me candid advice, 
particularly when we are in a pre-decisional time of trying to 
sort through what is the best decision that I should make with 
regard to issues such as, what is the impact of the Supreme 
Court decision, Massachusetts v. EPA, what that may or may not 
be on stationary sources.
    So I am concerned, very concerned about the potential 
chilling effect of this proceeding as we are talking, and as I 
am trying to sort through a very complex but a very significant 
issue.
    Chairman Waxman. Thank you, Mr. Issa.
    Mr. Issa. Hopefully we will stand up and do the right 
thing.
    Chairman Waxman. Mr. Johnson, you were asked to respond to 
my quote that said it was illegal and a lost opportunity. You 
said you didn't think it was illegal. Do you see it as a lost 
opportunity?
    Mr. Johnson. Mr. Chairman, what I tried to say is, 
certainly, under the Clean Air Act, right as it stands now, it 
is not a regulated pollutant under the act. That is certainly 
the case. So as we sort through what the impact of the Supreme 
Court decision with mobile sources----
    Chairman Waxman. That is a question of whether you have the 
legal authority. But don't you think it is a lost opportunity?
    Mr. Johnson. Mr. Chairman, I have to obey----
    Chairman Waxman. Just give me a yes or no.
    Mr. Johnson. I have to obey what the law directs me to do 
at this point and work through expeditiously, which we are, but 
also responsibly to make sure that we are doing the right 
thing.
    Chairman Waxman. OK, thank you.
    Mr. Yarmuth.
    Mr. Yarmuth. Thank you, Mr. Chairman.
    Good morning, Mr. Johnson. Thank you for being here.
    I am going to ask a couple of questions at the outset that 
may sound a little picky, but I am an editor by background and 
I worry about what words mean, particularly when, as I do, I 
have suspicions about the administration's commitment to 
environmental progress. On the second page of your statement, 
about midway through the paragraph, you say, these strategies, 
referring to strategies of reducing greenhouse gas emissions, 
``must be environmentally effective.''
    What does environmentally effective mean? I understand 
environmentally beneficial and environmentally sensitive. I 
don't understand effective.
    Mr. Johnson. I would say that what we are trying to say is 
that there is an effect in a positive way on the environment. 
Of course, in many parts of our statutes, including the Clean 
Air Act, we are directed to balance the costs and benefits. Of 
course, that becomes part of the decision process. We are also 
required to, in parts of the Clean Air Act, to consider 
available technology, in some cases, the best available 
technology. So that becomes part of the equation for 
determining whether we have an effective environmental outcome.
    Mr. Yarmuth. An effective outcome. Then on page 6, in the 
second paragraph, the first full paragraph on that page you 
talk about resulting policies would achieve genuine 
environmental results. I hope you mean positive results.
    Mr. Johnson. I certainly mean positive results.
    Mr. Yarmuth. In Kentucky, we have a lot of not so positive 
environmental results from energy extraction. That is a very 
significant concern of ours.
    I want to move to a discussion of the Desert case and also 
the Supreme Court decision. As we have talked about, the court 
decision found that you do have the authority to regulate 
greenhouse gases. You recently granted a permit to Desert, as 
we know, to build the plant. You took the position that the law 
did not require you to regulate CO2 emissions from 
these plants. I don't agree with that analysis, but for the 
purpose of my question, I want to focus on something else, and 
that is whether you had the authority to consider alternatives 
to the Desert Plant.
    I want to read to you from Section 165(a)(2) of the Clean 
Air Act. It says that you have to hold hearings to consider 
``the air quality impact of such source, alternatives thereto, 
control technology requirements and other appropriate 
considerations.'' Now, the Desert Plan is not a very large 
facility. It would seem to me there is a fairly obvious 
alternative to that, of using maybe wind power or solar power. 
But there is no evidence in the record that you ever 
considered, the agency ever considered those alternatives.
    Why did the EPA refuse to consider the possibility of 
rejecting this plant, the coal-fired plant, in favor of a wind 
or solar plant?
    Mr. Johnson. There are several key points I would like to 
make to respond to your question. The first one is that 
alternative analysis, which is what you are referring to, the 
Clean Air Act does not require permitting authorities to 
independently study all potential alternatives that are not 
raised during the public comment process.
    In addition, as part of the BACT analysis, the best 
available control technology analysis, commenters did not 
provide any evidence showing that the outcome of our BACT 
analysis would have resulted in a different choice of control 
technologies. Also, it is a longstanding policy that we would 
not use the BACT requirement as a means to re-define the basic 
design or scope of a proposed project.
    Then third, the technology that was raised, IGCC, which is 
the Integrated Gasification Combined Cycle new technology, this 
alternative process not only represents a redefinition of the 
scope, but beyond that, it wouldn't work. It was technically 
infeasible because of the fuel and the plant size.
    Mr. Yarmuth. According to the section that I read to you, 
it says that your agency is mandated to do, is required to 
consider the alternatives in the hearing, in the process. Did 
you not, do you disagree with that?
    Mr. Johnson. There were public notices, several public 
notice and comments, which are all part of the record. As I 
said, the Clean Air Act does not require us to consider 
alternative analyses unless it was raised during the public 
comment. IGCC was one of the key areas that was raised during 
the public comment, and I have commented on the feasibility of 
that.
    Mr. Yarmuth. My time is up, Mr. Chairman, but it seems to 
me that they certainly had the opportunity to pursue 
alternatives to permitting this polluting plant. Because I 
think it shows an unwillingness to do what might be in the best 
interest of the environment. I yield back.
    Chairman Waxman. Thank you, Mr. Yarmuth.
    Mr. Davis.
    Mr. Davis of Virginia. Thank you, Mr. Chairman.
    Mr. Johnson, do you think that the CAA is well-designed to 
regulate carbon dioxide emissions?
    Mr. Johnson. Sir, I am faced with the reality that it is 
the act that I am to focus my attention on. Having said that, I 
think it is very important in responding to your question, as 
we considered as an administration the impact of the Supreme 
Court decision on mobile sources, it became very clear that a 
better approach than going through regulation, which I have 
already commented that we are going to be proposing a 
regulation, was a legislative fix. Certainly that is why the 
President proposed and certainly is encouraging Members of 
Congress to take up his Twenty in Ten plan, which would not 
only help for energy security, but would also help our 
environment in particular, addressing greenhouse gas emissions.
    Mr. Davis of Virginia. Or we could just take up part of the 
plan, or we could just fix this legislatively, and it would be 
pretty easy, wouldn't it?
    Mr. Johnson. Yes.
    Mr. Davis of Virginia. How is CO2 unlike other 
air pollutants that the EPA has effectively regulated under the 
Clean Air Act?
    Mr. Johnson. It is, as we all keep using words, it is a 
global greenhouse gas. That presents a challenge, and part of 
the complexity. Having said that, being part of, in many things 
of uniqueness, the other part, which really shares, all sources 
share in common, and that is, how do you address it. The common 
element in addressing, whether it is mobile source or 
stationary source or whatever the source might be, is what is 
the technology that is available.
    Of course, one of the things I am very proud as a Nation 
and under the President's leadership, we have been investing in 
technologies. Technologies like on the fuel side, cellulosic 
ethanol, which helps us in energy security and has a much 
better environmental profile, particularly with regard to 
greenhouse gases. And of course on stationary sources, carbon 
sequestration and storage is going to be key to addressing 
greenhouse gas emissions, particularly for a number of 
stationary sources. We have been investing a lot in trying to 
sort that out, and as I mentioned earlier----
    Mr. Davis of Virginia. Higher miles per gallon, so higher 
CAFE standards help, too, don't they?
    Mr. Johnson. And as part of the regulatory approach that we 
are going to be proposing by the end of the year is a higher 
fuel economy standard as well.
    Mr. Davis of Virginia. Did you know that the Energy Bill 
passed by the House did not have higher CAFE standards?
    Mr. Johnson. Sir, we think, certainly to address greenhouse 
gas emissions----
    Mr. Davis of Virginia. That is one of the reasons I opposed 
it. I don't think you can be serious about this without raising 
that.
    Mr. Johnson. That is correct.
    Mr. Davis of Virginia. Let me just ask this. Are there 
different challenges associated with regulating mobile sources 
of CO2 and stationary sources of CO2?
    Mr. Johnson. Again, I think that the challenges are very 
complex. Mobile sources, there is certainly a defined smaller 
universe of mobile sources. There is a very wide range of 
potential stationary sources that we have to consider. As I 
mentioned, I think one of the key, both differences, as well as 
similarities, is how do you address it. It is going to be 
technology driven.
    Mr. Davis of Virginia. In your testimony you highlight the 
need to apply the law and the regulations that currently exist 
when evaluating a permit application. I think part of the 
thrust of the hearing is to give you the assumption you have 
more authority than maybe you feel you do under the law, which 
is why you want a statutory change as opposed to a broader 
interpretation of a judicial ruling.
    Is part of your motivation behind that policy the desire 
not to be sued for arbitrary and capricious actions?
    Mr. Johnson. Sir, the first is, I have to abide by the law 
as it is written today. That is certainly my first charge and 
responsibility. The second is recognizing that we are working 
diligently to understand what the impact of the Supreme Court 
decision and the steps we are taking on mobile sources, what 
effect that may or may not have on stationary sources.
    Mr. Davis of Virginia. So if the law relates to, if the 
interpretation relates to one, but mobile and stationary may 
not be the same, there is a different interpretation on that?
    Mr. Johnson. That is a very important question. That is the 
question we are asking ourselves.
    Mr. Davis of Virginia. Also, aside from if you act 
arbitrarily and capriciously, you can get sued for that. I 
understand the argument here is let's be bold and let's move 
ahead, and you are saying, make a statutory change that makes 
it easy for you. But second, you want to create a sense of 
predictability and regulatory certainty, don't you, so that the 
business community can make rational investment decisions. If 
you are constantly changing policies without statutory 
authority, that is a hindrance. Is that a fair assumption?
    Mr. Johnson. That is one of the key elements of the 
President's Twenty in Ten proposal, is that it provided 
certainty and also tends to eliminate the lengthy, lengthy 
litigation that goes on. So of course, when litigation happens, 
there is no environmental protection. That is why we would 
prefer to see, for mobile sources, the President's Twenty in 
Ten plan passed.
    But in the meantime, we are developing regulations to 
pursue it from a regulatory, administrative standpoint.
    Mr. Davis of Virginia. Thank you.
    Chairman Waxman. Thank you, Mr. Davis.
    Mr. Hodes.
    Mr. Hodes. Thank you, Mr. Chairman.
    Good morning, Mr. Johnson, how are you?
    Mr. Johnson. Good morning. Good, thank you.
    Mr. Hodes. I live in New Hampshire, where the natural air 
flow patterns that exist show that New Hampshire and much of 
the northeast is really the tailpipe of the country. We are 
subject to the air pollution of other industrialized portions 
of the country. So New Hampshire has joined other New England 
States in taking aggressive action on climate change and 
CO2 emissions, far more aggressive action than the 
EPA seems to have been willing to do.
    And we are feeling the effects in New Hampshire of climate 
change. They are evident in the patterns of snowfall and our 
maple syrup production. Our tourist industry depends on skiing. 
The effects in New Hampshire of global climate change are 
manifest. And 164 New Hampshire towns signed petitions, urging 
Congress, the President to take immediate action on climate 
change.
    The United Nations Intergovernmental Panel on Climate 
Change [IPCC], won the Nobel Prize this year for its role in 
helping humanity understand the causes and effects of global 
climate change. One of their conclusions is that climate change 
is likely to adversely affect the health of millions of people. 
It will result in increased deaths, disease and injury due to 
heat waves, floods, storms, fires and droughts. Climate change 
will result in increased malnutrition, increased diarrheal 
disease and increased cardio-respiratory disease, due to higher 
levels of smog.
    And the IPCC is not alone in sounding the alarm about 
climate change. The World Health Organization has also stated 
that climate changes poses serious health risks. They project 
that it now causes over 150,000 deaths annually. Earlier this 
week, the American Public Health Association announced a new 
policy on climate change. Their executive director stated, 
``Global climate change will undoubtedly have a detrimental 
effect on human health and the environment.''
    The White House, however, has tried to suppress discussions 
of the public health effects of climate change. When the CDC 
director testified before the Senate, her testimony was edited 
by the White House to delete the statement that CDC ``considers 
climate change a serious public health concern.'' And a White 
House spokesman emphasized in the press that there could be 
health benefits from climate change.
    Now, we have heard in this committee plenty about the 
politicization of science by this administration. You are now 
here as the Administrator of the Environmental Protection 
Agency. And I have a very simple question for you, to which I 
would like a yes or no answer. Do you agree that climate change 
is a serious public health concern?
    Mr. Johnson. Sir, I believe that climate change is a 
serious concern. In the context of the Clean Air Act, the Clean 
Air Act defines whether it causes or contributes to public 
welfare or public health. So in the context of the Clean Air 
Act, we are currently evaluating all of the science, and by the 
way, I am very proud of the EPA scientists who are part of and 
participated in the Intergovernmental Panel on Climate Change. 
They are very capable and competent scientists.
    So we are, as I mentioned to the chairman, we are going to 
be addressing the issue of endangerment, which then focuses on 
public welfare or public health as part of our proposal to 
regulate carbon dioxide for the first time in our Nation's 
history from mobile sources later this year.
    Mr. Hodes. That is a long way of not answering my question. 
I am asking you, Mr. Johnson, to tell us today, here, right 
now, do you consider climate change a serious public health 
concern? I want to know what you think.
    Mr. Johnson. I have said what I think, and I will be happy 
to repeat it.
    Mr. Hodes. I don't want you to repeat that answer.
    Mr. Johnson. All right. That is what I think, sir.
    Mr. Hodes. So the answer is, you don't know whether or not 
climate change is a serious public health concern?
    Mr. Johnson. No, the answer is, in the context of the Clean 
Air Act, I do not want to prejudge an issue that is before me 
called endangerment, which I will be proposing to address later 
this year, by the end of the year, so that there will be an 
opportunity for everyone to comment on whether it is or isn't. 
We are working to address that issue, and it will be part of 
our notice and comment process later this year.
    Mr. Hodes. I will just finish up, Mr. Chairman, by saying 
this. Your refusal to answer the question which I have posed to 
you, even understanding the context of what you say is coming 
in terms of various evaluations you are performing, is stunning 
in the light of the scientific consensus that climate change is 
a major public health threat. And it is stunning that you, as 
the Administrator of the Environmental Protection Agency, 
refuse to tell Congress whether or not you consider this a 
serious public health concern. Frankly, it is why many people 
who talk to me rename your agency the Environmental Pollution 
Agency.
    I have nothing further of this witness at this time.
    Chairman Waxman. The gentleman's time has expired.
    Did you want to say something? Yes.
    Mr. Johnson. Thank you. I think that is a very unfair 
characterization, sir. We as an agency and certainly as an EPA 
employee, this year 27 years, we have consistently considered 
and achieved environmental protection. Our Nation's water is 
cleaner than it was a decade ago, certainly 36 years ago, even 
a few years ago. The same for our air and the same for our 
land. And I respectfully disagree with your characterization. I 
think that is very unfair and unkind to the hard-working 
employees of EPA.
    Mr. Hodes. Sir, it is not my characterization. As I said to 
you, it is what I hear from constituents and what I hear about 
the characterization. It is not mine, sir, at all. I know EPA 
people and I have no truck with the work that many fine 
employees of the EPA do. What I find stunning is your refusal 
to admit, concede or acknowledge that global climate change is 
a serious public health concern.
    Mr. Johnson. And I said I think it is very inappropriate of 
me to prejudge and to make a comment on a regulation that I am 
going to be proposing.
    Chairman Waxman. He didn't ask you about the regulation. He 
asked you whether you thought that climate change was a public 
health issue. Now, you are committed to reducing pollution in 
the water. You are mandated by law to do it, but I assume you 
are committed to it. You are committed to reducing pollution in 
the air. That is what the Clean Air Act requires, and I assume 
you are committed personally to trying to achieve those 
objectives.
    You may or may not have legal authority to deal with 
climate change, but do you think it is a problem? That is what 
he asked you. It is not an insult to your employees.
    Mr. Johnson. And I said to your comment, Mr. Chairman, and 
as I said, I speak for the agency. I, Steve Johnson, am the 
Administrator of the agency. And when I speak, I speak on 
behalf of the agency and as Administrator. I have said I cannot 
and will not prejudge what we are going to propose to address--
--
    Chairman Waxman. He asked you, do you think it is a public 
health problem?
    Mr. Johnson. As I said, the consequences of his question 
are directly related to the issue of endangerment under the 
Clean Air Act. That is why I said I am not going to prejudge 
until we have an opportunity to propose.
    Chairman Waxman. Then I think the question has been asked 
and answered.
    Ms. McCollum.
    Ms. McCollum. Thank you, Mr. Chair.
    Mr. Johnson, you said you were very proud of the work of 
your scientists in the EPA. Did you strongly object and let 
people know forcefully that you did not appreciate the fact 
that some of the writings that the scientists had presented on 
global climate change had been altered by the White House?
    Mr. Johnson. Again, my experience as a 27 year veteran of 
the agency is that there is an appropriate, and I think it is 
good government to have inter-agency review----
    Ms. McCollum. So you answered the question, then, it is OK 
to alter science, then?
    Mr. Johnson. No, that is not what I said.
    Ms. McCollum. Well, you said you were proud of the work 
that your scientists did. You keep referring to the fact that 
you are going to go with scientific information. Yet White 
House policy drivers altered scientific documents, and I asked 
you if you objected to it, yes or no.
    Mr. Johnson. In my tenure as Administrator, I have not 
experienced that.
    Ms. McCollum. Did you object to it, yes or no?
    Mr. Johnson. I said, in my experience as EPA Administrator, 
I have not experienced that. And that has certainly not been my 
experience of the past 27 years, either.
    Ms. McCollum. So the White House did not interfere at all 
with any of the testimony that has been put forward by 
Government-paid scientists, people who work in the pollution 
control agency, people who work for the CDC, to your knowledge, 
the White House never interferes?
    Mr. Johnson. I can only speak to that of the EPA, and in my 
experience it is not----
    Ms. McCollum. And if you knew that was happening, if you 
knew that was happening, would you speak up and speak out?
    Mr. Johnson. Again, there is a line which I certainly 
support and have supported through the years. I think it is 
appropriate for testimony and key policy issues to go through 
inter-agency review.
    Ms. McCollum. I hear what you are saying, you think it is 
appropriate for the White House to alter documents, then.
    Mr. Johnson. Well, that is not the case.
    Ms. McCollum. That is--well, that is what is going on here.
    CO2 occurs naturally. That is a given. But when 
you have coal plants and cars emitting more of it, then volume 
becomes a problem,a nd a lot of scientists think it is a public 
health problem. In fact, President Bush has decided that we 
need to regulate car emissions. So if the Supreme Court says 
you need to be looking at doing your job and regulating 
pollution, you are the pollution control agency, the President 
wants to do something about car emissions, we have California, 
Wyoming, Washington and the northern States coming up with 
creative ideas. The States, after all, are the laboratory of 
which makes this country strong.
    You feel that you are under no compulsion to regulate 
CO2?
    Mr. Johnson. As I have said, we are in the process of 
proposing to regulate greenhouse gas emissions, CO2 
is one of those, from mobile sources. There are two ways to do 
it, fuel and through the CAFE program. We are proposing that by 
the end of this year----
    Ms. McCollum. Sir, if I could, when I as a person breathe 
CO2, my lungs doesn't say mobile source, stationary 
source, you are OK, it is from a stationary source, it is a 
public health problem for me to be involved in having 
pollutants around that are affecting climate change. It affects 
my public health, whether it comes from a car or whether it 
comes from a power plant doesn't change the fact that it is a 
pollutant. Am I not correct with that? It is not any different 
if it comes from a car or a power plant, is it?
    Mr. Johnson. One thing you need to be certainly aware of is 
the health effects that have been identified by IPCC and others 
are generally characterized as what you would call indirect 
health effects. In other words, the level of carbon dioxide for 
a human of concern is a very high level where there is a----
    Ms. McCollum. Mr. Johnson, my question wasn't that----
    Mr. Johnson [continuing]. Health consequence. So I just 
want to make sure that you understand the science.
    Ms. McCollum. I understand the science. And I understand 
that it has been altered by this White House. My question is, 
if it is CO2, does it make any difference to global 
climate change or to me indirectly for my health whether it 
comes from a mobile source or a stationary source? And if it 
doesn't make any difference, then why aren't you regulating it? 
Because the President of the United States thinks we need to 
regulate it at least at the mobile source level. You are the 
pollution control agency.
    Mr. Johnson. As I said, we are working through what the 
Supreme Court said. We have made a decision in the context of 
mobile sources that we are going to proceed with and propose 
regulations to propose. We are working through what that means 
for, as well as what the science says, for stationary sources. 
So we are working aggressively but deliberatively. As I said, 
as a 27 year veteran, not only a veteran, my background, I am a 
scientist by training.
    Chairman Waxman. Thank you, Ms. McCollum.
    Mr. Shays.
    Mr. Shays. Thank you, Mr. Administrator. As I listen to 
this, I feel we are all over the lot. Frankly, the 
administration bears the burden of not waking up early to 
global warming, in my judgment, and has basically said the 
marketplace is going to take care of a lot of these problems. 
And I think it does, I think it does it too late.
    But Congress is reprimanding you for not doing and 
enforcing rules and regulations that I don't think we have 
given you necessarily the power to do. Because Congress can't 
even agree, we are wrestling whether we are going to have 35 
miles per gallon and 15 percent renewable by the year 2020. And 
it is questionable whether that will pass the House and pass 
the Senate.
    So what we can't pass in law we want you to kind of deal 
with administratively. I am struck by the fact that 100 of the 
Senators, 100 percent of the Senators, all 100 said, do not 
give us a Kyoto Agreement that does not include India and 
China. And President Clinton was not able to negotiate China 
and India into it. So he never submitted it to the Senate, 
because there were only about five Senators who would have 
voted for it.
    I wish to God the President had submitted Kyoto without 
prejudice to the Senate, because it probably would have had at 
best 20 votes. Then we wouldn't have so many Senators acting 
like they would have supported it. At least we would have a 
more honest dialog.
    I am struck by the fact that we want certain things to 
happen, like global warming dealt with, but we don't want 
nuclear power. We want cleaner air, and my plants in 
Connecticut use coal, but we don't want liquified natural gas. 
So I am struck by the fact that Europe is dealing with global 
warming and we give them credit, but we don't want to use the 
same mechanisms they are using to deal with it.
    So as I listen to this, I think people can throw stones at 
you and get away with it, because frankly, the administration 
hasn't been the champion of dealing with global warming. And 
that I think is regretful.
    I am struck by the fact that the Massachusetts v. EPA said, 
``We need not and do not reach the question whether on 
reprimand EPA must make an endangered finding or whether policy 
concerns can inform EPA's actions in the event that it makes 
such a finding. We hold only that EPA must ground its reasons 
for actions or inactions in the statute.''
    Now, what I am hearing in this debate is that you are 
legally bound to come to a decision about global warming and so 
on that has to go through a process. Whether or not you feel 
that CO2 is dangerous to one's health has to go 
through a process. That is what I am hearing you say. And you 
may and say it is.
    Now, the one thing I am struck with though about 
CO2 is it is not localized. Explain to me what that 
means. In other words, CO2 spreads out over, it 
doesn't stay stationary. Tell me if that is a factor in what we 
are wrestling with. Tell me why some think CO2 is 
different than other pollutants.
    Mr. Johnson. You have raised a number of very key points. 
The first is, I think that certainly the issue of global 
climate change before Congress really helps illustrate the 
complexity and the difficulty of addressing it. Of course, 
again, I am very proud both of the President's leadership and 
the agency.
    Mr. Shays. Give me the facts right now, rather than being 
proud right now.
    Mr. Johnson. We have spent more money than any other 
country in investing in science. We are going to be 
regulating----
    Mr. Shays. Let me ask you this question. To the first point 
of whether you are being responsive or not to the questions 
asked, what I understand is, you have a court mandate to come 
back to us. Is that true or not?
    Mr. Johnson. The court mandate clearly lays out that it is 
a pollutant, then it is up to me as Administrator to determine 
the issue of endangerment or what the next steps will be.
    Mr. Shays. So, one, it is a pollutant, but then the 
question is what kind?
    Mr. Johnson. The next steps, it is up to us, and as the 
President has announced, we are proceeding with regulation to 
regulate it from mobile sources.
    Mr. Shays. Why will it take, by the end of this year and 
the next----
    Mr. Johnson. We will be proposing.
    Mr. Shays. Will then the question be answered that was 
asked of you?
    Mr. Johnson. Yes.
    Mr. Shays. So there will be an answer and it will be an 
official answer going through a process?
    Mr. Johnson. That is correct.
    Mr. Shays. OK. Tell me the other aspect of CO2.
    Mr. Johnson. CO2 is well mixed in the 
atmosphere, whereas, other pollutants seem to be localized or 
can get into the atmosphere. CO2 is among the unique 
gases that it is well mixed in the atmosphere. In fact, 
individual sources all contribute to what is effectively a 
global pool. That is one of the challenges that we face, both 
in our science understanding but also in the challenge of how 
are the best ways to address that. As I mentioned to your 
colleague, clearly technology is going to be the issue, whether 
it is mobile source or stationary source or other sources.
    Mr. Shays. Thank you.
    Chairman Waxman. Thank you, Mr. Shays.
    Mr. Johnson, we are being summoned for a single vote on the 
House floor. We are going to recess and then continue with you. 
I know that Members will want a second round and we have some 
Members who haven't even had the first round.
    Mr. Davis of Virginia. We have to go cancel each other on 
this vote. [Laughter.]
    [Recess.]
    Chairman Waxman. The hearing will come back to order.
    I am waiting for some of the Members who have not had their 
opportunity for a first round, but rather than lose this 
opportunity to question you, I will just take my second round.
    Any objection? [Laughter.]
    Oh, Mr. Sarbanes, you haven't had a chance for the first 
round. Do you want to ask questions now? You are welcome to.
    Mr. Sarbanes. Mr. Chairman, I have no objection. 
[Laughter.]
    Chairman Waxman. Well, thank you very much.
    Mr. Johnson, you have indicated that you are considering 
some regulations on mobile sources based on the Supreme Court 
decision. Now, has your counsel instructed you not to look at 
the stationary sources, the power plants? Did he say that you 
don't have the authority to do that?
    Mr. Johnson. That is a very important question. As part of 
our deliberative process that we are evaluating, as I said, we 
are very clear that we are going to be proposing to regulate 
CO2 and greenhouse gases from mobile sources. We are 
evaluating what the impact of the Supreme Court decision and 
obviously what we are proposing to do on mobile sources, what 
impact if any that will have on stationary sources. So it is 
very much being considered as part of the agency deliberative 
process.
    Chairman Waxman. I wrote you a letter requesting you 
provide the committee with documents relating to the Supreme 
Court decision. Some of the documents were given to us, others 
not. But we learned from these documents that EPA has had 
multiple meetings with the White House about regulating 
stationary sources of greenhouse gas emissions. Committee staff 
also reviewed four internal EPA documents that describe what 
EPA is currently considering in response to the Supreme Court 
case. Unfortunately, EPA has refused to provide these documents 
to the committee prior to today's hearing. Are you familiar 
with the EPA documents that EPA is currently withholding from 
the committee?
    Mr. Johnson. I am familiar with those, yes, sir.
    Chairman Waxman. Administrator Johnson, ordinarily I 
understand the need to keep internal strategy documents 
confidential. But these documents are incredibly cynical. They 
show that you are considering issuing the weakest possible 
CO2 standards for power plants at the last possible 
minute before this administration is out of power. The 
motivation appears to be to preempt the ability of your 
successor to take meaningful action. Unless the President is 
prepared to assert executive privilege over these documents, I 
believe they should be provided to the committee. If you have a 
secret plan to issue the weakest possible standards at the last 
possible moment, I think they should be exposed to the American 
people.
    Is the President going to assert executive privilege over 
our document request?
    Mr. Johnson. No, not at this time, Mr. Chairman. But let 
me----
    Chairman Waxman. Is there any reason why we should not get 
these documents?
    Mr. Johnson. Well, yes, and let me explain. I am currently 
evaluating, both being educated, but also evaluating what 
options may or may not be available and what the impact of the 
Supreme Court decision and the direction we are heading on 
mobile sources, on stationary sources. So we are very much in a 
pre-decisional mode. I have not made any decisions, and----
    Chairman Waxman. Well, I am not asking----
    Mr. Johnson [continuing]. What I am very concerned about is 
the chilling effect that would occur within the agency if 
agency employees believed that their frank and candid comments 
were going to be released before I made a decision while I am 
in the decisionmaking process, that is of grave concern. Mr. 
Chairman, we fully, and I certainly fully respect your 
responsibilities as chairman of the Oversight Committee. That 
is why I had my staff come up and brief you.
    But given the fact that we are pre-decisional, I have not 
made any decisions, and this chilling effect it would have on 
my staff providing candid comments, and further, as the EPA 
response to your letter noted, that the committee really hasn't 
articulated why further access to these documents, which really 
don't discuss the PSD permitting issue with Desert Bonanza, 
which certainly is my understanding was the subject of this 
committee's investigation, particularly in light of the 
significant accommodations, we didn't think that it would be 
appropriate to expose those documents at this time.
    Chairman Waxman. When you make accommodations for 
information for the Congress, you are not just doing us a 
favor. You are doing what is required.
    Mr. Johnson. No, and I fully support that, that is why we 
did it.
    Chairman Waxman. We are trying to do our job. And our job, 
unless you have a legal reason, I ordinarily expect these 
deliberative documents. But unless you have a legal reason to 
withhold it, what we seem to see is that EPA is in your 
deliberative process, not just planning to address the issue in 
a way that I consider very weak, but deliberating on how to 
make it weak so that you can bind your successors. On that 
basis, I think we are entitled to those documents, and we are 
going to have to confront this issue. But I do believe we are 
entitled to it. If my guess is right as to what is happening, I 
think it is even more imperative that the Congress of the 
United States have access to them.
    I want to recognize the gentlelady from California.
    Ms. Watson. Thank you so much, Mr. Chairman.
    Administrator Johnson, this morning you testified primarily 
about greenhouse gas emissions of stationary sources like power 
plants. These sources are major contributors to climate change, 
but they are only part of the problem. Mobile sources like cars 
and trucks are also an enormous part of the problem.
    I represent Los Angeles, CA. We are the largest State in 
the Union, and on average, there are six cars per one. I was in 
the Senate for 20 years, and for the last 30 to 40 years, we 
have been working to clean up our atmosphere. When I first went 
to Sacramento and was coming back to my district, it looked 
like we were going through a valley of tar. It is very, very 
much cleaner than it was 30 or 40 years ago.
    In 2002, California took action to regulate greenhouse gas 
emissions of automobiles. And we developed a sensible plan to 
reduce vehicle emissions and then requested from EPA the 
necessary waivers in order to enforce our regulations in 
December 2005. A dozen States have decided to also adopt 
California's regulations. In June, we learned that the 
Department of Transportation had organized an lobbying campaign 
to generate opposition to our rules.
    So the committee, as a result, has been investigating this 
matter. The Transportation Secretary's Deputy Chief of Staff 
confirmed to the committee that the Department of 
Transportation ``is hoping to solicit comments against 
California's waiver.'' A number of internal DOT documents 
indicate that their lobbying campaign was coordinated with the 
White House and with EPA.
    Some e-mails, and we have a copy of them, indicate that you 
spoke with Transportation Secretary Peters about California's 
waivers. My question directly to you, under oath, did you 
discuss the California waiver with Transportation Secretary 
Peters?
    Mr. Johnson. As I testified before the Senate Environment 
and Public Works Committee----
    Ms. Watson. Yes or no.
    Mr. Johnson [continuing]. As part of our regular and 
routine conversations----
    Ms. Watson. Yes or no.
    Mr. Johnson [continuing]. I contacted Secretary Peters to 
give her an update on the status of several actions before the 
agency. One of the items I wanted to notify her of was of the 
comment period on the California----
    Ms. Watson. So the answer is yes.
    Mr. Johnson [continuing]. Waiver request was closing, that 
I had received requests for extension, which I was inclined to 
deny----
    Ms. Watson. OK, you answered my question.
    Chairman Waxman. The gentleman has answered the question, 
Ms. Watson.
    Ms. Watson. Yes, I am going on to the next.
    Did she tell you that she was going to lobby Governors and 
Members of Congress to oppose California's request?
    Mr. Johnson. I do not recall any specific discussion 
regarding contacting congressional offices, including 
particularly whether to solicit opinions on the California 
waiver.
    Ms. Watson. Did you discuss DOT's lobbying plan with 
Secretary Peters or anyone else at DOT?
    Mr. Johnson. I do recall asking Secretary Peters whether 
she was aware of anyone else seeking an extension on the 
comment period. Of course, a day after that, I instructed my 
staff to deny the request for an extension of the comment 
period.
    Chairman Waxman. The gentleman does not seem to answer the 
question. Did she tell you that she was going to lobby 
Governors as well as Members of Congress? You answered Members 
of Congress.
    Mr. Johnson. I don't recall any discussion of lobbying----
    Ms. Watson. You don't recall?
    Mr. Johnson. Of lobbying.
    Ms. Watson. OK. Let me see if I can get through my 
questions, because I see the lights. On May 23, 2007, DOT's 
chief of staff sent an e-mail that suggests you might have 
asked Secretary Peters to initiate this lobbying campaign, and 
the e-mail states, Johnson asked her to do this yesterday.
    Now, Mr. Johnson, did you ask Secretary Peters to initiate 
the lobbying campaign?
    Mr. Johnson. I have answered the question of what I 
discussed with her and asked of her. And I did not ask her to 
lobby.
    Ms. Watson. Another internal DOT e-mail indicates that the 
White House staff discussed the California waiver and the DOT's 
lobbying effort with you. Did you discuss the lobbying effort 
with anyone at the White House?
    Mr. Johnson. I don't recall having any discussion on that 
topic with anyone in the White House.
    Ms. Watson. OK. Now, remember, Administrator Johnson, you 
are under oath, can you promise us now that you will decide 
California' request for a waiver purely upon the merits of the 
request and not based on political factors?
    Mr. Johnson. I can assure you that under the Clean Air Act, 
it is the responsibility of me to make a decision, independent, 
based upon the record. I intend to do so, and I have committed 
to the Governor to have that decision made by the end of the 
year. As you are probably well aware, this waiver request----
    Ms. Watson. As what is all aware?
    Mr. Johnson. I was just going to say----
    Ms. Watson. As Republicans are all aware?
    Mr. Johnson. No, as everyone is well aware, we have over 
100,000 comments, literally thousands of pages of comments, of 
technical and scientific comments, that we are expeditiously 
yet responsibility reviewing.
    Ms. Watson. My time is over. Let me just make this last 
statement, Mr. Chairman, if I may. My understanding that 
California is filing suit today against you for failure to 
grant their waiver and the administration's approach to this 
matter has been completely irresponsible and rather than 
working with the States to increase environmental protection, 
the administration has waged a secret effort to undermine it.
    Thank you so much, Mr. Chairman.
    [The prepared statement of Hon. Diane E. Watson follows:]

    
    Chairman Waxman. Thank you, Ms. Watson.
    Mr. Johnson, in her May 31st e-mail to her chief of staff, 
Secretary Peters refers to ``calls to the Governors on the 
issue I had discussed with Administrator Johnson.'' So she, in 
her e-mails, referred to a conversation with you to call the 
Governors. And on June 6th, the Secretary's executive assistant 
wrote, ``Administrator Johnson has just called and would like 
to speak with S1 this morning,'' and Mr. Duvall, the Assistant 
Secretary, responded, ``OK, they think it may be about the 
California waiver.'' Why would Secretary Peters say that she 
had discussed this with you about lobbying the Governors?
    Mr. Johnson. Mr. Chairman, I can't speculate on what e-
mails that either the Secretary or that occurred within the 
Department of Transportation. As I have stated for the record 
and under oath, I do recall asking Secretary Peters whether she 
was aware of anyone seeking an extension on the comment period. 
That was the purpose of my phone call. Whether or not there was 
a need, was she aware of anyone wanting to extend the comment 
period.
    Chairman Waxman. Why would you make that phone call to the 
Secretary?
    Mr. Issa. Point of order, Mr. Chairman.
    Chairman Waxman. The chairman has the right. Why would you 
make----
    Mr. Issa. Point of order, Mr. Chairman. The rules of the 
House and the rules of this committee call for 5 minutes per 
side divided. It does not have a separate----
    Chairman Waxman. I understand the rule. But on behalf of 
the Governor of our State and in the interest of our State, I 
want an answer to this question. Why would you have made the 
call----
    Mr. Issa. Mr. Chairman, it is my State, too. I ask for 
regular order.
    Chairman Waxman. The gentleman has made a point. I am just 
going to ask you to answer this one question. Why would you 
have called the Secretary of Transportation about this issue at 
all?
    Mr. Johnson. Because I know that she is very interested in 
issues of transportation. This is an issue of whether she was 
aware that there was anyone who was going to ask for an 
extension of public comment period, and as I said to her, and 
certainly I would ask that my statement, the comments made 
before the Senate EPW be made part of the record here, is that 
I said I was inclined to not approve, and a day later, that is 
what I did.
    Chairman Waxman. OK, thanks.
    Mr. Johnson. That is the extension of the comment period, 
to be clear.
    Chairman Waxman. Mr. Sali, I think it is your turn next.
    Mr. Sali. Thank you, Mr. Chairman.
    If we were going to deal with all of the sources of carbon 
emission, greenhouse gases, what would do us the most good? 
Where could we make the most impact?
    Mr. Johnson. Well, it is clear that one is, it is important 
that as we reflect on the Supreme Court decision and the 
complexity of the Supreme Court decision, as well as the 
complexity of technology and science, that we look at all of 
these issues. It is clear that electric generating units are 
the major source of carbon dioxide in the United States. Second 
is transportation. Then third, there are a variety of other 
sources.
    Of course, before the agency, given the Supreme Court 
decision in Massachusetts v. EPA, the focus is on mobile 
sources. So we are, as I have already mentioned, going to be 
proposing regulating CO2, greenhouse gases, from 
mobile sources by the end of this year. And as we prepare that 
proposed regulation, we are also considering what the impacts 
of the Supreme Court decision and our action on mobile sources 
will have on these other, including stationary sources. So we 
are very much on an internal, deliberative, thoughtful process. 
I have made no decisions. It is an important issue, it is a 
complex issue and we are working diligently and expeditiously, 
but responsibly.
    Mr. Sali. In the State of Idaho, we had over 2 million 
acres of forest land that burned up this year. My guess would 
be that would be a significant source of carbon and other types 
of gases that might contribute to global warming. You didn't 
include that in your list of sources, and I am wondering, is 
there any effort on the part of the EPA to look outside of the 
sources that you have described here?
    By way of reference, I understand that the fires in the 
Yukon, in Canada and Alaska in 2004, a pretty significant fire, 
emitted as much carbon as all man-made sources in all of the 
continental United States for the rest of the year, just that 
one fire. Has your agency looked at any of that as a way to 
perhaps deal with the balance of where we should look to get 
the most bang for the buck?
    Mr. Johnson. EPA does not regulate forests, and of course, 
under the President's Healthy Forests Initiative, a key feature 
of that is to help to manage in a better way potential outcomes 
or adverse outcomes like forest fires.
    With regard to the pollution that is emitted from forest 
fires, that is something that through a variety of monitoring 
stations that we have, or that the States have in place, or 
tribes have in place, are often picked up, and we have to 
assess that as part of whether, in fact, States or tribes are 
in compliance with the Clean Air Act.
    Mr. Sali. Well, isn't it possible, though, that you are 
contributing carbon or other types of emissions to stationary 
or mobile sources that might be coming from forest fires?
    Mr. Johnson. Certainly, combustion of product contributes 
to greenhouse gas emissions.
    Mr. Sali. How shall we, as a committee, dealing with 
oversight of this, how should we proceed? Because we apparently 
want a more comprehensive view than your agency is charged 
with. What suggestions would you have for us?
    Mr. Johnson. That is a great question. I don't have any 
answer off the top of my head, but certainly look forward to 
working with you as you address the whole issue of global 
climate change. I did also want to mention that we are one of 
the ones in the Federal Government that actually maintains and 
does the accounting and inventory of greenhouse gas emissions 
for reporting, not only to the public, but as well as the U.N. 
framework for climate change. So we can look and we have looked 
and will continue to look over the years to see what the trends 
are, if we are aware of any influences, like major forest 
fires.
    Again, from a science perspective, it is often difficult to 
discern in these local conditions of how they contribute to 
this global problem of greenhouse gas emissions. I look forward 
to working with you.
    Mr. Sali. Do I hear you committing that you are going to be 
looking at that as you go forward?
    Mr. Johnson. I will be happy to work with you and our 
colleagues who have oversight responsibility, regulatory 
authority for our forests in the Nation, not only the U.S. 
Department of Agriculture and the Department of Interior.
    Mr. Sali. Thank you, Mr. Chairman.
    Chairman Waxman. Thank you, Mr. Sali.
    Mr. Kucinich.
    Mr. Kucinich. Thank you, Mr. Chairman.
    Mr. Johnson, you called Secretary Peters at the Department 
of Transportation to tell her about the closing of the comment 
period with respect to the California waiver issue, is that not 
correct?
    Mr. Johnson. It would be a better characterization that I 
have regular and routine conversations with my Cabinet 
colleagues. During one of those routine conversations, I 
mentioned that subject. There were other subjects that we 
talked about. But I----
    Mr. Kucinich. But you did call her to tell her about the 
closing of comment period?
    Mr. Johnson. As I said, there were other topics that I 
talked to her about.
    Mr. Kucinich. What else did you talk to her about?
    Mr. Johnson. On that particular day that I talked to her, I 
was supposed to be testifying in 2 days. The head of NHTSA was 
supposed to testify with me. I talked to her and said that I 
was going to be calling one of her senior people to ask if 
there were any questions----
    Mr. Kucinich. So you talked about many things. Now, did you 
call the Energy Secretary to tell the Energy Secretary that the 
comment period was closing?
    Mr. Johnson. Again, this was dealing with transportation 
issues, and I did not talk to, I don't recall talking to the 
Secretary. That is my recollection.
    Mr. Kucinich. Did you talk to the Energy Secretary?
    Mr. Johnson. I have routine conversations with----
    Mr. Kucinich. Did you talk to the Energy Secretary about 
the closing of the comment period?
    Mr. Johnson. To the best of my recollection, no.
    Mr. Kucinich. Did you talk to the Commerce Secretary about 
the closing of the comment period?
    Mr. Johnson. To the best of my recollection on this issue, 
no, but again, I have routine conversations with Secretary 
Guitierrez as well.
    Mr. Kucinich. Good enough. Did you talk to anybody in the 
Executive Office Building about the closing of the comment 
period?
    Mr. Johnson. I don't recall having a conversation with 
anybody there.
    Mr. Kucinich. Did you talk with anybody in the coal 
industry about the closing of the comment period?
    Mr. Johnson. No, I did not.
    Mr. Kucinich. Did you meet with anybody in the coal 
industry in terms of promulgating rules with respect to the 
decision that the EPA made with respect to approval of new 
power plants?
    Mr. Johnson. I personally did not.
    Mr. Kucinich. Did anybody on your staff talk to people in 
the power industry?
    Mr. Johnson. As part of a routine permitting process, staff 
in our regions do meet with the permittee.
    Mr. Kucinich. Why did you call the Department of 
Transportation Secretary, since there seemed to be a close 
coincidence between the time that the closing period was coming 
up and the occasion of your call? At the time that the closing 
period was coming up, did that have something to do with your 
initiating that call to her?
    Mr. Johnson. Again, I contacted Secretary Peters to give 
her an update on the status of several actions before the 
agency. And one of the items I wanted to notify her of was that 
the comment period on the California waiver request was 
closing. While I had received request for extension, I was 
inclined to deny these requests. And I--excuse me?
    Mr. Kucinich. Did you tell your general counsel that you 
were leaning toward not extending the comment period, but you 
wanted people to know that you had the discretion to accept 
late-filed comments?
    Mr. Johnson. That is under the Clean Air Act and under 
petition process acceptable procedure.
    Mr. Kucinich. And did your general counsel then communicate 
that legislators and Governors should not despair if they can't 
meet the June 15th deadline?
    Mr. Johnson. I don't recall that conversation.
    Mr. Kucinich. I am really concerned we have a condition 
here where we see the EPA defending a flawed legal 
interpretation of the Clean Air Act all the way to the Supreme 
Court, delaying approving the waiver necessary for California 
to enforce its regulation of greenhouse gases, granting permits 
to coal-fired plants without even considering alternatives for 
reducing greenhouse gas emissions. Mr. Chairman, when I listen 
to this recitation, you are supposed to be the Environmental 
Protection Agency, Mr. Johnson. It seems that under the Bush 
administration, the EPA is beginning to be better described as 
Every Polluters Ally.
    Thank you, Mr. Chairman.
    Chairman Waxman. If the gentleman would yield to me, I find 
this very hard to believe.
    Mr. Kucinich. I will yield remaining time to the Chair.
    Chairman Waxman. I find this very hard to believe. You took 
the time to call the Secretary of Transportation about a 
comment period, but you didn't call the Secretary of Commerce 
and you didn't call the Secretary of Energy, who also have an 
interest in this rule. Is that your testimony?
    Mr. Johnson. As I have stated, to the best of my 
recollection, as part of my regular and routine conversations, 
I contacted Secretary Peters----
    Chairman Waxman. Well, wait a second. Rather than read your 
statement back to me, because obviously you have it there in 
writing, you are a busy man. Did you know at the time you 
called her that she was engaged in a lobbying effort against 
the California waiver?
    Mr. Johnson. I did not know. To the best of my 
recollection, I did not know.
    Chairman Waxman. Well, I am glad you threw in the best of 
recollection, ``I did not know,'' because you are afraid of 
maybe saying ``I did not know'' might be contradicted? I mean, 
you are under oath, so it sounds like to me like----
    Mr. Johnson. No, Mr. Chairman----
    Chairman Waxman. Were you briefed by----
    Mr. Johnson [continuing]. I have routine and----
    Chairman Waxman. Excuse me, Mr. Johnson, I am in the middle 
of a question.
    Mr. Johnson. I am trying to answer your question, sir.
    Chairman Waxman. Were you briefed by your lawyer how to say 
things so that you wouldn't be committing perjury?
    Mr. Johnson. Mr. Chairman, I have regular and routine 
conversations with members of the Cabinet----
    Chairman Waxman. But not the others. Only with the 
Secretary of Transportation on this issue.
    Mr. Johnson. I have routine and regular conversations with 
members of the Cabinet. And I recall the conversation I had 
with Secretary Peters. I testified before the Senate EPW. To 
the best of my recollection, that testimony reflects my 
remembrance of the conversation.
    Chairman Waxman. We will incorporate that testimony by 
reference. But I want to ask you, did you know at the time you 
had that conversation with her that the Department of 
Transportation, which was losing jurisdiction over CAFE 
standards to EPA, did you know that the Department of 
Transportation was unhappy about it and was trying to lobby 
against California getting this waiver?
    Mr. Johnson. Mr. Chairman, I stand by my statement that----
    Chairman Waxman. Which is?
    Mr. Johnson. Which is, I do recall asking Secretary Peters 
whether she was aware of anyone else seeking an----
    Chairman Waxman. No, no, you didn't answer me. Did you know 
what her view was and did you know she was lobbying against the 
California waiver?
    Mr. Johnson. As I said, this is the best of my recollection 
of the conversation.
    Chairman Waxman. Which is?
    Mr. Johnson. Which I will be happy to read to you.
    Chairman Waxman. No, I don't want you to read to me a 
prepared statement. I asked you a simple question. Did you know 
at the time you called her, to presumably say you have an 
extension, do you know of anybody who wants an extension on 
time for filing comments, did you know that she was lobbying 
against the California waiver and she did not want the 
California waiver?
    Mr. Johnson. Mr. Chairman, there are many, many opinions on 
the topics that are----
    Chairman Waxman. Did you know what her views were at that 
time and that she was involved in trying to undercut the 
California waiver? Did you know, yes or no?
    Mr. Johnson. Mr. Chairman, to the best of my recollection, 
the statement reflects the conversation and what I remember of 
that conversation.
    Chairman Waxman. Did you have a conversation with her on 
any other rule that you have had before the EPA?
    Mr. Johnson. I have had other conversations with her on 
other rules, yes.
    Chairman Waxman. About extension of comment periods? Do you 
call her regularly when you have a rule to ask her about 
extension of comment periods?
    Mr. Johnson. Again, I have routine and regular 
conversations with her on a variety of topics.
    Chairman Waxman. You are not answering the question, and I 
guess there is a reason for your not answering the question. 
Because we did submit that there are multiple e-mails, in our 
letter to you, that contain references to communications 
between EPA, the Transportation Department and the White House. 
We have an e-mail that says on May 25th, the Secretary's 
executive assistant e-mailed your chief of staff to say, 
``Spoke with Steve Johnson, the EPA Administrator, before 
approving the Secretary's calls to the Governors.'' And 
further, in a May 31st e-mail to her chief of staff, Secretary 
Peters refers to ``calls to the Governors on the issue I had 
discussed with Administrator Johnson.'' Do you think she was 
calling the Governors to see if they wanted more time to submit 
comments?
    Mr. Johnson. Mr. Chairman, what Secretary Peters did or her 
staff did in the e-mails I am not accountable for and I can't 
speculate.
    Chairman Waxman. Well, you are accountable for your 
answers.
    Mr. Johnson. I can't speculate on what they did or didn't 
do.
    Chairman Waxman. You are accountable for your answers here 
under oath and you have refused to answer some of these 
questions directly.
    Mr. Johnson. Mr. Chairman, I have given you the best of my 
recollection.
    Chairman Waxman. On June 6th, the Secretary's executive 
assistant wrote, ``Administrator Johnson just called and would 
like to speak with S1,'' oh, S1 is Secretary Peters, ``this 
morning.'' So S1 means Secretary Peters. Administrator Johnson 
just called and would like to speak with, we will say Secretary 
Peters, this morning. Mr. Duvall, the Assistant Secretary, 
responded, ``OK, they think it might be about the California 
wavier.'' So within the Department of Transportation, they 
didn't think you were calling about extensions of time to file 
comments. They thought you were calling about her campaign to 
stop the California waiver.
    Did you ever discuss with Secretary Peters efforts to 
undermine or efforts--no, did you ever discuss with Secretary 
Peters her views about the California waiver?
    Mr. Johnson. As I said, Mr. Chairman----
    Chairman Waxman. On the substance.
    Mr. Johnson [continuing]. I talked to her about the 
extension of the comment period for the California waiver 
petition. That was the nature and the extent of the 
conversation to the best of my recollection.
    Chairman Waxman. And therefore, you did not talk to her 
about her desire to not see the California waiver granted?
    Mr. Johnson. Again, under the Clean Air Act, it is the 
responsibility of me to make an independent decision on the 
California waiver petition. I intend to do that, and I promised 
the Governor that I would make that decision by the end of the 
year.
    Chairman Waxman. Well, I just would repeat that it makes no 
sense, a busy man like you, would take the time to call the 
Secretary of Transportation and ask her whether she knew of 
people who wanted extensions of time to comment on the 
California waiver, I guess, unless you thought that she was 
going to have extension of times for people to comment against 
the California waiver. Is that an accurate statement?
    Mr. Johnson. No.
    Chairman Waxman. You didn't think that was why she would 
have an interest in the extension of time? Why wouldn't you 
think the Secretary of Energy would have an interest in that 
issue?
    Mr. Johnson. It is a transportation issue.
    Chairman Waxman. Aha. Well, it is an energy issue. How 
about the Secretary of Commerce? It certainly affects the 
commerce in this country.
    Mr. Johnson. Again, it is a transportation issue. And I 
have routine conversations, again----
    Chairman Waxman. Yes.
    Mr. Johnson [continuing]. With my Cabinet colleagues on a 
wide range of issues. I think that is good government, for the 
Cabinet members to talk with one another.
    Chairman Waxman. Do you know where in the Clean Air Act it 
says that this is a transportation issue and involves the 
Secretary of Transportation? Or does it say that the California 
waiver is to be approved or not approved by the Environmental 
Protection Agency? And do you know whether any previous EPA 
Administrator ever called the Secretary of Transportation 
before they approved a California waiver? There have been many 
approved over the years, as well as other States' requests.
    Mr. Johnson. Again, the responsibility, as you correctly 
point out, for making a decision on the California waiver, 
rests with me as Administrator of the Environmental Protection 
Agency.
    Chairman Waxman. Do you feel it is important to get input 
from the Department of Transportation on that issue?
    Mr. Johnson. I think that it is important for me to make 
that independent decision under the Clean Air Act. I also think 
that it is important to have routine conversations with my 
Cabinet colleagues on a wide range of issues.
    Chairman Waxman. I know you have said Cabinet colleagues on 
a wide range of issues, but you only talk about one Cabinet 
colleague. The others you didn't think had a view on this 
question.
    Mr. Johnson. Again, this was not the only topic that we 
discussed that day.
    Chairman Waxman. What else did you talk about?
    Mr. Johnson. Again, to the best of my recollection, my 
statement, I did add one additional thing. Again, I recall 
talking to her about the upcoming hearing that I was going to 
be sharing the witness stand with the head of NHTSA, and that I 
was going to be calling. I wanted to tell her that I was going 
to be calling the head of NHTSA to make sure that we were both 
prepared for the upcoming hearing.
    Chairman Waxman. And had you coordinated that with the 
White House, for the upcoming hearing?
    Mr. Johnson. To the best of my recollection, I had not had 
a discussion with the White House, other than again, as part of 
a routine process for clearance of testimony.
    Chairman Waxman. What was the upcoming hearing that you 
were concerned about?
    Mr. Johnson. At this point in time, I don't recall what the 
hearing was.
    Chairman Waxman. A congressional hearing?
    Mr. Johnson. It was a congressional hearing, yes.
    Chairman Waxman. I see. So what did it have to do with the 
California waiver?
    Mr. Johnson. I don't recall at this moment what the 
specifics were for the hearing. We can certainly go back as a 
matter of record what the hearing and the specific topics were. 
But I wanted to, as again, I think it is good government to 
have inter-agency coordination. That is what I have done for 
the past 27 years and I think that is good government for the 
future.
    Chairman Waxman. Did you want to make sure that you and the 
NHTSA representative were on the same wavelength in terms of 
your views?
    Mr. Johnson. No. Again, I don't recall the specifics of 
that particular hearing. But I wanted to ask if there were any 
questions or if they had any questions of me.
    Chairman Waxman. OK, so you called her about anybody she 
knows that wants an extension of time to submit opinions on the 
waiver, and you also talked to her about this upcoming hearing, 
so that you and the NHTSA representative would be representing 
administration policy. Any other topics you remember?
    Mr. Johnson. I don't recall. I think there were, but I 
don't recall what they were.
    Chairman Waxman. How many conversations have you had with 
her on this subject? How many conversations have you had with 
her that might have led people in her office to think that you 
were talking to her about the subject of the California wavier?
    Mr. Johnson. The vast majority of my conversations with her 
have been on our development of the rulemaking for mobile 
sources, particularly on that portion dealing with CAFE.
    Chairman Waxman. I see. So were these conversations after 
the Supreme Court decision?
    Mr. Johnson. Yes.
    Chairman Waxman. And if the Supreme Court had not made the 
decision it had made, would you be talking to her about the 
California waiver?
    Mr. Johnson. If the Supreme Court had not made the decision 
it was a pollutant, then it wouldn't be regulated under the 
Clean Air Act, and then we wouldn't be having that 
conversation.
    Chairman Waxman. But California waiver wasn't dependent on 
the Supreme Court decision, was it? The California waiver is a 
long-established practice under the Clean Air Act. California 
was way ahead of EPA in establishing tighter standards. So we 
have always said California may go on its own and has 
permission, has to get a waiver to permit California to do 
that. That had nothing to do with that Supreme Court decision, 
did it?
    Mr. Johnson. Mr. Chairman, as we noted to California that 
the Supreme Court would have, because if it was not a pollutant 
under the Clean Air Act, then what authority would there be, or 
then how would the Clean Air Act then apply to the waiver 
petition, which is Section 209 of the Clean Air Act? So it was 
very relevant, and that is why we told California that clearly, 
the decision that was pending before the Supreme Court could 
have a dramatic effect on whether or not, depending upon their 
outcome. And of course, once the Supreme Court made the 
decision it was a pollutant, then I acted very quickly to 
initiate the public, the actual statutory process of holding a 
hearing. The Governor asked me if I would hold an additional 
hearing out in the State of California, which we did. And as I 
have mentioned, we have approximately 100,000 comments.
    Admittedly, many of those comments, or a few were repeat 
comments; nonetheless, we still need to consider those.
    Chairman Waxman. How many conversations did you have with 
Secretary Peters about the Supreme Court issue?
    Mr. Johnson. I don't recall, Mr. Chairman.
    Chairman Waxman. More than one?
    Mr. Johnson. Yes, definitely more than one.
    Chairman Waxman. More than five?
    Mr. Johnson. Likely, but I don't recall.
    Chairman Waxman. And why did you feel it was important to 
talk to her about the Supreme Court issuance of a decision that 
said you now can regulate?
    Mr. Johnson. We were having multiple conversations, inter-
agency conversations as we were looking at the impact of the 
Supreme Court decision.
    Chairman Waxman. Do you recall her telling you in any of 
these conversations that she thought it was not a good idea to 
give California the waiver?
    Mr. Johnson. I don't recall. As I said, there are many, 
many----
    Chairman Waxman. Really, why wouldn't she tell you if she 
is telling all these Governors and Congressmen she doesn't like 
the California position and request? Why wouldn't she tell you? 
It is hard to believe she--maybe she did?
    Mr. Johnson. Sir, there are many, many opinions on the 
California waiver, as well as other issues that are before the 
agency. It is my responsibility to make a decision 
independently based upon----
    Chairman Waxman. I understand that, and I have every 
confidence--I hope--that you will do that. But I am asking 
whether the Secretary of Transportation, since you were talking 
to her about the subject, ever said, ``by the way, I don't 
think you ought to grant that California waiver?''
    Mr. Johnson. Again, the nature of our conversation was with 
regard to the comment period and the extension of the comment 
period.
    Chairman Waxman. But that wasn't the exclusive and only 
subject?
    Mr. Johnson. No. Again, as I have said, there were other 
topics that we talked about.
    Chairman Waxman. And you had more than five conversations. 
So you didn't talk about the extension of the filing period on 
every conversation, I assume.
    Mr. Johnson. No.
    Chairman Waxman. So what did you talk about in the other 
conversations?
    Mr. Johnson. Well, as I said, generally one topic area that 
we have had a lot of conversations, as I have had with the 
Secretary of Agriculture, as I have had also with the Secretary 
of Energy, under the context of, when the President made the 
decision that we were going to be moved forward with taking the 
steps to regulate greenhouse gases from mobile sources, he 
issued an Executive order. As part of that executive order, he 
directed us to make sure that we were working together, 
including the Department of Transportation, the EPA, the 
Department of Agriculture, as well as the Department of Energy. 
So we have had numerous conversations.
    Chairman Waxman. OK. Well, Mr. Kucinich's time has expired, 
so I will now recognize Mr. Sarbanes.
    Mr. Sarbanes. Thank you, Mr. Chairman.
    Administrator Johnson, obviously EPA has the ability to 
directly influence a lot of things with respect to global 
warming and to take the measures that everyone seems to be 
calling for, at least the consensus that is emerging these 
days, to regulate those more effectively, greenhouse gas 
emissions and other emissions that are harming the environment.
    But you also have a lot of ability to influence what the 
States do by setting a standard, by looking over their shoulder 
in appropriate cases and making sure that you are modeling for 
them the kinds of measures that ought to be taken. I think 
there is high concern among some members of this committee that 
role isn't being performed adequately either. You have some 
States that really are taking a leadership role with respect to 
global warming and regulating these emissions. New Mexico is a 
good example of that in terms of requiring new plants to have 
cleaner technology as part of their operation.
    But then you have other States that are really permitting 
these huge new coal-fired power plants to come online that 
don't have any kind of controls over greenhouse gas emissions. 
It doesn't appear that the EPA is urging States as it should 
be, taking a leadership role in urging States to require these 
pollution controls. I guess that is not surprising, given that 
EPA is not acting in those arenas where it has direct 
authority, why would we expect it to act in those where it has 
the ability to influence or cajole or push States to do the 
right thing?
    Let me give you a concrete example. The State of North 
Carolina is considering a new coal-fired power plant which has 
been proposed by Duke Energy at Cliffside Facility, which is 
near the Great Smoky Mountains National Park. This plant 
doesn't use advanced technology. As an aside, it is incredible 
to me that we are building and bringing online new plants that 
don't have this technology.
    But in any event, first of all, are you aware of this 
proposal that is out there?
    Mr. Johnson. I am not aware of that specific proposal, no, 
I am not.
    Mr. Sarbanes. OK. Because EPA did submit comments on the 
permit application for this plant, as you would want them to 
do. Unfortunately, it didn't mention in those comments any of 
the potential effect on global warming that the absence of this 
kind of advanced technology would have. It didn't ask the State 
to consider requiring coal gasification to reduce greenhouse 
gas emissions and looking at capturing and sequestering those 
emissions. You are not aware of it, which is a surprise to me, 
but don't you think that the EPA should have been recommending 
these kinds of measures that North Carolina take with respect 
to greenhouse gas emissions?
    Mr. Johnson. Again, each permit needs to be evaluated on a 
case by case basis and within the context of what the current 
law is. As I have already mentioned, we are aggressively, yet 
responsibly, trying to sort through what the impact of the 
Supreme Court decision is on mobile sources and what that means 
for stationary sources. We are right now in a deliberative 
process. In the meantime, we will look at these on a case by 
case basis, based upon existing law.
    Mr. Sarbanes. Well, this is really the role of leadership. 
It is less about where your authority is than about 
understanding the science, taking a leadership role with 
respect to the kinds of technologies that ought to be deployed 
out there, and encouraging States to do that kind of thing, 
rather than looking the other way or becoming a sort of 
pushover for industry. It is in contrast, I will tell you, with 
some of the other agencies that have weighed in. The National 
Park Service has taken a very strong line with respect to the 
particular plan I referenced. They provided comments that are 
encouraging the State of North Carolina consider coal 
gasification and asking for significant documentation on how 
emissions will be reduced.
    The National Park Service is doing that, but the 
Environmental Protection Agency is not doing that. It seems to 
me that is a total abdication of your role, and I know it is 
disappointing to many of us, and I think ought to be an 
embarrassment to the agency. I yield back my time.
    Chairman Waxman. Thank you, Mr. Sarbanes.
    Mr. Yarmuth, do you wish a second round? The gentleman is 
recognized.
    Mr. Yarmuth. Thank you, Mr. Chairman.
    I just have one question I would like to pursue regarding 
another statement that you made in your prepared statement. You 
said that EPA meets regularly with the Departments of 
Transportation, Energy and Agriculture to ensure coordination 
of our work efforts. In addition, we have ensured major 
stakeholder group involvement in the process from the very 
beginning.
    I want some clarification as to what the agency considers 
major stakeholders, how expansive is that list, and whether 
there is transparency on that issue. I ask it in the context 
not necessarily as a direct comment on anything EPA has done, 
but certainly with respect to what we know the Vice President 
did and--some of what we know the Vice President did with 
regard to development of energy policy back in the early years 
of the Bush administration. So I would like you to discuss the 
issue of making sure that a comprehensive range of input is 
solicited and utilized by EPA.
    Mr. Johnson. Yes, and that is very important. In fact, 
certainly one of your next panel members from NRDC was recently 
part of the, I think referred to as the green team in my 
office, as well as I invited industry, as well as I invited 
State and local government. I would be happy to provide those 
lists. We also make sure that we are open and transparent. I 
think that it is important for me as the decisionmaker to not 
only have an open and transparent process, but also make sure 
that there are opportunities for hearing from different 
perspectives. That is something that I have prided myself in in 
my 27 years and have continued that as Administrator.
    Mr. Yarmuth. Good.
    I have no other questions, Mr. Chairman.
    Chairman Waxman. Would the gentleman yield to me?
    Mr. Yarmuth. I would be happy to yield to my chairman.
    Chairman Waxman. I thank the gentleman. Because I am trying 
to think through this issue that I was questioning you about. 
So you called Secretary Peters to ask if she knew some people 
who wanted an extension for filing. Is that your testimony? 
Filing comments on the California waiver?
    Mr. Johnson. As I said, Mr. Chairman, I have routine 
conversations with her. And among the topics that we talked 
about, to the best of my recollection, was that and was she was 
aware of anyone who wanted----
    Chairman Waxman. And was she aware of anybody?
    Mr. Johnson. She was not, off the top of her head, and she 
said that she was going to check with her staff.
    Chairman Waxman. And did you ever hear from her staff about 
that?
    Mr. Johnson. I think my staff heard from her staff, which 
indicated she was not aware of any. Again, I made the decision 
the next day to not approve an extension of the public comment 
period.
    Chairman Waxman. I see. So her staff informed you that they 
knew of, informed your people that they knew of no one who 
wanted an extension, they had already filed their comments?
    Mr. Johnson. That hadn't already asked for an extension.
    Chairman Waxman. Oh, there were----
    Mr. Johnson. There were people that had asked for an 
extension, yes. But I was dis-inclined to approve it, in spite 
of the request.
    Chairman Waxman. OK. Mr. Davis is here, and I want to see 
if he wants to pursue some questions.
    Mr. Davis of Virginia. I would be happy to.
    My understanding, the chairman read from a letter that he 
wrote to Mr. Connaughton. I have the e-mail here from Sandy 
Snyder. Do you know her?
    Mr. Johnson. I don't.
    Mr. Davis of Virginia. To Tyler Duvall at OST and some 
others. But it basically says, subject, the call from the EPA 
Administrator Johnson, and it says: ``Administrator Johnson 
just called and would like to speak with S1,'' who is Secretary 
Peters, ``this morning regarding the climate change proposal 
they are working on with NHTSA. S1 is on travel and will not be 
available until 2 o'clock, and then we will work in a call with 
S1-EPA possibly 3:45.''
    Pretty innocent, isn't it? I mean, I don't understand 
anything wrong out of that. Now, you are a career employee, 
aren't you?
    Mr. Johnson. I am career, I have had the pleasure and 
opportunity and honor of serving as a political appointee now 
heading the agency.
    Mr. Davis of Virginia. You weren't active on the campaign 
or anything, were you?
    Mr. Johnson. I was not, no.
    Mr. Davis of Virginia. Under the Hatch Act and everything 
else, you would have been limited had you tried to be so?
    Mr. Johnson. That is correct.
    Mr. Davis of Virginia. And you have had a long and 
distinguished career in the civil service, I think at one point 
got, was it the President's Award? What was the highest award 
you got as a civilian employee?
    Mr. Johnson. Well, I have been honored to receive a number 
of awards. I have received Vice President Gore's hammer award 
for streamlining regulations.
    Mr. Davis of Virginia. Well, you get another hammer award 
here this morning just standing up to some of the examination.
    Mr. Johnson. I have also received the Presidential 
Distinguished Service Award.
    Mr. Davis of Virginia. From what I gleaned from here, my 
friends on the other side would like you to interpret a court 
ruling in a certain way without going through the usual legal 
and rulemaking changes, when we could change it very simply 
here with a statute, couldn't we?
    Mr. Johnson. Yes, you could.
    Mr. Davis of Virginia. And my party is, for better or for 
worse, not in the majority, so we don't have control over the 
agenda on that. But if they wanted to change it, pass a law, 
send it up. If the President wants to veto it, then we can have 
this debate. I may end up supporting that law, if they were to 
put it forward.
    But to ask you to willy-nilly interpret this thing without 
going through the appropriate procedures seems to me to be a 
stretch. Do you have any comment on that?
    Mr. Johnson. I think it would be highly inappropriate, and 
I would be, I am sure, up here before oversight committees 
saying that I was not following the notice and comment 
rulemaking process and good public policy.
    Mr. Davis of Virginia. My reading of the Massachusetts v. 
EPA case is exactly that, that you need to go through an 
appropriate process before you can make that.
    Now, based on your experience, how long does a typical 
rulemaking take?
    Mr. Johnson. Typically, sir, it takes several years.
    Mr. Davis of Virginia. Now, is the time line that you 
announced today typical of EPA rulemakings?
    Mr. Johnson. It is atypical, it is a very, very aggressive 
rulemaking schedule.
    Mr. Davis of Virginia. So you are way ahead of schedule?
    Mr. Johnson. That is correct.
    Mr. Davis of Virginia. And yet passing a law, there is no 
standard procedure for passing a law here, but in the House 
majority rules and you can move things out. The Senate is a 
completely different body altogether. But it would be much 
faster, it seems to me, to pass a law than it would be to have 
you go through a rulemaking.
    Mr. Johnson. Well, it can certainly be faster, but it 
certainly provides certainty and certainly, if past is 
prologue, also eliminates all the continuous litigation that 
seems to go on with any regulation that we issue.
    Mr. Davis of Virginia. And unlike the congressional 
rulemaking procedure, law making procedure, under your 
rulemaking, basically anybody can make a comment, can't they?
    Mr. Johnson. That is correct. In fact, we encourage people 
to comment.
    Mr. Davis of Virginia. So you are open to everybody.
    And right now, you hope to have that response by the end of 
2008?
    Mr. Johnson. We intend to propose our regulation by the end 
of this year, and the President has asked that we have a final 
decision in place by the end of 2008 on mobile sources.
    Mr. Davis of Virginia. In your written testimony, you 
mention that EPA is moving forward with a rule to guide future 
efforts to sequester carbon dioxide.
    Mr. Johnson. Yes.
    Mr. Davis of Virginia. Could you tell us a little more 
about the state of the technology and how far we are from 
commercial viability, what are the infrastructure issues 
involved, like transporting and storing the carbon dioxide?
    Mr. Johnson. Currently, there are no commercial scale 
carbon sequestration, certainly not cost-effective carbon 
sequestration storage, capture and storage that is available in 
the United States, or for that matter, around the world. As a 
Nation and other parts of the world, too, we are investing a 
lot of research dollars to help develop and perfect that.
    Having said that, we recognize, certainly at EPA recognize 
that is going to be a significant opportunity, that is 
sequestration and storage. One of the issues that we need to 
make sure that we are protecting the public health and 
environment is that storage. Under our Clean Water and Safe 
Drinking Water Acts, we have the responsibility under the 
Underground Injection Control Program to make sure that 
anything injected into the Earth, such as carbon dioxide, such 
as greenhouse gases, is done in an environmentally and public 
health protective way.
    Mr. Davis of Virginia. Are we even sure how to do that?
    Mr. Johnson. We have experience of using CO2, in 
fact, as a Nation have probably 30 years of experience of using 
it in oil recovery. What we don't have a lot of experience in 
is in the long-term storage. Of course, that is why we are 
writing regulation to make sure that as we approach the long-
term storage, after it is sequestered, that we are able to do 
that in a way that is meeting our statute of being 
environmentally protective.
    Mr. Davis of Virginia. When do you believe that carbon 
sequestration will become a meaningful element of our efforts 
to mitigate carbon emissions?
    Mr. Johnson. It is difficult to predict. But some have 
suggested that we are still some decade or more so away from 
having commercial grade. Again, it is a very important area, 
and it is one that as a Nation we are investing in research to 
help identify these cost-effective, both sequestration as well 
as storage techniques.
    Mr. Davis of Virginia. OK, thank you.
    Chairman Waxman. Thank you, Mr. Davis.
    Mr. Tierney, for your first round.
    Mr. Tierney. Thank you, Mr. Chairman.
    Administrator Johnson, you testified earlier in your 
remarks, as I understand it, in your written comments, that you 
have a legal responsibility to continue to process permits for 
coal-fired power plants. I think the implication of that is 
that you feel you have no choice but to approve the permits 
without any consideration at all of their major contributions 
to climate change. The problem is, coming from Massachusetts, 
where we are involved in a regional effort up there, with the 
approval of one of these plants, or a couple of them, you can 
undo all the work that we have done through this regional 
effort.
    So since you raised the EPA's legal responsibility, I want 
to ask you some questions about that. Do you have a legal 
responsibility under the Clean Air Act to protect the public 
health and environment?
    Mr. Johnson. Yes, we do.
    Mr. Tierney. Now, the Supreme Court made it clear that if 
the EPA determines that greenhouse gases present a threat to 
the public's health or welfare the EPA is required to take 
action under the Clean Air Act. So do you have a legal 
responsibility to address global warming?
    Mr. Johnson. The Supreme Court didn't say required to. What 
the Supreme Court did was define CO2 and other 
greenhouse gases as pollutant. The issue of whether it should 
be subject to regulation is precisely what we have been talking 
about, and in fact, the Supreme Court clearly indicated that 
analysis needs to be done by me before the next steps are 
taken.
    Mr. Tierney. All right, well, that was a point. Does the 
Clean Air Act provide any statutory deadline about which time 
you have to act on permit applications?
    Mr. Johnson. There is no--I am not aware of any statutory 
deadline, no.
    Mr. Tierney. So you have the discretion under the Clean Air 
Act to defer action on those permits for as many months as you 
may want until EPA develops a plan for regulating carbon 
dioxide in power plants?
    Mr. Johnson. There is a balance, and that is why we need to 
look at these on a case by case basis. There is a balance of 
making sure that they, one, meet the requirements of today 
under the Clean Air Act; and second, as we develop a need, new 
energy sources as a Nation, because of energy security, because 
of economic growth, that balance of making sure that we are 
achieving our environmental protection responsibilities, at the 
same time making sure that we as a Nation have the kind of 
energy----
    Mr. Tierney. Well, you are responsible for environmental 
protection, not development.
    Mr. Johnson. My responsibility is environmental protection 
under the Clean Air Act.
    Mr. Tierney. And if you have the ability to delay those 
permits for a few months because you determine that you have a 
responsibility under the Clean Air Act to protect the public's 
health and welfare, you could do it?
    Mr. Johnson. My responsibility, again, is to protect public 
health and welfare under the Clean Air Act and what the law is 
as of today. As I have previously commented to your colleagues, 
we are very aggressively looking at it. Again, the Supreme 
Court decision was very, very historic and complex.
    Mr. Tierney. Let's get back--my question is, sir, my 
question is, you have the ability to not act right now, if you 
think this is harming the public's health or welfare, or that 
there is a risk that is the case, nothing in the Clean Air Act 
requires that you act before you have those regulations in 
place, before you put something in place to deal with the 
climate change issue and global warming?
    Mr. Johnson. Again, we are currently evaluating that 
particular issue as we speak.
    Mr. Tierney. That is right. And as long as you are 
evaluating it, you have no obligation, the Clean Air Act does 
not require that you act under any of these permits. It is 
perfectly acceptable within the law for you to say, I am going 
to wait until we get those regulations done, because this is an 
issue of public health and welfare.
    Mr. Johnson. Again, as I have stated, we are going to be 
evaluating each of the permits as we do on a case by case 
basis, as they come before the agency.
    Mr. Tierney. What provision in the Clean Air Act requires 
you to take action that sacrifices the public health and 
welfare and the environment rather than use your discretionary 
authority to reduce greenhouse gas emissions?
    Mr. Johnson. Again, the decision and the issue before the 
agency, based upon the Supreme Court, is dealing with mobile 
sources. And we have said what our mobile source decision is. 
Under the Clean Air Act Title I, there are many sections of 
Title I, for example, Section 108, the National Ambient Air 
Quality Standards, Section 111, the New Source Performance 
Standard, as well as Section 112, the Hazardous Air Pollutant 
Section. The Clean Air Act is very complex. We are evaluating 
what is the best approach dealing for what the Supreme Court 
says----
    Mr. Tierney. You say that over and over again. But sitting 
from my perspective in Massachusetts, and part of that regional 
group that is working up there, the public is watching your 
action. You have already approved one plant, back in August 
30th, to Desert Power for the construction of a 110 megawatt 
coal-fired power unit in the Bonanza Power Plant in Uintah 
County, UT. That is relatively small, but it is still going to 
emit up to 90 million tons of carbon dioxide over a 50 year 
lifetime.
    I guess the question is, the Clean Air Act does not require 
that you do things like that are sending us backward. You have 
the authority to delay until you get your regulations in place, 
you have the obligation to protect the public's health. I hear 
you giving the same answer now four times, I think, on that. 
But I will give you one last chance to succinctly tell us why 
you don't just delay on these permits until you get the 
regulations in place in order to protect the public health and 
welfare?
    Mr. Johnson. Because, as I said, that I need to act within 
the confines of the Clean Air Act and what the law is as of 
today----
    Mr. Tierney. But sir, you already testified that you have 
no obligation to approve those permits within any particular 
timeframe.
    Mr. Johnson. As I said, there is no time direction as part 
of the Clean Air Act, but it is also my responsibility to make 
sure that permits are processed in an appropriate time. Three 
years----
    Mr. Tierney. Not if that affects adversely the public 
health and welfare, you are making a balancing act here that is 
not working in the public's interest.
    Mr. Johnson. Three years is not what most would say would 
be an aggressive pace of evaluating a permit.
    Mr. Tierney. Well, I think what most would say was that you 
are making a balancing act here where the public's health and 
welfare comes out on the short end of your considerations and 
that there is nothing within the statute that requires you to 
act by any particular timeframe and you are sacrificing the 
public health and welfare by moving these permits before you 
get your regulations done.
    Mr. Johnson. Well----
    Mr. Tierney. I yield back, Mr. Chairman.
    Chairman Waxman. The gentleman's time has expired. Mr. 
Hodes, did you want a second round? The gentleman is recognized 
for 5 minutes.
    Mr. Hodes. Thank you, Mr. Chairman.
    Mr. Johnson, you would agree that it is proper for this 
committee to exercise its oversight on whether or not your 
agency is acting within the law and whether you are properly 
administering that agency, would you not?
    Mr. Johnson. I fully support the oversight responsibility, 
yes.
    Mr. Hodes. And you agree that as an administrator, you have 
certain areas in which you exercise discretion?
    Mr. Johnson. Yes, under the law.
    Mr. Hodes. And you would agree that consistency in your 
exercise of discretion is critical to proper administration of 
your agency, would you not?
    Mr. Johnson. That is always a question that I ask of 
consistency, just because something has been done a particular 
way for years or--that is a question I ask myself.
    Mr. Hodes. You would agree that a double standard in the 
exercise of discretion would constitute arguably an abuse of 
discretion, correct?
    Mr. Johnson. I am not sure where you are directing the 
comment.
    Mr. Hodes. Let me direct you to a specific case in point. 
Fifteen months ago, the EPA proposed a permit for the Desert 
Rock Power Plant, which is an enormous proposed plant in 
Shiprock, NM. The public comment for the permit ended on 
November 13th. That was before the Supreme Court ruled that EPA 
has the authority to regulate CO2 emissions. Now, 
recently, a number of citizens and environmental groups filed 
new comments on the proposed power plant, based on the Supreme 
Court decision and asked EPA to consider alternatives to the 
planned power plant.
    Are you going to consider those comments when you make your 
final decision on that permit?
    Mr. Johnson. Sir, the decision, the PSD permit decision was 
made by our Region 8. In granting the permit the status now is 
that the Sierra Club has appealed the Desert PSD permit to our 
environmental appeals board. Our environmental appeals board is 
independent; they have the delegated authority to make the 
final decision. However, at their discretion, they can refer--
--
    Mr. Hodes. Can I just stop you for a second? I am not 
talking about Desert, I am talking about the Desert Rock Power 
Plant in Shiprock, NM. And I understand, the question I am 
asking you is, notwithstanding the end of the comment period on 
November 13th, given that new comments have bene filed 
following the Supreme Court decision, are you going to consider 
those comments when you make your final decision on the Desert 
Rock Power Plant?
    Mr. Johnson. I am sorry, I was getting it confused with the 
Desert Bonanza. I am not familiar, personally familiar with the 
specifics of that, so I would like to get back to you for the 
record.
    Mr. Hodes. So sitting here today, you have not made a 
decision whether or not you will or will not accept comments 
which may have been filed after the comment period?
    Mr. Johnson. As I said, I am not familiar with that 
specific case, so I would have to get back to you for the 
record.
    Mr. Hodes. Do you agree that you have discretion to accept 
late-filed comments?
    Mr. Johnson. Again, I don't know the specifics of this 
permit.
    Mr. Hodes. Sir, in general, do you agree that you have the 
discretion to accept late-filed comments?
    Mr. Johnson. It depends upon what the issue is at hand. For 
example, once a public comment period is closed and a formal 
rulemaking that, it is my understanding that we don't, because 
if we open it for one individual, then we have to make that 
available for everyone. It is a notice and comment issue that 
we would have to address.
    Mr. Hodes. Let me bring this to your attention. And this 
reflects in some sense on the conversation you were having 
earlier with Chairman Waxman about internal e-mails from the 
Department of Transportation about your pending decision on 
California's new motor vehicle standards. There, the Department 
of Transportation was trying to line up State Governors and 
Members of Congress to oppose the California request. Your 
general counsel stated that you would accept late comments 
opposing California.
    Here is what one internal e-mail says: ``EPA's General 
Counsel's Office says the Administrator is leaning toward not 
extending the comment period, but wants people to know that he 
has the discretion to accept late-filed comments.'' Now, sir, 
if you have the discretion to accept late-filed comments 
opposing greenhouse gas controls, you should have discretion to 
accept late-filed comments supporting the controls for Desert 
Rock. Will you assure this committee that you will consider the 
late comments received on the Desert Rock application just like 
you assured the Department of Transportation that you would 
consider late comments opposing California's standards?
    Mr. Johnson. Again, for that I will have to get back to you 
for the record. I think it is important to note that this was a 
petition process, not a regulation process. And that in fact, 
California itself submitted comments after the comment period.
    Mr. Hodes. Will you commit to reopen the comment period on 
Desert Rock in light of the Supreme Court decision which you 
are now reviewing and which, from the various answers you have 
given to various questions, you apparently say has thrown your 
evaluation process into a state where you are not able to 
answer a lot of questions because you are still evaluating? So 
will you commit to reopening the comment period on this 
proposed power plant?
    Mr. Johnson. Since I am not familiar with that specific 
power plant, that is why I said I would get back to you for the 
record.
    Chairman Waxman. We will await a response for the record, 
unless someone just handed you a response.
    Mr. Johnson. And certainly, Mr. Chairman, I would be happy 
to have my staff talk to your staff as well.
    Chairman Waxman. OK, but we do want the answers for the 
record.
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    Chairman Waxman. Mr. Shays.
    Mr. Shays. Thank you.
    I am wrestling with a few emotions here. One of them is 
that the chairman has a record of 20 years of being more right 
than wrong on issues dealing with the environment. The public 
is catching up around the country to his position. It seems to 
me the administration is slowing adjusting its emphasis about a 
number of issues, particularly related to global warming.
    I am struck by Mr. Hodes, who I think was an attorney for 
the State of New Hampshire, and knows that there are rules and 
regulations that you have to follow. I have listened to some of 
the questions when I have been here that, while they are not 
badgering you, are basically, it seems to me, asking you to 
circumvent the process that Congress establishes and you by law 
have to follow. You are going to get sued by the industry or 
you are going to get sued by the environmental community, but 
you are going to get sued by one or the other or both because 
you didn't follow the process the way it has to be followed. So 
I have some empathy for you in this circumstance.
    What I am interested in knowing is, is it illegal for the 
Department of Transportation to have an opinion about a waiver 
and is it illegal for the Department to encourage people who 
may have an opinion about it, whether they are Members of 
Congress or Governors, to weigh in? It would strike me that it 
may be illegal for you to do that, since you are going to be 
having to make a decision on this. But is it illegal for 
another department of Government to do that?
    Mr. Johnson. Sir, I wouldn't want to comment on the 
legality of what one can or can't do.
    Mr. Shays. Tell me why, because you don't know the answer?
    Mr. Johnson. Because I don't know the answer. Again, what I 
think is good, I think that it is important that our Government 
officials talk to one another. As I said, on all of our issues 
at EPA, there are many, many opinions. Again, my responsibility 
as the Administrator and the decisionmaker under multiple 
statutes is to make that final decision, independent, based 
upon the record. And that is what I will do.
    Mr. Shays. Then let me ask you this. Would it be 
inappropriate or illegal, and tell me which it might be, for 
anyone within EPA to tell Members of Congress or Governors to 
weigh in on this, not to weigh in but to take a particular 
position on it? To weigh in, it would strike me as being very 
appropriate to suggest to a Member of Congress or--and I am not 
saying this is happening--or to the Governor, to a Governor to 
weigh in on a particular side. Would you agree that would be 
inappropriate for someone within your own department to do 
that?
    Mr. Johnson. Again, all of my staff needs to follow what 
the rules are, and certainly those that are anti-lobbying. 
Certainly as the head of the agency I feel free to be able to 
talk to you Members of Congress----
    Mr. Shays. I am really not talking about anti-lobbying. I 
am really talking about the appropriateness of the agency, your 
agency, because you are an agency, not a department, correct?
    Mr. Johnson. That is correct.
    Mr. Shays. Your agency, while you couldn't comment on 
whether it would be appropriate for the Department of 
Transportation to be lobbying or arguing or encouraging people 
to contact EPA, would it be inappropriate, one, I will give you 
the answer and then you tell me if you agree. I don't think it 
is inappropriate for EPA to encourage anyone to comment on the 
decisionmaking process as you allow anyone to comment. But it 
would be inappropriate for people at EPA to suggest what 
someone should say to EPA.
    Mr. Johnson. I agree with that.
    Mr. Shays. OK. Thank you. I yield back.
    Chairman Waxman. Thank you, Mr. Shays.
    Ms. Watson, did you want a second round? You don't have to. 
We have another panel, but you are entitled.
    Ms. Watson. Just very quickly, thank you, Mr. Chairman. I 
want to hear from the other panel. But I have just called up 
from California to get the bill, my staff is bringing it in to 
me. What I am gathering from the conversation that we had prior 
is that there was a bias against California's request for a 
waiver. Would you say that were true?
    Mr. Johnson. There are many opinions. I am aware of the 
many diverse opinions. My responsibility as Administrator and 
under the Clean Air Act is to make an independent decision 
based upon the record, based upon what the statutory 
requirements are. I will do that, and I have committed to the 
Governor to do that by the end of the year.
    Ms. Watson. All right. I did hear you say that you make 
your decisions based case by case. California discussed and 
debated how we could continue to improve our air quality. The 
bill went through both Houses, went to our Governor, it was 
signed. We are implementing it. It looks like--or we are trying 
to--that it is a model for other States. And other States have 
been inquiring to California to see if this is something they 
could customize to their air quality bills.
    I am really highly concerned that there is a built-in bias 
against California, against what we are trying to do. That is 
the reason why we are filing, as we speak, a suit against EPA, 
because we are gathering more and more evidence that there was 
conversation about denying the waiver. I am highly concerned 
that you sit here in Washington, DC, and you would disregard 
the will of our 120 person legislature and our Governor, and 
try to rule, and make a decision against our waiver.
    With that, thank you, Mr. Chairman. I look forward to 
hearing from the other panel.
    Mr. Johnson. Mr. Chairman, may I add a comment?
    The statute under the Clean Air Act, Section 209, is very 
specific as to the criteria on which I need to base----
    Ms. Watson. I am well aware, that is why I am giving you 
the bill and the provisions. And we debated this in California, 
and what I heard from you is that there is a bias against 
California's own decision----
    Mr. Johnson. That is not correct.
    Ms. Watson. And that people have been talking about denying 
the waiver.
    Mr. Johnson. Again, there are many, many opinions----
    Ms. Watson. We will go to court and adjudicate this. Thank 
you very much, Mr. Chairman.
    Mr. Johnson. Again, my responsibility is to make sure that 
I evaluate what the record is----
    Ms. Watson. We will settle it in court, thank you.
    Mr. Johnson [continuing]. Under Section 209 and I intend to 
do that.
    Chairman Waxman. Thank you, Ms. Watson.
    Mr. Sarbanes, do you wish to ask further questions?
    Mr. Sarbanes. Very quickly. I am just curious where you 
believe that you are on the spectrum of urgency with respect to 
the issue of climate change and global warming and greenhouse 
gas emissions. I mean, you are trying to present the notion, I 
think, today, that you are sort of hemmed in from being able to 
be as aggressive as maybe you would like to be with respect to 
those issues.
    But do you think you fall on the urgent end of the spectrum 
in terms of the steps that we need to start taking with respect 
to global warming? Where you would put yourself on that?
    Mr. Johnson. Well, I put myself that this is a serious 
concern for the Nation. And I put myself in being in an 
urgency, yet at the same time, we need to be deliberative. That 
is the balance. As I said, we for the first time in our 
Nation's history are going to be regulating greenhouse gases, 
proposing to regulate greenhouse gases from mobile sources. 
That includes fuel----
    Mr. Sarbanes. Well, that is the first time in U.S. history.
    Mr. Johnson. We are for the first time in U.S. history 
going to be proposing regulations to regulate greenhouse gas, 
carbon dioxide in particular, storage, as part of our 
underground injection control program. That is the first time 
in our Nation's history.
    Mr. Sarbanes. And hallelujah, that you got to the party, 
you are here. You can now regulate these things.
    Mr. Johnson. So we are working our way through. This is a 
serious problem, but we are working our way through it, a very 
deliberate process, to make sure that we are, again, 
understanding what the implications are of the Supreme Court 
decision. This is very, very complex. The Clean Air Act is 
very, very complex.
    We need to make sure, and I need to make sure that I am 
being aggressive, yet I am being responsible in my 
decisionmaking.
    Mr. Sarbanes. I would just interrupt, before I run out of 
time, but it would seem to me that if you are bringing a 
personal and professional urgency to this issue that I think so 
many others are bringing that you would regard having now 
arrived with the regulatory authority to be able to move on 
this issue as a huge opportunity to catch up for lost time, 
rather than to engage in this sort of, this babble about 
deliberation, which in the meantime is allowing the industry to 
move forward in ways that are going to cost us significantly 
over the long term.
    You talk about a feeling of urgency, but every action that 
you have taken with respect to the waiver request, fighting 
against the regulation of these emissions as the case was 
coming on its way to the Supreme Court, approving these permits 
when we have already, I think, established clearly that you are 
not required by law to do it, all of these things belie the 
notion, in fact, you are bringing that kind of urgency.
    I would just suggest that you are way, way out of step with 
where most of the science and the experts are with respect to 
this issue. I hope that you get in step and that the agency 
gets in step as quickly as you can.
    Thank you, Mr. Chairman.
    Mr. Johnson. Sir, I respectfully disagree. Once the Supreme 
Court made the decision that it is a pollutant, then set about 
an aggressive path to address the California petition, set 
about an aggressive path to regulate greenhouse gas emissions, 
to propose them for mobile sources, set about the path of 
proposing a regulation for dealing with underground injection, 
in the meantime continuing to promote all the other programs, 
in the meantime sorting through what all this means and what it 
should mean with regard to stationary sources.
    Chairman Waxman. Will the gentleman yield?
    Mr. Johnson. This is a very aggressive path.
    Mr. Sarbanes. You have set about an aggressive path to push 
these permits out the door, when there is no requirement that 
you do that. That in and of itself it seems to me competes 
against the idea that you are being aggressive on all these 
other fronts.
    Thank you, Mr. Chairman.
    Chairman Waxman. The gentleman's time has expired.
    Your aggressive path, what does that mean in terms of your 
decision on the California waiver? Is that going to be 
aggressively decided soon?
    Mr. Johnson. By the end of the year was my commitment to 
the Governor.
    Chairman Waxman. Mr. Tierney.
    Mr. Tierney. Thank you, Mr. Chairman.
    Administrator Johnson, let's turn to the question of 
whether you are legally required to regulate carbon dioxide 
when you approve new power plants. Let's get back to that. If 
you look at your decision on the Desert Plant, and your 
reasoning appears to be one of a bootstrap sort of argument, 
your position seems to be that you are required to regulate on 
pollutants that the EPA has already regulated on in some other 
context. And since the EPA has never previously regulated 
CO2, you take the position that you are not required 
to regulate it now. Is that pretty much it?
    Mr. Johnson. What the law says, and certainly it is not a 
regulated pollutant under the law at this time----
    Mr. Tierney. Because it is not a regulated pollutant, you 
don't have to regulate it now until you get the regulation?
    Mr. Johnson [continuing]. But the very issue that you are 
talking about is, we are in a very deliberative process to try 
and sort through what this means.
    Mr. Tierney. In April, you submitted what appears to be a 
very non-controversial rule to the White House for pre-
publication review. That is the rule that would allow auto 
makers to use CO2 as an alternative to chemicals 
that harm the ozone layer in motor vehicle air conditioners. 
The rule imposes some restrictions on how auto makers can use 
carbon dioxide, because apparently if they leak into the 
passenger compartment at a high enough level, it will hurt or 
kill people.
    As far as it appears here, no one opposes that rule. But it 
has sat around at OMB and the White House now for 6 months, 
which is about twice as long as the usual 90 day deadline 
period for usual OMB review. Can you tell us why it is still 
being stalled over there at the White House?
    Mr. Johnson. I know that it is not a final rule and that it 
is currently being reviewed as part of an inter-agency process.
    Mr. Tierney. Pre-publication review, usually that is a 90 
day process. It has been 6 months, twice that long. Can you 
tell me why they are stalling on it?
    Mr. Johnson. Again, I know that it is in the inter-agency 
process. Beyond that, I would be happy to get back to you for 
the record.
    Mr. Tierney. It is a non-controversial rule, apparently. 
But the fact of the matter is, let's see what it is here, if it 
were issued, sort of undercuts your position that you had an 
unregulated carbon dioxide here, it would be regulated carbon 
dioxide, then you would have to do something about the power 
plants, you would have to consider regulating in the power 
plants.
    So that seems to be the point here, and that is why I think 
we are drawing attention to it right here. You are just in a 
situation, you are like the person that ties themselves onto 
the train tracks and then complains the train is coming. You 
say you can't, but it appears more and more like this 
administration just won't. If you did that regulation, if you 
didn't put it around over there for twice as long, 6 months 
instead of 90 days and you actually did something on that, you 
would then be in a position where you had to do something on 
the power plants.
    Mr. Johnson. Well, as I have said, and let me just repeat 
one more time, we really are working very diligently in 
developing an overall approach----
    Mr. Tierney. You know something, Mr. Administrator Johnson? 
No, you are not. All right? If you were working diligently, you 
wouldn't be allowing this thing to be stalled over at the White 
House for 6 months and undercutting your argument that I really 
can't do anything. That non-controversial, fairly simple 
regulation of CO2 would be done and then you would 
have a reason why you had to do something on the power plants. 
But you are busy on your review, which you have answered four 
or five times now, and apparently you are busy not getting this 
out of the White House OMB office, anywhere near close to the 
usual time it takes. I think the message that sends to the 
American public, certainly sends to me, and I suspect my 
colleagues, is you are not looking for any avenue to do it, you 
are looking for every avenue you can to not do it.
    I yield back.
    Chairman Waxman. Do you wish to respond?
    Mr. Johnson. As I said, I would be happy to get back to him 
on the record. I think that again illustrates the complexity 
that we are dealing with. We have the Supreme Court decision, 
we are proposing regulations to regulate greenhouse gases for 
the first time from mobile sources. We have the California 
petition, which is a separate section of the Clean Air Act. We 
have the question of the impact on other stationary sources. We 
have permits that are pending before the agency. We have 
lawsuits, petitions before the agency. So there are many, many 
activities all addressing the issue of greenhouse gases. We are 
working very deliberately to work through all of these issues, 
but in a responsible way.
    Chairman Waxman. Administrator Johnson, we appreciate your 
being here, but let me just comment. I fear you may be 
encouraging the energy industry to quickly build dirty energy 
infrastructure instead of sending a signal that it is time to 
take climate change seriously and deploy advanced technology. 
So I am going to introduce legislation, based on what I have 
learned today, it is important that we prevent EPA from 
continuing to issue permits for uncontrolled power plants.
    We also need to let every investor know that if they build 
a dirty power plant today, they should not expect to be 
grandfathered into a future climate change program. Investors 
need to understand that projects that do not account for 
climate concerns will be at risk of being a stranded 
investment. We should alert ratepayers to the large future 
costs and rate increases they may face if their local utility 
builds uncontrolled plants today.
    Further, Administrator Johnson, I also will followup on the 
issue of your communications with the Department of 
Transportation. I am going to send you a request for all 
documents relating to communications with the Transportation 
Department and/or the White House about the California waiver, 
and I expect you to cooperate with this request and provide the 
documents without delay.
    I thank you very much for your being here today. I thank 
you for your participation in this hearing. We will look 
forward to getting the information from you.
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    Chairman Waxman. We are now being called to the House floor 
for a series of a couple of votes. That should take no more 
than a half hour and maybe less. I would like to request that 
all Members come back here immediately after the second vote, 
and we will hear from the second panel that is scheduled to 
testify. We stand in recess.
    [Recess.]
    Chairman Waxman. The committee will come to order. We would 
like our next group of witnesses to please take their 
positions. I want to thank all of you for being here and for 
your patience. I know that many of you traveled some distance 
to discuss these critical issues of greenhouse gas emissions 
from coal-fired power plants.
    We have with us Ron Curry. Mr. Curry has served as 
Secretary of the New Mexico Environment Department since 
January 2003. He previously served as the New Mexico 
Environment Department's first Deputy Secretary, and from 1997 
to 1998 as Santa Fe city manager.
    David Doniger is the policy director of the Natural 
Resources Defense Council's Climate Center. He has previously 
served as Director of Climate Change Policy at the 
Environmental Protection Agency and a counsel to the head of 
the EPA's Clean Air Program.
    Dr. Daniel M. Kammen is the founding director of the 
Renewable and Appropriate Energy Laboratory at the University 
of California, Berkeley where he also serves as a professor in 
the Energy and Resources Group, the Goldman School of Public 
Policy, and the Department of Nuclear Engineering. Dr. Kammen 
received his Ph.D. in physics from Harvard University.
    Mr. John R. Cline is a partner with Troutman Sanders, and 
is a member of the firm's environmental and natural resources 
practice group. Before joining the firm, he worked as a manager 
of environmental affairs for the Potomac Electric Power Co.
    I am delighted that you are all here. It is the practice of 
this committee that all witnesses testify under oath. So if you 
would please rise, we will administer the oath to you.
    [Witnesses sworn.]
    Chairman Waxman. Let the record indicate that all the 
witnesses answered in the affirmative.
    Your prepared statements will be in the record in full. 
What we would like to ask you to do is to limit the oral 
presentation to 5 minutes. We have a clock, the light is green 
at the moment, but I am going to set it. When there is 1 minute 
left, it will turn yellow, and then after that, it will turn 
red.
    Mr. Curry, we will start with you. We are looking forward 
to your testimony.

  STATEMENTS OF RON CURRY, SECRETARY, NEW MEXICO ENVIRONMENT 
  DEPARTMENT; DAVID DONIGER, POLICY DIRECTOR, CLIMATE CENTER, 
NATURAL RESOURCES DEFENSE COUNCIL; DANIEL M. KAMMEN, DIRECTOR, 
  RENEWABLE AND APPROPRIATE ENERGY LABORATORY, UNIVERSITY OF 
CALIFORNIA BERKELEY; AND JOHN CLINE, PARTNER, TROUTMAN SANDERS 
                              LLP

                     STATEMENT OF RON CURRY

    Mr. Curry. Thank you, Chairman Waxman and Representative 
Davis and members of the committee, for inviting me to testify 
here today. My name is Ron Curry, and I am Cabinet Secretary 
for the New Mexico Environment Department under the 
administration of Governor Bill Richardson.
    Global climate change is an extremely important issue to 
New Mexico. New Mexico's precious limited water supply will be 
threatened if temperatures increase and drought conditions 
continue. In the desert southwest, we simply have no water to 
waste, and cannot wait to address climate change.
    Under the leadership of the Governor, we have established 
some of the toughest State greenhouse gas emissions reduction 
targets in the Nation: 2000 levels by the year 2012; 10 percent 
below 2000 levels by 2020; and 75 percent below 2000 levels by 
2050. Governor Richardson also established the New Mexico 
Climate Change Advisory Group, which developed 69 greenhouse 
gas emission reduction strategies. Out of those 69, 67 of them 
were passed unanimously.
    Many of the advisory group's recommendations focus on New 
Mexico's energy economy. New Mexico is a fossil energy State. 
We are third in the Nation, third in the Nation for on-shore 
gas production and fifth in oil production. We export about 
half the electrical power generated in the State, which is 
mostly from coal-fired plants.
    Since two-thirds of the State's greenhouse gas emissions 
come from coal and our oil and gas industry, to effectively 
address climate change we must change and diversify our energy 
economy. This is particularly important in New Mexico because 
the majority of our State revenues come from the oil and gas 
industry.
    Nationally, emissions for electricity production account 
for about 40 percent of all greenhouse emissions. The decisions 
you make here today and in the future will focus on atmospheric 
concentrations for decades, because those plants will operate 
for about a half a century and carbon dioxide emissions remain 
in the air for at least a century.
    When you consider the long-term effects of those plants, 
you must think about the legacy of future generations. I am a 
fortunate grandfather, having Julia and Aiden as my 
grandchildren. I look to them as a reason to prevent global 
warming in the future.
    New Mexico became the first State in the Nation in 2002 and 
2003 to require an applicant for a coal-fired power plant to 
consider integrated gasification combined cycle [IGCC], 
technology when determining the best available control 
technology. That is significant, because many believe that not 
only does this technology result in fewer criteria pollutant 
emissions and lower water consumption than most conventional 
power plant technologies, but IGCC is also the most economical 
way to capture carbon from coal in the power production 
process.
    The EPA stated in a December 2005 letter that IGCC need not 
be part of the BACT analysis for the conventional pulverized 
coal-fired unit, because it would redefine the source. New 
Mexico could not disagree more strongly.
    Congress' record is clear in that it intended to require 
the consideration of innovative fuel combustion techniques, 
like IGCC, and BACT analysis. The Clean Air Act requires the 
assessment of collateral impacts, such as the effects of 
unregulated pollutants in the BACT analysis.
    The recent Supreme Court decision that carbon dioxide is a 
pollutant should provide EPA with the impetus to address carbon 
dioxide emissions from stationary and mobile sources. We have 
not seen evidence of that yet. In New Mexico, we have 
established greenhouse gases as a pollutant, and therefore we 
have the authority to regulate those emissions in the State. In 
New Mexico, we have exercised that authority, just last month 
by adopting the Nation's most comprehensive greenhouse gas 
emissions reporting rules. Those rules require mandatory 
reporting of greenhouse gas emissions from certain industrial 
sectors reporting in the year 2008.
    Governor Richardson understands that we cannot stop global 
warming by ourselves in New Mexico. We are only the cause of 
about 1.2 percent of the national total. But we can do our part 
by leading by example. I ask this group, this Congress, to help 
us do exactly that. Attaching a cost to carbon emissions from 
new plants will send the right message to industry and 
encourage the use of carbon emissions controls in the near-
term.
    Mr. Chairman, thank you for letting us testify here today. 
On behalf of Governor Richardson, we continue to promote this 
effort, as he says, by leading by a very strong example.
    [The prepared statement of Mr. Curry follows:]

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    Chairman Waxman. Thank you very much, Mr. Curry.
    Mr. Doniger.

                   STATEMENT OF DAVID DONIGER

    Mr. Doniger. Thank you, Mr. Chairman and Mr. Issa.
    I am David Doniger. I am policy director for the Climate 
Center of the NRDC. NRDC is a national non-profit organization 
of scientists and lawyers and environmental specialists. We 
have been around since 1970. We have 1.2 million members and 
supporters.
    I would like to begin with an observation about the Supreme 
Court case. There are actually two cases, Massachusetts v. EPA, 
decided by the Supreme Court, which concerns mobile sources 
directly. There was another case, New York v. EPA, which 
concerned the same decision by EPA not to regulate power plant 
CO2 for the same reasons given by the agency in 
deciding not to do that for motor vehicles. So when the Supreme 
Court overruled EPA on motor vehicles, the D.C. Circuit sent 
both cases back to the EPA for new decisions on both motor 
vehicles and on power plants, pursuant to the Supreme Court 
rationale.
    We have a schedule from EPA for dealing with motor 
vehicles. We don't have any schedule from EPA for dealing with 
power plants. So that is the first observation.
    The second point is there seems to be one point of 
agreement, we think, between EPA and NRDC when it comes to 
CO2 and Clean Air Act permitting. That is that once 
EPA issues regulations to establish controls for CO2 
emissions for vehicles, or maybe for power plants also, at that 
point it becomes an obligation to evaluate CO2 in 
the PSD permitting process. EPA concedes that. But that is a 
couple of years off.
    So what we are concerned about here is what happens in the 
meantime with respect to maybe a couple of dozen power plants 
that are in the permitting process now. It is clear that if 
they came up in a year and a half, 2 years from now, there 
would have to be an analysis of ``best available control 
technology'' for CO2. There is, we believe, the 
requirement to do that now. And certainly the authority to do 
that now.
    Why is it required? Because CO2 is already 
regulated under Section 821 of the Clean Air Act, which 
establishes monitoring regulations and reporting regulations 
for the CO2 emissions from existing power plants. 
And those are requirements under the Acid Rain title. They are 
part of the program for, the monitoring requirements are part 
of the program for curbing sulfur and NOx. But they 
are regulations written under the Clean Air Act and adopted 
into the Clean Air Act. So we think at this point, it is 
already the case that CO2 is regulated under the 
Clean Air Act. And certainly, it is subject to regulation under 
the Clean Air Act.
    The act doesn't say that the PSD permitting, the BACT 
analysis is required only for regulated pollutants. It uses a 
broader phrase. It is required for pollutants that are subject 
to regulation. We think that this is a requirement now to be 
doing BACT analysis for CO2 for the power plants 
that are in the pipeline now and not let them slip under the 
wire while waiting for a future decision about motor vehicles 
coming maybe at the end of next year.
    The consequences of letting these power plants go through 
is that you end up with new plants that have a 60 year lifetime 
and, as the chairman has noted, up to a billion tons of 
lifetime emissions. And they are let in under the wire for the 
last 58 or 59 years of their life, they would be subject to no 
CO2 controls that could have been imposed at the 
beginning and maybe it would have altered the decision about 
what kind of a plant to build.
    So there are other authorities in the PSD program, the 
requirement to consider alternative technologies and to 
consider the collateral impacts, environmental impacts of the 
decisions. All of these would provide EPA the authority to hold 
these plants up or to require that they now go through a BACT 
analysis and an alternatives analysis for CO2-
related technology.
    My organization believes that we should not be building any 
more coal plants of the conventional design without carbon 
capture and storage. Preferably, we should be relying on 
efficiency and renewables. But we recognize that coal is a 
major part of the energy picture for a long time, will be. And 
that any new coal plants that are built should be built right 
now, starting now, with carbon capture and disposal. And that 
might lead companies to choose, as Mr. Curry said, to go with 
coal gasification technology, as it is more amenable to the 
capture and disposal.
    By the way, we support the EPA in the recent decision to 
set up rules to provide the ground rules for carbon capture and 
disposal under the underground injection program. That is 
something we asked for some time ago, and we are glad that they 
have agreed to go down that track. We will watch closely what 
the requirements are. But we agree that there is a need for 
rules to tell everybody, the prospective builders of these 
plants, exactly what is required by way of carbon capture and 
disposal and that will facilitate the quick movement into that 
technology.
    If we don't do this, we will have, as I said, this legacy 
of new plants, maybe a dozen new plants, slipped in under the 
wire that don't have the right technology, don't have the right 
controls. And it will raise the cost of the CO2 
control program once Congress enacts it, more generally, 
because you have plants with old technology that are harder to 
control, and that will reflect itself in higher costs on the 
companies and perhaps higher costs on the ratepayers. This is 
why so many power company executives now join us in supporting 
the call for new legislation, because they realize that the 
choice of what technology to invest in now is on the line here. 
Smart decisions under a carbon regime will be different than 
the decisions they would make without a carbon regime. They 
want the certainty, they want to know. EPA has the ability 
right now to clear that up for them by requiring that 
CO2 be accounted for in the permitting of new power 
plants.
    So a responsible policy would include two specific steps 
for large new power plants starting now. First, EPA should 
immediately require that any future PSD permits be issued only 
after a BACT analysis and a determination of what is BACT. 
Second, even if EPA didn't do that, they should reach basically 
the same policy outcome under their authority to consider 
alternatives and collateral environmental impacts under Section 
165(a)(2).
    I would be happy to answer your questions. Thanks.
    [The prepared statement of Mr. Doniger follows:]

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    Chairman Waxman. Thank you very much, Mr. Doniger.
    Dr. Kammen.

                 STATEMENT OF DANIEL M. KAMMEN

    Mr. Kammen. Thank you, Mr. Chairman. I do have some slides, 
if we could bring those up.
    Thank you for the chance to be here, Mr. Chairman and Mr. 
Issa. I appreciate your taking on such an important topic 
today. Global warming is a challenge that we all must face. The 
greenhouse gas emissions that we are putting into the 
atmosphere today are in fact part of our future legacy. The 
current round of climate change that we are already seeing is a 
result of emissions that we have already made, and in fact, the 
emissions we are now making today and will make in the future, 
are part of the legacy that we leave to future generations.
    Global warming has also been called the mother of all 
externalities. For that reason, I concur with Mr. Curry in 
calling for discussions and action on a price for carbon as 
soon as possible. That will facilitate more of these actions 
than any other single measure, because it will bring a price to 
the pollution we don't want, and we can use that as well to 
reward behaviors we do want, such as income generation and 
paying for workers in factories and plants.
    As a scientist who was involved in the IPCC process, and as 
the director of the Renewable Energy Laboratory, I will focus 
my comments today on the technologies that are available for us 
to deal with this problem. And in fact, this is one of the 
areas where we have significant good news. Instead of licensing 
new sources of emissions that will be with us for decades, the 
good news is that we have a range of technologies available 
today that can make a significant impact.
    In the next slide, I highlight just one of those, which are 
compact fluorescent light bulbs that make an immediate impact. 
They reduce the need for power, the emissions, and they save 
ratepayers on their bills effective immediately. In fact, there 
is a challenge in California for families that install four to 
five bulbs, compact fluorescents, if they do not see an 
immediate savings, to call into our California Energy 
Commission to discuss that. Because you will see an immediate 
rate savings. So Californians and people across the country who 
invest in these will see an immediate decrease in their bills, 
which benefits people across the entire economic spectrum. In 
fact, our utilities are already giving out benefits and credits 
for the purchase of efficient appliances and other 
technologies. In fact, Pacific Gas and Electric, PG&E, now has 
a Climate Smart program that now actually rewards you and 
allows you to zero your carbon emissions as well.
    What is needed in the process is to bring these 
technologies much more broadly to market and to establish a 
vision and a plan for how to put this in place. If we can put 
the next slide up, please, this highlights the dramatic 
difference, the almost 40 percent difference in electricity 
consumed among some of the most efficient States, such as New 
York and California and the country as a whole. The message 
here is that not only is a range of technologies available 
today, dramatic enough to not just cause personal levels of 
savings, but to cause savings that have saved the States the 
need to install entire new power plants, including some of the 
most polluting coal-fired power plants, but also to close down 
current plants, such as the Bay View Hunters Point Plant in the 
San Francisco area, and replace it not with new generation, but 
with a suite of efficiency measures and a range of local 
generation of solar and wind power that again have dramatically 
saved emissions in the region.
    If we can advance to slide one, the savings that we have 
seen in these most efficient States, if applied nationwide, 
would actually more than offset our entire import of fossil 
fuels from off of North America. So it is far more than an 
individual measure. It saves dramatic amounts of carbon 
emissions.
    Next slide, please. We have also seen a dramatic increase 
in the ability of renewable energy to provide significant 
amounts of power supply. Wind power in particular, in some of 
the most efficient wind plants, such as the San Pablo Plant in 
New Mexico, are producing electricity at 3 cents a kilowatt 
hour, a price far lower than any of the fossil fuel plants we 
are discussing today. So renewable energy options provide a way 
to do very low cost carbon-free generation, across a range of 
options.
    In fact, in the next slide, I highlight a map of the United 
States showing the States across the country, the 29 States and 
the District of Columbia that have all enacted significant 
calls for renewable energy, so-called renewable energy 
portfolio standards, that range from 10 to 15 to almost 30 
percent of their electricity needs in the coming years to come 
from renewables. So it is far from an isolated or a small-scale 
effort. In fact, those States have done this, such as Colorado, 
they instituted one of these issues by popular vote, and have 
seen their rates fall in the last months, not increase, but 
drop.
    Next slide, please. There are job benefits by investing in 
new energy industries, both efficiency and in renewables. In 
fact, a study that our lab recently completed concluded that 
there were three to five times more jobs generated by a dollar 
investment in these clean technologies than in the existing 
mix. It is a dramatic savings.
    I will end with the last picture that shows that we in fact 
have quite a road map already in place, with a range of options 
that both save on energy and save money immediately, and a road 
map toward the introduction of renewables as well as efficiency 
that have been instituted on a national level or State by 
State, that can dramatically reduce the need for these fossil 
fuel power plants. So while we wait to act at the EPA level, we 
have a dramatic range of opportunities available for us today.
    Thank you very much for your time.
    [The prepared statement of Mr. Kammen follows:]

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    Chairman Waxman. Thank you very much, Dr. Kammen.
    Mr. Cline.

                    STATEMENT OF JOHN CLINE

    Mr. Cline. Thank you, Chairman Waxman. My name is John 
Cline. I am a partner at the law firm of Troutman Sanders. My 
practice focuses almost exclusively on air quality issues, 
particularly under the Federal Clean Air Act.
    Before I begin, let me state that I am not here advocating 
or representing any particular position of a company or 
industry. Nor am I receiving any remuneration for this 
testimony. The views expressed today are my own.
    Having said that, I would like to start out by stating that 
within the confines of the Clean Air Act, I believe that EPA 
Region 8 correctly decided the question of whether to regulate 
CO2 emissions with the Bonanza PSD permit. The PSD 
program applies to air pollutants subject to regulation under 
the act. However, Region 8 appropriately concluded that 
greenhouse gases are not at this time subject to regulation 
under the act.
    In Massachusetts v. EPA, the Supreme Court concluded that 
greenhouse gases are Clean Air Act pollutants. The Court also 
held that EPA must regulate greenhouse gases for motor 
vehicles, but only if EPA first determines that greenhouse gas 
emissions may reasonably be anticipated to endanger public 
health or welfare. So until EPA actually makes that necessary 
endangerment finding, and then requires some type of control 
limits or emission limits on carbon dioxide, CO2 
cannot be regulated under the PSD program. Therefore, even 
after Massachusetts, it was necessary for Region 8 to decline 
to include CO2 conditions in the Bonanza permit.
    We have heard that EPA has indicated it will soon commence 
a rulemaking to determine whether it will make the endangerment 
finding, and if so, the type of greenhouse gas regulations it 
will adopt for motor vehicles. However, the committee must 
understand that if EPA regulates mobile sources, this action 
has the potential for enormous impacts on stationary sources. 
Indeed, these enormous impacts on stationary sources would 
exist today if CO2 were determined to be a regulated 
air pollutant under the act. That determination would trigger 
PSD regulation of a huge number of buildings and facilities.
    Under the act, major sources are defined as the type of 
facility that emits either 100 tons per year or 250 tons per 
year. Now, 100 tons or 250 tons may not be very much for a 
traditional air pollutant, but it really is a very small amount 
of CO2. CO2 emissions from hundreds of 
thousands of buildings and facilities likely now exceed this 
threshold, including apartment and office buildings, hotels, 
malls, large retail stores, warehouses, colleges, hospitals, as 
well as product pipelines, food processing facilities, heated 
agricultural facilities, many, many more. These types of 
sources have never gone through PSD permitting before because 
they emit so very little of the traditional air pollutants. But 
they would now if CO2 is deemed to be a regulated 
air pollutant at this point.
    Now, PSD permitting is incredibly costly, time-consuming 
and burdensome. But if CO2 were deemed to be a 
regulated air pollutant before EPA completes its expected 
rulemaking on greenhouse gas emissions from motor vehicles, the 
State permitting authorities at EPA would become swamped with 
huge backlogs of PSD applications. An overwhelming and 
unprecedented roadblock to new investment would be created for 
a host of previously unregulated buildings and facilities. Yet 
all of this economic pain would come at very little 
environmental gain.
    I understand EPA is likely to address the implications of 
PSD regulation of greenhouse gases as part of its rulemaking 
process under the remand of the Massachusetts case. EPA needs 
the time to craft a greenhouse gas regulatory program that will 
lessen the regulatory burdens on all these very small 
CO2 emitters. And the public deserves the 
opportunity to comment on that regulatory approach.
    On the other hand, if carbon dioxide is declared to be 
subject to Clean Air Act regulation right now, then a multitude 
of new and expanded buildings and facilities will be subject to 
the substantial burden, expense and the delay of PSD 
permitting.
    Thank you.
    [The prepared statement of Mr. Cline follows:]

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    Chairman Waxman. Thank you very much, Mr. Cline. I am going 
to start off the questions.
    Secretary Curry, I want to thank you and the State of New 
Mexico for making it a priority to address climate change and 
to reduce greenhouse gas emissions in the State. Your State 
does produce a lot of energy. If New Mexico can do it, then 
other States in the Nation can do it as well. I understand you 
wanted to make some comment about a correction on something you 
said earlier?
    Mr. Curry. Thank you, Mr. Chairman. That is correct. I feel 
so passionately about what I was saying I left out ``dis'' as 
opposed to, I said agreeing instead of disagreeing. So I mis-
spoke, and I wanted to make it clear to the committee that New 
Mexico strongly disagrees with their statement regarding IGCC 
and BACT. Thank you, Mr. Chairman.
    Chairman Waxman. I understand from your written testimony 
your concerns about the impact of the Desert Rock Power Plant, 
which would have massive uncontrolled emissions of greenhouse 
gases. Can you explain why just one facility like the proposed 
Desert Rock Power Plant will greatly hamper your State's 
ability to meet greenhouse gas emission reduction goals that it 
has set?
    Mr. Curry. Mr. Chairman, the primary reason is that the 
proposed Desert Rock facility will emit approximately 12 
million metric tons of CO2. It is directly in the 
area where we already have existing two other coal-fired power 
plants. We think the facility has not been properly studied. We 
think the facility's market has not been properly looked at.
    Chairman Waxman. So you would not grant a permit to a plant 
like this without addressing the greenhouse gas emissions?
    Mr. Curry. Mr. Chairman, if it was located anywhere other 
than where it is being located, being proposed to be located in 
the State of New Mexico, no, we would not.
    Chairman Waxman. I would hope that as New Mexico's 
environmental secretary that you would be hearing from EPA and 
they would be reaching out to your State about this Desert Rock 
Power Plant. Has Administrator Johnson contacted you or the 
Governor to discuss this power plant?
    Mr. Curry. Mr. Chairman, he has not. We are frustrated even 
more so by the fact that the administration of this power plant 
permitting process would come out of EPA Region 9, out of San 
Francisco. We operate in Region 6. The frustration that exists 
not only is from the State to EPA but also, I feel that there 
is some frustration between EPA regions because of the lack of 
communication on the particulars of this plant.
    Chairman Waxman. OK, thank you.
    Dr. Kammen, I want to talk to you about the jobs issue. 
Because advocates for the White Pine Energy Station in Nevada 
and the Desert Rock coal-fired power plant in New Mexico have 
argued that what is important here are all the jobs that are 
going to be provided. They are talking about 100 full-time jobs 
for the life of the plant.
    Can we provide jobs to people without polluting the 
environment through uncontrolled coal-fired power plants?
    Mr. Kammen. We can. In fact, most of the job benefit that 
has been cited in these pro-coal plants are in the construction 
phase, which lasts a few years. The operations phase jobs are 
much lower, and in fact, if you look at the jobs over the life 
of solar facilities, wind facilities and the expansion of the 
energy efficiency industry, all of which I demonstrate in my 
testimony were significant players, the job numbers are 
significantly higher for those low-carbon technologies.
    In fact, the average is three to five times more jobs per 
dollar invested or for megawatt provided by investments in the 
renewable and efficiency side than in the fossil fuel side of 
the equation. So it is good for local economies, in fact, too, 
to build their clean industries up at this time.
    Chairman Waxman. A lot of people say these power plants are 
going to be in areas without much population near them, and 
that this job creation is a selling point to the local 
communities. What would you say to the local communities if 
they were considering these coal-fired power plants?
    Mr. Kammen. In fact, the irony is that large coal-fired 
power plants do not preferentially send their power locally. It 
gets put on the grid overall. And we know how to transmit power 
long distances. So except for the very short construction phase 
of these facilities, the job benefits to communities will be 
much higher for ongoing local power provisions. So if you 
really want to help local communities, you will not only build 
the jobs there, but you will also reduce the pollution loads. 
Idaho, for example, has already ruled against building new 
coal-fired power plants, not even because of the global warming 
issue, but because of the mercury poisoning. So there are 
multiple local benefits, in fact, in going toward a lower 
carbon economy. The analysis in the States like Rhode Island, 
New York, California that have invested heavily in energy 
efficiency and renewables have found that those can be brought 
in exceedingly cheaply, often at a net savings, meaning 
investing in efficiency in particular has paid back with not 
only lower cost power, but a whole range of other benefits that 
accrue to the local community as well.
    Chairman Waxman. Thank you. There is one last question I 
have of Mr. Doniger. Mr. Cline suggested in his written 
testimony that it would be catastrophic if CO2 is 
determined to be subject to regulation under the Clean Air Act. 
He said it would have an enormous impact on the economy and it 
would not be favorable. How do you respond to that, assuming 
you disagree with it?
    Mr. Doniger. Two points, Mr. Chairman. First, the Supreme 
Court heard the same argument from the Government and from the 
industries and decided, look, the law is the law, let's follow 
it. Those are make-weight arguments.
    The second point I make is, we are talking about elephants 
here and he is talking about mice. We are talking about the big 
power plants, no party comment intended, large animals versus 
mice. We are talking about very, very large power plants, and 
he is talking about malls and small operations. Now, Mr. Cline 
indicated that EPA is going to try to work out a solution in 
their rules to take care of the mice. I am quite interested to 
see what that might be, something we might be able to cooperate 
on. But it is not an excuse for ignoring the elephants as we 
move forward now. The power plants that are being built now 
should be regulated for their CO2 emissions now.
    Chairman Waxman. Thank you.
    Mr. Issa.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Doniger, I am a little confused. I am going to try and 
get the record straight. If EPA acts capriciously, in your 
opinion, you sue them, right? You have a record, your 
organization has a record----
    Mr. Doniger. When they break the law and when they act 
arbitrarily, yes, we would.
    Mr. Issa. OK. Mr. Cline, Mr. Doniger has ben saying here, 
and I just want to make sure we get it from a legal standpoint, 
saying that in light of a Supreme Court case that says only for 
mobile, because that is all it said, and it said that it has 
the power to regulate it, he is saying you should not give 
permits to power plants that are underway right now, which as I 
understand, there is a legal mandate passed by this Congress, 
signed by a previous President, that said you have 1 year in 
which to allow or deny based on current law.
    Mr. Tierney earlier had the same sort of a thing for the 
EPA Administrator, in which he said they should postpone 
permits. Can you set the record straight from a legal 
standpoint? Wouldn't somebody, and let's assume for a moment 
the people who have hundreds of millions of dollars online and 
have bought the land and are in the process, wouldn't they have 
every right to sue if arbitrarily the Administrator or anybody 
else decided just to not grant permits?
    Mr. Cline. Congressman, I certainly believe they would. I 
think it is within Section 165 of the Clean Air Act, which 
addresses the PSD permit requirements, and buried within there 
is a requirement that once a permit application is complete, 
the permitting authority has 12 months to either issue the 
permit or deny it. It cannot just sit on it and let it wait and 
wait and wait.
    Mr. Issa. So if we wanted to do it immediately, as Mr. 
Doniger says, Congress offers a bill, the chairman probably has 
one ready already, get it to the Senate to ratify, get the 
President to sign it and you change the law, you can do it 
immediately. That would be the legal way to do it without 
interfering with existing law, signed, and existing rules that 
went through a whole process of scientific review and then 
public hearing, isn't that right?
    Mr. Cline. That is correct. The PSD regulations have been 
in effect for almost 30 years. I think all these power plants 
want to do is play by the rules like everyone else and not have 
them changed in midstream.
    Mr. Issa. Isn't it your understanding that even if we did 
this, even if the chairman offered a law, the Senate voted the 
same law, the President signed it, and we stopped all new 
construction of all new CO2 plants, wouldn't we in 
fact simply be watching China with its several new power 
plants, half a dozen plus a month and growing, producing these 
unregulated plants regardless, and by the way, producing them 
to take the jobs that we are not able to do without energy? 
Isn't that true?
    Mr. Cline. Yes, sir, that is my understanding, although I 
must admit, I am a lawyer, I don't know necessarily about the 
economics.
    Mr. Issa. Dr. Kammen, you said a couple of things and I am 
going to take issue with them. One of them is the 100 jobs. The 
100 jobs created by the power plants, isn't it true that in 
fact 700 or 1,200 megawatts produces jobs? In other words, 
electricity produces jobs. If you are going to look at the 
value of jobs, you have to include the electricity. And if you 
don't produce the electricity, I understand you might choose to 
produce it through other means. But if you don't produce the 
electricity, you in fact don't produce the jobs, for all 
practical purposes, that are produced by the electricity, not 
the ones produced by producing electricity. Fair enough?
    Mr. Kammen. It is true that if your industrial activity 
requires power, then you need a source for it.
    Mr. Issa. OK.
    Mr. Kammen. Let me just finish----
    Mr. Issa. No, I got the answer to your question----
    Mr. Kammen [continuing]. We have more jobs for the clean 
energy generation side, not just the efficiency, but by 
generating with biofuels, solar or wind.
    Mr. Issa. I understand that there are a lot of ways to 
produce electricity. I just want to make sure that we all 
understand we don't produce the electricity, you can't save 
yourself completely into wealth.
    Mr. Kammen. Absolutely.
    Mr. Issa. There is no net paycheck if there is no paycheck.
    Mr. Kammen. That is right. In fact, our report highlights 
that the jobs come from all these areas.
    Mr. Issa. As my time expires, I have a bone to pick. I 
would like you to prove for this committee or deliver how you 
came up with 3 cents a kilowatt hours. I was the chairman of 
the subcommittee that went through this process. We were 
working on what it would take to get to zero net carbon in the 
last Congress. We had testimony after testimony by, to be 
honest, pro-environment scientists who said, look, here is the 
scale, it is $350 trillion today, with research and investment, 
here is how we get it down, here is how we get to that goal as 
soon as possible at a certain price. Three cents a kilowatt 
hour is such an absurd term for me to hear as a Californian, a 
major producer, that if you take away subsidy and you talk 
about the actual cost of producing, my bill in California, the 
chairman's bill in Los Angeles----
    Mr. Kammen. Mine as well.
    Mr. Issa [continuing]. We all pay more than 3 cents a 
kilowatt hour. So if 3 cents were an unsubsidized capability, 
wouldn't we all be buying that? And if not, tell me why we 
would be paying so much more for others. Because to be honest, 
you just said to me that it beats the price of coal----
    Mr. Kammen. That is correct.
    Mr. Issa [continuing]. Which it doesn't.
    Mr. Kammen. I beg to differ.
    Mr. Issa. So would you please, what I am going to ask is, 
for the record, so we can all look at the same handwriting, you 
show me where it is 3 cents a kilowatt hour. Because I am going 
to go to PG&E and SDG&E and all the other utilities. If your 
facts hold up, you better believe I am going to be doing 
everything I can to stop the NIMBYs from stopping the windmills 
from being put up. I really would appreciate that for the 
record, because that is too good a figure for me to ever have 
seen, even though I am a strong supporter of wind energy.
    Thank you. I yield back.
    Mr. Kammen. Mr. Issa, I would be delighted. In fact, both 
in my testimony I highlight the cost for wind power for some of 
the best plants. The New Mexico Governor's office has 
highlighted the cost for that particular plant in the southwest 
part of the State. I will submit additional data on some of the 
costs for the best wind farms.
    But you are right, the one aspect of the story, in that 
there is a range of costs. We have wind farms that are 
performing at that level and significantly higher. But the fact 
is that we have a number of wind farms designed in the last few 
years and operating today which do provide power at that 
exceedingly low cost.
    Mr. Issa. I appreciate that.
    [The information referred to follows:]

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    Chairman Waxman. Mr. Doniger, do you want to respond?
    Mr. Doniger. Mr. Issa, I just wanted to clarify that the 1-
year deadline that you referred to applies to a permit 
application that is complete. EPA would have the authority, and 
we think they have the responsibility to say it is not 
complete, and the clock doesn't start to run until you have 
analyzed BACT for CO2, until you have analyzed the 
alternative technologies for CO2. So there is not a 
strict deadline.
    Mr. Issa. I appreciate that, but there is no regulation at 
this time that has been produced for that. So if the shoe was 
on the other foot and there was a regulation and they decided 
to shortcut it because they considered it already in, you would 
sue. I don't think there is any question, the testimony is 
pretty clear, that if the EPA acted in this manner, they would 
be acting capriciously, they would be sued, and they would 
lose. We would end up paying for the permit, for the building 
that wasn't built.
    Mr. Doniger. I disagree with you, sir.
    Chairman Waxman. All right, the gentleman's time has 
expired. Ms. Watson.
    Ms. Watson. Thank you so much, Mr. Chairman.
    Let me address this to Secretary Curry. I want to commend 
New Mexico and the other States that have taken the lead on 
addressing greenhouse gas emissions. You and others are taking 
steps that benefit the country and the world. I was not here 
earlier to hear your testimony, but in your written testimony 
you stated that the Governor has established some of the 
toughest State greenhouse gas emission reduction targets in the 
Nation. At the same time, I know that New Mexico has 
historically been a fossil energy State.
    So have the people of New Mexico supported the climate 
change policies that you and the Governor have introduced?
    Mr. Curry. Mr. Chairman, Member Watson, I would say that 
they have. We are moving forward on it. One of the things that 
Governor Richardson did that I think is very important to the 
process in New Mexico was establishing a very broad stakeholder 
group of people, the Climate Change Advisory Council, that came 
up with 69 recommendations for the Governor to implement 
reduction of greenhouse gases within the State of New Mexico. 
It is significant because this group worked very hard, it 
wasn't a situation where they sat around and held hands and 
sang Kumbayah, by any means. It was hard fought discussions 
over a period of almost a year.
    Ms. Watson. And who was in the group? What types?
    Mr. Curry. We had members from the dairy industry, we had 
members from the oil and gas industry, we had members from the 
car dealers association in New Mexico, we had members from the 
environmental advocate groups in New Mexico, we had members 
from State government, we had members from municipalities and 
counties. So I think the group was as broad as you can possibly 
imagine in New Mexico.
    Sixty-seven of the 69 were passed unanimously. Since that 
time, we have moved forward with assigning a cost to most of 
these items and we have started to implement them, such as the 
Clean Car Initiative that we will be moving forward on in a few 
weeks to join California. Also, we have just recently 
established one of the first in the country as far as a 
CO2 registry for the industries in New Mexico like 
oil and gas. So it is very important in New Mexico that we make 
things happen. Governor Richardson, aside from everything else 
that we can talk about things here today is a gentleman who 
likes to make things happen and insists upon making things 
happen. In the process, we have a good buy-in and a good 
consensus to make this happen.
    Are there people who disagree? Absolutely. But the benefit 
that we are able to show through these stakeholder discussions 
and stuff is going to lead the way.
    Ms. Watson. It speaks well for the people of New Mexico and 
it seems like they understand that they can fight global 
warming while growing their State's economy. It seems to me 
also, being from California, that the people are getting it, 
you are getting it, but this administration is not. I don't 
know if you were here for the first panel, but I couldn't 
believe what I was hearing from the Administrator of the EPA. 
In California, the largest State in the Union, with the largest 
number of cars, we are trying to address the environment in 
which we all live and breathe. And we get stymied here. They 
are studying whether or not emissions into the air affect the 
plants on the ground and our personal health.
    So I just want to commend you, I appreciate your statement. 
It seems like you had a very broad base of people coming up 
with the recommendations that you put in law. I hope that we 
are successful, because our bill is a product of the people of 
California.
    Thank you so very much. Good luck.
    Mr. Curry. Thank you.
    Chairman Waxman. Thank you, Ms. Watson.
    Mr. Shays.
    Mr. Shays. Thank you, Mr. Chairman.
    I find myself in this wonderful position of wanting us to 
deal big time with global warming, wanting India and China to 
be in that mix, questioning the implications of the 
environmental movement, because it says to me we are going to 
have to see nuclear power, we are going to have to see greater 
use of gas. So liquified natural gas sites on the coast. And 
also caring deeply about energy security, believing obviously 
that conservation is an absolute first, key, easiest way, and 
alternative, renewable energy in the mix, but long-term payoff, 
not real short-term payoff. That is kind of where I come from.
    But I am struck by the fact that the ends don't justify the 
means. And I am feeling like the environmental movement to 
which I like to think I am a part is not able to get Congress 
to act, a very difficult Senate and a House that still hasn't 
come to grips with this, even within the Democratic party. So 
we are saying, OK, now we have this hook with EPA and let's use 
the Clean Air Act to deal with global warming.
    I am struck by the fact that my colleagues on the other 
side of the aisle are really railing on the Administrator to 
express an opinion before he has gone through the process. I 
want to know if any of you have a feeling, a similar feeling 
that we are kind of pushing the envelope a bit and kind of 
potentially mis-using the intent of the law, the Clean Air Act. 
I will start with you, Mr. Curry.
    Mr. Curry. Mr. Chairman, Member Shays, my concern is that 
listening to the Administrator this morning and working and 
seeing how EPA affects the State of New Mexico is that we feel, 
we believe that the science has been proven.
    Mr. Shays. I am not talking science, I am talking about 
law. It seems to me that CO2 is a different kind of 
pollutant than any other, that Congress should be directing the 
administration to deal with it. That is what I am wrestling 
with. The fact that, I look at the Massachusetts law, and 
admittedly, I have not read the whole thing, but the excerpts I 
have, they are looking at mobile sources. The implications of 
this are mind-boggling to me, what potentially we could be 
demanding EPA to do. For instance, the Capitol, it emits a 
tremendous amount of CO2. Would it be considered a 
major polluter? And what are the implications of that?
    Let me go to Mr. Doniger.
    Mr. Doniger. Mr. Shays, we too advocate and urge that 
Congress enact new legislation to deal with global warming. The 
Senate is making tangible progress now, and----
    Mr. Shays. Who is? The Senate, you said?
    Mr. Doniger. The Senate. And there is tangible movement in 
the House. We would love to see more and we would love to see 
it faster.
    Mr. Shays. So do you think we are going to make better 
progress through the Senate than the House?
    Mr. Doniger. I would encourage you to keep up with them.
    Mr. Shays. That wasn't a funny question, honest. Are we 
having an easier time in the Senate than the House?
    Mr. Doniger. The Lieberman-Warner bill is moving through 
committee, and that is what I am referring to.
    Mr. Shays. OK, fair enough.
    Mr. Doniger. The point that I was going to make is that the 
Clean Air Act, which was enacted in 1970, already gave the 
administration the power to respond to new pollution problems 
as they are recognized. Now, for 5 years, the Bush 
administration took the position that it had no powers in this 
matter, that the Clean Air Act did not apply. That is what the 
Massachusetts case was about. And the Supreme Court said, you 
are wrong, despite all the deference that the Government gets, 
you are just flat wrong, and it is time to start implementing 
the law.
    As I mentioned in my opening statement, there is another 
case about power plants which was sent back at the same time. 
So the power plant issue and the car issue are on the table at 
EPA.
    Mr. Shays. Is there a difference between monitoring and 
regulating?
    Mr. Doniger. Not for the purposes of the Clean Air Act, no, 
not for these purposes. The Clean Air Act did not say, subject 
to emission limitations. It said subject to regulation. And 
regulations include the monitoring regulations.
    Mr. Shays. Let me ask Mr. Cline that same question.
    Mr. Cline. Well, sir, there are several definitions of 
regulation. I know Black's Law----
    Mr. Shays. I want you to talk a little louder.
    Mr. Cline. The Black's Law Dictionary defines regulation as 
the process of controlling by rule or restriction. And it is in 
that vein which EPA has interpreted the meaning of subject to 
regulation for the last 20 some years. Furthermore, if I may, I 
would question whether or not Section 821 of the statute is 
really in the Clean Air Act. If you look at the statute, it 
talks about specific provisions which amend the Clean Air Act. 
There are other provisions with Statute 101549 where there is 
no indication that is an amendment.
    So it may be stretching the issue to say that this is 
subject to regulation under the act, when this particular 
provision that Mr. Doniger refers to is not under the act.
    Mr. Shays. Do you mind if I ask another question?
    Chairman Waxman. No, but let me just announce that we have 
a vote, and we are going to come back, I want to thank all the 
witnesses. Then we have a markup in committee. So for those who 
are looking for markup, that will follow the vote.
    Mr. Shays. But we are not asking the witnesses to come 
back.
    Chairman Waxman. After Mr. Shays has completed his 
questioning, you are free to go, and that will end the hearing.
    Mr. Shays. Mr. Doniger, I felt like there was a tremendous 
amount of effort to get the Administrator to say something that 
he argues should be said when he makes the decision going 
through a process. How did you view that again?
    Mr. Doniger. Well, look, it is an open secret that the 
Administrator will make an endangerment determination. The 
President has said, go ahead and issue motor vehicle rules. And 
in order to do that, you have to make an endangerment 
determination.
    The President himself embraced the science, the IPCC, and 
he is, although quibbled about this at great length in the 
past, finally this September has sort of stopped quibbling 
about that and said, we accept and we embrace the IPCC science. 
So I don't think the issue is going to be whether Mr. Johnson 
equivocates about endangerment. I would be appalled if he did 
that.
    The question is, what does he need to do about the big 
power plants now. And the big power plant permit decisions 
don't turn on an endangerment determination. He can make the 
determination now that they need to go through the ATC and that 
they need to have their alternatives analyzed.
    Mr. Shays. Doesn't he have to make the endangerment finding 
before?
    Mr. Doniger. No. Two answers.
    Mr. Shays. OK, you say no.
    Mr. Doniger. Two points. As I said in my testimony, subject 
to regulation, we believe that CO2 already is. But 
the alternatives, the requirement to analyze alternatives and 
consider collateral environmental damages does not turn on 
subject to regulation. So there is authority to do this now. A 
responsible administrator would do this now.
    Mr. Shays. But it can be disagreed. Mr. Cline, is it clear-
cut, Mr. Cline?
    Mr. Cline. I would respectfully submit that the collateral 
impacts analysis is not a vehicle to determine BACT for an un-
regulated pollutant. It just simply does not work that way.
    Mr. Shays. OK. All right. I guess I have passed the time, I 
have a minute left to get to vote. This has been an interesting 
session and I know the chairman would thank you for being here. 
I guess I call it closed. Thank you very much.
    [Whereupon, at 2:38 p.m., the committee was adjourned.]

                                 
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