[Senate Hearing 110-1089]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 110-1089
 
                   THE CASE FOR THE CALIFORNIA WAIVER

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

                                HEARING

                               before the

               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 22, 2007

                               __________

  Printed for the use of the Committee on Environment and Public Works


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                            congress.senate

                               __________


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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED TENTH CONGRESS
                             FIRST SESSION

                  BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana                  JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut     JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
HILLARY RODHAM CLINTON, New York     JOHNNY ISAKSON, Georgia
FRANK R. LAUTENBERG, New Jersey      DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland         LARRY E. CRAIG, Idaho
BERNARD SANDERS, Vermont             LAMAR ALEXANDER, Tennessee
AMY KLOBUCHAR, Minnesota             CRAIG THOMAS, Wyoming
SHELDON WHITEHOUSE, Rhode Island     CHRISTOPHER S. BOND, Missouri

       Bettina Poirier, Majority Staff Director and Chief Counsel
                Andrew Wheeler, Minority Staff Director

                            C O N T E N T S

                              ----------                              
                                                                   Page

                              MAY 22, 2007
                           OPENING STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from the State of California...     1
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     3
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode 
  Island, prepared statement.....................................    24

                               WITNESSES

Brown, Hon. Edmund G., Jr., California Attorney General..........     8
    Prepared statement...........................................    10
Grannis, Alexander (Pete) B., commissioner, New York State 
  Department of Environmental Conservation.......................    13
    Prepared statement...........................................    15
Adler, Jonathan H., professor of law, director, Center for 
  Business Law and Regulation, Case Western Reserve University 
  School of Law..................................................    17
    Prepared statement...........................................    19


                   THE CASE FOR THE CALIFORNIA WAIVER

                              ----------                              


                         TUESDAY, MAY 22, 2007

                               U.S. Senate,
         Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:30 p.m. in room 
406, Dirksen Senate Office Building, the Hon. Barbara Boxer 
(chairman of the committee) presiding.
    Present: Senators Boxer, Inhofe, Lautenberg, and 
Whitehouse.

STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE STATE OF 
                           CALIFORNIA

    Senator Boxer. The committee will come to order.
    I am very pleased to welcome all the witnesses here today, 
including the Attorney General of California and our former 
Governor, Jerry Brown. Also former Mayor of Oakland, the city 
in which I reside, part of my time in California. I also 
welcome the Commissioner for the New York Department of 
Environmental Conservation, Pete Grannis, and Professor 
Jonathan Adler.
    Today we will discuss California's important efforts to 
reduce global warming pollution from vehicles. We will hear 
about the EPA's crucial upcoming decision regarding whether to 
grant California a waiver that will authorize the State to 
proceed with this effort.
    On April 2, 2007, the U.S. Supreme Court ruled that 
greenhouse gases are an air pollutant under the Clean Air Act 
and that EPA already has all the authority it needs to begin 
regulating greenhouse gas emissions from motor vehicles now. 
The Supreme Court's landmark decision has now cleared the way. 
The time to act is really long overdue.
    The clearest example of this point is the case for the 
California waiver. In 2002, recognizing the threat posed by 
global warming, my home State of California passed a law to set 
aggressive greenhouse gas standards for motor vehicles. In 
2005, California wrote rules to implement that law. These 
standards would cut greenhouse gas emissions by about 30 
percent by 2016.
    As provided for under Clean Air Act section 209(b), 
California asked EPA for a waiver approving the standard. 
Eleven other States, which together with California represent a 
third of the U.S. vehicle fleet--I think that is important, 
this isn't just about California, this is about a third of the 
vehicle fleet, 11 other States in addition to my State, have 
adopted the California standards. Since the transportation 
sector causes about a third of greenhouse gas emissions 
nationally, and about 40 percent of the emissions in 
California, a 30 percent reduction in vehicle greenhouse gas 
emissions would be a very significant step forward, a step 
toward reducing global warming pollution.
    In light of the Supreme Court decision, EPA should approve 
the California waiver shortly after the close of the public 
comment period, which ends June 15, 2007. The application for 
waiver clearly meets the legal standards for approval and it 
should be granted.
    This is one of the first steps our President and EPA could 
take to demonstrate a real commitment to reducing global 
warming pollution, to immediately grant California's request 
for a waiver so the State can regulate greenhouse gases from 
vehicles. California's plan has been ready for almost 2 years, 
and 11 other States are waiting for California's waiver so they 
can follow the lead.
    I have asked EPA Administrator Johnson to return before our 
committee at that time to tell me his plans. We are now 
planning to have him appear before this committee on June 21. 
We will keep the pressure on EPA until they do the right thing.
    In his previous appearance before this committee, 
Administrator Johnson repeatedly said that these issues are 
``complex,'' and need much further study. In fact, it is not 
the case. According to the Washington Post, EPA has granted 
California a waiver 40 times, 40 times in the past 30 years. 
EPA has never denied a California request to set its own 
standards under this provision of the law.
    I take the use of the word complex by Administrator Johnson 
as a code word for delay. And delay is unacceptable.
    Last week the Bush administration issued an Executive order 
which called for inter-agency consultation regarding any 
decision that will directly affect greenhouse gas emissions. 
While I do appreciate the President's indication that he wants 
to reduce global warming pollution, his statements in issuing 
the Executive order really shed little light on how he would 
make that happen. As a matter of fact, I expressed my concern 
that that alone could be a signal of a delay.
    Further delay in this matter is simply unacceptable to the 
largest State in the Union and to 11 other States. The time has 
come for decisive action by EPA. That is why I asked Attorney 
General Brown of California to be here today. He is an eloquent 
spokesman. His leadership and the leadership of our Governor 
and the State legislature is really at stake here. They can 
only do so much. They need us to sign off on their efforts, and 
we should.
    So if we can't begin the much-needed process of protecting 
our future and our kids and our grandkids from global warming, 
we will have failed. I say the California waiver is ripe for 
action and will send the right signal. So I applaud the 
Attorney General's leadership in this area. I welcome the 
initiative by New York and other States, who have adopted our 
greenhouse gas standards. Rather than sitting around and 
waiting for the Bush administration to do something, we are 
taking leadership, we are taking action.
    So once again, I welcome the witnesses. For another 
perspective, I call on Senator Inhofe.

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM THE STATE 
                          OF OKLAHOMA

    Senator Inhofe. Thank you, Madam Chairman.
    As a general rule, I avidly support States' rights and 
believe in the principle of decentralization. States and 
localities are often in the best situation to assess their own 
problems. Somewhat like Mr. Brown, I have been at all levels of 
government, State, mayor of a city and here in Washington. I 
have always felt that the closer you are to the people, the 
better the decisions.
    That does not mean that there is no room for Federal 
standards. Air quality and the Clean Air Act is one of those 
cases.
    Air pollution knows no boundaries, and the Clean Air Act, 
for all its imperfections, has led to steadily improving air 
quality in this country. While the implementation of our clean 
air laws has been local, which is appropriate, the standards 
themselves have been national.
    Now, it is true that California's air pollution problems 
are worse. So it is allowed to request a waiver to create even 
tighter standards. The problem, however, is that the State has 
not even made much progress complying with existing Federal 
laws, let alone more stringent ones that are now coming or may 
come in the future. For instance, California is violating 
Federal law to reduce the soot its citizens are forced to 
breathe every day. It is in violation of Federal particulate 
matter standards and shows few signs it will come into 
compliance.
    The same is true for ozone. While EPA grapples with whether 
the Federal standards for ozone are tight enough or not, areas 
of California are not even complying with the existing rule. 
When I introduced legislation last year to tighten penalties 
for counties that have ignored our air pollution laws and are 
in serious nonattainment for ozone and particulate matter, it 
caused an uproar because people said I was selectively 
targeting California. At first, I was surprised by the 
reaction, but as I learned more about the efforts to control 
pollution in this country, I found that California is the only 
State in the Union that is extensively ignoring Federal law.
    Now, I don't have an axe to grind against California. It is 
a great State. But it is the height of hypocrisy for 
California's State officials to sit here today condemning the 
Bush administration when it is violating multiple air quality 
standards. I am not introducing my legislation today, since it 
is not climate-specific. I don't want to confuse people. My 
bill is not a climate bill, it is a serious attempt to reign in 
the worst offenders of our Federal pollution laws.
    But I take air pollution very seriously and do plan to 
introduce my legislation again in order to hold these areas 
accountable and to help make their air cleaner.
    It is a hypocrisy for California policymakers to try to be 
the tail that wags the dog when it comes to the Clean Air Act. 
When it comes to the issue of whether climate fluctuations are 
natural or caused by man, you all know my views. The cycles we 
are now experiencing and have experienced for thousands of 
years or even millions of years are natural. But even if 
hypothetically speaking I were wrong in that assessment, 
California is not unique when it comes to greenhouse gases as 
it is for traditional air pollution.
    Madam Chairman, I know many Californians proudly say that 
their State leads the Nation when it comes to the environment. 
While I disagree, when it comes to California's commitment to 
air quality, it may be true in one circumstance. According to 
the National Oceanic and Atmospheric Administration, over the 
last two decades, California's temperatures have cooled by \6/
100\th of 1 C, or about a third of a degree per 
century. I guess you could say that California is going through 
a cooling period or has been going through it for the last two 
decades. So if Russia's top solar-scientist is correct that the 
Earth is heading into a cooling phase, California is indeed 
leading the Nation and even the world.
    Today's call for an immediate decision on the waiver 
request is simply grandstanding. Granting California's waiver 
immediately would make no difference to global temperatures, 
even if the alarmists were right. It certainly would not 
benefit California.
    Yet for political purposes, California's leadership is 
asking EPA to step aside, to sidestep its statutory 
responsibilities to first make a finding whether greenhouse 
gases endanger human health and the environment. This 
endangerment was supposed to be the first thing, before we did 
anything else. We had a hearing on this. Even if the EPA were 
to make such a finding, that still would not justify 
California's waiver request as it does not meet the necessary 
requirements for EPA to grant such a request.
    So Madam Chairman, I have more to say on the subject of 
political grandstanding and hypocrisy, but I will reserve my 
comments for the question and answer period.
    [The prepared statement of Senator Inhofe follows:]

       Statement of Hon. James M. Inhofe, U.S. Senator from the 
                           State of Oklahoma

    As a general rule, I avidly support States' rights and believe in 
the principle of decentralization. States and localities are often in 
the best situation to assess their own particular problems and 
implement their own solutions. But that does not mean there is no room 
for Federal standards. Air quality and the Clean Air Act is one of 
those cases. Air pollution knows no boundaries and the Clean Air Act, 
for all its imperfections, has led to steadily improving air quality in 
this country.
    While the implementation of our clean air laws has been local, 
which is appropriate, the standards themselves have been national. Now 
it is true that California's air pollution problems are worse, so it is 
allowed to request a waiver to create even tighter standards.
    The problem, however, is that the State has not even made much 
progress complying with existing Federal laws, let alone more stringent 
ones. For instance, California is violating Federal law to reduce the 
soot its citizens are forced to breathe every day. It is in violation 
of Federal particulate matter standards and shows few signs it will 
come into compliance.
    The same is true for ozone. While EPA grapples with whether the 
Federal standards for ozone are tight enough or not, areas of 
California are not even complying with existing law.
    When I introduced legislation last year to tighten penalties for 
counties that have ignored our air pollution laws and are in serious 
nonattainment for ozone and particulate matter, it caused uproar 
because people said I was selectively targeting California. At first, I 
was surprised by the reaction. But as I learned more about efforts to 
control pollution in this country, I found out that California is the 
only State in the Union that is extensively ignoring Federal law.
    Now I don't have an axe to grind against California--it's a great 
State. But it is the height of hypocrisy for California State officials 
to sit here today condemning the Bush administration when it is 
violating multiple air quality standards.
    I'm not introducing my legislation today since it's not climate 
specific. I don't want to confuse people--my bill is not a climate 
bill. It is a serious attempt to reign in the worst offenders of our 
Federal pollution laws. But I take air pollution very seriously and do 
plan to introduce my legislation again in order to hold these areas 
accountable and to help make their air cleaner.
    It is hypocrisy for California policymakers to try to be the tail 
that wags the dog when it comes to the Clean Air Act. When it comes to 
the issue of whether climate fluctuations are natural or caused by man, 
you all know my view that the cycles we are now experiencing--and have 
experienced for thousands and even millions of years--are natural. But 
even if, hypothetically speaking, I were wrong in that assessment, 
California is not unique when it comes to greenhouse gases, as it is 
for traditional air pollution.
    Madam Chairman, I know many Californians proudly say that their 
State leads the Nation when it comes to the environment. While I 
disagree when it comes to California's commitment to air quality, it 
may be true in one circumstance. According to the National Oceanic and 
Atmospheric Administration, over the last two decades, California's 
temperature has cooled by .06 C--or about a third of a degree per 
century. Yes, I said cooled. So if Russia's top solar scientist is 
correct that the Earth is heading into a cooling phase, California is 
indeed leading the Nation and even the world.
    Today's call for an immediate decision on the waiver request is 
simply grandstanding. Granting California's waiver immediately would 
make no difference to global temperatures even if the alarmists were 
right. It certainly would not benefit California.
    Yet for political purposes, California's leadership is asking EPA 
to sidestep its statutory responsibilities to first make a finding 
whether greenhouse gases endanger human health and the environment.
    Even if EPA were to make such a finding, that still would not 
justify California's waiver request, as it does not meet the necessary 
requirements for EPA to grant such a request.
    Madam Chairman, I have more to say on the subject of political 
grandstanding and hypocrisy, but will reserve my comments for the 
question and answer period.
    Thank you.

    Senator Boxer. Senator, I will take the 25 seconds you went 
over your time to say a couple of things. No. 1, California is 
not in violation of the Clean Air Act. We have asked for, as is 
allowed under the law, extensions of time to deal with issues 
because, you may not know this, we have 37 million people, and 
we are probably the economic engine of the country, if you 
consider we would be the fifth largest country, given the size 
of our gross domestic product in our State.
    No. 2, I don't think the word grandstand has any meaning at 
all. I don't think that our Attorney General is grandstanding. 
I asked him to come here. I don't think our Governor is 
grandstanding, and I don't think our legislature is. They just 
want to do something about global warming.
    Now, I don't think EPA grandstanded 40 times before when it 
granted a waiver. This was an automatic, because California is 
out in front.
    So that's where we are on this.
    Senator Inhofe. We are talking about particulate matter and 
ozone. That is certainly an area where California has not been 
in compliance.
    Senator Boxer. Well, I say, you can look at my State and 
you can look at our energy use. You can find out if you look 
there that while we have had an amazing per capital standard of 
energy use over the past 30 years, other States have, the 
average is double that. So yes, there are places where we have 
done better. There are places we have done worse, given our 
geography, given our industry and all the rest.
    But I want to make it clear here, since my State has been 
attacked head on, nobody in my State is grandstanding. They are 
trying to step up to the challenge of global warming. I think 
that is important. As far as arguing that we are out of our 
compliance, the fact is, we haven't met the standard, and you 
are right in pointing that out. We want to help them meet the 
standard. But they have followed the Clean Air Act and have 
asked for these extensions.
    Senator Lautenberg, can we----
    Senator Lautenberg. Just a few minutes, Madam Chairman.
    Senator Boxer. You have 5 minutes.
    Senator Lautenberg. Thanks very much, Madam Chairman.
    Every time we hear the fact that there has been a cool day 
here, a cool day there and accused of grandstanding, when in 
this very room it was said that global warming is the greatest 
hoax ever perpetrated----
    Senator Inhofe. No, man-made climate change.
    Senator Boxer. Excuse me.
    Senator Lautenberg. Now, that's not----
    Senator Boxer. Could I just--one moment. We are going to 
speak one at a time. Senator Lautenberg, you have time. Senator 
Inhofe, if you would like time to respond, you will get it.
    Senator Lautenberg. This hoax is overtaking place after 
place after place. We see Glacier Park no longer Glacier Park. 
We see Kilimanjaro without snow. We see polar bears floating on 
floes of ice. I have been to the South Pole and I watched, I 
wanted to see what the National Science Foundation was doing. 
What they were doing when I was there 6 years ago is 
complaining about the ice melt and the loss of fresh water 
supply that was going to take care of this world.
    So we are here today because EPA has once again failed to 
act in the face of science. When we hear the rebuttals that 
say, well, no, we are facing a cooling stage, well, last year 
was the hottest year on record and this year is going to be 
even a hotter year on record. So I don't know where the head in 
the sand technique that we are using to respond to here works. 
But we are going to challenge it every time we have.
    Madam Chairman, California has been courageous and leaderly 
in what they plan to do about greenhouse gases. New Jersey has 
followed along with them. We are waiting for the EPA to grant 
this waiver to the Clean Air Act. One estimate predicts that if 
all the States waiting to adopt it, if the standard were given 
a waiver today to adopt it, they could cut their emissions by 
64 million metric tons of carbon dioxide by the year 2020. That 
is the equivalent of taking about 12 million cars off the 
highways.
    But instead of making an impact, instead of improving our 
environment, the EPA is sitting on its hands. They have granted 
these kinds of waivers more than 50 times in history. But it 
has taken more than a year to consider this one. We are waiting 
for a waiver so our businesses can develop, build new 
technologies to help us reduce the emissions from our vehicles. 
We are waiting for the EPA to realize that its lack of 
regulation has harmed the health of the environment and of the 
men, women and children who breathe our air.
    The committee is working to curb global warming. Senator 
Sanders has a bill to reduce the overall emissions of the 
economy by 80 percent by the year 2050. I hope I am not still 
having to run to make this happen in 2050. But I am proud to be 
a cosponsor of this bill. The Commerce Committee, on which I 
sit, recently passed the first increase of CAFE standards since 
1990. But the Bush administration is hindering our efforts to 
combat global warming. They have to act now to grant these 
Clean Air Act waivers. Madam Chairman, don't relent.
    Thank you very much.
    Senator Boxer. Thank you very much.
    Senator Inhofe, would you like 60 seconds more for your 
opening statement?
    Senator Inhofe. That would be fine.
    Senator Lautenberg, I would have to say, it depends on 
where we want to start. If it is polar bears, the population 
has actually doubled in the last 50 years. We know about the 11 
populations of polar bears in Canada and how they are enhancing 
their breed. There are some problems where the hunting laws 
were not, were enforced perhaps wrong. I think it was only one 
area where there is a reduction.
    The thing that is interesting is, Senator Lautenberg, is 
that every day more scientists that were strongly on your side, 
I am talking about the leaders, I am talking about Claude 
Allegre in France and David Bellamy in the United Kingdom and 
Nir Shariv in Israel, are now over on the other side, saying, 
we have reevaluated the science, it is not there. So that is 
still up in the air as something that we are looking at. 
Certainly we have had more than enough hearings in this 
committee on climate change.
    Senator Boxer. Senator Lautenberg, would you like an 
additional 60 seconds?
    Senator Lautenberg. Well, I guess that the Union of 
Concerned Scientists must be worried that their organization is 
going to fall apart, as we see these individuals disagree. That 
is life. But how can you face every day and know that there are 
all kinds of disastrous things happening with children's 
health, as a result, asthma. I have an asthmatic grandchild, 
and it is painful to see what happens with him when the air is 
not pure and what he needs to do in case there is an attack, my 
daughter has to rush him to an emergency clinic. I see more and 
more children with asthma and other kinds of conditions that 
are affected by the environment.
    So there are those who I guess will continue doubting the 
sights in front of their eyes, what reputable scientists say 
about global warming, and how they can challenge these very 
obvious things is beyond me.
    But thanks very much. By the way, did anybody notice the 
ferocity of the storms in Oklahoma, the tornadoes suddenly 
coming up? Tornadoes.
    Senator Inhofe. We set records out there for an unusually 
cold winter.
    Senator Boxer. Well, let me say for my minute's worth that 
the IPCC convened the world's leading scientists and there is 
no disagreement whatsoever. You always have a few people 
saying, the world is flat and HIV doesn't cause AIDS and 
tobacco is not the cause of cancer. That is life. We always 
have a few people who don't see the world the way it really is. 
It is our job because we are not scientists to listen to the 
preponderance of scientists.
    So every single time that Senator Inhofe says, your side is 
losing, I will just point to the fact that it is not about 
losing or winning at all. It is about reality. Reality is what 
is going to govern this committee as long as I happen to have 
the gavel at this point. As Senator Inhofe has said many times, 
that is a tenuous situation. I understand that. This is a very 
closely divided Senate, and we don't know. But today, and these 
days, we will continue to refute what is said.
    The Bush administration, who we know has not been strong on 
the environment, has launched a study because it fears the 
polar bear is becoming extinct. So you can say all you want, 
how happy they are and everything else. The Bush administration 
launched this study. So I will stop and I will call on Hon. 
Jerry Brown, who at this point, I hope he still feels that he 
is very welcome. Because we certainly do all welcome you here. 
Attorney General Brown.

  STATEMENT OF HON. EDMUND G. BROWN, JR., CALIFORNIA ATTORNEY 
                            GENERAL

    Mr. Brown. Madam Chairwoman, thank you very much, and 
members of the committee.
    First off, let me say something about soot, particulate 
matter, ozone, you are right. California has quite a problem. 
That is the reason why we are entitled to a waiver. We have 
extraordinary climactic conditions and topography that requires 
this waiver. That is why we have it.
    By the way, soot and ozone are exacerbated by warming 
climates. That is precisely why we are so concerned about 
global warming, among other things.
    By the way, just going back a little bit in time, this 
waiver was signed into law by President Nixon at the time that 
Ronald Reagan was Governor of California. Now we come full 
scale, many years, 40 years later, we have a Republican 
Governor in California, Republican President, and we are 
looking at the same problems. California has unique 
environmental challenges. It has more cars, more concentrations 
of cars and a climatic condition that exacerbates issues like 
soot and ozone. That is why we want to guard against them with 
this waiver.
    I was at the hearing this morning. The technological and 
legal case is overwhelming. That case, whatever you think about 
global warming, the legal case for this waiver, to me, is about 
as strong as I have ever seen a legal case made. I am hoping 
that the EPA Administrator grants the waiver. If he doesn't, we 
will sue him forthwith. We will have the full support of the 
Executive Branch and the Legislative Branch in California.
    Let me go back to the global summit in 2002, when I was in 
Johannesburg. One night, while they were discussing a measure, 
a resolution by Brazil to put more funding into solar and 
conservation, a group of people were caucusing on this. The 
group consisted of the representative of Iran, of Saudi Arabia, 
there were many oil companies in the room, and the 
representatives of the Bush administration. Here they were, 
Iran, Iraq under Saddam Hussein, oil companies and the Bush 
people, all agreed that this would be a horrible thing if solar 
energy and conservation were promoted at the expense of 
petroleum.
    I went up to the Iranian representative, who was a well-
dressed man, it was about 11:30 at night, and I said, ``You 
have a lot of sun in your country. Don't you like solar 
energy?'' He said, ``No, we like oil.'' That is pretty much 
where we are today. The people fighting to prevent America from 
becoming energy independent are oil companies and automobile 
companies. Measured by carbon content, we import at last count 
65 percent of the petroleum used in this country. If that were 
to be cut off, this economy would be dealt a devastating blow.
    So just in terms of efficiency, nothing could be more 
important than having energy efficient cars. Our auto industry 
is very innovative. They have built up the weight and the 
horsepower. You can go from 0 to 60 faster than ever. But they 
have slowed down since 1985 in making their cars more 
efficient. They invoke safety, they invoke consumer choice, and 
both those are bogus claims. The consumer choice is shaped by 
billions of dollars of advertising propaganda, and safety is a 
function of design and other factors, not mere weight. Their 
argument is, put everyone in a big car to protect everyone from 
the big cars that are already there. In 1985, 9 percent of the 
cars were SUVs and minivans, now it is 50 percent. We are going 
in the wrong direction.
    Now, maybe the Senator from Oklahoma, what if you have a 
chance you might be right? Even if the evidence on global 
warming was equivocal, and the IPCC says it is unequivocal, as 
a matter of risk protection, as a matter of insurance, the 
investment that you make in reducing the impacts on global 
climate is far less than the investment you have to make when 
you measure it against the consequences that may well ensue.
    By the way, 90 percent of the scientists call it 
unequivocal. So there we are. Why does it make a difference? 
Because when California goes, 11 States go with it. That pushes 
the technology. Then as California goes, then the United States 
follows behind and other countries follow us. So when you 
measure the full impact of California going first, it would be 
quite considerable, even in terms of the reduction of global 
warming.
    When I first started in politics, there were about 250 
million automobiles in the world. There are now 600 million. 
Very soon, there is going to be a billion. Now, Mother Nature 
is quite productive and adaptive. But we have never had 6 
billion people, 6\1/2\ billion, wanting, most of them, to drive 
automobiles. They can't go on in the way it is. We have to 
start to turn to an environment-friendly way of living and 
transporting ourselves. That is really at stake here.
    The CAFE standards announced by the Bush administration are 
a joke. They are actually, some people think they are going to 
increase fuel mileage because they allow the bigger vehicle and 
the weaker mileage standard. That is all in the name of 
consumer choice. Well, there are a lot of things that consumers 
are restricted from because of morality and because of the 
social good of the country. Certainly, good will come from 
controlling climate disruption.
    Eighteen of the last twenty years, since temperatures have 
been recorded, have been the highest in the history of 
recording temperatures. This is a very serious matter. We are 
not scientists, most of us here. But the probabilities, the 
peer reviews all tell us we ought to not take such a risk and 
gamble with the future. The people who have the most to gain, 
of course, are oil companies and auto companies who make the 
big profits. Who has to lose are ordinary people in the future. 
I think we have to balance the risk, make appropriate 
investments. This Congress, I think, can go a long way toward 
getting the CAFE standards straightened out, shaping consumer 
choice based on real science and our best understanding of the 
risks and benefits. Also, encouraging the innovation that will 
make our cars of better materials, lighter and less consuming 
of the environment.
    So this is bigger than Iraq, it is bigger than immigration. 
It is not tomorrow, but it is coming around. Unlike those two, 
they can be combatted within a certain clear time frame, 
whether it is a few years or 10 or 15 years. But combatting 
global climate change could take centuries. So the mistakes you 
make are more catastrophic, more long lasting and very hard to 
recover from. That is why the stakes here, I believe, have 
never been higher. I don't say the polls register this yet. But 
you in the Senate, I believe, have the ability to take the lead 
and protect our country from what is going to be the gravest 
threat that we face as people of this country and as members of 
the human race. Thank you.
    [The prepared statement of Mr. Brown follows:]

     Statement of Edmund G. Brown, Jr., California Attorney General

    Madam Chairperson and Members of the committee, I appreciate the 
opportunity to testify before you today. I'm here to talk about 
California's waiver petition now pending before U.S. Environmental 
Protection Agency. That petition seeks a waiver of federal preemption 
of regulations approved by California's Air Resources Board to reduce 
greenhouse gas emissions from motor vehicles.
    The Air Resources Board approved these regulations more than 2\1/2\ 
years ago. California has been ready to go, ready to tackle one of the 
most significant sources of greenhouse gas emission in my State and in 
the Nation. California takes NASA's Jim Hansen seriously when he says 
that we have, at most, 10 years to drastically change our emissions 
levels or risk passing a ``tipping point'' where we won't have any 
control over the resulting environmental catastrophe.
    As the committee is undoubtedly aware, California's regulations 
have been stymied. As soon as they were adopted, the auto industry, 
instead of taking responsibility for its substantial share of the 
problem, immediately sued the Air Resources Board. U.S. EPA, the Agency 
that would most logically take the lead at the Federal level to address 
global warming, instead decided that greenhouse gases weren't 
pollutants under the Clean Air Act. EPA's interpretation was, not 
surprisingly, enthusiastically endorsed by the auto industry.
    EPA's reading of the Clean Air Act was ridiculous, ignoring the 
plain text of the statute. But it's typical of the ``head-in-the-sand'' 
approach that this Administration has taken on issues related to 
climate change. This Administration has too long hidden behind a ``wait 
and see approach'' as an excuse to do nothing. California isn't willing 
to ``wait and see'' if the sea level will rise by 1 foot or 10, or if 
the Sierra snow pack will shrink by 10 percent or 50 percent or more. 
California will take action today, even as this Administration shirks 
its responsibility.
    The Supreme Court has now flatly rejected U.S. EPA's creative 
interpretation of the Clean Air Act designed to tie the Agency's hands. 
This is the right result. But it's unfortunate that the EPA's 
irresponsible reading of the Act has cost California and this country 
precious time in the fight against global warming.
    California must now ask this same Agency for a waiver of Federal 
preemption. The Supreme Court in Massachusetts v. EPA has given the EPA 
a mandate to respond to the climate change crisis immediately--not 
tomorrow, not next week or next year. If the EPA in this Administration 
is not going to lead, it must step out of the way to allow California 
to continue its pioneering effort in the area of vehicle emissions 
controls.
    If EPA follows the law, there's no question that it must grant 
California's waiver. The courts and EPA have liberally construed the 
waiver provision to permit California to proceed with its own 
regulatory program in accordance with the intent of the Clean Air Act. 
There's no basis for EPA to deviate from its consistent findings in 
proceeding after proceeding that ``compelling and extraordinary 
conditions'' exist to justify California's continued need for its own 
mobile source program.
    Let me tell the committee why this matters. I don't think I need to 
convince anyone on this committee that global warming is real. There is 
simply no question about it. Global warming is the most important 
environmental and public health issue we face today. It's of particular 
concern to California. In California, human-induced global warming has, 
among other things, reduced California's snow pack, caused an earlier 
melting of the snow pack, raised sea levels along California's 
coastline, increased ozone pollution in urban areas, increased the 
threat of wildfires, and cost the State millions of dollars in 
assessing those impacts and preparing for the inevitable increase in 
those impacts and for additional impacts.
    Regulating auto greenhouse gas emissions is an essential part of 
the solution. The United States transportation sector emits an enormous 
quantity of carbon dioxide into the atmosphere, as the Supreme Court 
noted in the Massachusetts case, more than 1.7 billion metric tons in 
1999 alone. In California, automobiles contribute 41 percent of all 
greenhouse gas emissions in the State. Passenger vehicles are the 
largest single source of heat trapping gas emissions in California. 
What we do in California on the regulatory front will undoubtedly 
affect the entire Nation--California has a long-standing history under 
the Clean Air Act of leadership, and the technology-forcing of its 
regulations is well recognized.
    The auto industry will tell this committee that it can't be done. 
This is nothing new. Over the past 40 years, the domestic automobile 
industry has opposed just about every public health and welfare 
regulation--seat belts, turn signals, collapsible steering columns, 
catalytic converters, air bags, and fuel economy standards. They say 
the requirements will cost too much, can't be met, and won't work. 
Then, as now, they claim the sky is falling--the requirements will cost 
thousands of jobs and give unfair advantages to their foreign 
competitors. History shows that in every case they were wrong. They're 
wrong now.
    California stands ready to work with the auto industry to do the 
right thing. But to this point, they've not been willing to step up and 
take responsibility. It's unfortunate that this industry must be 
dragged kicking and screaming into the 21st century, but if that's what 
needs to happen, then California is prepared to do the pulling.
    I thank you for the opportunity to testify before this committee 
and stand ready to answer your questions.
                                 ______
                                 
                         Summary and Key Points

                             NO MORE DELAY

     For years, President Bush and his Administration claimed 
the problem of global warming needed ``more study.''
     Although the President has finally conceded, as he must, 
that the days of ``more study'' are over--he now claims the problem of 
global warming is--complicated. So now he says let's coordinate--let's 
plan, so we can take ``first steps.'' This is nothing but more delay.
     The President says regulations ``should be developed''--
California's regulations are already completed. He says let's take 
``first steps'' to get something done--California has already done it.

                  EPA MUST APPROVE CALIFORNIA'S WAIVER

     The Supreme Court gave EPA a mandate in Massachusetts v. 
EPA to respond to the climate change crisis immediately--not tomorrow, 
not next week or next year.
     The first thing EPA can do to carry out that mandate is 
grant California this waiver so that California can enforce its own 
greenhouse gas emission limits. California has moved ahead and is now 
on the threshold of being able to implement this important program. 
EPA's responsibility is not to get in the way.
     Congress limited EPA's discretion in waiver 
determinations. EPA's inquiry must be focused on the statutory waiver 
requirements in the Clean Air Act, which have long been prescribed by 
Congress.

              CALIFORNIA'S RIGHT TO ADDRESS GLOBAL WARMING

     Global warming has global consequences. It also has severe 
consequences to California. It is California's duty and obligation to 
address that.
     Global warming is real. It affects all of us and it 
affects California. There is simply no question about it. Global 
warming is the most important environmental and public health issue we 
face today.
     Automobiles are significant contributors to global 
warming. They contribute 41 percent of all greenhouse gas emissions in 
California.

                               LEAD TIME

     The automobile industry is going to complain that they do 
not have enough ``lead time'' to comply with the California 
regulations. This is nothing new. Just like they did in the 1970s, the 
automobile industry will tell you the regulation does not give them 
enough lead time. They'll say they can't do it. But they can. If 
anything, their executives' recent public statements show that they 
have the technology and the know-how to comply.
     California's regulations are the product of years of study 
and opportunities for public participation.
     Back in 2002, ARB invited the automobile industry to 
partner with it in developing these regulations. They refused to 
participate meaningfully. Now they complain.
     The regulations' standards must be met first in 2009. The 
industry has had years to get ready for this. They knew in 2004, when 
ARB approved the regulation, that these standards would come into 
effect and they should have been working since 2004 to comply--instead 
of spending their time suing California and every single other State 
that adopted the standards--hoping for a court victory and more delay.
     The fact is that these GHG Regulations will not drive the 
U.S. automobile industry out of business. They are doing that to 
themselves already. Compliance with these regulations will help the 
domestic automobile industry survive into the future--because they will 
finally have to make efficient vehicles.

          THE AUTO INDUSTRY WAS WRONG THEN AND IT'S WRONG NOW

     Over the past 40 years, the domestic automobile industry 
has opposed just about every public health and welfare regulation--seat 
belts, turn signals, collapsible steering columns, catalytic 
converters, air bags, and fuel economy standards.
     Taking a phrase from the Supreme Court, the automobile 
industry has ``waged the regulatory equivalent of war'' against these 
standards.
     The automobile industry says the requirements will cost 
too much, can't be met, and won't work. So it's no surprise that now--
instead of working to comply with the regulation, they are litigating 
it. Compliance is not their strategy--litigation is. Then, as now, they 
claim the sky is falling--the requirements will cost thousands of jobs 
and give unfair advantages to their foreign competitors. In every case 
they were wrong. They are wrong now.
     When the automobile industry opposed the Clean Air Act of 
1970, they said the same things they are saying now. The American 
Automobile Manufacturers Association said that it would not be possible 
``to achieve the control levels specified in the bill. . . 
[M]anufacturers. . .would be forced to shut down.'' Of course, the U.S. 
auto industry did meet the emissions requirements.
     In 1974, E.M. Estes, the president of General Motors 
stated that if Congress were to pass a law mandating corporate fuel 
economy, ``absent a significant technological breakthrough. . .the 
largest car the industry will be selling in any volume at all will 
probably be smaller, lighter, and less powerful than today's compact 
Chevy Nova. . . .''
     At about the same time, a Chrysler vice president for 
engineering, Alan Loofburrow, testified before a Senate committee that 
by 1979 new fuel economy standards would [in effect] ``outlaw a number 
of engine lines and car models including most full-size sedans and 
station wagons. It would restrict the industry to producing subcompact-
size cars--or even small ones--within 5 years. . . .''
     They are saying the same thing now. Executives from 
General Motors and Chrysler have testified in litigation over the 
California regulation that the California law would force them out of 
the market, leaving only small subcompact cars available to consumers. 
Well, they were wrong then and they're wrong now.
     The U.S. automobile industry has already weakened itself 
by failing to pay attention to the world around them. While foreign 
automakers have responded to consumer desires and, importantly, 
positioned themselves to respond to the changing global climate--the 
former ``Big 3'' have resisted all of this, stubbornly continuing to 
build too many outsized vehicles in their search for outsized profits. 
Those days have been over for years--only the domestic industry doesn't 
seem to get it.

                               CONCLUSION

     Based on the record before it, EPA must grant California's 
waiver. EPA must not come up with excuses to deny it. That will simply 
lead to more delay. The debate is over. The time for action is now.

    Senator Boxer. Thank you so much for your very eloquent 
testimony.
    Commissioner Grannis of New York, we welcome you.

  STATEMENT OF ALEXANDER (PETE) B. GRANNIS, COMMISSIONER, NEW 
      YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

    Mr. Grannis. Thank you very much, Madam Chair.
    I am half tempted to just agree with your opening statement 
and let it go at that. But I spent too long in politics to be 
able to do that, so I will present my statement to you.
    I want to thank you for the opportunity to testify before 
you today on the greenhouse gas emission regulations that have 
been adopted by your home State and that are now pending for a 
waiver before the Federal EPA. Earlier today, New York State 
called on EPA to approve the waiver as quickly as possible. We 
joined with many other States in testimony before the EPA this 
morning with Governor Brown, among others on that mission.
    EPA's approval of California's current waiver request will 
help both of our State meet the most important air quality 
challenge of the 21st century, as you enunciated, global 
climate change, global warming. For most professionals and 
common folks in this country and across the world, the debate 
about whether global climate change is real is over. Greenhouse 
gas emissions must be reduced to forestall catastrophic climate 
change. The only debate now is about what action should be 
taken to address the issue.
    Global warming doesn't recognize geopolitical boundaries. 
It doesn't differentiate between those working to combat it and 
those choosing to ignore it. As Dr. Martin Luther King once 
said, ``We are all caught in an inescapable network of 
mutuality, tied into a single garment of destiny. Whatever 
affects one directly, affects all indirectly.'' Global climate 
change is everyone's problem and to address it, we must work 
and act together. EPA's approval of your State's waiver request 
would be an important step in that regard.
    By every measure, California's motor vehicle emission 
control program has been a success. Emissions in California 
today are a fraction of what they were in the past and continue 
to decline. Hybrid electric vehicles are now widely available 
in an increasing number of vehicle models and configurations. 
The technological hurdles have been enormous. But the auto 
industry has met the requirements, continue to provide 
automobiles that not only meet tailpipe standards, but also 
requirements for increased durability. Now it is time to turn 
our attention to greenhouse gases.
    As everyone knows, the Clean Air Act specifically permits 
States to adopt California's more stringent motor vehicle 
emission standards. That is what we are waiting for. It is a 
right that we embrace, to be able to piggyback on California's 
standards. We are here today and I was here this morning before 
EPA to say we support that and obviously continue to hope to be 
able to exercise that right.
    In 1990, New York became the first State to adopt 
California's motor vehicle emissions standards. Just as it has 
for conventional pollutions in the past, New York adopted 
California's regulations for reductions in greenhouse gases for 
motor vehicles effective December 2005. Reducing greenhouse 
gases in cars and trucks is crucial to our climate change 
efforts. Emissions from these vehicles account for roughly one-
third of New York's greenhouse gas emissions and CO2 
is our greatest concern.
    Studies show that CO2 emissions from motor 
vehicles can be reduced by up to 30 percent, as Senator 
Lautenberg, I think, mentioned, by using various combinations 
of existing and emerging technologies. California's current 
emission control programs are critical to hastening the 
development of new technologies. California's regulations 
provide the automotive industry with the flexibility necessary 
to bring compliant vehicles to market. This approach would 
provide manufacturers with sufficient lead time to incorporate 
a vast array of existing and emerging technologies that are 
expected to be widely available within the next decade. 
Further, these regulations are cost-effective, since the 
reduced operating costs will completely offset the increased 
capital costs.
    States across the country are exercising their authority 
under section 177 of the Clean Air Act and adopting the 
California emission standards to reduce greenhouse gas 
emissions for motor vehicles. In addition, many States, I think 
it is now 12, as you mentioned, Senator, not the EPA, are 
taking further actions to address greenhouse gas emissions. New 
York has a long list of trying to provide regulations for 
virtually every emissions source that we have been able to 
identify. For example, in New York, we have also joined with a 
number of other States in the northeast on a regional 
greenhouse gas initiative, regional cap and trade program for 
powerplant emissions for CO2. In New York and across 
the country, States are implementing renewable portfolio 
standards, New York is no exception, to address the emissions 
associated with the power they purchase, along with a myriad of 
other programs to address climate change.
    In April, New York State Governor Elliott Spitzer announced 
the most ambitious energy conservation goal in the Nation. By 
2015, New York will reduce its demand for electricity by 15 
percent, translating into fewer greenhouse gas emissions and 
more jobs for New Yorkers. To date, EPA has failed to show the 
resolve being demonstrated by the States and your committee and 
appears unwilling or unable to provide the necessary leadership 
to address global climate change.
    Today, EPA has an opportunity to provide that long-missing 
leadership. Just as the fundamental scientific question 
regarding the need for reduction of greenhouse gas emissions 
has been answered, so too has the legal basis for taking 
action. Governor Brown and others mentioned it this morning, 
Massachusetts v. EPA, the Supreme Court came to the conclusion, 
unnecessary, should have been the unnecessary conclusion of not 
only telling Federal EPA what it can do but what it should do. 
EPA should exercise the authority now recognized by the Supreme 
Court, promulgating strong national standards.
    California, New York and other States must be allowed to 
continue their leadership in the reduction of motor vehicle 
pollutants, including greenhouse gases. While New York and 
other States will continue to take strong actions to reduce 
these emissions, leadership from Congress is needed to fully 
address this issue. In that regard, I want to thank the 
committee for its strong interest in legislation to encourage 
public sector and private sector actions to reduce greenhouse 
gases nationwide. I also applaud you, Senator, and Senators 
Sanders and Clinton, for introducing S. 309, the Global Warming 
Pollution Reduction Act. This comprehensive legislation 
addresses on a national basis the issues which many States have 
already begun to implement, as well as pursuing measures that 
are beyond the purview of the States, such as setting a Federal 
research agenda on climate change and implementing new Federal 
fleet economy standards.
    I want to thank you very much for giving me the opportunity 
to testify before you today.
    [The prepared statement of Mr. Grannis follows:]

Statement of Alexander (Pete) B. Grannis, Commissioner, New York State 
                Department of Environmental Conservation

    I would like to thank the Committee for the opportunity to testify 
on behalf of New York State regarding the Greenhouse Gas (GHG) emission 
regulations for passenger cars, light-duty trucks, and medium-duty 
passenger vehicles that have been adopted by the State of California 
and are currently before the Environmental Protection Agency (EPA) for 
a waiver of Federal Preemption. New York State strongly urges EPA to 
grant the waiver.
    California's leadership in motor vehicle emissions controls is 
critically important to New York and many other States in meeting air 
quality objectives. Over the years, New York and California have 
established a strong working relationship on mobile source emissions 
assessment and control. EPA's approval of California's current waiver 
request will help both of our States meet the most important air 
quality challenge of the twenty-first Century and the most pressing 
environmental issue of our time: Global Warming.
    Except among a few stubborn skeptics--a few of whom reside in this 
municipality--the debate about whether global climate change is real is 
over. Two-thousand of the world's leading scientists aren't wrong. GHG 
emissions must be reduced to forestall catastrophic climate change. The 
only debate now is about what actions should be taken to address this 
issue.
    Global warming doesn't recognize geopolitical boundaries. It 
doesn't differentiate between those working to combat it and those 
choosing to ignore it. As Dr. Martin Luther King once said, ``We are 
all caught in an inescapable network of mutuality, tied into a single 
garment of destiny. Whatever affects one directly, affects all 
indirectly.'' Global climate change is everyone's problem, and to 
address it, we must work, and act, together.
    EPA's approval of California's waiver of Federal Preemption is an 
important step in that regard.
    By every measure, California's motor vehicle emissions control 
program has been a tremendous success. Emissions in California today 
are a fraction of what they were in the past, and continue to decline. 
Hybrid electric vehicles are now widely available, in an increasing 
number of vehicle models and configurations. The technological hurdles 
have been enormous, but the industry has met the requirements, 
continuing to provide automobiles that not only meet tailpipe 
standards, but also requirements for increased durability. Now it is 
time to turn our attention to greenhouse gases.
    As you know, the Clean Air Act specifically permits States to adopt 
California motor vehicle emissions standards that are more stringent 
and protective of human health and the environment than federal 
standards. Section 209 of the Clean Air Act authorizes California to 
adopt its own new motor vehicle emission standards. Section 177 of the 
Act permits other States to adopt California's standards, as long as 
they are identical to the California requirements and provide 2 model 
years lead time. This is a right that we embrace, and continue to 
exercise. In 1990, New York became the first State to adopt 
California's motor vehicle emission standards. And, just as it has for 
conventional pollutants in the past, New York adopted California's 
regulations for reductions of GHG from motor vehicles, effective 
December 2005.
    Reducing GHG in cars and trucks is crucial to our climate change 
efforts. Emissions from these vehicles account for roughly one-third of 
New York's GHG emissions, and CO2 is our greatest concern. 
An efficient means of reducing these emissions is through the use of 
advanced engine, transmission, and air conditioner technology to cause 
reductions at their source. In fact, studies show that CO2 
emissions from motor vehicles can be reduced by up to 30 percent by 
using various combinations of existing and emerging technologies.
    California's current emissions control programs are critical to 
hastening the development of new technologies. California's regulations 
would provide the automotive industry with the flexibility necessary to 
bring compliant vehicles to market. The regulations would use phase-in 
periods to reach near and mid-term emissions standards. This approach 
would provide manufacturers with sufficient lead time to incorporate a 
vast array of existing and emerging technologies that are expected to 
be widely available within the next decade. Further, these regulations 
are entirely cost effective, since the reduced operating cost will 
completely offset the increased capital cost.
    States across the country are exercising their authority under 
section 177 of the Clean Air Act and adopting the California motor 
vehicle standards to reduce GHG emissions from motor vehicles. In 
addition, many States--not the EPA--are taking further actions to 
address GHG emissions. For example, in New York we have joined with 
several other northeastern States on the Regional Greenhouse Gas 
Initiative--a regional cap and trade program for powerplant emissions 
of CO2. In New York and across the country, States are 
implementing renewable portfolio standards to address the emissions 
associated with the power they purchase, along with myriad other 
programs to address climate change. And in April, New York State 
Governor Eliot Spitzer announced the most ambitious energy conservation 
goal in the Nation. By 2015, New York will reduce its demand for 
electricity by 15 percent, translating into fewer greenhouse gas 
emissions and more jobs for New Yorkers.
    To date, EPA has failed to show the same resolve being demonstrated 
by the States and this committee, and appears unwilling or unable to 
provide the necessary leadership to address global climate change.
    Now EPA has an opportunity to provide that leadership. Just as the 
fundamental scientific question regarding the need for reduction of 
greenhouse gas emissions has been answered, so too has the legal basis 
for taking action. In Massachusetts v. EPA, the United States Supreme 
Court made clear that EPA has the authority, and indeed the 
responsibility, to address emissions of greenhouse gases. EPA should 
exercise that authority by promulgating strong national standards.
    Regardless of whether EPA accepts that responsibility, however, it 
should grant the waiver in order to allow California, New York and 
other States to continue their leadership in the reduction of motor 
vehicle pollutants including greenhouse gases
    While New York and many other States will continue to take strong 
actions to reduce these emissions, leadership from Congress is needed 
to fully address this issue. In that regard, I want to thank the 
committee for its strong interest in legislation to encourage public 
sector and private sector actions to reduce greenhouse gases 
nationwide. I also applaud Senators Sanders, Boxer and Clinton for 
introducing S. 309, the Global Warming Pollution Reduction Act. This 
comprehensive legislation addresses, on a national basis, the issues 
which many States have already begun to implement, as well as pursuing 
measures that are beyond the purview of the States--such as setting a 
Federal research agenda on climate change, and implementing new Federal 
fleet economy standards.
    The importance of the matter before us cannot be overstated. Global 
climate change is real and we must address it now. New York strongly 
urges that EPA promptly grant California's waiver request and enable 
California, New York and other States to act as soon as possible to 
make headway on this critical issue.
    Thank you for giving me the opportunity to testify before you 
today.

    Senator Boxer. Thank you very much, Commissioner.
    Senator Inhofe has told me that he needs to go to the Armed 
Service Committee. So he has asked to make a plea to his 
colleagues who are not here yet.
    Senator Inhofe. Yes, I don't have to right away, Madam 
Chairman, but we are making up the Defense Authorization bill 
right now. I am required to be there. So I would like to ask 
staff to notify any of the Republican members, because we need 
to have them come to this very significant hearing at this 
time.
    Senator Boxer. Thank you.
    Please, let's continue with Mr. Adler. We welcome you, 
Professor Adler.

  STATEMENT OF JONATHAN H. ADLER, PROFESSOR OF LAW, DIRECTOR, 
 CENTER FOR BUSINESS LAW AND REGULATION, CASE WESTERN RESERVE 
                    UNIVERSITY SCHOOL OF LAW

    Mr. Adler. Thank you, Madam Chairman, and members of this 
committee, for the invitation to testify today about the State 
of California's request for a waiver of preemption under 
section 209(b) of the Clean Air Act for its regulations 
controlling greenhouse gas emissions for new motor vehicles.
    Let me say at the outset that my interest here today is in 
many respects an academic one. These are issues that I study 
and analyze. I have no economic or political interest in the 
outcome of this issue or related issues.
    To summarize basically my points today, while as we have 
already discussed, the Clean Air Act generally precludes States 
from developing their own emissions controls, there is a 
provision in the Act, section 209(b), which allows California, 
if it meets certain conditions, to obtain a waiver from the EPA 
for vehicle emission standards of its own. But the existence of 
this provision does not mean that the EPA should or is even 
permitted to grant the specific waiver that California requests 
now.
    Regulatory controls on vehicular emissions of greenhouse 
gases present different issues than have been considered in all 
of the prior waiver requests that have been granted to 
California. It is not clear to me that this request meets the 
statutory requirements of the Clean Air Act. So I want to 
briefly address the statutory requirements of the Act and then 
say a couple of quick points about the broader policy issues 
and the timing of EPA action.
    First, as I mentioned, it is unclear whether or not this 
waiver request satisfies the requirements of the Clean Air Act. 
There are three requirements that the Act imposes on a waiver 
request. The one that I think is most important for our 
discussion is the fact that EPA is not allowed to grant a 
waiver unless the granting of a waiver is necessary for 
California to be able to meet compelling or extraordinary 
conditions. In the context of urban air pollution, the sorts of 
air pollution and environmental concerns that were at issue 
when this provision was drafted and when Federal vehicle 
emission standards were first adopted, this was a relatively 
easy standard to meet. As we all know, California had 
particularly severe air pollution problems. California was also 
the first State to adopt vehicle emission standards, and 
Congress decided in a compromise both to recognize California's 
position as the first mover but also to recognize that there 
may be measures that are worth adopting in California that 
would not be worth adopting in other parts of the country. That 
is how we got section 209(b).
    So in the past, California, for example, could argue that 
more stringent controls on vehicular emissions were required to 
enable metropolitan areas to meet the National Ambient Air 
Quality Standards and to reduce the comparatively large 
contribution that cars and trucks made to California's unique 
and particularly severe air pollution problems. But these 
arguments aren't applicable in the context of global climate 
change. Global climate change is by definition global. 
California's problem is not any different than Montana's, than 
Oklahoma's, than New York's, than Canada's, than Israel's, 
France's or any place else. California is but one contributor 
of greenhouse gas emissions to the global climate commons, and 
the degree of warming experienced by California is a 
consequence of global concentrations, not any particular unique 
or distinct situation in California proper.
    So in the context, again, of particulate matter ozone 
pollution, California could say they needed more stringent 
emission controls to help California protect California's 
environment and to meet the requirements of Federal law. Again, 
that is something that California cannot claim today, and that 
makes the greenhouse gas controls different than those that 
have been granted waivers in the past.
    I also think that California has a difficulty claiming that 
these controls will do much of anything for California, because 
these controls, even if adopted by 11 other States, will not 
have a meaningful effect on future projections of climate 
change. Moreover, I should also point out that even if EPA does 
grant this waiver, that does not end the legal discussion, 
because the National Highway Transportation Safety 
Administration maintains that these regulations are preempted 
by the Energy Policy and Conservation Act, in particular the 
Federal fuel economy standards.
    The Supreme Court's decision in Massachusetts v. EPA does 
not overturn that finding. There is an argument, certainly a 
serious legal argument, that California's greenhouse gas 
emissions standards are tantamount to the adoption of State 
energy efficiency standards for automobiles. I would note that 
Attorney General Brown himself today described the regulations 
at issue as encouraging energy efficient vehicles. That would 
strengthen the argument of NHTSA and others that these rules 
would be preempted even if EPA grants a waiver, because a 
waiver only covers, only grants a waiver of preemption from the 
Clean Air Act, not from other Federal laws.
    In terms of the policy questions, I am certainly a strong 
advocate of greater decentralization in environmental law. I 
certainly think States should be granted greater flexibility. 
But when one looks at the sorts of areas where we need greater 
flexibility one doesn't normally start with the regulation of 
products bought and sold in national markets in order to 
address a problem of global dimensions. The academic literature 
is fairly unanimous on the point that the strongest arguments 
for flexibility occur in those areas where both the problem and 
the solution are relatively localized; issues like local land 
use, issues like drinking water, and even of the design of many 
air pollution control strategies, where the effects and costs 
are borne locally.
    But in this context, we don't have either of these 
criteria. We have products, automobiles, that are bought and 
sold in national markets, that are produced for national 
markets, and we also have a global commons in the global 
atmosphere. Reducing greenhouse gases in the atmosphere to 
address global climate change requires a coordinated national 
response, not piecemeal State responses. While I certainly 
think that some of the economic arguments against allowing 
State flexibility may have been overstated, that was not the 
view that Congress took when it adopted section 209, that is 
not the view that Congress took when it outlined the criteria 
for granting California a waiver, and if there was a problem 
with the balance that was struck in the Clean Air Act in 
creating a presumption of preemption, that is something that 
Congress can fix.
    I should note, though, that even if Congress does not fix 
this problem and EPA does not grant the waiver, it is not as if 
California, New York or any other State is devoid of other 
opportunities in their ability to reduce greenhouse gas 
emissions. There are many policies that can be adopted to 
reduce greenhouse gas emissions that do not implicate section 
209(b) and preemption.
    Since I know I am running short on time, let me just make 
one quick point, on timing. The administrative process is slow. 
The Massachusetts v. EPA decision was only 2 months ago. The 
idea that a Federal Agency would go through an administrative 
proceeding of this type in less than 2 months would certainly 
be astounding. We don't see Federal agencies act that quickly 
in other contexts. We shouldn't be surprised they are acting 
slowly here.
    Thank you.
    [The prepared statement of Mr. Adler follows:]

 Statement of Jonathan H. Adler, Professor of Law, Director, Center for 
Business Law and Regulation, Case Western Reserve University, School of 
                                  Law

    Thank you, Madame Chairman and members of this committee, for the 
invitation to testify on the State of California's request for a waiver 
of preemption under section 209(b) of the Clean Air Act for its 
regulations controlling greenhouse gas emissions from new motor 
vehicles
    My name is Jonathan H. Adler, and I am a professor of law and 
director of the Center for Business Law and Regulation at the Case 
Western Reserve University School of Law, in Cleveland, Ohio. I teach 
courses in environmental, administrative, and constitutional law. For 
over 15 years I have researched and analyzed Federal environmental 
regulatory policies, and have focused extensively on air pollution 
control, climate change policy, and the relationship between Federal 
and State regulatory programs. I appreciate the opportunity to share my 
views California's waiver application and the proper role of Federal 
and State efforts to address the issue of climate change.
    To summarize my testimony today, California's request for a waiver 
of preemption under section 209(b) of the Clean Air Act (CAA) raises 
several interesting and legal and policy issues. California has a long 
and proud history of leading the Nation in the development of 
environmental control strategies generally, and vehicle emission 
controls in particular. While the CAA generally precludes States from 
developing their own vehicle emission controls, the Act acknowledges 
California's special place in the development of environmental law by 
providing for a waiver of preemption, provided that certain conditions 
are met.
    The Environmental Protection Agency (EPA) has granted numerous 
waiver requests from California in the past, recognizing California's 
need for more stringent emission controls. This does not mean that the 
EPA should--or is even permitted--to grant California a waiver for its 
regulatory controls on vehicular emissions of greenhouse gases under 
section 209(b) of the CAA, however. Global climate change raises many 
important policy questions, but its global nature makes the case for a 
waiver less strong--on both legal and policy grounds--than it has been 
in traditional air pollution contexts.
    In December 2005, the State of California submitted a request for a 
waiver of preemption under section 209(b) of the Clean Air Act to the 
EPA for California's newly adopted regulations controlling vehicle 
emissions of greenhouse gases. These regulations will impose 
increasingly stringent emission limitations on vehicles produced for 
the 2009 model year and thereafter. Without a waiver from the EPA, 
California may not enforce these regulations.
    Federal vehicle emission standards were explicitly adopted to 
prevent the proliferation of variable State standards. As a general 
matter, States are precluded from adopting their own vehicle emission 
standards. Section 209(a) of the Clean Air Act provides that no State 
may adopt or enforce ``any standard relating to the control of 
emissions from new motor vehicles or new motor vehicle engines'' 
subject to regulation under the Act. The purpose of this provision was 
to maintain a national market for motor vehicles. Any automobile that 
rolled off an assembly line meeting Federal emission control 
requirements would be able to be sold anywhere in the United States. 
This would prevent the balkanization of the national automobile market 
and consequent increase in consumer prices and decline in consumer 
choice that could result if automakers were required to design and sell 
different vehicles in different States.
    The CAA contains one exception to this general policy of 
preemption, however, that provides special consideration for the State 
of California. In recognition of its particularly severe air pollution 
problems and the effort it had already expended in developing emission 
control policies before the Federal Government intervened, Congress 
created the waiver provision in section 209(b), so as to allow 
California to maintain its preexisting vehicle emissions standards, and 
adopt additional emissions controls that could become necessary in the 
future. Once a waiver is granted to California, other States are 
permitted to adopt California vehicle emission standards in lieu of the 
Federal standard as well.
    The waiver provision is not a blank check. Section 209(b) imposes 
some limitations on the EPA's authority to approve a waiver of 
preemption for California's vehicle emission standards. Specifically, 
section 209(b)(1) provides first that California must make a threshold 
determination that its proposed standards ``will be in the aggregate, 
at least as protective of public health and welfare as applicable 
Federal standards.'' Once California has made such a determination, and 
seeks a waiver, section 209(b) provides that the EPA must deny a waiver 
if the EPA finds that:
    ``(A) the determination of the State is arbitrary and capricious,
    ``(B) such State does not need such State standards to meet 
compelling and extraordinary conditions, or
    ``(C) such State standards and accompanying enforcement procedures 
are not consistent with section 202(a) of this part.''Should the EPA 
conclude that any one of these three criteria has been met, it would be 
justified, indeed required, to deny California's waiver request.
    The first and third criteria are unlikely to present much 
difficulty for California's waiver request. The California Air 
Resources Board has analyzed the proposed greenhouse gas emission 
reductions and concluded that they are no less protective than 
applicable Federal standards. The EPA is obligated to give substantial 
deference to this determination. It can only reject California's waiver 
request if it concludes that this determination was arbitrary and 
capricious. Such a conclusion is certainly possible, but unlikely.
    In the support document to its request for a waiver, CARB noted 
that ``since U.S. EPA has declined to set Federal standards for 
greenhouse gases, California's Greenhouse Gas Regulations are 
unquestionably at least as protective as the applicable Federal 
standards since the latter do not exist.'' This is true at present. 
After the Supreme Court's decision in Massachusetts v. EPA, however, 
the EPA is reconsidering whether to adopt some emission controls. Yet 
to render CARB's determination arbitrary and capricious, the EPA would 
have to adopt greenhouse gas emission controls more stringent than 
those adopted by California.
    It is conceivable that the EPA could conclude that CARB 
underestimated or unreasonably discounted the effect of the greenhouse 
gas emission standards on fleet turnover, and therefore underestimated 
the extent to which such emission controls could retard reductions in 
other air pollutants. It is also possible that the California standards 
could further impair air pollution control efforts if they result in 
increased driving (due to increased fuel economy). Such conclusions 
could provide the basis for finding the protectiveness determination 
was arbitrary and capricious, but this seems unlikely given the 
deference the EPA must give to California's initial determination.
    It also seems unlikely that the EPA will conclude that the 
California regulations governing greenhouse gas emissions are not 
consistent with CAA section 202(a). CARB appears to have given adequate 
consideration to the technological feasibility of and required lead 
time for its greenhouse gas emission reduction standards. For instance, 
CARB maintains that its emission standards may be met with ``off-the-
shelf'' technologies. Unless opponents of California's standards can 
demonstrate with clear and compelling evidence that this determination 
is inaccurate, the EPA would be unlikely to deny a waiver on these 
grounds.
    If the EPA were to deny California's waiver request, it is most 
likely to do so because California's regulation of greenhouse gas 
emissions from motor vehicles is not necessary to meet ``compelling and 
extraordinary conditions.'' In the past, California has been able to 
argue that more stringent controls on vehicular emissions regulated by 
the EPA were necessary due to California's uniquely severe urban air 
pollution problems, the difficulty some California metropolitan areas 
would otherwise have meeting applicable National Ambient Air Quality 
Standards, and the comparatively large contribution mobile source 
emissions made to California's air pollution problems. None of these 
arguments are applicable in the context of global climate change. 
Global climate change is, by definition, global. It is the result of an 
increase in greenhouse gas emissions global atmosphere. California is 
but one contributor of greenhouse gas emission to the global climate 
commons, and the degree of warming experienced by California is a 
consequence of global atmospheric concentrations, not local policies or 
controls.
    CARB argues that the EPA must show as much, if not more, deference 
to California's policy determination that greenhouse gas emission 
reductions are necessary, as it would to other emission control 
policies. There is little basis for this argument. If anything, the EPA 
is less likely to defer to California's determination because climate 
change is not an environmental problem that presents a threat that is 
any more ``compelling or extraordinary'' in California than anywhere 
else. In the context of particulate matter or ozone pollution, 
California could argue that the adoption of more stringent vehicle 
emission controls would enable California to address its particular 
environmental problems. No such claim can be made about greenhouse gas 
emission controls.
    Nor can CARB maintain that regulatory controls on greenhouse gas 
emissions adopted in California alone (or even in conjunction with a 
dozen other States) will have any meaningful effect on future 
projections of climate change. Dr. T.M.L. Wigley of the National Center 
for Atmospheric Research demonstrated that were all developed nations--
those on ``Annex B'' of the Kyoto Protocol--to fully comply with the 
greenhouse gas emission reduction targets established by the Kyoto 
Protocol, and maintain such controls through 2100, this would only 
change the predicted future warming by 0.15 C by 2100.\1\ The 
reductions modeled in the Wigley study are several times greater than 
the complete elimination of all greenhouse gas emissions from the 
entire U.S. transportation sector, of which California represents only 
a fraction. The effect of California's standards on greenhouse gas 
emissions from new motor vehicles--again representing only a fraction 
of the automotive fleet--is smaller still. Thus, California cannot 
plausibly maintain that its vehicle emission controls would do much of 
anything to address any threat posed by climate change to the State.
---------------------------------------------------------------------------
    \1\ T.M.L. Wigley, The Kyoto Protocol: CO2, CH4 and 
Climate Implications, 25 Geophysical Research Letters 2285 (1998).
---------------------------------------------------------------------------
    Because California cannot demonstrate that controls on vehicular 
emissions of greenhouse gases are necessary to meet any ``compelling 
and extraordinary conditions,'' the EPA would have ample justification 
for denying California's waiver request. This does not necessarily mean 
that the EPA is obligated to deny the waiver--courts give substantial 
deference to such Agency determinations if they are supported by a 
reasonable explanation--but it does suggest that a decision by EPA to 
grant this waiver could be subject to court challenge. The waiver 
provision in section 209(b) was designed to allow California to address 
environmental problems in California, not to provide a single State 
with unconstrained, roving authority to second-guess national 
environmental policies by adopting any vehicle emission controls it 
deems worthwhile.
    To complement the legal discussion above, I think it is worth 
briefly addressing the relevant policy considerations concerning 
California's waiver request. As members of this Committee may know, I 
have been very supportive of decentralized approaches to environmental 
protection, and have argued at length that States should be given 
greater flexibility in meeting environmental standards.\2\ 
Specifically, I have argued that the principle of ``subsidiarity''--the 
principle that problems should be addressed at the lowest level at 
which they can be practically addressed--is particularly appropriate in 
the context of environmental policy.\3\ Because most environmental 
problems are local or regional in nature, there is a strong case that 
State and local governments should be given the flexibility to design 
and implement their preferred approaches to such environmental 
concerns.
---------------------------------------------------------------------------
    \2\ See, for example, Jonathan H. Adler, Letting Fifty Flowers 
Bloom: Using Federalism to Spur Environmental Innovation, in The 
Jurisdynamics of Environmental Protection: Change and the Pragmatic 
Voice in Environmental Law (Jim Chen, ed., Environmental Law Institute, 
2004).
    \3\ See, for example, Jonathan H. Adler, Jurisdictional Mismatch in 
Environmental Federalism, 14 NYU Environmental Law Journal 130 (2005).
---------------------------------------------------------------------------
    A preference for decentralization or subsidiarity does not mean 
there should be no Federal environmental regulation. It simply it 
creates a rebuttable presumption toward decentralization--a presumption 
that can be overcome with a demonstration that more centralized action 
is necessary or likely to produce a more optimal result. For example, 
the presumption may be overcome where there is an identifiable Federal 
interest, or some reason to believe that State and local governments 
will be systematically incapable or unwilling to adopt publicly desired 
environmental measures.
    The principle of subsidiarity suggests that States should have 
ample leeway to address localized concerns, such as land-use, drinking 
water, and even metropolitan air pollution. The arguments for State 
flexibility and control are less strong, however, where a given 
environmental problem or proposed solution extends across 
jurisdictional lines. Subsidiarity is not a license for one 
jurisdiction to impose its environmental policy preferences on other 
jurisdictions, whether such imposition results from cross-boundary 
pollution or the externalization of regulatory compliance costs.
    California's regulation of greenhouse gas emissions from motor 
vehicles touches upon two identifiable Federal interests that would 
justify a national standard. First, global climate change is, by 
definition, global concern. It effects the Nation, indeed the world, as 
a whole. Emissions of greenhouse gases, such as carbon dioxide, 
disperse throughout the atmosphere without regard for any 
jurisdictional limits. Because global climate change requires measures 
that address global atmospheric concentrations of greenhouse gases, 
there is little reason to believe that State governments are capable of 
adopting effective or efficient polices in this area. Effective 
policies are more likely to be developed at a ``higher'' level--through 
international institutions or the cooperation of national governments, 
rather than independent actions by States.
    State governments are simply incapable of adopting policies that 
will have a significant impact on climate change trends. This does not 
mean that State governments should always be precluded from adopting 
localized climate measures. But given the relatively minimal benefits 
that such policies are capable of producing, their should be adequate 
attention paid to the potential of such policies to externalize costs 
on to other jurisdictions. If States wish to adopt largely symbolic 
measures demonstrating their commitment to reducing greenhouse gases, 
they should be allowed to do so, provided that they do not adopt 
policies the costs of which are largely borne by those in other 
jurisdictions. By imposing a standard on new motor vehicles, products 
largely manufactured in other States, California may be imposing 
significant costs on people in other jurisdictions, and yet will have 
little to show for it, as the policy will no have measurable effect on 
environmental quality in California;
    Another national interest that could justify Federal preemption of 
State standards in this area would be the economies of scale in the 
manufacture of products that produced for and distributed national 
markets, making a single federal standard more efficient than a 
multiplicity of State standards. Specifically, a single set of 
regulations may make more sense for a single, integrated national 
economy. This argument is strongest in the case of product regulation. 
Where a given product is bought and sold in national markets, and will 
travel throughout interstate commerce, it is less costly to design and 
produce the product so as to conform with a single national standard. 
While it is not clear why siting standards for an ethanol plant in 
Illinois should match those for one in Oklahoma or Montana, if 
commercial goods are going to be produced on a national scale for 
national markets, producers may be best served if there is a single 
product standard that applies nationwide. In addition, consumers may 
benefit from national product standards, insofar as lower compliance 
costs result in lower consumer prices.
    Allowing States to adopt more stringent product standards of their 
own poses the risk of one State externalizing the costs of its 
environmental preferences onto out-of-state market participants. For 
instance, if California and several northeastern States adopt more 
stringent emission standards for automobiles, and this produces a de 
facto national standard that increases production costs, consumers and 
workers in other States may end up bearing a portion of the costs of 
more polluted States' preference for cleaner vehicles.
    It is likely that the inherent economies of scale from the adoption 
of a single national standard for products sold in interstate commerce, 
such as automobiles, have declined since the adoption of section 
209(b). The costs of meeting variable State standards has declined with 
the development of customized manufacturing processes and just-in-time 
inventory. Insofar as manufacturers are capable of tailoring production 
for different markets, state-specific product standards may not 
necessarily allow one State to externalize the costs of its 
environmental preferences on another. This does not mean that such 
concerns are wholly unwarranted, however. Nor does it alter the 
fundamental policy choice made by Congress that is reflected in section 
209(b) of the Clean Air Act. If Congress believes the relevant trade-
offs are different today than when 209(b) was adopted, then it should 
amend the statute.
    Were the EPA to deny a waiver of preemption under section 209 of 
the Clean Air Act, this would not prevent California and other States 
from moving forward to adopt and implement climate change policies. Nor 
will ``further delay . . . result in California losing its right as a 
State to develop forward-thinking environmental policies,'' as claimed 
by Governor Arnold Schwarzenegger. Regardless of how or when the EPA 
acts, California and other States would remain free to adopt greenhouse 
gas emission controls on sources other than motor vehicles, and adopt 
other policies to encourage reduced energy use and conservation. In 
short, nothing in the Clean Air Act would prevent States from adopting 
policies to reduce greenhouse gases, the costs of which would be born 
by those States that decided to act.
    Conversely, were the EPA to grant California's request for a 
waiver, this would not necessarily prevent the Federal preemption of 
California's greenhouse gas emission controls under other laws, such as 
the Energy Policy and Conservation Act (EPCA). The National Highway 
Transportation and Safety Administration has argued with some force 
that Federal fuel economy standards preempt State regulation of 
greenhouse gas emissions. While the Supreme Court concluded in 
Massachusetts v. EPA, 127 S.Ct. 1438 (2007), that the existence of 
Federal fuel economy program under the EPCA did not preclude the 
conclusion that the EPA had authority to regulate greenhouse gas 
emissions, it also noted that greenhouse gas emission controls and fuel 
economy regulations could ``overlap.'' Massachusetts v. EPA does not 
establish the proposition follow that State efforts to control 
greenhouse gas emissions are not preempted by Federal fuel economy 
rules. If California's standards are preempted by the EPCA, the grant 
of waiver under section 209(b) would not cure this defect.
    Given recent news accounts suggesting that the EPA has been 
unusually sluggish in evaluating California's waiver request. Prior to 
the Supreme Court's decision in Massachusetts v. EPA, the Agency had 
ample reason to defer action on California's waiver request. First, the 
EPA's legal position in that litigation suggest that the waiver 
provision was inapplicable. Equally important, it would have been 
perfectly reasonable for the EPA to decide to defer any action until 
the resolution of the litigation and a judicial clarification of the 
scope of EPA's authority and the applicability of the waiver provision.
    Massachusetts v. EPA was decided less than 2 months ago. In that 
time, the EPA has opened public comment on California's waiver request. 
If the past is any guide, it could take several months or more for the 
EPA to review the applicable comments, reach a final determination, and 
publish a final rule along with a reasoned explanation of its decision. 
This is not unreasonable delay--and certainly not delay sufficient to 
justify legal action. It is the standard, deliberate pace of Federal 
administrative action--a pace that has not seemed to trouble California 
in the past.\4\ The only apparent difference here is the desire for 
California to have an EPA waiver as a defense in ongoing litigation. 
Given the issues at stake, it is entirely reasonable for the EPA to 
take its time to carefully consider the legal and policy questions 
presented by California's request for a waiver under section 209(b).
---------------------------------------------------------------------------
    \4\ In the past, as with CARB's ZEV emission regulations, 
California has begun implementing its regulations before submitting, 
let alone receiving approval for, a waiver request.
---------------------------------------------------------------------------
    Madame Chairman and members of this committee, I recognize the 
importance of these issues to you and your constituents. I hope that my 
perspective has been helpful to you, and will seek to answer any 
additional you might have. Thank you.

    Senator Boxer. Thank you.
    I understand Senator Whitehouse has asked if he can submit 
his opening statement, which is great.
    [The prepared statement of Senator Whitehouse follows:]

 Statement of Hon. Sheldon Whitehouse, U.S. Senator from the State of 
                              Rhode Island

    Madam Chairman, thank you for holding this important hearing, and 
for your commitment to addressing the growing threat of climate change 
to our Nation and our world. Your leadership and tenacity are 
inspiring.
    I also share your concerns regarding the Environmental Protection 
Agency's (EPA) failure to act expeditiously to approve the Clean Cars 
Program in California and 11 other States, including my State of Rhode 
Island.
    As my colleagues know, over 18 months ago California submitted a 
request for a waiver under the Clean Air Act to enact a stricter 
standard to regulate vehicle carbon dioxide emissions than is currently 
required under Federal law. Since that time, while the dangers of 
global warming mounted, the EPA has sat on its hands, doing little more 
than to issue a litany of excuses for its failure to respond to 
California's request.
    Meanwhile, the more than 100 million people of these 12 States, 
representing \1/3\ of our Nation's population, have been prevented from 
taking critically needed action to reduce their contributions to global 
warming, save money at the gas pump, and breathe cleaner air.
    Fortunately, last month, the Supreme Court stepped in. In its 
landmark decision in Massachusetts v. EPA, the Court made it clear that 
the Agency has the authority to regulate vehicle CO2 
emissions. This effectively clears the way for the Agency to grant 
California's--and the other participating States'--waiver requests.
    It is very frustrating, Madam Chairman, to be confronted with an 
EPA that must be taken to court and compelled to do its job. The time 
for delay has ended. The EPA must move forward and allow my State, and 
your State, and these other States, to take the urgent action we need 
to protect our environment and our communities' health.
    The benefits of the Clean Cars Program are without question. If the 
program were to take effect today, the 12 participating States would 
collectively reduce vehicle emissions by 392 million tons by 2020--a 
reduction level equivalent to taking 74 million cars off the road for 
an entire year. Or to put it another way, these savings are equivalent 
to the current global warming emissions of entire countries such as 
Ireland, Sweden, and Israel.
    A report released just yesterday by Environment Rhode Island 
compared the projected reductions in global warming pollution by each 
State participating in the Clean Cars Program. It found that by 2020 
each State will have cut its emissions by an average of 17 percent, 
equaling a combined total of 74 millions fewer tons of carbon dioxide 
being released into our environment.
    Furthermore, improved vehicle efficiency will save consumers money 
at the gas pump and reduce our dependence on foreign oil--bringing us 
one step closer to achieving true energy independence in the United 
States. The report by Environment Rhode Island estimates that the Clean 
Cars Program could reduce gasoline consumption by as much as 8.3 
billion gallons per year and save consumers up to $25.8 billion 
annually in fuel costs. With gas prices up an average of $1.02 since 
January, Madam Chairman, this is a no-brainer.
    But the more the EPA hems and haws, the longer Americans must wait. 
We can't afford that any longer.
    Before Californians, Rhode Islanders, and millions of other 
Americans can begin to experience the benefits of cleaner air and 
increased savings at the pump, the EPA must approve a waiver for the 
State of California. And 18 months is long enough. I look forward to 
hearing the testimony today from our panel and learning more about the 
ways in which the Clean Cars Program can begin to address the looming 
threat of global warming across this country.

    Senator Boxer. Each of us is going to have a round of 7 
minutes. I just want to say, Mr. Adler, your argument is so 
weak. Because you are basically saying that you can't see any 
compelling interest why California should receive this waiver. 
Now, do you know that California is a coastal State?
    Mr. Adler. Yes.
    Senator Boxer. OK. You understand that. You know that we 
are particularly vulnerable in our bay delta to saltwater 
intrusion from sea level, you understand that?
    Mr. Adler. Yes.
    Senator Boxer. We are vulnerable to levee collapse and 
flooding, you understand that?
    Mr. Adler. Yes. These provisions will not do anything 
measurably to reduce those risks.
    Senator Boxer. Whoa, whoa, whoa, wait, wait, wait. I am 
asking you if you understand these things about my State.
    Mr. Adler. Yes.
    Senator Boxer. You are here saying we have no compelling 
interest. I am telling you, read the brief. Because in it, it 
is very clear. The predicted decrease in winter snow pack would 
exacerbate all of these impacts by reducing spring and summer 
snow melt runoff critical for our State, for fish, for 
wildlife, for drinking water, our high ozone level, something 
that was responded to by our Attorney General.
    I guess at this point I would like to ask our Attorney 
General, I think you have been handed kind of a softball here. 
The lawyer is arguing here that we don't have a compelling 
case. Why don't you make that case?
    Mr. Brown. Well, let me just, I do believe he misstates the 
law. The National Highway Safety Administration did put in a 
brief that was preempting California's greenhouse gases. They 
acknowledged in the Ninth Circuit, last week, I was there, that 
they had no authority to do that. Because we moved to strike 
it. They withdrew it voluntarily.
    So NHTSA has no authority over the Clean Air Act. That is 
No. 1, as recognized by a three-judge panel in San Francisco in 
oral argument. No. 2, in Massachusetts v. EPA, the Supreme 
Court explicitly held that the Clean Air Act and the Energy 
Conservation Act are parallel statutes that run separately, 
they are not in conflict. They both have to be given their full 
effect. So each can regulate and each can utilize its 
Congressional power. That means we can't get a waiver under 
NHTSA, that we are preempted from CAFE standards, but when it 
comes to the Clean Air Act, we can regulate emissions.
    Now, within the merchants and manufacturers, Automobile 
Manufacturers case back in, I think 1979, the court expressly 
held that California has been a pioneer and innovator, and that 
is what the law envisions. When we look at compelling and 
extraordinary, part of the compelling and extraordinary 
condition is that California has led the way, on catalytic 
converters, on diesel, on zero emission vehicles, on low 
emission vehicles. We have always been out in front of the 
Federal Government.
    Now, when it comes to, and by the way, specifically, the 
compelling and extraordinary doesn't apply to every waiver that 
we ask for. It is, the general condition in California is 
compelling and extraordinary. That is why we get to have our 
own standards, unless they conflict with or they are not as 
protective as the Federal Government. So you don't, as has 
already been ruled in a court case, it isn't a specific 
measure. But even if you do, global greenhouse gases contribute 
to warming and they exacerbate soot, ozone, carbon monoxide, 
nitrous oxide and all the rest of them. So even if you try to 
apply it to each standard, this definitely applies.
    There is another ruling that says that even if the EPA 
isn't regulating a substance, California has the right to do 
that and a waiver should be granted for that.
    One other thing, I do think this point about California 
puts a few million cars under its regime, it is not going to 
stop global warming. Well, if the oil companies 20 years ago in 
1985 had started not building such bigger cars, had made fuel 
efficient cars, we would have less global warming. So when you 
look at California, look at California, look at the other 11 
States, look at the Federal Government that is likely to 
follow, look at other countries that will follow either our 
good example or our bad example.
    When you take that train of consequences, then I think you 
make a very compelling argument that California will reduce 
global warming by these standards as they are embodied in other 
authorities around the country and around the world. We either 
push reduction or we push the opposite. There is no neutral 
here. You are either trying to reduce global greenhouse gases 
or you are trying to increase them. That is why I think the 
case today was overwhelming and compelling.
    Again, the fact you have CAFE standards and the fact that 
you regulate emissions under the Clean Air Act and you get more 
efficiency, those are not incompatible. The Supreme Court in 
Massachusetts v. EPA said exactly that. So on very strong 
ground, I think the EPA Director, unless ordered by Bush or 
Rove or somebody, will grant us the thing, and if he doesn't, 
we are going to sue. I will state for the record, we will win 
that lawsuit. Unfortunately, it will be 2 years from now, and 
we will be that much more in the hole. It is going to cost us 
that much more money and we will have that much more 
environmental pollutants in California, all as a result of the 
auto companies want to make more profit with their gas-guzzling 
cars and they invoke consumer choice and safety, both of which 
are bogus in this case. Because the national interest requires 
the kind of pathway that California under both parties is now 
pursuing.
    Senator Boxer. I want to thank you for that. I think we 
needed to hear that. It is interesting, it is kind of like a 
lawyerly debate.
    I would ask unanimous consent to place in the record an op-
ed piece written by Arnold Schwarzenegger that just ran Monday. 
I am just going to read a little bit of it. ``It is bad enough 
that the Federal Government has yet to take the threat of 
global warming seriously, but it borders on malfeasance for it 
to block the efforts of States such as California, Connecticut 
and others that are trying to protect the public health and 
welfare.'' I think the point he makes here is, for 16 months 
the EPA has refused to give us, California, permission to move 
forward. Even after the Supreme Court ruled in our favor last 
month, he writes, ``the Federal Government continues to stand 
in our way.''
    Now, Mr. Adler says, oh, it would be terrible for them to 
act so quickly. Quickly? They got that waiver in 2005. We have 
gotten 40 waivers over the past years without delay. So I want 
to go on record, along with my Attorney General, our top lawyer 
in our great State, that anything I can do, to do an amicus or 
anything else, I will be right there with you. But it is my 
hope that at least some of us on this committee are going to 
keep the pressure on Mr. Johnson to grant this waiver.
    Senator Inhofe, you have 7 minutes.
    Senator Inhofe. Thank you, Madam Chairman.
    Mr. Adler, General Brown said you are misstating the law. 
Let me just ask you a couple of questions here. The EPA has 
granted dozens of waivers to California in the past. How is 
this waiver different from some of those in the past?
    Mr. Adler. The waivers in the past dealt with urban air 
pollution problems, dealt with the sorts of problems where 
California could argue that its concern, its interest, was 
fundamentally different. California could argue that, for 
example, the Los Angeles Basin had particularly severe ozone 
levels, and therefore more stringent controls on vehicles were 
necessary than were necessary in other parts of the country 
that didn't have the same high levels of air pollution.
    Because climate change is a global phenomenon, that is not, 
that doesn't present the same sort of question as a legal 
matter. It is not a question of whether or not global warming 
poses risks and threats. It does. The question is not whether 
or not California is at risk from climate change. The question 
is whether or not California has a distinct need to adopt these 
standards to address extraordinary and compelling and 
compelling conditions that California faces. That is where this 
waiver is different.
    As I say in my testimony, I don't think it is an open and 
shut case. But I think there would clearly be grounds for EPA 
to deny the waiver if it chose to, and if EPA were to grant the 
waiver, I don't think it is altogether clear that that would 
stand up in court. The language of the prior, cases involving 
waiver litigation in the D.C. Circuit do not establish that EPA 
has the sort of discretion that Governor Brown suggested, or 
that CARB has that sort of discretion. They dealt with a 
fundamentally different context, the sort of context that this 
provision was designed to address. Climate change presents a 
different question.
    Senator Inhofe. So you would say, well, California 
contended that the Supreme Court decision in Massachusetts v. 
EPA supports their waiver request, then would you disagree with 
this?
    Mr. Adler. I would disagree with that. It establishes two 
things that are relevant. No. 1, it establishes that if 
California is going to regulate greenhouse gas emissions, a 
waiver is required, because it established that the Clean Air 
Act does apply to greenhouse gases. Whereas before that, 
California could at least plausibly have argued that they 
didn't even need a waiver.
    No. 2, is that it establishes that two Federal agencies can 
administer their own regulatory programs in consort with one 
another and without contradicting each other, even though they 
overlap. That is a fairly traditional way of interpreting 
Federal statutes, that if there are two Federal statutes 
administered by two Federal agencies, Federal courts assume 
that Congress didn't mean to create a problem, but that they 
should work together.
    But when we're looking about preemption of State law, that 
is not the traditional way we look at things. The language in 
the Supreme Court opinion, and I have the page right here, it 
is page 29 of the slip opinion, pointed out that the statutory 
obligations were different, but also noted that these overt 
obligations may ``overlap.'' In the preemption context, if a 
Federal standard overlaps with a State standard, that is 
grounds for what the Supreme Court refers to as conflict 
preemption and would be grounds for finding preemption. Whether 
or not it was right for NHTSA to try and submit a brief in a 
case or not is irrelevant to the question of Federal law.
    The question of Federal law about whether or not 
California's standards relate to fuel efficiency is an open 
question. Massachusetts v. EPA does not resolve it one way or 
the other.
    Senator Inhofe. All right. General Brown, in your 
statement, you talked about the sea level could rise by, I 
think you used 10 feet, Al Gore used, 2 months ago, 20 feet. It 
is interesting that we talk about the IPCC, and I have always 
contended that IPCC is very political. They have the summary 
for policymakers that they come out with first, that is what 
everyone who wants to believe that this is a policy that is 
consistent with theirs, that the scientists back this up.
    On the other hand, just last February, the IPCC came out 
downgrading the estimates of sea level rise to as low as 7 
inches by 2100. Even at its worse case scenario, they have 
actually cut this in half. You ask a very good, and before 
leaving the IPCC, at the same month that they are downgrading 
the sea level rise, they are also downgrading the amount of 
contribution of anthropogenic gases from human activity, saying 
that that from livestock exceeds the entire transportation 
segment. This is something fairly recent that they came out 
with.
    But you ask a legitimate question. I think you are wrong, 
but assume you are right, why would we not go ahead and take 
whatever steps that we are talking about anyway. I would have 
to respond to that, because I think it is a legitimate 
question. Unless we are certain that it is right, I don't want 
to pass what would be, would equate to a very large tax 
increase. If you want to use the Wharton econometric survey, 
they said each family of four, it would be $2,700. That would 
be 10 times greater than the tax increase of 1993. Then MIT 
came out just recently and talked about the Sanders-Boxer bill, 
that this wouldn't be $2,700, it would be $4,500 it would cost 
each family of four. Even the more modest McCain-Lieberman 
approach would be $3,500.
    So I am saying that it is, there is a huge cost to these 
things. That is one of the reasons that I keep approaching 
this.
    Getting back to you, Mr. Adler, in your testimony you focus 
on the second criterion of the 209(b). Does this mean the EPA 
could not reject the waiver request on any other grounds?
    Mr. Adler. There are two other requirements in section 209. 
One, the EPA has to determine that California's conclusion that 
the standards are sufficiently protective or equally protective 
is not arbitrary and capricious. That would be a very fact-
based inquiry.
    What EPA would have to show is that for example, the 
California Air Resources Board maybe ignored the effects of 
fleet turnover or the slowdown in fleet turnover that would 
result from higher automobile prices. To know whether or not 
the waiver request satisfies that requirement would require 
looking through the various technical information that CARB 
looked at. That is a very deferential review. The EPA has a 
high burden to reject a waiver on those grounds.
    The third one, which is more interesting, given the timing 
of this, is that the California standards must be consistent 
with EPA's regulations of emissions. Since EPA is only now in 
the process of adopting Federal standards for greenhouse gases, 
there is this question of how can you ensure that State 
standards are consistent with Federal standards that have not 
been written yet.
    Again, since California has done this a lot of times, has 
done this 40 some times before, I assume that the California 
Air Resources Board made sure its enforcement and testing 
protocols would comply. But if not, that would be another 
ground to reject the waiver.
    Senator Inhofe. Thank you.
    Senator Boxer. Thank you very much.
    Senator Lautenberg.
    Senator Lautenberg. Thank you, Madam Chair.
    Attorney General Brown, it is nice to see you, Jerry. It 
has been a long time. I am glad to see you in the service of 
government. Your continuing encourages me as well.
    The auto industry sued to block implementation of the EPCA 
standards, claiming that the emissions reductions are not 
technologically feasible. Now, I just want to show you one 
chart there that shows the sheer neglect, didn't pay any 
attention to CAFE standards. The measurement got to where it 
was in 1994, 1984, I am sorry, and it continues on a straight 
line without any improvement at all.
    Now, if we look at the other chart, given higher CAFE 
standards around the world, as displayed here, how can the auto 
industry argue that fuel economy improvements and the emissions 
reductions that accompany them are not possible? This is the 
United States. Here are the other countries, I don't know 
whether it is visible from a distance, but Canada, Australia, 
China, Japan and the European Union. Here we are, looking out 
to 2010, and it is going to look like, well, let's look at 2007 
right here, where we are.
    Other countries have found it quite feasible, quite simple, 
apparently, because they have done it. In one case, they have 
taken the lead in car sales away from the practical inventors 
of the industry. So how can they argue that these improvements 
in the emissions reduction of the company are not possible? Is 
there any logical explanation?
    Mr. Brown. Well, there is some logical explanation. In some 
of these other countries, there are higher fuel taxes. So 
therefore, smaller cars are more attractive in the marketplace. 
So adapting to our particular situation, the car companies have 
found their biggest profit is in the heaviest, least efficient, 
most harmful from a CO2 point of view vehicle. Since 
1985, as you showed, the line is flat.
    They build cars that are now up to 500 horsepower. It is 
incredible the amount of innovation in terms of power and size. 
Had that all gone to reducing fuel expenditure and greenhouse 
gases, we would be in a much better place today.
    So yes, they can do it. By the way, this business about 
pricing. Pricing is kept very confidential. They try to hide 
it, they try to keep it private in the Vermont case where they 
are suing to invalidate the California regulations. Some of it 
did come out. The studies that the CARB has done is that the 
costs have turned out to be much less than the industry 
projected, and the pricing responds to many other factors, 
other than the introduction of fuel economy standards.
    So they can do it. They don't want to do it, because there 
is a financial burden because of the decisions they have made. 
They are part and parcel of the regime that we operate under 
that works for big gas-guzzling cars, and they went from 9 
percent to 50 percent. When America was at 9 percent minivans, 
people were just as happy as they are today. Now the sacred 
mantra is consumer choice. Well, by and large, that is true. 
But there are a lot of things we don't let consumers buy 
because of the harmful effect.
    Senator Lautenberg. Permit me to rescue some of my time 
here.
    Mr. Brown. Go ahead, I am sorry. I am not used to this role 
here.
    Senator Lautenberg. The enthusiasm that we share is 
pervasive. I have a limited amount of time to pervade.
    When we see what has been done and we look at an industry 
that was a premier industry in the field for years and years 
and years, and how we let it escape from us and have Toyota 
taking over the sale of more cars in the United States than 
does our biggest manufacturer, it is pitiful.
    Mr. Grannis, the EPA now must make an endangerment finding 
to determine if the public at large has been endangered by 
EPA's failure to regulate vehicle emissions. We go from 
California to New York. Is there any doubt in your mind that 
your States have been endangered by global warming? What 
evidence can either you provide to demonstrate this harm?
    Mr. Grannis. Senator, I am glad you asked me the question, 
because this is obviously an issue that far exceeds just 
California. This is an issue that at least for the 12 States, 
11 other States that want to follow in California's footsteps, 
we have all looked at the same information that has been put 
out there about the impact of global warming on our States, 
agricultural seasons changing, flooding, soil erosion and shore 
erosion, rising waters, changing temperatures, shorter ski 
season, a whole host of issues that other States have 
identified.
    But we are in this together. Eleven States in addition to 
California----
    Senator Lautenberg. Including mine, of course.
    Mr. Grannis [continuing].----are following this model. I 
don't think we are arbitrary, I don't think we are capricious, 
we are not nuts. We are not irresponsible. We believe that this 
is an issue that affects far more than just California. We are 
obviously getting the benefit of piggybacking on the great work 
that California Department of Air Resources has done and their 
environmental board and their Governor and Senators have done 
in pushing this issue.
    But clearly this is an issue that is of national 
importance. It affects at the very least 11 other States 
besides the State that is looking for this waiver.
    Senator Lautenberg. We see it in marine ecology, we see it 
in the loss of coral, we see it in the reduction of species, we 
see it in so many ways. Do you know that there was a male fish, 
female fish taken out of the Potomac that had--the reverse, I 
am sorry. No, it was a male fish that had female eggs in its 
body when it was taken out of the Potomac River.
    Mr. Grannis. Even the spawning season for striped bass, in 
our great fisheries in the Hudson River are changing. The 
charter boat captains are reporting changing fishing conditions 
and things that they have experienced in the past. It all adds 
up. I don't think any one single element makes the case. But 
collectively, across the country, there are issues that have 
arisen that are very similar.
    Senator Lautenberg. So Mr. Attorney General, how dare you 
say that there is a compelling reason to change these things?
    [Laughter.]
    Mr. Brown. I will tell you something. I want to hear his 
response to this. California doesn't have to say that the 
compelling reasons are unique to California. You might take 
that at the first reading of the statute, but court 
interpretation has said that it is compelling. There is no 
doubt it is compelling, no doubt it is extraordinary. The fact 
that it is true all over the world, everywhere else, that 
doesn't negate the compelling quality in California. That is 
No. 1. No. 2, as climate goes up, the criteria pollutants get 
worse, like ozone and carbon monoxide and the rest of it.
    So we are on very solid ground. Just one final point here, 
and I will make it very quickly. In the Massachusetts case, the 
minority said that, oh, the damage to Massachusetts was so 
trivial that Massachusetts had no standing to sue. The majority 
said, well, it is a small little impact there relative to 
everyone else, but that is enough for standing. So that small 
impact in California will be judged by the majority in 
accordance with the same rule. It is enough for the waiver, 
just like Massachusetts had enough impact for a smaller State 
in order to bring a suit under the standing rules in the U.S. 
Supreme Court.
    So I heard him say this is not crystal clear. You are 
right. Depending on who is on the Supreme Court. But it looks 
to me like a five to four majority would go this way. Now, if 
Scalia and Thomas and the rest of them, very clearly, they 
spoke what they think. But that is probably why the next 
Presidential election is so important.
    [Laughter.]
    Senator Boxer. Let's not get off on that one. We have 
already gotten ourselves into far too much trouble today with 
our hearing.
    But thank you, Senator, for eliciting such a good response 
from our witnesses.
    Senator Whitehouse, please go forward with your questions.
    Senator Whitehouse. Thank you, Madam Chair.
    I just wanted to show the flag here on behalf of Rhode 
Island. We were one of the original 13 States and now we are 
one of the EPA 12 that are logjammed in behind the EPA's slow 
process. General Brown, I particularly want to welcome you. I 
was Attorney General of Rhode Island and I am very glad to have 
you in our Attorney General corps. My Attorney General, my 
successor, Patrick Lynch, is down here today, over at the 
Environmental Protection Agency, arguing for the waiver. I 
salute him and encourage him in that battle.
    The point that I would like to make is the one about the 
delay. I know Mr. Adler said that 2 months is expecting an 
awful lot to get a Federal Agency to move in. But if you look 
back at the history of this thing, EPA had sat on its hands and 
given us a litany of excuses about this for years. Over and 
over again, the courts have had to compel EPA to do its job. 
While EPA hems and haws, the rest of us have to wait and the 
situation worsens.
    When you have an issue that is as serious as this one, and 
I really commend our Chairman for bringing this forward and 
keeping the pressure on. Because the backside of Mr. Adler's 
argument is that this isn't just a California problem. This is 
a global problem. This is a problem for our species. When the 
top environmental agency of the U.S.Government doesn't take it 
seriously, it is very frustrating. They are giving every signal 
now that they really don't take it seriously. To Mr. Adler's 
point, the arguments that were made in our favor in 
Massachusetts v. EPA were not frivolous arguments. They were 
not nonsensical arguments. Indeed, they prevailed. They were 
successful arguments in the U.S. Supreme Court.
    So the idea that the Environmental Protection Agency has to 
start from a cold standing start now on an issue of this 
magnitude, setting aside that they are on the wrong side of the 
issue to begin with and they took the wrong side, the fact that 
they didn't even prepare in advance for the eventuality they 
might win so they could move out rapidly I hold against them. I 
am not willing to give this Environmental Protection Agency a 
pass on however long it takes them to go through their 
administrative procedures. They could have run on parallel 
tracks for an issue of this magnitude. There is no reason for 
them to be hiding behind the skirts of bureaucratic delay. It 
is their delay, they caused it.
    It is just, I can't tell you how frustrating it is to have 
our top environmental agency engage in all these things. I 
really regret that the position you have taken, Mr. Adler, is 
to sort of vouchsafe the slow walking administrative delay 
aspect on a serious problem as if they were incapable of doing 
it any other way. Because I don't think they are incapable of 
doing it any other way. I have been an administrator. You can 
be creative. You can two-track things. There are all sorts of 
things you can do if you want to. If you want to.
    Mr. Adler. That has never been EPA's practice. That has 
never been EPA's habit. In the past, when Congress has felt the 
Agency is moving too slow on these sorts of issues, Congress 
has forced action.
    In fact, that is the history of the vehicle emissions 
standards in the first place, when Congress first authorized 
the adoption of vehicle emissions standards, it delegated that 
authority to the EPA's precursor, in part because the auto 
industry thought that they would lead to a slower process. 
Congress then realized that the administrative process is 
really slow, because you have to go through a rulemaking. You 
have to prepare yourself for litigation. You have to make sure 
everything is in the record. Because if it is not in the 
record, it doesn't matter how good an argument it is; when you 
get sued you are going to get thrown out of court.
    Congress came back in and then adopted vehicle emissions 
standards directly into the Clean Air Act. At the end of the 
day, if urgent action is needed, Congress is capable of acting 
much more quickly and setting much firmer deadlines than 
agencies that are bound by the Administrative Procedures Act 
and all sorts of court judgments about how they have to devote 
their resources.
    I am not going to defend that system. But as someone who 
teaches administrative law, I can tell you that is the norm, 
that is what has been set up. I can give you examples of 
instances where EPA lost cases years ago and has still yet to 
respond with a proposed rulemaking or a notice of proposed 
rulemaking or anything of that sort. That is not unusual.
    Senator Whitehouse. I am not comforted by the argument that 
they could be slower.
    [Laughter.]
    Senator Whitehouse. Thank you, Madam Chair.
    Senator Boxer. Picking up on that point, it is another 
ridiculous--excuse me for being so blunt, but that is the way I 
am--it is a ridiculous point, sir. If you are a student of 
government and those of us who have served in legislatures or 
who have been governors and served in any legislature, that is 
a slow process. How a bill becomes a law takes a long time.
    An administrator of an Agency, this is why I share the 
frustration with Senator Whitehouse on this point, merely needs 
to, with a stroke of a pen, get things done. You can shake your 
head all you want.
    Mr. Adler. Under the Act, that is not possible.
    Senator Boxer. Excuse me. If the Environmental Protection 
Agency was true to its mission, rather than being the EPA, the 
Environmental Pollution Agency, which I call it, under this 
Administration, they could do this. Forty times they did it in 
the past, we never had to pass legislation, those 40 waivers.
    Mr. Adler. But they are often very slow. In some cases, 
California was enforcing the standards before EPA had granted 
the waiver.
    Senator Boxer. But sir, your initial point, which I take 
issue with, Congress has to act and pass legislation, and you 
cited a couple of cases. Look. The fact is, if an agency is 
dedicated to its mission, it is a beautiful day every morning 
when you wake up and say, how can I make this country 
environmentally sound, how can I protect the health and safety 
of the people.
    This is what it used to be like under Republican and 
Democratic administrations. I always go through when the Clean 
Air Act was passed, when the Safe Drinking Water, the Clean 
Water Act, the Endangered Species Act, the Superfund, the 
Brownfields, was under Republican and Democratic 
administrations until we got here. So little has been achieved 
here.
    So it is really a question of will. I also agree with 
Senator Whitehouse, you can't sit here and tell Senators that 
it is easier for us to get legislation through and signed into 
law. Because we live this every day.
    Now, I am going to close this and just make a few points, 
which some of you will be happy with and some of you will not 
be happy with. One, global warming is real. There is 100 
percent agreement that it is real by the world's leading 
scientists, clearly. Those same leading scientists tell us that 
they are 90 percent certain, 90 percent certain, that human 
activities are the cause.
    Now, if a doctor, and I want you to think about this, if a 
doctor came and told you that your child, that there was a 90 
percent chance that your child had cancer, and that an 
operation would cure him, you would act very fast. All of us 
would. I believe we really would. If we went to all of the 
leading doctors, they all agreed, we would act.
    Now, California is acting on an issue and 11 other States 
are coming with us. There will be more States. They have that 
right under the Clean Air Act. They won at the Supreme Court, 
much to the chagrin of people who don't want a change in the 
status quo. The waiver was filed in 2005, correct me if I am 
wrong, isn't it May 2007? This isn't a rush job we are asking 
for, we are asking for it to do this. They hid behind this 
phony argument that the Clean Air Act couldn't in fact regulate 
greenhouse gas emissions.
    I am not a lawyer. I am married to one and I have a son who 
is one, so I am surrounded by lawyers. I read that Supreme 
Court decision. It is plain English. It is pretty clear. They 
chastise this Administration.
    So this committee, the majority side, is going to keep the 
pressure on. We have set the hearing for the EPA to come before 
us and answer our questions. We hope that it won't be a 
confrontation, but an opportunity for them to use this platform 
and I will send a signal now to Mr. Johnson, if any of his 
people are here, I hope you are here taking copious notes, that 
if Mr. Johnson uses that as a platform to say today, I am 
announcing we are granting the waiver, that I personally will 
leave this podium and give him a hug.
    [Laughter.]
    Senator Boxer. This may or may not matter to Mr. Johnson, 
but it would be very different than most of our confrontations.
    So this issue isn't going away. I want to make the final 
point. This is a bipartisan issue. Only here it is not. Out 
there in the world, and Jerry Brown can tell you the amazing 
support for his position, for the Governor's position across 
the breadth of the political spectrum in my State. Everyone has 
said, this is a challenge, we are not afraid of it, we approach 
it with hope, not fear. We are going to act and we are going to 
stand up to the special interests and make our world a better 
place and we are going to start here in a neighborhood we call 
California.
    For this Administration to stand in the way of California 
and these other States, when they always say they are for 
States' rights, is hypocritical, to put it very mildly. I will 
save my stronger language for another day, but I hope that we 
won't have to have any more confrontations.
    I just want to thank this panel. Mr. Adler, two against 
one, you held your own, even though you were wrong.
    [Laughter.]
    Senator Boxer. I seriously appreciate your coming here, 
because I know it is, it is a hot issue, global warming issue. 
That is a little bit of a joke, too.
    Then to the other two witnesses, to Jerry Brown and Pete 
Grannis, who are on really, you are at ground zero in this 
fight, you are at ground zero. I am so proud of both of you. I 
particularly want to say of my Attorney General, because he 
speaks with knowledge, information, experience. So many years 
ago when I was in local government and Jerry Brown was 
Governor, he started a very interesting organization called 
Solar Cal Council. Now, you immediately show your age when you 
remember that. But the fact is, all those years ago, and we are 
talking the 1970s, it was Jerry Brown who said, you know, we 
have to do more to become energy independent. In those many 
years ago, he got me interested in it. Here I sit. It is 
interesting, as the Chair of this committee, and there he sits 
now, at a pivotal moment when we are going to fight and win 
this battle. If we don't win it today, we will win it tomorrow.
    So I want to just thank you for your eloquence. The 
committee stands adjourned.
    [Whereupon, at 3:54 p.m., the committee was adjourned.]
  

                                  
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