[Senate Hearing 110-1235]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 110-1235
 
       OVERSIGHT OF EPA'S DECISION TO DENY THE CALIFORNIA WAIVER

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



                                HEARING

                               BEFORE THE

                              COMMITTEE ON

                      ENVIRONMENT AND PUBLIC WORKS

                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                            JANUARY 24, 2008

                               __________

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




       Available via the World Wide Web: http://www.fdsys.gpo.gov


                               __________




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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED TENTH CONGRESS
                             SECOND 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         JOHN BARRASSO, Wyoming1
BERNARD SANDERS, Vermont             LARRY E. CRAIG, Idaho
AMY KLOBUCHAR, Minnesota             LAMAR ALEXANDER, Tennessee
SHELDON WHITEHOUSE, Rhode Island     CHRISTOPHER S. BOND, Missouri

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

1Note: During the 110th Congress, Senator Craig 
    Thomas, of Wyoming, passed away on June 4, 2007. Senator John 
    Barrasso, of Wyoming, joined the committee on July 10, 2007.



                            C O N T E N T S

                              ----------                              
                                                                   Page

                            JANUARY 24, 2008
                           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...     2
Lieberman, Hon. Joseph, I., U.S. Senator from the State of 
  Connecticut....................................................     5
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware..     7
Lautenberg, Hon. Frank R., U.S. Senator from the State of New 
  Jersey.........................................................     8
Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland     9
Sanders, Hon. Bernard, U.S. Senator from the State of Vermont....    12
Klobuchar, Hon. Amy, U.S. Senator from the State of Minnesota....    13
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode 
  Island.........................................................    15

                               WITNESSES

Johnson, Stephen L., Administrator, U.S. Environmental Protection 
  Agency.........................................................    16
    Prepared statement...........................................    19
    Responses to additional questions from Senator Boxer.........    28
Douglas, Hon. James, Governor, State of Vermont..................    65
    Prepared statement...........................................    67
O'Malley, Hon. Martin, Governor, State of Maryland...............    71
    Prepared statement...........................................    73
    Responses to additional questions from Senator Inhofe........    77
Rendell, Hon. Edward G., Governor, Commonwealth of Pennsylvania..    77
    Prepared statement...........................................    80
Cox, Hon. Mike, Attorney General, State of Michigan..............    84
    Prepared statement...........................................    87
Haaland, Doug, Director of Member Services, Assembly Republican 
  Caucus, State of California....................................    91
    Prepared statement...........................................    93
Doniger, David, Policy Director, Climate Center, Natural 
  Resources Defense Council......................................   110
    Prepared statement...........................................   113
    Letter to Senator Boxer dated, January 30, 2008..............   128
    Response to an additional question from Senator Inhofe.......   130
Holmstead, Jeffrey R., Former Assistant Administrator for Air and 
  Radiation, U.S. Environmental Protection Agency................   131
    Prepared statement...........................................   134

                          ADDITIONAL MATERIAL

Statement, Corzine, Hon. Jon S., Governor, State of New Jersey...   140
Research Letter, On the Causal Link Between Carbon Dioxide and 
  Air Pollution Mortality, Mark Z. Jacobson, Department of Civil 
  and Environmental Engineering, Stanford University, Stanford, 
  CA.............................................................   143
Study, Stanford News Service, Study Links Carbon Dioxide 
  Emissions to Increased Deaths..................................   159


       OVERSIGHT OF EPA'S DECISION TO DENY THE CALIFORNIA WAIVER

                              ----------                              


                       THURSDAY, JANUARY 24, 2007

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The full committee met, pursuant to notice, at 10 a.m. in 
room 406, Dirksen Senate Office Building, Hon. Barbara Boxer 
(chairman of the committee) presiding.
    Present: Senators Boxer, Inhofe, Lieberman, Carper, 
Lautenberg, Cardin, Sanders, Klobuchar and Whitehouse.

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

    Senator Boxer. Good morning, everyone.
    The Committee will come to order. Just before I start my 
timer here, I want to explain what we decided is to have 
opening statements limited to 4 minutes, and then 5 minute 
rounds of questions. We will go around as many times as people 
need.
    So I think everyone knows that the purpose of today's 
hearing is to continue the Environment and Public Works 
Committee's investigation into the decision, my own opinion, an 
unconscionable one, by the EPA Administrator to deny California 
and many other States, as a matter of fact, affecting more than 
half the population of the United States, the opportunity to 
cut global warming pollution from motor vehicles.
    In my many years in the House and in the Senate, and I am 
very pained to say this as Chair of this Committee, I have 
never seen such disregard and disrespect by an agency head for 
Congress and for the Committee with the responsibility for 
oversight of his agency. When it comes to global warming, I 
think most people agree that time is of the essence. Yet 2 
years have gone by as EPA dragged out the process of reviewing 
California's petition for a whatever to fight global warming.
    It isn't just California that suffers, as I pointed out. 
Fourteen other States, and we are going to hear from three 
Governors today, Republican and two Democrats, have adopted 
California's standards or are in the process of adopting them. 
Another four are moving toward adopting those standards. So 
those 19 States represent more than 152 million, 152 million 
Americans, a majority of our population.
    I would like to place into the record a letter to 
Administrator Johnson signed yesterday by Governors, 
Republicans and Democrats, of 14 States, expressing their 
disappointment in EPA's unprecedented failure to abide by 
Federal law, ignoring the rights of the States and the will of 
millions of people. I would like to place in the record a 
statement by the speaker of the California Assembly. He calls 
on the EPA to reverse its decision for all the States involved 
and for the future of the planet.
    I would like to place into the record a statement from the 
Attorney General of California. He makes clear that it is 
crucial that EPA's waiver decision be reversed. I would also 
like to place into the record a statement from the Governor of 
Connecticut, Jodi Rell. Governor Rell objects to EPA's 
unprecedented decision to deny this waiver, blocking 
Connecticut from taking action. She strongly and unequivocally 
conveys her disappointment with the decision.
    [The referenced material was not received at time of 
print.]
    Senator Boxer. There remains much work to be done as we 
work to uncover the facts behind this decision. EPA has failed 
to fully respond to our request for information, which I will 
go into in the question time. I have never seen anything like 
it. We asked for the documents. First, we didn't get them when 
they were promised. Then we were told that the EPA staff would 
have to look over the shoulders of our staff and our staff had 
to pull off pieces of tape off these documents to find out what 
Administrator Johnson was advised by his staff.
    Do we have that tape here? We are going to show you that. 
Imagine, and it took the staff 5\1/2\ hours of time to 
transcribe 46 pages. This failure to cooperate with the 
Oversight Committee is unacceptable and must be corrected. The 
mission of the EPA is to protect human health and the 
environment. The Administrator's decision does neither. The 
people who pay the Administrator's salary have a right to know 
how he came to a decision that is so far removed from the 
facts, the law, the science, the precedent, States' rights and 
all the rest that goes with it. I will stop now and I will, 
when I get to the questions, I will explain to my colleagues 
what we have learned thus far. I will attempt in my questioning 
to get Mr. Johnson to give us more information that we have not 
been able to get.
    Senator Inhofe.

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

    Senator Inhofe. With equal righteous indignation, Madam 
Chairman, I would like to clarify something. There have been a 
number of press reports that Administrator Johnson refused to 
appear at a hearing in California on January 10th. I believe, 
and would have to say that there was no formal hearing on 
January 10th. Senator Boxer held a public briefing, it was not 
a hearing.
    From what I understand, that public briefing was basically 
a political event. In declining to participate, Administrator 
Johnson said he would appear at this Committee hearing, and I 
would point out that Administrator Johnson has never declined 
to participate nor send a representative to this Committee, 
either back when I was chairman or since you have been 
chairman.
    In fact, I would have to say I was surprised that Senator 
Boxer would invite a Bush Cabinet official to participate in a 
political event. To be honest, Mr. Johnson, if you had decided 
to show up there, I would have been very critical of you. This 
political event set a very negative tone to the Committee's 
handling of this issue. I am a very strong proponent of 
vigorous oversight to ensure that the Nation's laws are carried 
out in a manner intended by Congress and to ensure the 
executive branch is faithfully discharging its mission.
    But today's hearing is not that kind of hearing. Rather, it 
is more theater. There have been charges the Administration has 
been tardy with documents, but the EPA has been asked to 
collect and turn over large amounts of material, all of which 
needs to go through a normal process, be reviewed by numbers of 
staffers and by agency lawyers. The initial request gave only 2 
weeks, bracketing the Christmas and New Year's holidays, in 
which to respond.
    Where was the outrage and the rhetoric when the Clinton 
administration was repeatedly late in producing documents for 
this Committee? As I recall, the Clinton EPA was typically 
given far more time than the constraints placed on this EPA.
    When we focus on the substance of the debate, it seems 
clear to me that the waiver petitions should be denied. I 
encourage Administrator Johnson to formally make a final 
decision to do so. Over and over, it has been said that the EPA 
has never denied a waiver before. While that is untrue, and 
even Vermont concedes this in its litigation, it would be 
irrelevant even if it were true. In every instance, when 
California was granted a waiver in the past, it was to address 
``compelling and extraordinary conditions'' in the State. That 
is the standard, as clearly spelled out in 209(b), which we 
will be talking about quite a bit during the course of this 
meeting, 209(b) of the Clean Air Act.
    Now, tell me how California differs from other States when 
it comes to global warming? Carbon is a global issue, not a 
local one. In that regard, California is ordinary, not 
extraordinary. In fact, I think it is certainly relevant that 
California cannot show harm from global warming over the last 
two decades, because temperatures there have been declining, 
not increasing. We have a chart up here, and I want this chart 
entered into the record also, showing that the temperatures 
have been declining since 1985 in the State of California.
    [The referenced material was not received at time of 
print.]
    Senator Inhofe. California will not bear the burden of 
implementing it. That would be borne by other States. My own 
State of Oklahoma has 27,000 auto-related jobs. Of course, that 
is dwarfed by States like Michigan in comparison. In addition 
to Michigan, States represented on this Committee, such as 
Missouri, Ohio and Tennessee, have up to six times as many. The 
total job losses are 144,000 auto job losses.
    The effect that California's politicians are trying to 
achieve through this waiver provision is something they cannot 
achieve through Federal legislation, even tighter fuel economy 
standards than what the Congress passed in the Energy bill just 
last month. So I think that the Energy bill just passed means 
that Congress has already spoken to this issue. That law 
represents the will of Congress on fuel economy standards. If 
California legislators thought otherwise, they should have been 
more aggressive when this was discussed.
    Mr. Administrator, I look forward to hearing your 
testimony.
    [The prepared statement of Senator Inhofe follows:]
       Statement of Hon. James M. Inhofe, U.S. Senator From the 
                           State of Oklahoma
    Madame Chairman, I would like to clarify something, there have been 
a number of press reports that Administrator Johnson refused to appear 
at a ``hearing'' in California on January 10th. There was no formal 
hearing on January 10th. Senator Boxer held a public briefing, not a 
hearing, and from what I understand, that public briefing was basically 
a political event. In declining to participate Administrator Johnson 
said he would appear at this Committee hearing. I would point out that 
Administrator Johnson has never declined to participate or send a 
representative to a Committee Hearing.
    In fact, I would have to say I was surprised that Senator Boxer 
would invite a Bush Cabinet official to participate in a political 
event, and to be honest Mr. Johnson, if you had agreed to attend a 
political event like that I would have been unhappy with you.
    This political event set a very negative tone for the Committee's 
handling of this issue. I am a strong proponent of vigorous oversight 
to ensure that the nation's laws are carried out in the manner intended 
by Congress, and to ensure the executive branch is faithfully 
discharging its mission. But today's hearing is not that kind of 
hearing. Rather, it is theater.
    There have been charges the Administration has been tardy with 
documents, but EPA has been asked to collect and turn over large 
amounts of material, all of which needs to go through the normal 
process of review by agency lawyers. The initial request gave only 2 
weeks bracketing the Christmas and New Year's holidays in which to 
respond. Where was the outrage or the rhetoric when the Clinton 
administration was repeatedly late in producing documents for the 
Committee? as I recall, the Clinton EPA was typically given far more 
time than the constraints placed on this EPA.
    When we focus on the substance of the debate, it seems clear to me 
that the waiver petition should be denied, and I encourage 
Administrator Johnson to formally make a final decision to do so.
    Over and over it has been said that EPA has never denied a waiver 
before. While that is untrue--as even Vermont concedes in its 
litigation--it would be irrelevant even if it were true.
    In every instance when California was granted a waiver in the past, 
it was to address ``compelling and extraordinary conditions'' in the 
State. And that is the standard, as clearly spelled out in 209(b) of 
the Clean air Act. Tell me how California differs from other States 
when it comes to global warming? Carbon is a global issue, not a local 
one. In that regard, California is ordinary, not extraordinary.
    In fact, I think it is certainly relevant that California cannot 
show harm from global warming over the last two decades because 
temperatures there have been declining, not increasing, as this chart 
shows.
    California also will not bear the burden of implementing it. That 
would be born by other States. My own State of Oklahoma has 27,000 auto 
related jobs. Of course, that is dwarfed by states like Michigan. In 
comparison, in addition to Michigan, States represented on this 
Committee such as Missouri, Ohio and Tennessee have two six times as 
many.
    The fact is that California politicians are trying to achieve 
through this waiver provision something they cannot achieve through 
Federal legislation--even tighter fuel economy standards than what 
Congress passed in the Energy bill just last month.
    I think that the Energy bill just passed means that Congress has 
already spoken to this issue. That law represents the will of Congress 
on fuel economy standards. If California legislators thought otherwise, 
why did not one of them offer an amendment to address the issue?
    Mr. Administrator, I look forward to hearing your testimony.
    Thank you.

    Senator Boxer. Well, since Senator Inhofe went over about 
30 seconds, and I had 27 seconds left, I am going to use the 
remainder of my time before I turn to colleagues to respond.
    Let's be clear. This is the first time a waiver has ever 
been denied outright 50 times. I asked the Administrator to 
please come, I asked him in friendship, to please come to 
California, to please face the people who he had turned down 
and explain to them why. Governor Schwarzenegger sent a 
representative there, Attorney General was there. There were 
citizens there and colleagues.
    The fact is, Mr. Johnson refused to come, so I said, OK, 
you can't come, could you send someone else? No, no one else. 
Could you send documents, if no person can come? No. There were 
no documents. In all the years I have been around, I have not 
seen a committee treated this way. Senator Inhofe says that he 
was treated this way or the Committee was by the Clinton 
administration. I can truly say that I don't recall that. But 
if it was so, it was wrong then, and it is wrong now.
    As I say, I think it is important to put in the record that 
we asked him to come because we thought it would be a benefit 
to the people. Because the people need to understand why this 
happened.
    I said before I would show you the kind of, lack of 
cooperation we had. Colleagues, this is the tape, this is the 
tape that was put over, finally, the Administration had a way 
to use duct tape. This Administration, this is what they did to 
us. They put this white tape over the documents. Staff had to 
stand here, it is just unbelievable, and pull off, out of the 
sentences here. I mean, what a waste of our time. This isn't 
national security. This isn't classified information, 
colleagues. This is information the people deserve to have. 
This is not the way we should run the greatest government in 
the world. It does not befit us.
    So that is why I am worked up about it and think we have 
been treated in a very shabby way. I would call on Senator 
Lieberman. Senator, we have 4 minutes.

 STATEMENT OF HON. JOSEPH I. LIEBERMAN, U.S. SENATOR FROM THE 
                      STATE OF CONNECTICUT

    Senator Lieberman. Thanks very much, Chairman Boxer.
    The greenhouse gas emissions standards that California, 
Connecticut and many other States have adopted cover nearly 
half the new vehicles sold annually in America. As a result, 
the requirements will markedly reduce the Nation's greenhouse 
gas emissions, and consequently, while also reducing air 
pollution, dependence on foreign oil and consumers overall fuel 
costs. That is pretty good results from State leadership here.
    In my opinion, as we have discussed earlier, the Federal 
Government is not doing nearly enough to reduce America's 
greenhouse gas emissions. If the Administration will not work 
for responsible Federal action in this regard, then I believe 
it should, at the very least, stay out of the road that many 
State governments are taking for real forward-looking action to 
protect our citizens from global warming.
    Madam Chairman, I know you love music and lyrics. I was 
just thinking as we were putting this together that perhaps Bob 
Dylan's times they are rapidly changing. I am not going to 
sing, I want to reassure you. But his words as always are 
lyrical and poetic and relevant. The time are rapidly changing, 
you had a line about the road is rapidly changing. The one that 
comes to mind, please get out of the road, the new road, or the 
new one, he says, if you can't lend a hand.
    I think that is what w are saying here this morning, that 
the Administration has not stayed out of the road, out of the 
way of progress. It has in fact planted itself directly in the 
way that the States are taking, consistent with the whole 
Federal approach to Government. This is the classic American 
response to a problem: Federal Government, for various reasons, 
doesn't take action. The States, as Justice Brandeis said, 
laboratories of democracy, initiate, they try, they see how it 
works and then ultimately would come to a national solution.
    So first I would say the California standards do not 
threaten us with a regulatory patchwork. I am going to deal 
with the rationales that Administrator Johnson offered in his 
December 19th letter, because I truly believe they don't stand 
up to scrutiny. The first is that the California standards do 
not threaten us with a regulatory patchwork. Two standards, one 
applying to the half of the Country that chooses to adopt 
California's standards, and one applying to the other half 
simply do not make a patchwork.
    Second, the California Air Resources Board's analysis 
refutes the Administrator's assertion that the recently 
strengthened Federal fuel economy standard subsumes the 
environmental benefits of the California emissions standard. 
Cars subject to the California standard would in fact emit less 
global warming pollution than cars subject only to the Federal 
fuel economy standard.
    Finally, the statement in the denial letter that the 
California standards are not needed to ``meet compelling and 
extraordinary conditions'' directly contradicts the opinion of 
the U.S. Supreme Court in the case of Massachusetts v. EPA, 
issued last April, that is to say, April 2007. In fact, EPA's 
own statements, in my opinion, in that litigation. Thus 
Administrator Johnson, I say to you directly and respectfully 
that I believe your December 19th decision was wrong and I urge 
you to withdraw it and change course.
    Thank you, Madam Chair.
    [The prepared statement of Senator Lieberman follows:]
     Statement of Hon. Joseph I. Lieberman, U.S. Senator From the 
                          State of Connecticut
    Thank you, Chairman Boxer.
    The greenhouse gas emissions standards that California, 
Connecticut, and many other states have adopted cover nearly half of 
the new vehicles sold annually in this country. The requirements thus 
will markedly reduce this nation's greenhouse gas emissions and, 
consequently, make a real contribution to averting catastrophic global 
warming, while also reducing air pollution, dependence on foreign oil, 
and consumers' overall fuel costs.
    The Federal Government is not doing nearly enough to reduce this 
nation's greenhouse gas emissions. If the administration lacks the 
presence of mind to take responsible Federal action, then I believe it 
should, at the very least, stay out of the way of the many State 
governments that are taking real, forward-looking action to protect 
their citizens from global warming. To paraphrase Bob Dylan, ``Please 
get out of the new road if you can't lend your hand.''
    Unfortunately, the administration has not stayed out of the way. 
Instead, it has planted itself directly in the way of progress. The 
rationales that Administrator Johnson offered in his December 19 letter 
for standing in the way do not themselves stand up to scrutiny.
    First, the California standards do not threaten us with a 
regulatory patchwork. Two standards--one applying to the half of the 
country that chooses to adopt California's standards and one applying 
to the other half--do not make a patchwork.
    Second, the California Air Resources Board's analysis refutes 
Administrator Johnson's assertion that the recently strengthened 
Federal fuel economy standard subsumes the environmental benefits of 
the California emissions standard. Cars subject to the California 
standard would emit less global warming pollution than cars subject 
only to the Federal fuel economy standard.
    Finally, the statement in the denial letter that the California 
standards are not needed to ``meet compelling and extraordinary 
conditions'' seems to contradict the Supreme Court's April 2007 
decision in the Massachusetts v. EPA case, and the agency's own 
statements in that litigation.
    Thus, Administrator Johnson, I respectfully believe that your 
December 19 decision was wrong, and I urge you to change course.
    Thank you, Madame Chairman.

    Senator Boxer. Thank you, Senator Lieberman.
    Senator Carper.

STATEMENT OF HON. THOMAS R. CARPER, U.S. SENATOR FROM THE STATE 
                          OF DELAWARE

    Senator Carper. Thank, Madam Chair. Welcome, Mr. Johnson.
    I am proud of the work we did last year in raising CAFE 
standards. Many of us were involved. It was a lot of work. I 
personally worked a god deal of last year with the auto 
industry, with our colleagues, with the environmental community 
and a number of folks here, who like me have States that they 
represent that are home to automotive manufacturing. We forged 
a deal that is going to greatly increase vehicle efficiency 
over the next 10 years. We also greatly increased the renewable 
fuels standards. Between these two measures, we will reduce our 
reliance on foreign oil, help our auto industry, develop new 
vehicles and begin to reduce greenhouse gases from the 
transportation sector of our economy.
    That doesn't mean, though, that the EPA's work is finished. 
I think you know that. When the Supreme Court decided that EPA 
has the authority to regulate greenhouse gases in its 
Massachusetts v. EPA decision last year, the court said this: 
``But that DOT set mileage standards in no way licenses EPA to 
shirk its environmental responsibilities. EPA has been charged 
with protecting the public's health and welfare, a statutory 
obligation wholly independent of DOT's mandate to promote 
energy efficiency. The two obligations may overlap, but there 
is no reason to think the two agencies cannot both administer 
their obligations and yet avoid inconsistency.''
    I am going to come back in our Q&A and we will talk about 
inconsistency, something that, and harmony, harmonization 
between your agency that you and I have discussed before. But 
having worked so hard to make CAFE increases a reality last 
year, and having two auto assembly plants in my own State 
struggling with the rest of the domestic industry here in this 
Country, I am concerned about having two inconsistencies and 
possibly conflicting standards for automobiles. I am concerned 
about a potential policy train wreck between EPA and NHTSA. I 
think it would be even harder for the U.S. Department of 
Transportation and the State of California to coordinate to 
avoid these inconsistencies. They are real issues. They need to 
be contemplated.
    However, what concerns me most is that it does not appear 
that EPA has tried to address these concerns, at least not yet. 
Instead, it appears that EPA may have seen it as a convenient 
excuse for inaction, even though the Supreme Court dismissed 
these excuses less than a year ago.
    Madam Chairman, while this hearing is on whether EPA should 
have denied California's request for a Clean Air Act waiver, I 
want to take just a moment to focus on the broader issue that 
resulted in California even needing to make this waiver 
request. That is the lack of Federal action to reduce 
greenhouse gases. The reason why we have this conflict is 
because States are stepping up and acting while the Federal 
Government continues to do too little. We should be less 
concerned with stopping States from acting and more concerned 
with establishing a nationwide greenhouse gas reduction 
program, something this Committee has worked on last year, for 
several years.
    States are merely filling a vacuum caused by the Federal 
Government's inaction. If EPA would have acted to implement 
tailpipe emissions standards, California might not have been 
compelled to do so on its own.
    In addition to California, the Northeast and Mid-Atlantic 
States are getting ready to implement their regional greenhouse 
gas initiative next year. The western States are well on their 
way to implementing their own Western Climate Initiative. 
Pretty soon, we are going to have a majority of our Country 
implementing mandatory reductions in greenhouse gases. What are 
we going to do when that happens? How are we going to establish 
a single economy-wide trading system after all these States 
have already set up their own?
    I know many in Congress suggested that we need to preempt 
States from moving forward. I don't know that we need to 
preempt States to avoid a patchwork quilt of regulations. What 
we need to do is to lead. What we need to do is to lead, and 
the States won't have to do our job for us.
    Thank you, Madam Chair.
    Senator Boxer. Thank you very much, Senator.
    Senator Lautenberg.

 STATEMENT OF HON. FRANK R. LAUTENBERG, U.S. SENATOR FROM THE 
                      STATE OF NEW JERSEY

    Senator Lautenberg. Thank you very much, Madam Chairman.
    We are here once again, regrettably, to discuss EPA's 
failure to act to protect the environment. For the first time, 
after more than 50 approvals in its history, the EPA has denied 
California, New Jersey and other States a waiver to set 
emissions reductions on cars that are stronger than the Federal 
law. This standard simply would require new cars to emit 30 
percent less greenhouse gases by the year 2016. The Governors 
that are here today, Governors Rendell, O'Malley and Douglas, 
as well as Governor Corzine's, though not here, his statement 
that we will be introducing in the record, deserve credit for 
showing leadership when it comes to the environment by adopting 
the California standard.
    Madam Chairman, it is bad enough when the Federal 
Government fails to lead. But it is even worse when the Federal 
Government gets in the way of States that are trying to act in 
the interest of the public and in the absence of leadership 
from the EPA. Last year, EPA Administrator Johnson sat in that 
very seat and told this Committee, ``The Administration has 
been taking steps to tackle climate change. The denial of this 
waiver is taking a step in the wrong direction.''
    Now, as all of us know, greenhouse gas emissions are the 
cause of global warming, which is the most serious 
environmental threat we face, temperatures and sea levels are 
already rising. The Intergovernment Panel on Climate Change's 
recent report showed that the earth is warming at an alarming 
rate.
    In 2006, the temperature in the United States was 2.2 
percent, 2.2 degrees warmer than the average temperature 
throughout the 20th century. Despite compelling science, 
Administrator Johnson still denied this waiver. He argued that 
our cars do not need strong emissions standards at the State 
level, because of a recent increase in Federal fuel economy 
standards. To reach that decision, he overruled the advice of 
his own legal and scientific experts. They said the decision to 
deny the waiver was incorrect and would be overturned, they 
believed, in a court. The Administrator might have listened to 
his experts, because his decision, as I see it and most of my 
colleagues, is wrong. The California law, which 16 States are 
trying to adopt, goes further than the Federal law. If this 
waiver was granted, it would be the equivalent of taking 6.5 
million cars off the road, according to one estimate.
    It is an injustice to our environment, it is an injustice 
to our families. It is an injustice to our children and to the 
future generations of Americans for EPA to block the way. 
California, New Jersey and other States are taking EPA to court 
to overturn this irresponsible decision. I support that action. 
We shouldn't have to go that route.
    Chairman Boxer, myself, and other of our colleagues will 
soon introduce legislation to do the same thing. But while 
here, I hope the Administrator can explain to us why he chose 
to protect industry over protecting the environment for our 
children, grandchildren, future generations.
    Finally, Madam Chairman, and again I commend you for your 
resolve to examine this problem once again, I mentioned 
Governor Corzine did want to be here today, unable to join us. 
So I ask unanimous consent that his complete statement be 
included in the record of today's hearing.
    Senator Boxer. Without objection.
    [The prepared statement of Governor Corzine follows on page 
140.]
    Senator Lautenberg. With that, I thank you.
    Senator Boxer. I thank you, sir.
    Senator Cardin.

  STATEMENT OF HON. BENJAMIN L. CARDIN, U.S. SENATOR FROM THE 
                       STATE OF MARYLAND

    Senator Cardin. Thank you, Madam Chair.
    Madam Chair, let me start off by expressing to 
Administrator Johnson my deep disappointment in the failure to 
allow the States to move forward with the waiver. I say that 
for many reasons. First, the scientific information is very 
clear. I would have hoped that this decision would have been 
made based upon the legal responsibility and the scientific 
information that you have available and your agency.
    Second, this decision will affect the environment and 
health of the people of Maryland and this Country. So we have a 
responsibility to do what we can to make sure that we have the 
safest environment and health for the people of this Country.
    Third, I think the point that Senator Lieberman made is one 
that is very important to me. I served 20 years in State 
government, 8 years as speaker of our State legislature. I 
believe very deeply in federalism and the importance of our 
States to be able to move forward on programs that can help us 
develop the types of national policies that are important for 
our Country. I think your decision today really is an affront 
to federalism. It is an affront to our States to be able to 
move forward to protect interests of their citizens, but also 
to provide a way in which we can develop the appropriate 
national policy.
    Then last, the traditional role of the Environmental 
Protection Agency is to be the leader in protecting our 
environment. I think this decision really questions the 
leadership interest in the EPA in carrying out that historic 
role.
    So for all those reasons, I am extremely disappointed that 
the California waiver was denied. As you know, Maryland is one 
of those States that has filed with California, our legislature 
has passed the California standards and the waiver will affect 
the people of Maryland.
    Madam Chair, I must tell you I do look forward to hearing 
from Governor Martin O'Malley, the Governor of my own State, 
and other witnesses. I also look forward to working with you, 
Madam Chair, as we press ahead with legislation that will 
require EPA to do what it should have done 2 years ago. I 
firmly support the responsibility of Federal agencies to take 
appropriate regulatory action without congressional 
interference. But when the Federal agencies ignore their own 
science, scientists and good information, I think it becomes 
necessary for us to take action.
    I want to talk just a moment about the impact it will have 
on Maryland. Maryland's Clean Car program would have reduced 
carbon dioxide emissions by 7.7 million metric tons by 2025, 
according to an interim report recently issued by the Maryland 
Commission on Climate Change. EPA's denial of this waiver will 
result in tons of additional greenhouse gases polluting this 
region. That is unacceptable to me and to the people of 
Maryland, and it should be unacceptable to the EPA. Cars that 
will meet the new greenhouse gas standards would also help to 
clear out our air of nitrogen oxides, a contributing factor to 
photochemical smog. I say that because we all work in this 
area. You know what happens when we have those code red days. 
The action by Maryland would have made it more likely we would 
have had less code red days, which not only is a lack of 
comfort for us, but also affect the health of the people of our 
own State.
    As already pointed out, the Energy Independence Security 
Act will establish higher fuel economy standards at 35 miles a 
gallon. That is good news. But the California waiver standards 
would complement that and go further, to allow us to make even 
additional accomplishments.
    So Madam Chair, I hope that this hearing will lead us in 
the direction where we can find a way to implement the 
California waiver to allow those States to be able to move 
forward. I hope we can do that in convincing Administrator 
Johnson and the Bush administration to change their policy on 
this. If not, I hope that we can enact legislation to require 
that action.
    [The prepared statement of Senator Cardin follows:]
      Statement of Hon. Benjamin L. Cardin, U.S. Senator From the 
                           State of Maryland
    Madame Chairman:
    Thank you for holding this hearing today.
    Last year, this Committee held two hearings which focused on the 
California Waiver and EPA's inaction in addition to a hearing on 
related Supreme Court cases. Today we meet to discuss the EPA's 
regrettable decision to deny the State of California's request for a 
Clean Air Act waiver--nearly 2 years after the waiver request was made.
    Today's hearing serves as a first step in having Congress right 
this wrong.
    I look forward to hearing from Governor Martin O'Malley and the 
other witnesses. I also look forward to working with you, Madame 
Chairman, as we press ahead with legislation that will require EPA do 
what it should have done 2 years ago.
    I firmly support the responsibility of Federal Agencies to take 
appropriate regulatory actions without congressional interference. But 
when Federal agencies ignore their own scientists and legal experts, 
legislative intervention becomes necessary.
    Senator Boxer's bill will overturn this wrong-headed decision. I am 
proud to be an original cosponsor. Today's hearing will highlight the 
problems with EPA's decision. It will also serve as the first 
installment of our legislative effort to force the Agency to do the 
right thing.
    At issue in this oversight hearing is not only the extraordinary 
amount of time the EPA took to formally start the regulatory process, 
but also the very process itself. Specifically, how the Bush 
administration and EPA Administrator Johnson ignored the 
recommendations of career scientists and lawyers within the EPA to 
reach their decision regarding the California waiver.
    During today's hearing we will hear from a number of witnesses, 
including Governors from some of the states in support of this waiver. 
They will emphasize the importance this waiver has on their longer term 
plans to combat mobile source contributions to global warming while 
simultaneously protecting the health of their citizens and the 
integrity of the environment. I look forward to hearing this testimony.
    I wish to welcome Governor Martin O'Malley from my home State of 
Maryland. Over the last year, the Governor has brought extraordinary 
leadership to environmental issues by enacting forward-looking 
legislation.
    Governor O'Malley signed a number of environmental initiatives into 
law last year including the Maryland Clean Cars Act which calls for 
stronger emissions regulations for cars sold and registered in 
Maryland; he established the Maryland Green Building Council, which 
will advise the Governor and Maryland's General Assembly on how they 
can best use green building technologies in future State construction 
projects.
    Additionally, Governor O'Malley brought Maryland into the Regional 
Greenhouse Gas Initiative with 10 neighboring states. RGGI is a cap-
and-trade program to control carbon dioxide emissions from the electric 
generating sector. Furthermore, the Governor also signed an Executive 
Order that established a Climate Change Commission charged with 
developing an action plan to address climate change in Maryland and 
rising sea levels in the Chesapeake Bay.
    As part of his ``Empower Maryland'' program, Governor O'Malley has 
pledged to reduce the State's per capita electricity consumption by 15 
percent by 2015 through increases in energy efficiency and conservation 
in Maryland State buildings. In these ever more uncertain economic 
times, steps directed at reducing Maryland's energy consumption through 
increased efficiencies and conservation, will not only cleanup our 
environment, but will also produce savings for taxpayers in the State.
    Because Maryland is the fourth most vulnerable State in the country 
for sea level rise due to global warming, it makes sense for the State 
to take the environmental threat of greenhouse gas emissions seriously 
and to serve as an example to other states of what must be done. Under 
Governor O'Malley's leadership, Maryland has done just that.
    Maryland, like a number of other states, has already adopted 
legislation that would enable it to join with California in regulating 
greenhouse gas emissions from cars and trucks.
    Maryland's Clean Cars program would have reduced carbon dioxide 
emissions by 7.7 million metric tons by 2025, according to an interim 
report recently issued by the Maryland Commission on Climate Change.
    EPA's denial of this waiver will result in tons of additional 
greenhouse gases polluting the region. That's unacceptable to me and to 
the citizens of my State and it certainly should be unacceptable to 
EPA.
    Cars that will meet the new greenhouse gas standards will also help 
to clear our air of nitrogen oxides--a contributor to photochemical 
smog. In my state, mobile sources are not only the leading cause of 
smog but are also one of the leading causes of greenhouse gas 
emissions. We have some of the worst smog in the Nation, and during 
`Code Red' days, more than 70 percent of the pollution comes from cars 
and light trucks.
    I am pleased with the recently enacted Energy Independence and 
Security Act, which establishes a higher fuel economy standard of 35 
miles per gallon nationwide.
    But the goals of a fuel economy standard and a vehicle global 
warming emissions limit are quite different.
    The Department of Transportation sets fuel economy standards to 
reduce oil use. The DOT is not an environmental agency.
    The Supreme Court decision in Massachusetts v. EPA, held that 
section 202 of the Clean Air Act authorizes the EPA to regulate 
emissions from new motor vehicles on the basis of their possible 
climate change impacts. Under the Clean Air Act, California has the 
right to set higher standards for pollution reduction from automobiles, 
and recent court cases clarify that states have the authority to 
regulate global warming pollution from mobile sources.
    EPA's denial of California's petition is wrong as a matter of 
policy, wrongly decided by a biased political process, and wrong for 
the health and safety of the generations who will follow us. It will 
not stand.

    Senator Boxer. Thank you, Senator.
    Senator Sanders.

STATEMENT OF HON. BERNARD SANDERS, U.S. SENATOR FROM THE STATE 
                           OF VERMONT

    Senator Sanders. Thank you very much, Madam Chair. Thank 
you for calling this important hearing. I want to thank the 
Governors who will be speaking in a few minutes, including the 
Governor of the State of Vermont, Jim Douglas. We appreciate 
his being here very much.
    I want to thank all of the States who are joining with 
California to say that it is absolutely imperative that we as a 
Nation go forward in tackling one of the great environmental 
crises that faces not only our Country but the entire world. 
Madam Chair, there was an article in the New York Times just 
yesterday, and this is how it began. The headline is, ``U.S. 
Given Poor Marks on the Environment,'' first paragraph, ``A new 
international ranking of environmental performances puts the 
United States at the bottom of the group of eight 
industrialized nations and 39th among the 149 countries on the 
list.''
    In Bali, where our representative went to speak to defend 
the position of the Bush administration, that representative 
was actually booed, booed. Unprecedented. All over the world, 
people are wondering what is going on in the United States of 
America in so many areas, but certainly in terms of the 
environment. Before this Committee, we have had some of the 
leading scientists in the world who have come forward and they 
have said, global warming is an extraordinary crisis, and if we 
do not begin to move aggressively to reverse global warming, 
this entire planet is in danger. Yet, we have an 
Administration, which I must say will go down in American 
history as the worst Administration in so many areas, certainly 
including environmental protection, this Administration has 
taken the word ``environment'' out of Environmental Protection 
Agency.
    Now, if I am correct, and I am pretty sure that I am, it 
was only last year that this Administration actually admitted 
that global warming was a reality. All over the world, 
countries are trying to move forward to reverse greenhouse gas 
emissions, and we have an Administration that was reluctant to 
even acknowledge the reality of global warming. I want to 
applaud California, Vermont and all of those States who have 
decided to provide the leadership that should be coming from 
the Federal Government, but is not. As others have said, if you 
can't go forward, at least get out of the way.
    In Vermont, we take the environment seriously. We are an 
outdoor State. We want to see our streams, our lakes kept 
clean. We want our kids to grow up in a world where there is 
not flooding, where there is not drought. So if you can't do 
the right thing, at least get out of the way of those States, 
like California, Vermont and others, that do want to go 
forward.
    The law, in my view, could not be clearer. Under the Clean 
Air Act, California is given the explicit right to petition the 
EPA to implement tougher air pollution standards. Once 
California's waiver is granted, other States can then implement 
the California standards. The State of California waited for an 
answer on its waiver request for 2 years, 2 years. Then in a 
political stunt, the EPA Administrator called a phone press 
conference with reporters to announce EPA's decision to deny 
the waiver. No decision document to back up the denial, just a 
press release and a letter to the Governor of California. 
Unprecedented.
    So Madam Chair, thank you very much for calling this 
important hearing. I am glad to join you in your legislation 
that would immediately grant California's request for a waiver. 
I know that this Committee will continue to look into exactly 
how this ill-conceived decision was made.
    Thank you, Madam Chair.
    Senator Boxer. Thank you very much.
    Senator Klobuchar.

STATEMENT OF HON. AMY KLOBUCHAR, U.S. SENATOR FROM THE STATE OF 
                           MINNESOTA

    Senator Klobuchar. Madam Chair, thank you for holding this 
hearing. Administrator Johnson, I appreciate your kind call 
after our bridge collapsed in Minnesota and your interest in 
the environmental impacts of that collapse.
    I was listening as my colleague, Senator Sanders, very 
eloquently talked about what is going on here. I also noted 
that he took you to Bali. I am going to take you to a less 
glamorous place, and that would be Ely, MN, where I was in the 
last few weeks, as I toured through 47 counties in my State. I 
did an event there with the Governor, who is a Republican 
Governor, and the explorer Will Steger. You have to understand 
that Ely, where my grandpa worked in iron ore mines and as a 
logger, has always been a place of huge environmental fights 
over the boundary waters canoe area, over the ATVs and 
snowmobilers.
    But what was interesting about this forum we had is that 
people came together to talk about climate change. There 
weren't the splits that you traditionally see. There was a 
Republican Governor, there was a Democratic Senator. There were 
the steel workers, there were the snowmobilers who all voiced 
their concern about the effects that climate change is having 
on our environment.
    In our State, this hasn't been a partisan issue. We have 
been able to work with the Democratic legislature and a 
Republican Governor to come together and get one of the most 
aggressive renewable standards in the Country. That is why I am 
so disappointed that we are even here to have this hearing. 
Because I don't think that we should have an agency that has to 
be pushed time and time again to get it right.
    As Senator Carper was mentioning, to think that this Court, 
the Supreme Court, which isn't exactly a radically liberal 
court right now, had to say that the Clean Air Act authorizes 
the EPA to regulate greenhouse gas emissions, that you couldn't 
have just come upon that yourself, we have talked about this 
before, and start working on this. I just believe that we 
shouldn't need to have these kinds of oversight hearings. But 
unfortunately, we do.
    Administrator Johnson, your agency's decision to deny 
California a waiver just defies logic to me. It is clearly a 
decision, I believe, that is based on politics and not on fact. 
It is a decision that my State, as well as 15 others, are now 
fighting. I question this inference that an increase in the 
CAFE standards clearly eliminates the need for the California 
waiver. I am on the Commerce Committee. We negotiated that 
agreement. I think there could be room, when you look at the 
fact that standards were not increased since I was in junior 
high and we finally got this done, I think one could argue 
there is room to do more.
    Administrator Johnson, I want to read what the United 
States District Court said last fall when it found that an 
increase in CAFE standards and the California waiver overlapped 
but do not conflict. The court said, ``Regulation of greenhouse 
gases from new motor vehicles cannot clearly be categorized as 
either an area of traditional State regulation, such as medical 
negligence, or an area in which Federal control predominates, 
such as the national banks. From the beginning of Federal 
involvement in environmental pollution regulation, the area has 
been regarded as a cooperative State-Federal legislative 
effort.''
    We are having this hearing today because States' efforts to 
reduce greenhouse gas emissions are being blocked by this 
Administration. Back in July, when our friend, Senator Nelson, 
testified before this Committee on this very issue, he talked 
about States wanting to control their own destiny. Well, at a 
time when the Federal Government has really been doing nothing 
in the area of climate change for years and years and years, it 
is finally changing.
    But we cannot simply step back and say, well, we are 
finally looking at this issue and are considering doing 
something about it. But States who have been working on this 
now and filling in this void for years are not allowed to act. 
We have 16 States that want to control their own destiny, 16 
States that want to tackle the problem that the EPA and this 
Administration have been ignoring.
    So I thank you, Madam Chair, for holding this hearing, and 
look forward to working with my colleagues during this new 
session to address the issue that the Administration has failed 
to do.
    Senator Boxer. Thank you, Senator.
    Senator Whitehouse.

  STATEMENT OF HON. SHELDON WHITEHOUSE, U.S. SENATOR FROM THE 
                     STATE OF RHODE ISLAND

    Senator Whitehouse. Thank you, Madam Chair. I have a 
written opening statement that to save time I would like to ask 
be made a matter of record.
    Senator Boxer. Without objection, so ordered.
    Senator Whitehouse. I would simply like to take my time 
this morning to say three things. First, the State of Rhode 
Island is one of the waiver States, so this is a matter of real 
and direct importance to me. Second, I am extremely glad that 
Chairman Boxer has held this hearing, because it strikes me 
that we have a pattern from EPA of, ignore the science, 
overlook the law, deliver the goods. That is a pattern that is 
very alarming and concerning.
    I would just like to follow up on what Senator Sanders and 
Senator Klobuchar said. It is astonishing what unanimity there 
is around this issue. Just the other day, Chairman Boxer held a 
hearing in which the head of the Association of State Directors 
of Health came before this Committee, sat where you are sitting 
and presented to us a very powerful statement on global warming 
and climate change. I asked her where is the minority view. She 
said there was no minority view, we are unanimous on this 
subject, the directors of health of the States, whether they 
are from Oklahoma or California or New Jersey, they are 
unanimous on the subject.
    So it remains astounding to me that at the Federal level of 
our Government, we for some reason seem unable to unwind 
ourselves from the axle here and make progress on an issue of 
such importance. So I think this is a very important hearing, 
and I really appreciate Chairman Boxer's leadership in making 
it happen. Thank you.
    [The prepared statement of Senator Whitehouse follows:]
      Statement of Hon. Sheldon Whitehouse, U.S. Senator From the 
                         State of Rhode Island
    I first want to thank Chairman Barbara Boxer for her persistence on 
this critical issue. This Committee has held three hearings on the 
California waiver, and we have yet to receive straight answers or 
appropriate cooperation from the EPA. So here we are again. It is 
unfortunate, but it is absolutely necessary. Senator Boxer's pursuit of 
the truth, and her efforts on behalf of the environment, should be 
applauded by us all.
    It has now been over 2 years since California first applied for a 
waiver under the Clean Air Act to set more stringent vehicle emissions 
standards for cars and trucks. 14 states, including Rhode Island, have 
since joined California; four more are expected to do so. In all, these 
19 states represent more than half the population of the United States.
    The Environmental Protection Agency received more than 98,000 
public comments on California's proposal. 99.9 percent of those, 
including those from Rhode Island Attorney General Patrick Lynch, 
supported a more stringent standard.
    The benefits of the California standard are unquestionable and 
powerful. According to an analysis by Environment Rhode Island, a very 
respected entity in my state's environmental community, if every State 
that has requested a waiver receives one, we will see a cumulative 
global warming emission reduction of 392 million metric tons by 2020--
the equivalent to taking 74 million of today's cars off the road for an 
entire year. We would see gasoline consumption reduced by as much as 
8.3 billion gallons per year in 2020--as much as is consumed by all the 
vehicles in Florida in a year. And in 2020, we would see up to $25.8 
billion in annual savings at the pump.
    So we should not be here today, because allowing California and 
Rhode Island and all these states to set tough vehicle emissions 
standards is one of the strongest and most common-sense steps we can 
take to begin to tackle the enormous challenge of global warming.
    But we are here, because once again, this administration has put 
blind ideology before science; once again, this administration has let 
politics govern policy; and once again, this administration has taken 
an action that will directly undermine our efforts to protect our 
environment and safeguard public health.
    We are here because even in the face of scientific and legal advice 
and overwhelming public support, the EPA has denied California's waiver 
request. The purpose of today's hearing is to ask why.
    The EPA has still not given the required legal justification for 
denying the waiver as required by law. Instead, Administrator Johnson 
has continued to give excuses and policy justifications outside the 
scope of the law he is required to follow. He has attempted to use the 
new fuel economy standards recently enacted by this Congress as a 
rationale for denying the California waiver. This is a travesty. While 
we all should be celebrating the first increase in CAFE standards in 
over a decade, it has no bearing on the EPA's statutory authority to 
consider the California emissions waiver under the Clean Air Act.
    We are here to learn more about the Administrator's decision, but I 
fear we may already know the answers. I am deeply troubled by reports 
that the EPA Administrator ignored recommendations from Agency 
scientists and lawyers in denying the waiver--a persistent trend under 
the Bush administration that has been exacerbated during Administrator 
Johnson's tenure at EPA.
    I would remind Mr. Johnson that the Clean Air Act does not leave 
regulatory decisions to the discretion of the administrator, nor to the 
dictates of the White House. That fact has been long forgotten, or 
ignored, by this administration. So has the administration's obligation 
to be accountable to Congress and the American people. This Committee 
has requested from EPA all the documents bearing on the California 
waiver request. Thus far, the Administrator has failed to produce these 
documents. We need to see them to determine what factors were 
considered, or ignored, by EPA in denying the California request.
    If the EPA will not fulfill its obligation to give the California 
waiver request a thorough, fair, scientific review and make its 
decision based on the merits and the law, this Congress must. I am 
proud to cosponsor Chairman Boxer's ``Reducing Global Warming Pollution 
from Vehicles Act of 2008,'' which will, in effect, approve the waiver 
request legislatively.
    It's unfortunate that we have been forced to take this step. But 
until the Environmental Protection Agency begins again to live up to 
its name, I'm confident that this committee will do all we can to keep 
our environment clean and safe for generations.

    Senator Boxer. Thank you, Senator.
    Now we will start the process of 5 minutes each for 
questions. We will do--I am sorry? Who came in? Oh, yes, your 
statement. I am so ready to question you that I forgot that.
    [Laughter.]
    Senator Boxer. But yes, you have 5 minutes for your opening 
statement. Oh, and by the way, as we told you, because this is 
an oversight investigation where we will be doing fact-finding, 
we will be swearing in all of our witnesses. So if you wouldn't 
mind please standing, raise your right hand, we will be 
swearing in all three panels, and take the following oath.
    [Witness sworn.]
    Senator Boxer. Thank you, sir, please proceed.

   STATEMENT OF HON. STEPHEN L. JOHNSON, ADMINISTRATOR, U.S. 
                ENVIRONMENTAL PROTECTION AGENCY

    Mr. Johnson. Good morning, Chairman Boxer, Senator Inhofe 
and members of the Committee. I appreciate the opportunity to 
discuss EPA's response to California's request for a waiver of 
preemption for its greenhouse gas motor vehicle emission 
standards.
    Let me begin by saying that climate change and greenhouse 
gases are global problems. Just as President Bush recognized 
during September's Major Economies Meeting, the leading 
countries in the world are at a deciding moment, when we must 
reduce greenhouse gas emissions instead of allowing the problem 
to grow.
    The President has committed the United States to take the 
lead in reducing greenhouse gas emissions by pursuing new, 
quantifiable actions. I congratulate the Congress and the 
President for doing just that. By enacting the Energy 
Independence and Security Act, the Nation will be taking a 
major step forward to reduce greenhouse gases and improve our 
energy security.
    In particular, I applaud Congress for answering the 
President's call to increase the Nation's fuel economy 
standards. The bi-partisan energy legislation reflects the need 
for a unified national solution rather than an approach taken 
by a patchwork of States to significantly address the global 
challenge of climate change.
    As I have previously testified, EPA's consideration of the 
California waiver request has been rigorous. Consistent with 
the requirements of the Clean Air Act, we undertook an 
extensive public notice and comment process, and received an 
unprecedented response. Given the complexity of the request, we 
devoted the necessary resources to expeditiously review the 
comments, examine the technical and legal issues and present me 
with the full range of available options.
    During the briefing process, I encouraged my staff to take 
part in an open discussion of issues, and due to their value 
options and opinions, I was able to make a determination. As 
you know, the Clean Air Act requires the EPA Administrator to 
determine whether or not the criteria for a waiver have been 
met. It was only after a thorough review of the arguments and 
material that I announced my direction to staff to prepare a 
decision document for my signature.
    While many urged me to approve or deny the California 
waiver request, I am bound by the criteria in the Clean Air 
Act, not people's opinions. My job is to make the right 
decision, not the easy decision. As I explained in my December 
19, 2007 letter to Governor Schwarzenegger, EPA has considered 
and granted numerous previous waivers requested by the State of 
California. However, those waivers addressed air pollutants 
predominantly affecting local and regional air quality. I 
stated in my letter, in contrast, the current waiver request 
for greenhouse gases is far different. It presents numerous 
issues that are distinguishable from all prior waiver requests.
    I also noted that greenhouse gases are fundamentally global 
in nature, which contributes to the problem of global climate 
change, a problem that poses challenges for the entire Nation 
and indeed, the world. Unlike pollutants covered by other 
waives, greenhouse gas emissions harm the environment in 
California and elsewhere regardless of where the emissions 
occur. Therefore, this challenge is not exclusive or unique to 
California. So in light of the global nature of the problem, I 
therefore indicated that it is my view that California does not 
have a need for its own State standard to meet compelling and 
extraordinary conditions.
    My response to the waiver request has been based upon the 
law, the facts and the information presented to me and on the 
exercise of my own judgment. I know some members of this 
Committee disagree. I am here to answer your questions today 
regarding this determination.
    Again, thank you for the opportunity to appear before the 
Committee today. Thank you, Madam Chair.
    [The prepared statement of Mr. Johnson follows:]


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 Responses by Stephen L. Johnson to Additional Questions From Senator 
                                 Boxer
    Question 1. Contacts with Executive offices.--In your testimony 
before the Senate Committee on Environment and Public Works (EPW) in 
July 2007 you said that you had ``routine conversations'' about the 
California waiver with individuals within or affiliated with the White 
House, the Executive Office of the President, the Vice President's 
office, the Council on Environmental Quality, the Office of Management 
and Budget, and Cabinet members (collectively, the ``Executive 
Office'').
    (a) Please identify each individual within or affiliated with any 
of the Executive Offices listed above with whom you or your staff had 
any communications regarding the California waiver request, and 
describe the timeframes and substance of each of those communications.
    (b) For each person identified, describe as fully as possible, 
based on whatever recollection, information or circumstances may be 
available, your understanding of the views and/or position of such 
person with respect to whether or not it would be desirable for the 
California waiver request to be granted.
    Response. As I have testified previously, I do have routine 
conversations with various members of the Administration; I think 
that's good government. And I want to respect the candor of those 
conversations by not sharing the details of attendees, timing, etc. But 
in any event, when and with whom I had discussions are irrelevant to 
the issue before us, which is my decision on the California waiver 
request. The Clean Air Act charges me with making the decision on the 
waiver, and that is exactly what I did.

    Question 2. Overriding Agency experts. You submitted written 
responses to questions from the EPW Committee after a hearing held on 
July 26, 2007, in which you said: ``The Agency is performing a rigorous 
analysis in order to properly consider the legal and technical issues 
that we must address in making a decision under the Clean Air Act 
waiver criteria.''
    And you further said: ``I can assure you that I am undertaking a 
fair and impartial assessment of the request.''
    EPW Committee staff recently reviewed a copy of EPA's October 30, 
2007, Administrator's Briefing document, in which the results of the 
EPA Staff's analysis of the waiver request was reported to you. That 
briefing document included numerous examples of the ``compelling and 
extraordinary circumstances'' faced by California as a result of global 
warming caused by greenhouse gas emissions. The document also indicated 
EPA would be sued by California and EPA would be ``likely to lose'' the 
suit. A second version read ``EPA's litigation risks are significantly 
higher than if a waiver is granted.''
    This advice was consistent with a detailed written analysis 
prepared by EPA's staff, dated April 30, 2007, acknowledged by EPA's 
General Counsel, which described Congress's intent that California is 
to be accorded broad discretion in implementing its own separate motor 
vehicle standards under Section 209(b), and which reviewed in detail 
the legal authorities overwhelmingly supporting granting the waiver in 
this case.
    (a) Given this clear advice and the conclusion of EPA's Staff, how 
do you explain the diversion of EPA resources and the expenditure of 
taxpayer funds litigating this unsupportable legal position?
    (b) Do you believe that you have unfettered discretion to make a 
decision that contradicts the standards in the Clean Air Act? If not, 
fully describe the constraints that the Clean Air Act places on your 
decisionmaking capacity in denying a request from California for a 
waiver under Section 209(b).
    Response. My obligation in acting on California's waiver request is 
the same as in most other decisions before me--to reasonably exercise 
my discretion, both to interpret the law and to apply it to the 
evidence before me. That is what I have done with respect to 
California's application for a waiver. The decision that was released 
on February 29, 2008 explains in detail both how I interpreted section 
209 of the Clean Air Act and how I applied the constraints of its legal 
criteria to the evidence before me. I expect that various parties will 
seek judicial review of my decision, and EPA fully intends to defend 
this decision as a lawful and reasonable exercise of the discretion 
delegated to me under the Clean Air Act.

    Question 3a. Lack of decision document. Internal EPA planning 
documents prior to September 2007 refer repeatedly to a draft 
``decision document'' that was to be prepared by EPA staff and 
presented to you as Administrator for your consideration.
    Was a draft decision document prepared in any form, including but 
not limited to interim and final drafts of any such document? If so, 
please identify the document or documents with specificity and provide 
a separate and unredacted copy of any such documents to the EPW 
Committee not later than February 15, 2008.
    Response. In keeping with the regular process for responding to 
California waiver requests, staff in the Office of Transportation and 
Air Quality (OTAQ), Office of General Counsel (OGC), and Office of 
Atmospheric Programs (OAP) prepared preliminary drafts of various 
sections of a decision document for the greenhouse gas waiver request 
in November and December 2007. These incomplete drafts were intended to 
serve as the foundation for the final decision document, which I signed 
on February 29, 2008, and it was anticipated by staff that the early 
drafts of the decision document would be modified as necessary to 
reflect whatever decision I ultimately made. These drafts were 
circulated only among the staff working on this waiver request, and 
were not forwarded to my office or to the office of the Principal 
Deputy Assistant Administrator for Air and Radiation. Copies of these 
documents have previously been provided or otherwise made available to 
the Committee through our responses to the Committee's December 20, 
2007 letter requesting documents.
    Because these drafts were very preliminary, they do not reflect my 
final thinking on the issues presented by California's waiver request. 
What is most important here is the final decision document issued on 
February 29, 2008, which reflects my final thinking on California's 
waiver request.

    Question 3b. If no draft decision--document was prepared, identify 
who made the decision that no draft decision document would be 
prepared, and describe fully all communications--including submission 
of all records--regarding that decision.
    Response. Please see the above answer to 3(a).

    Question 4a. References to a ``patchwork''. In your letter to 
Governor Schwarzenegger of December 19, 2007, denying the waiver 
request, you said that your approach was better than what you called a 
``patchwork'' of State laws. But the EPA Staff's Administrator's 
Briefing of October 30, 2007, acknowledges that there would be no 
patchwork. As has been true for more than three decades, under Section 
209(b) there can only be two standards: (i) the Federal standard, and 
(ii) the California standard, which other states can adopt.
    Since two standards by definition cannot create a ``patchwork,'' 
please explain where this objection originated and what support was 
relied on for it.
    Response. I agree that there are only two sets of motor vehicle 
emission standards that can apply to vehicles sold in the United 
States: EPA's standards and California's standards, which other states 
may adopt if they meet the conditions specified in section 177 of the 
Clean Air Act. I expressed concern about a patchwork of states because, 
even though there are only two sets of vehicle standards, State 
adoption of California's standards can still present vehicle 
manufacturers with varying circumstances that can make compliance with 
State requirements difficult. For example, states can and do adopt 
California standards at different times. In addition, compliance with 
California's greenhouse gas standards is determined based on the 
averaged emission levels of the vehicles sold in the state, with 
vehicle manufacturers able to trade and bank excess emission 
reductions. To the extent other states adopt the California standards, 
vehicle manufacturers may be faced with compliance circumstances that 
vary from State to state, including different compliance schedules and 
fleet mixes. Because consumers occasionally buy vehicles across State 
lines, such variability between states also may confuse and affect 
consumers as well.
    You asked where the ``patchwork'' idea originated. With respect to 
the California GHG waiver proceeding, the idea of a ``patchwork'' was 
raised at the first waiver hearing held on May 22, 2007, in Arlington, 
Virginia. At that hearing, a representative of the Alliance of 
Automobile Manufacturers in his testimony stated ``(t)he Alliance 
member companies are committed to improving energy security (and) fuel 
economy, but piecemeal regulations at the State level is (sic) not the 
answer.'' Subsequently, the potential for a ``patchwork'' of State 
regulations was discussed in comments we received at the close of the 
comment period from the Association of International Automobile 
Manufacturers (AIAM) and the National Association of Automobile Dealers 
(NADA). For example, the letter from AIAM noted that the global nature 
of carbon dioxide emissions which ``disperses evenly throughout the 
atmosphere, such that emissions of carbon dioxide in California have no 
greater impact in that State than elsewhere in the United States or 
indeed the world. . . . The regulations of greenhouse gas emissions 
therefore require a coordinated national approach rather than a 
patchwork of State approaches.''

    Question 4b. Please describe all analysis conducted by EPA Staff 
supporting your references to a ``patchwork'' and provide unredacted 
copies of such analysis to the Committee, including the date of their 
creation. If there is no such analysis, please so indicate.
    Response. As noted above, representatives of the auto industry 
submitted comments regarding the potential ``patchwork'' of State 
vehicle regulations that would occur if EPA granted the California 
greenhouse gas waiver request. EPA reviewed this issue during its work 
on the waiver request. State adoption of California standards has the 
potential to raise issues of varying timetables and compliance 
circumstances for auto manufacturers. However, to date, these issues 
have largely been avoided by the way in which states adopt or implement 
California standards. Copies of relevant documents have previously been 
provided or otherwise made available to the Committee through our 
responses to the Committee's December 20, 2007 letter requesting 
documents.

    Question 5. Failure to apply the ``in the aggregate'' standard. In 
an e-mail dated June 12, 2007, an EPA lawyer with responsibility for 
the California waiver request discussed the changes to Section 209(b) 
of the Clean Air Act in the 1977 Amendments, which he explained: ``tell 
us that we need to look at CARB's standards 'in the aggregate' ''--
i.e., taken as a whole, not limited to the greenhouse gas standards 
only--in EPA's consideration of the waiver request.
    Please explain in your December 19 decision denying the California 
waiver request how you addressed the express language of the 1977 
Amendments.
    Response. The decision that was issued on February 29, 2008 
provides a full explanation of how I interpreted and applied the waiver 
criteria in Section 209 of the Clean Air Act.

    Question 6. References to ``unique'' and ``exclusive''. You have 
repeatedly sought to justify your denial of California's waiver request 
by saying that the threats of global warming are not ``unique'' or 
``exclusive'' to California.
    Please identify every instance in Section 209(b) of the Clean Air 
Act, the legislative history of Section 209(b), EPA regulations, case 
law , EPA guidance or past interpretations, in support of your view 
that whether the threats faced by California are ``unique'' or 
``exclusive'' to California is a factor in deciding whether to grant a 
waiver.
    Response. The decision that was issued on February 29, 2008 
provides a full explanation of how I interpreted and applied the waiver 
criteria in Section 209 of the Clean Air Act. As is typical in any 
waiver decision, it discusses in detail the legal basis for my 
decision, including an appropriate discussion of the text of section 
209, its legislative history, and other relevant sources.

    Question 7. Specific ``compelling and extraordinary conditions'' 
faced by California. At the December 19, 2007 press conference where 
you announced that you were denying California's request for a waiver, 
you claimed to have ``found that [California] does not meet the 
compelling and extraordinary conditions'' standard.
    But the Administrator's Briefing package provided to your office by 
EPA Staff dated October 30 included 8 pages describing the conditions 
faced by California that the EPA Staff referred to as ``compelling and 
extraordinary conditions.''
    a. The list below contains the conditions that your EPA Staff 
stated were ``compelling and extraordinary.''
    flooding
    drought
    disease
    coastal impacts
    wildfires
    water supply
    ozone pollution
    agricultural production impacts
    threatened and endangered species habitat

    b. For each of the listed conditions above, please identify all 
analysis or other documentation associated with the compelling and 
extraordinary conditions and who advised the Administrator to ignore 
these conditions in the decision to deny the waiver.
    Response. Regarding the conditions listed above, all of the 
technical and scientific information EPA considered in addressing those 
conditions came from information submitted as part of, or in response 
to, the California waiver request, or from the 2007 Fourth Assessment 
Report of the Intergovernmental Panel on Climate Change (IPCC). Much of 
the information concerning California is summarized in the 2006 report 
by the California Energy Commission, Our Changing Climate: Assessing 
the Risks to California (CEC-500-2006-077). In addition, the 
information in the October 30,2007 briefing describing some specific 
potential impacts of climate change on California was largely drawn 
from the 2002 report by the California Regional Assessment Group, The 
Potential Consequences of Climate Variability and Change for 
California: The California Regional Assessment. The general science 
information as well as the IPCC findings about key impacts for North 
America, as identified in the October 30 briefing, came directly from 
the North America chapter of the IPCC Working Group II Volume of the 
Fourth Assessment Report.
    Contrary to the suggestion in the question, I did not ignore this 
or any other information--including, among other things, congressional 
intent and the global nature of climate change--relevant to deciding 
the waiver. The February 29, 2008 decision document on the waiver 
explains the rationale behind my consideration of the compelling and 
extraordinary criterion in detail.

    Question 8. Legal analysis underlying your decision to deny 
California's waiver request (a) Please identify all legal analyses 
provided to you by EPA counsel, prior to December 19, 2007, supporting 
the conclusion that California does not meet compelling and 
extraordinary conditions. (b) For all such analyses, State the name of 
the lawyer(s) involved, the date that it was provided, and the form in 
which it was submitted. (c) Provide all such analyses in unredacted 
form.
    Response. Through our responses to the Committee's December 20, 
2007 letter requesting documents, the Agency has, at this time, 
provided copies or otherwise made available information responsive to 
this question. As explained previously, the Agency does have a 
confidentiality interest in documents reflecting privileged attorney-
client and attorney work product information. Despite this interest, 
these documents have been made available to the Committee, and we are 
willing to continue to make documents available to the Committee as 
needed.

    Question 9. Reliance on CAFE standards. In your letter to Governor 
Schwarzenegger of December 19, 2007, announcing your decision to deny 
the waiver request, you stated: ``I firmly believe that, just as the 
problem extends far beyond the borders of California, so too must the 
solution''. You then went on to characterize Congress' passage of the 
Energy Independence and Security Act, which includes increased vehicle 
fuel economy standards, as ``national standards to address greenhouse 
gases'' from cars. You said that you ``strongly support this national 
approach to this national challenge . . .'' in your letter, in support 
of your decision to deny the California waiver.
    In your written testimony submitted in connection with the hearing 
before the EPW Committee on January 24, 2008, you further stated: ``I 
believe that it is preferable, as a matter of policy, to have uniform 
national standards to address fuel economy issues across the entire 
fleet of domestic and foreign manufactured vehicles sold in the United 
States.''
    a. The Supreme Court made clear that CAFE standards are separate 
from EPA greenhouse gas requirements for vehicles. Your reliance on the 
Energy Independence and Security Act as an explanation for denial of 
the waiver at the time you announced the decision is inconsistent with 
that Supreme Court ruling. What will you do to comply with the Supreme 
Court's decision in Massachusetts v. EPA?
    Response. I have concluded that the best approach for moving 
forward on our response to the Supreme Court's decision in 
Massachusetts v. EPA is to issue an ANPR that will present and request 
comment on the best available science relevant to making an 
endangerment finding and the implications of this finding for 
regulation of both mobile and stationary sources. This approach gives 
the appropriate care and attention that these complex issues demand. It 
will also allow EPA to use the work we have already done. The ANPR will 
be issued later this Spring and will be followed by a public comment 
period. The Agency will then consider how best to respond to the 
Supreme Court decision and its implications under the Clean Air Act.
    As we go forward, I will keep the Committee apprised of EPA's 
response to the Supreme Court's opinion in Massachusetts v. EPA and the 
new energy law approved by Congress.

    Senator Boxer. Thank you.
    Administrator, you realize that this isn't just about 
California. You do understand that there are many other States 
impacted, is that correct? Do you understand that?
    Mr. Johnson. Madam Chairman, I understand under the law my 
responsibility is to evaluate the California----
    Senator Boxer. No, no, I wasn't asking----
    Mr. Johnson [continuing].--under section 209----
    Senator Boxer. I understand.
    Mr. Johnson [continuing].--which is specific to the State 
of California.
    Senator Boxer. No, no, I was asking you, do you realize 
that there are many other States, a lot of them represented 
here, that are following California's lead, so that this 
decision just doesn't impact one State? Do you understand that, 
is what I am asking?
    Mr. Johnson. I do understand that, Madam Chairman----
    Senator Boxer. OK, good.
    Mr. Johnson [continuing].--and I also understand that the 
criteria in the law have me focus----
    Senator Boxer. Sir, I am just asking because when you 
speak, you don't indicate to the people, to the American people 
that in essence, this decision involves really, at this point, 
and it could be more, more than half the people of America. So 
you have come down against a majority of the people with this 
decision.
    Now, the mission of the EPA, according to your own Web 
site, is to protect human health and the environment. I think 
it is important to reiterate that. That is your mission, that 
is your goal. That is your trust. So many of us believe, with 
this decision, you are going against your own agency's mission 
and you are fulfilling the mission of some special interests. 
Now, that is a tough charge, and that is what I think.
    Now, let's talk about a process, since I think you are 
walking away from mission, let's talk about a process that you 
promised this Committee in your nomination hearing. You said to 
this Committee that your guiding principle as Administrator 
would be, and I put this in quotes, ``to ensure that the 
agency's decisions are based on the best available scientific 
information and to pursue as open and transparent a 
decisionmaking process as possible.'' This is you, ``pursue as 
open and transparent a decisionmaking process as possible.''
    So I want to show the American people through this, the 
wonders of technology here, what you sent us, what you consider 
to be an open and transparent policy. This is what we got, when 
we got the documents from you. This is what we got. We got a 
piece of paper that said, if we grant blank compelling and 
extraordinary conditions blank if we deny blank.
    So when I say it is an insult to this Committee, I am not 
being political, I am being sincere.
    Now, if I told you as a friend, I want to write you a 
letter, I am going to give you some advice in the letter, and 
then I sent you a letter that just said, if we grant, it just 
makes no sense. Is this your notion of an open and transparent 
way to make decisions?
    Mr. Johnson. Madam Chairman, I think it is interesting that 
you point this out and I am glad that you did, because in fact 
the practice of the agency, certainly over my 27 years, is that 
when the agency is in litigation, as has been acknowledged, 
that we protect, and in fact protect attorney-client privileged 
documents, so that we can defend ourselves in the court system.
    Senator Boxer. OK. But you are aware----
    Mr. Johnson. In fact, as was pointed out with the tape 
example earlier, I decided to waive my privilege and allow you 
and your staff to actually see the documents and see the 
information.
    Senator Boxer. All right.
    Mr. Johnson. So again, from my perspective, I believe in 
open and transparent process. Your staff obviously spent a lot 
of time looking at the information. I followed the law. This 
was a tough decision. I understand you disagree.
    Senator Boxer. OK, wait, wait, I just----
    Mr. Johnson. I made the decision.
    Senator Boxer. I am not talking about the decision. I am 
talking about you sending us blank documents and then, you are 
so magnanimous that you used all that tape that I showed you 
before to cover over what was in there and then saying how you 
waived your privilege. You have no privilege vis-a-vis the 
Congress. Our counsel and your counsel have discussed this. You 
cannot assert privilege vis-a-vis the Congress. To make it so 
hard for us to get these documents is really extraordinary. 
They are not classified, they are not confidential. What we had 
to do to get some information, and by the way, this is just the 
beginning of information.
    Now, I want to talk about one of your main reasons for 
denying the waiver and show you what your staff said. Because 
we copied it down and we are going to share that information 
with the American people. You said that there was no, you 
called Governor Schwarzenegger to inform him that ``I,'' 
meaning you, ``I have found that his State does not meet the 
compelling and extraordinary conditions needed to grant a 
waiver of Federal preemption for motor vehicle greenhouse gas 
emissions.''
    Now, I want to share with you what your staff told you on 
that Power Point. If you could just hold up that blank chart 
that said compelling and extraordinary circumstances. When we 
peeled off the tape, this is what was written there. So let's 
keep holding that up.
    ``California continues to have,'' this is from your staff, 
excerpts, ``California continues to have compelling and 
extraordinary conditions in general, geography, climatic, human 
and motor vehicle populations. Many such conditions are 
vulnerable to climate change conditions as confirmed by several 
recent EPA decisions.'' I am just going to, because of my time, 
continue to quote from this document. Wildfires are increasing, 
wildfires, and this is interesting, because Senator Klobuchar 
pointed this out at the last hearing, ``Wildfires generate 
particulates that can exacerbate health impacts from increased 
smog projected from higher temperatures. California has the 
greatest variety of ecosystems in the United States and the 
most threatened and endangered species in the continental U.S. 
California exhibits the greatest climatic variation in the 
U.S.'' It goes on to talk about the coastal communities and the 
habitat impacts and over-allocated water resources and aging 
infrastructure, and again, insect outbursts and ozone 
conditions.
    I mean, this is what your staff told you. Then you come out 
and say, it doesn't meet the test for compelling interest. So 
my time is--I have gone over my time, I apologize, by a minute. 
But I Just have to say, sir, that when you look at what was 
underneath the taped-over documents, you find that your staff 
was very clear. You are walking the American taxpayers into a 
lawsuit that you are going to lose, and we will all be the 
worse for it. We are spending money we don't have, we are 
spending money we shouldn't have. All the States are upset, and 
this was a devastating decision.
    Senator Inhofe.
    Senator Inhofe. Thank you, Madam Chairman.
    A lot of comments were made, and obviously I don't have 
time to respond to them, in terms of what happened in Bali and 
all that. I will do that for the record, because some of these 
statements were not accurate.
    Administrator Johnson, as you are aware, the EPA documents 
that are confidential and litigation sensitive were released 
after their review. My question I would ask, and I am going to 
ask a bunch of questions for real short answers, because I am 
kind of alone over here, do you think this is going to have any 
kind of a chilling effect on sharing of documents to oversight 
committees, maybe not just this oversight committee, but other 
oversight committees?
    Mr. Johnson. Yes, sir, I do. In fact, I am disappointed 
because I asked Madam Chairman not to release, given the fact 
that we are being sued and that the agency, the Government 
needs to be able to defend itself.
    Senator Inhofe. Again, to clarify something that was said a 
minute ago, was this a staff decision or your decision to make, 
and was denying the waiver an option that was always presented 
to you?
    Mr. Johnson. The responsibility for making the decision for 
California rests with me and solely with me. I appreciate and 
value the staff's input. Clearly, as you can see from the 
documents, I had a wide range of options, legally defensible 
options that were presented to me. I made the decision, it was 
my decision, it was the right decision, and I certainly stand 
by that decision.
    Senator Inhofe. Very good.
    Are the greenhouses gases different from other pollutants 
in the context of your decision?
    Mr. Johnson. Yes, they are. Certainly as a number of the 
Senators also acknowledged and pointed out, as I have, is that 
they are global in nature. Therein lies the problem. It is not 
unique, it is not exclusive to California.
    Senator Inhofe. It has been said, and I think we know the 
answer to this, but it has to get into the record, does the 
Clean Air Act require the Administrator to grant every waiver 
petition submitted by the State of California?
    Mr. Johnson. No, sir, the Clean Air Act does not require me 
to rubber-stamp waiver petitions.
    Senator Inhofe. There has been some criticism of your 
consulting and talking to the White House or talking to the 
Department of Justice. You have been at the EPA for a long 
time. You have heard me say many times before, and I am on 
record saying that we are very fortunate. This is, I believe 
the first time, certainly in my service for 22 years, that we 
have had an Administrator who knows the job, who has been all 
the way through the ranks. I appreciate that and I think it is 
an honor, really, to have someone who is that knowledgeable.
    So I appreciate you.
    Mr. Johnson. Thank you.
    Senator Inhofe. But since you have been there for a long 
time, are you the first Administrator to consult with the White 
House or the Justice Department?
    Mr. Johnson. To me, in my experience, throughout the 
Administrations that I have had the pleasure to serve with and 
under, it is good government to have that inter-administration 
conversation. As I testified even at the last hearing, I have 
routine conversations with members of the Administration. I 
think that is good government. I have done that and will 
continue to do that.
    Senator Inhofe. You were there during the Clinton 
administration.
    Mr. Johnson. Yes, sir.
    Senator Inhofe. Administrator Brown consulted with the 
White House, with the Justice Department?
    Mr. Johnson. Yes.
    Senator Inhofe. You are sure of that?
    Mr. Johnson. Yes.
    Senator Inhofe. OK. You are aware of a study that was filed 
on the waiver docket by Sierra Research, NERA and Air 
Improvement Resources. They are three highly respected air 
modeling or economics consulting firms. They conclude that the 
California standards, if adopted, would result in decades of 
worse air quality for Californians in terms of most criteria 
pollutants and air toxics. What do you think about that?
    Mr. Johnson. Senator, there is certainly a wide range of 
opinions and studies that were in the docket for this waiver 
petition.
    Senator Inhofe. I think, if I understand their reasoning, 
it would result in a longer life for older vehicles, because 
people would be unable to come up and they would be exempt. So 
it would have the effect, in their opinion, of increasing, not 
decreasing the pollutants.
    Mr. Johnson. Certainly that is an area of concern that was 
duly noted. Again, as I deliberated on the data, the facts, all 
the testimony from the public hearings, I came to the 
conclusion that of the criteria that I am required to evaluate, 
it was the second criteria, that the State does not have 
compelling, extraordinary conditions. So that is the basis of 
my decision.
    Senator Inhofe. So that was taken into consideration. Is 
this waiver request different because it took place in the 
climate change context and the global nature of climate change, 
does not make California's situation ``compelling and 
extraordinary conditions'' within the State as required under 
the Clean Air Act?
    Mr. Johnson. As you correctly point out, this is the first 
waiver of its type, the first time that the agency or in fact 
the Nation has been faced with a waiver focusing on global 
climate change. Again, in my opinion, based upon the facts 
presented to me, I concluded that California doesn't meet the 
criteria, or at least one of the criteria, which is what I am 
required to evaluate as Administrator.
    Senator Inhofe. Is a national solution the best way to 
address climate change?
    Mr. Johnson. I believe so.
    Senator Inhofe. Madam Chairman, since I will be leaving at 
12:15, that is all the questions I have for right now.
    But I believe that you are very courageous to be here 
today. I appreciate the fact hat you didn't do this in a way 
that would not be appropriate out in California. Thank you.
    Thank you, Madam Chair.
    Senator Boxer. Very good. Thank you so much, Senator 
Inhofe.
    Senator Lieberman.
    Senator Lieberman. Thanks, Madam Chair.
    Mr. Johnson, good morning again. I want to ask you to pick 
up on the last exchange you had with Senator Inhofe about your 
preference for a national standard here for vehicle emissions, 
greenhouse gas emissions. You have indicated that in your 
testimony and said it again. Of course, I agree that there 
should be a national standard. There should be a congressional 
and Federal action with regard to climate change.
    But I want to focus in, last year, last April after the 
Supreme Court decision in the Massachusetts case, the 
President, as I recall, accepted for the Administration a 
responsibility and set a goal to issue national transportation 
emission standards. If I recall correctly at that time or 
shortly thereafter you indicated that you had the personal goal 
for the agency, for EPA, of issuing those standards by the end 
of 2007. Obviously we are now in January 2008.
    I wanted to ask you whether you still intend to issue 
national motor vehicle emission standards and if so, by what 
date do you hope to do so?
    Mr. Johnson. Yes, sir, we are continuing to work on both 
fuel standards as well as vehicle standards. Clearly, the new 
Energy Independence and Security Act provides, in fact, some 
specific direction on both of those issues. At the same time, 
that doesn't relieve us of, or relieve me or the agency of its 
responsibilities under the Clean Air Act and under 
Massachusetts v. EPA.
    What we are doing is working our way through what, 
obviously, what the legislation directors us to do and then how 
all those pieces come together with regard to the 
transportation piece. So that is all being worked on. I do not 
have at this point a date that my staff has projected as to 
when these pieces will be. I am certainly aware of the dates 
that are embodied in the legislation for us to meet, and 
certainly it is our intent to meet those dates that are in the 
legislation.
    Senator Lieberman. Well, obviously the sooner the better, 
for issuing those. I appreciate your answer, because I believe 
that the order of the Court and the Administration's response 
to it, to issue national motor vehicle emission standards, 
stands quite separate from the requirements of the recent 
legislation, particularly with regard to CAFE. Although both 
have an effect on emissions, CAFE, fuel efficiency, is 
something quite different from what is coming out of the 
tailpipe.
    So I appreciate your answer, I am glad you are working on 
it. I hope you will come to a conclusion soon.
    Similarly, in your testimony that further court action on 
the waiver should wait until a notice has been posted in the 
Federal Register, I wanted to ask you, since EPA has already 
taken a fair amount of time in issuing its response to this 
request, and given that you have clearly collected and 
processed a lot of information to make your decision, when do 
you expect the Federal Register notice to appear in this 
matter?
    Mr. Johnson. My staff have advised me that they expect to 
complete the documentation, the Federal Register, by the end of 
February. So that is what our target is.
    Senator Lieberman. OK, I appreciate the answer to that, 
too.
    Finally, you suggest in your letter and in your testimony 
that the current and future impacts of climate change do not 
constitute ``compelling and extraordinary circumstances for 
California.'' I wanted to ask you a little differently than 
Chairman Boxer did, in light of the recent reports by the IPCC 
and others, Intergovernmental Panel on Climate Change and 
others, I wanted to ask you, on what scientific grounds did you 
conclude that the threats to California were not compelling or 
extraordinary?
    Mr. Johnson. Our final decision document, which we just 
talked about, will fully explain both the science, the 
technical and legal rationale for my decision. Certainly, the 
letter to Governor Schwarzenegger outlined the fundamental 
issue where I believe, and certainly in my judgment, California 
did not meet the waiver criteria of compelling and 
extraordinary.
    Again, as we have discussed, it is not unique. It is not an 
exclusive issue to California. Certainly, IPCC and a number of 
other studies are very important studies. Certainly we 
considered, and I considered the results of those in making my 
determination.
    Senator Lieberman. Thank you, my time is up. Thanks, 
Chairman Boxer.
    Senator Boxer. Thank you, Senator.
    Senator Carper.
    Senator Carper. Thanks, Madam Chairman. Again, Mr. Johnson, 
thank you for joining us and for your testimony and responses.
    I want to return to the CAFE legislation that a number of 
us worked on, and sent to the President for his signature and 
he signed on the day that you were there, as was I. The 
legislation, during the crafting of the legislation, the auto 
industry raised a whole lot of concerns. We sought to address 
those as best we could while still ensuring that we required of 
them over the next 12 years to raise fuel efficiency standards 
to 35 miles per gallon overall.
    Among the concerns, the lingering concerns they had, at the 
end of the negotiation we came up with a compromise. The 
President said he would sign it. There was a concern still 
expressed by the auto industry that there was an inconsistency, 
a potential inconsistency, and they called it a potential train 
wreck, between EPA and NHTSA with respect to the path forward 
for raising fuel efficiency standards.
    It would just help for me to clarify, there was actually an 
attempt on the Floor when we did the bill, a colloquy between 
Senator Levin and Senators Feinstein and Inouye, where Senator 
Levin sought to try to make sure that going forward, if there 
is a lack of consistency between what NHTSA, National Highway 
Traffic Safety Administration, is endeavoring to do to raise 
fuel efficiency standards, if there is an inconsistency with 
what they are doing and what EPA is attempting to do that 
somehow NHTSA would not be delayed in their efforts.
    If I were the President, something I have no interest in 
doing, although Senator Lieberman tells me that 16 of our 
colleagues have run for President, if I were President, what I 
would do to try to harmonize the two agencies is say, look, we 
are going to get to 35 miles per gallon, we are going to do it 
by 2020. EPA, NHTSA, you have to work together to make this 
happen.
    So I think that lack of consistency, that potential lack of 
harmony can be addressed. It gets a little harder when we have 
States out there that are working toward addressing their own 
concerns. That is what we have here with California, and as 
Senator Boxer says, with a number of others. Just talk to us a 
little bit about how we can make sure we get to 35 miles per 
gallon and we do so in a way that does not competitively 
disadvantage our auto industry. We need for them to be 
successful. They have expressed these grave concerns about lack 
of harmony going forward.
    Your thoughts on that?
    Mr. Johnson. Again, I would say congratulations to all of 
you sitting up there for passing the legislation. As we all 
know, it has been 30 years, and as I think Senator Klobuchar 
said, I am not sure what grade level you were in at the time.
    Senator Klobuchar. That would be seventh grade.
    [Laughter.]
    Mr. Johnson. But it is a significant accomplishment for the 
Nation. Everyone is to be congratulated.
    Two points that I would like to make, Senator. The first is 
that as you correctly point out, as I was deliberating on the 
California waiver decision, at the same time, you in Congress 
were debating whether in fact to pass the Energy Independence 
and Security Act. In fact, certainly as certain of the colloquy 
indicate, whether in fact section 209, specifically focusing on 
the waiver, was going to be amended. I didn't know what you 
were going to do or not going to do. Certainly, obviously when 
it was sent to the President, it became clear what the position 
was. In fact, section 209 was not changed.
    So I had to make and I have to make a decision based upon 
what the law is and what the law of the land is of the day. 
Certainly that is what I did.
    With regard to now our charge, is to develop regulations to 
implement what Congress has passed, that is what we are working 
on right now. Certainly within the agency, and certainly the 
Department of Transportation has a significant lead, and as the 
law requires, we are to coordinate, or they are to coordinate 
with us. So that is what we are going to be focusing on doing, 
is making sure that we as a Nation achieve that 35 miles per 
gallon.
    There is a range of technologies, a range of technologies 
that----
    Senator Carper. I am going to ask you to stop there, and 
thank you very much.
    You and I have discussed from time to time my letter to you 
of May 10, 2007, where I called on EPA, if we are going to pass 
greenhouse gas legislation at the Federal level, there are 
three things that EPA could be doing to help expedite that 
process. One of my suggestions dealt with EPA developing a 
mandatory inventory and registry of major greenhouse gas 
sources in the United States, I think someone that one of my 
colleagues has had some interest in, too.
    A second dealt with developing health and safety standards 
for geological sequestration of CO2. A third was 
that EPA should develop standards and practices on how best to 
estimate, measure and verify emission offsets. Real quickly, 
how are we doing there?
    Mr. Johnson. No. 1, since the requirement is now part of 
our Omnibus bill and we are working on the schedule, and we 
intend to meet that for establishing the mandatory 
requirements, obviously we are aware that a number of States 
have mandatory requirements in place. So our staff are, if you 
will, picking the brains of our State colleagues as we move 
forward. So we are on track to do that.
    Second, with regard to the underground injection and long-
term storage, as you and I have discussed, we are now in the 
process of drafting a regulation which we should see this 
summer. Then third, with regard to the AG issue, we are working 
with the Department of Agriculture to see how we might be able 
to address that issue as well.
    We are making good progress and you will see the results 
soon.
    Senator Carper. Thanks. Madam Chairman, if I could just say 
in closing, thank you for being generous with me.
    We are here today in part because the Federal Government 
hasn't done its job. Sometimes we flail ourselves in the 
Congress and say that it is our fault. It is not entirely our 
fault. This is a shared responsibility. I remember in October 
2000 when a Governor from Texas was running for President and 
gave a speech in Saginaw, Michigan, and said, we need to 
address sulfur dioxide emissions, carbon dioxide emissions, NOx 
and mercury, from sources, power plants. We have sought to do 
that, we have not had the kind of support from this 
Administration that we need. I think it is regrettable and I 
just wish, I will say for the record, I wish then-Governor Bush 
had kept his Presidential pledge that he made 7 years ago.
    Last thing, Madam Chairman, we have been looking for an 
opinion from EPA on revised ozone National Ambient Air Quality 
Standards. I know you are under a lot of pressure to not do 
anything, to not change anything at all. I urge you, there is a 
number between .07 parts per million and .08 parts per million 
that I think we can find. I hope that in a week or two that you 
will find that. Thank you.
    Senator Boxer. Thank you, Senator.
    Senator Lautenberg.
    Senator Lautenberg. Thanks, Madam Chairman.
    Mr. Johnson, do you believe that global warming is a 
serious problem for human health?
    Mr. Johnson. I believe that global warming is a serious 
problem and that it is one, as I mentioned in my testimony.
    Senator Lautenberg. So you are not sure about whether it is 
dangerous for human health?
    Mr. Johnson. Well, it certainly----
    Senator Lautenberg. I mean, to leave the last part of the 
sentence----
    Mr. Johnson. You are driving to an issue that one of the 
issues----
    Senator Lautenberg. Let me be the driver, please.
    Mr. Johnson. OK, Senator. One of the issues that is facing 
me and certainly the agency is the issue of endangerment under 
the Clean Air Act. That there are two areas that endangerment 
can be fond of the Clean Air Act, one is human health----
    Senator Lautenberg. I am asking your belief, please, I 
don't want to be rude, but I am not going to lose the use of my 
time for a complicated discussion when the question is fairly 
simple. Is global warming dangerous to human health?
    Mr. Johnson. The agency has not made a determination on the 
issue of endangerment, which is the driver or both.
    Senator Lautenberg. Well, you have had opinions from your 
staff, professional staff, that disagreed with your decision. 
What I would ask you, if there was no Federal law that gave you 
the route to follow, what would your--would your conscience 
have said anything about what ought to be done here with this 
waiver?
    Mr. Johnson. My conscience is directed by what the law says 
and what the data----
    Senator Lautenberg. So what is absent here?
    Mr. Johnson. Well, again, it is interesting to speculate, 
but I have to follow, and certainly I have taken an oath of 
office to do what the law says and----
    Senator Lautenberg. Yes, well, listen, you could leave the 
job if your conscience was so severe.
    Mr. Johnson. This is true.
    Senator Lautenberg. But your conscience is clear. Do you 
think global warming might have been a hoax that was 
perpetrated, or is it a serious problem?
    Mr. Johnson. As I stated in my testimony, I believe it is a 
serious problem.
    Senator Lautenberg. A serious problem, but it is not a 
serious health problem. Well, here is a scientist from Stanford 
who writes the report for Geophysical Research Letters. His 
name is Jacobson, research has particular implication for 
California, study finds that effects of CO2 warming 
are the most significant where pollution is already severe. 
Given that California is home to 6 of the 10 U.S. cities with 
the worst air quality, the State is likely to bear an 
increasingly disproportionate burden of death if no new 
restrictions are placed on carbon dioxide emissions.
    But you haven't found anything that would confirm or 
challenge that statement?
    Mr. Johnson. Again, I am aware of that. As I recall, it was 
not part of the record that was before me in making the 
decision. But I certainly have now been made aware of that 
particular study.
    Senator Lautenberg. The fact that--do you believe that 
greenhouse gases contribute to global warming?
    Mr. Johnson. Yes, I do.
    Senator Lautenberg. You do. So--but what you say is that 
the problem is national and that different area changes that 
might reduce those greenhouse gases has no value in terms of 
your view, and that is strictly dictated by law? You are not 
volunteering any opinion here?
    Mr. Johnson. Again, obviously, and certainly people have 
heard, I believe environmental responsibility is everyone's 
responsibility and we can each make a difference. In the 
context of California----
    Senator Lautenberg. Well, this is----
    Mr. Johnson. In the context of the California waiver 
decision, I am directed by law to evaluate three criteria----
    Senator Lautenberg. So if you were free to make a decision 
based on your conscience and the health of the community, I am 
going to interpret what you are not saying and say that, well, 
you wouldn't, that wouldn't dictate any other action than that 
which you have taken.
    Mr. Johnson. That is an unfair characterization. I would 
beg to differ with you, Senator. Again----
    Senator Lautenberg. Well, we----
    Mr. Johnson [continuing]. I am confronted with the law in 
section 209 of the Clean Air Act. I evaluated all the data, I 
made a decision. It is the right decision.
    Senator Lautenberg. But you have not gone to the President 
and said, Mr. President, here is an opinion from my staff, 
learned staff, professionals who think that we should grant 
this and say, Mr. President, we could make a modest change here 
and go ahead and do it?
    Mr. Johnson. First of all, any conversations that I have 
with the President are between the President and myself. But I 
can assure you that I was not directed----
    Senator Lautenberg. That leaves us out?
    Mr. Johnson [continuing]. I was not directed by anyone, I 
was not directed by anyone to make the decision. This was 
solely my decision based upon the law, based upon the facts 
that were presented to me. It was my decision.
    Senator Lautenberg. Yes, but you--and you are satisfied 
with that decision, based on your professional experience?
    Mr. Johnson. Not only satisfied, I am confident and 
comfortable.
    Senator Lautenberg. If there was a major fire in California 
that was fouling the air of States to the east, would you say 
that it is, don't touch that fire, that we, the Federal 
Government, will come in, put out the fire? Or should the State 
jump to the fact that there is an imminent danger, serious 
danger to health and property? I take it that your view would 
be, well, it is not specifically allowed by law for them to do 
it, so they are going to have to wait until the Federal 
firefighters come in?
    Mr. Johnson. Interesting speculation, sir, and again, I 
have to deal with the California waiver as the law is written, 
and I have done that and I made the decision.
    Senator Lautenberg. Madam Chairman, just a request to enter 
the Stanford study into the record.
    Senator Boxer. Absolutely, we will do that, without 
objection.
    [The referenced information follows on page 159.]
    Senator Boxer. Senator Cardin.
    Senator Cardin. Thank you very much, Madam Chair.
    Mr. Johnson, I have listened to your testimony and I have 
read your statement in which you point out very clearly that 
you asked for both technical information and personal 
viewpoints relevant to the condition of the waiver request. In 
some of the questions that we have been asking, we are trying 
to figure out how you balanced the information that was made 
available to you to make a decision. One could interpret 
personal viewpoints to be advice to you that if you don't grant 
the waiver, you are in for a tough hearing at the EPW 
Committee, or if you do grant the waiver, you might have a 
tough day in the White House. One could intimate that is 
somewhat the political considerations as well as the technical 
information.
    So I want to concentrate first, if I might, on the personal 
viewpoints that you had to consider in making this judgment. We 
are talking about a standard of compelling and extraordinary 
conditions. I am not exactly clear as to what personal 
viewpoints were taken into consideration in your reaching this 
decision to deny the California waiver.
    Mr. Johnson. First of all, I am obligated and I believe it 
is good government to consider and in fact I am directed to 
consider notice and comment, comments from the public hearings. 
Obviously there are opinions, I have certainly heard from 
members of this Committee, including yourself, sir, on this. I 
listened to all of those, and then I needed to make an 
independent decision. The independent decision looks at the 
facts, for me, looks at what the science says, what does the 
law direct me to do.
    Senator Cardin. But if you had to balance it----
    Mr. Johnson. Ultimately it is a judgment decision by me.
    Senator Cardin. I understand that.
    Mr. Johnson. I made the judgment decision, and as I said, I 
feel it is the right decision.
    Senator Cardin. You have indicated that. I am trying to get 
the balance between technical information and reaching the 
decision that there was not a compelling, extraordinary 
condition versus personal viewpoints. How much was it based 
upon technical information, how much was it based upon personal 
viewpoints?
    Mr. Johnson. Again, I examined the law, I examined what the 
science says. As we have clearly talked about today, it is a 
global problem requiring a global solution, at least at a 
minimum, a national solution.
    I also listened to what people's opinions were, both from 
members of this Committee as well as other Members of Congress, 
including within the Administration. But again, ultimately it 
was a judgment call on my part. I made that judgment decision 
and I stand by that decision.
    Senator Cardin. Then, since--I guess we are all going to 
have to see later as we get some more of the information from 
you, as it comes out, as this process moves forward, exactly 
how you based this on the information that was made or 
presented to you. It seems to me that it may very well have 
been a significant amount of personal viewpoints in reaching 
this conclusion, more so than technical information. So I 
welcome your assessment on the technical information.
    What I have seen from my own State, and I understand this 
waiver was involving California, smog is an issue very much 
that the people of California are aware of, as well as the 
people in Maryland are aware of the issue of smog. They know a 
lot of that smog comes from the emissions from our automobiles 
and light trucks, 70 percent I believe it is. They know very 
much that the California standards would have significantly 
reduced the contributing factors to smog.
    Same thing is true in Maryland. We know that reducing smog 
will be good for the health of our children and our elderly and 
for all. We know the health-related issues here.
    So on the technical information that you used to make this 
judgment, can you share with us the type of information that 
you used, so that you reached the conclusion that you feel very 
comfortable about, that California should not be allowed to 
significantly reduce the contributing factors to smog in their 
community?
    Mr. Johnson. Senator, first, let me say several things. The 
smog, and I think you are referring probably to ozone, and that 
I intend to meet a court-ordered deadline of March 12th for 
evaluation of the ozone standard. I think Senator Carper was 
asking that question. I intend to meet that.
    One of the issues that is part of the petition is, what is 
the connection between ozone and climate change. While I 
certainly recognize there is a connection, I also, based upon 
the science, did not believe that the greenhouse gas emissions 
and global climate change issue for which California was 
seeking a waiver met that standard. So that particular issue 
will be part of the full explanation that I was referring to in 
the decision document by the end of February.
    Senator Cardin. Thank you, Madam Chair. I am still not 
clear, though, about the technical information. Perhaps we will 
follow this up with some written questions. Thank you.
    Senator Boxer. We will have a second round, which will be 
limited to 4 minutes. I will be much tougher on myself and 
everybody else on that. Then we will have our Governors.
    Senator Sanders.
    Senator Sanders. Thank you, Madam Chair.
    Administrator Johnson, the Intergovernmental Panel on 
Climate Change has told us, as you know, that global warming is 
a huge crisis facing our planet, and that very bold action is 
needed in the United States and throughout the world, if in 
fact we are going to cut greenhouse gas emissions and reverse 
global warming. As I mentioned earlier, however, a new 
international ranking of environmental performance puts the 
United States at the bottom of the group of eight 
industrialized nations, and way behind many other countries in 
moving forward in environmental issues.
    Now, if I am correct, and I believe I am, it was only last 
year that the Bush administration actually admitted that global 
warming was a reality. So my questions to you are, No. 1, yes 
or no would be fine, do you believe that global warming is a 
major crisis facing our planet?
    Mr. Johnson. Senator, one, as I said, I believe that it is 
a serious problem.
    Senator Sanders. Is it a major crisis?
    Mr. Johnson. I don't know what you mean by major crisis.
    Senator Sanders. Well, the usual definition of the term 
major crisis would be fine.
    [Laughter.]
    Senator Sanders. In other words, I ask these questions, not 
just to put you on the spot, but to provide some background as 
to how you reached your decision. If in fact as I believe is 
the case, the Bush administration does not see this as a very 
serious problem, it is quite understandable why you would 
reject California's waiver. I am not hearing you acknowledge 
that you believe that global warming is in fact a major crisis.
    Mr. Johnson. I said that global warming is a serious issue 
facing our Nation, facing our globe.
    Senator Sanders. OK.
    Mr. Johnson. I also said that under the law, under section 
209----
    Senator Sanders. That is not what I am asking.
    Mr. Johnson [continuing]. To judge. But that is what I----
    Senator Sanders. All right, let me ask you another 
question. Do you agree with almost all of the scientific 
community that global warming is created by human activity? Is 
it man-made?
    Mr. Johnson. It is my understanding what the scientific 
community says is that there are both human activity as well as 
naturally occurring, but that the current levels and projected 
levels are due largely to human activity. That is my 
understanding.
    Senator Sanders. As I understand it, the IPCC has said that 
the current situation is 90 percent likely caused by human 
activity. Do you agree with that?
    Mr. Johnson. I agree with the IPCC, yes.
    Senator Sanders. Statement on that? OK. Do you agree that 
bold action is needed to reverse global warming?
    Mr. Johnson. I believe that action needs to be taken to 
reverse global warming, both here in the United States and 
around the world.
    Senator Sanders. Bold action is the word I used.
    Mr. Johnson. As I said, action.
    Senator Sanders. Action, OK. If in fact bold, or if in fact 
action is taken, why do you think it took 6 years before the 
Bush administration acknowledged the reality of global warming?
    Mr. Johnson. I would like to correct, to the best of my 
recollection, what I recall the President acknowledging as far 
back as 2001, that it was a problem. Certainly, I would be 
happy to, for the record, to make sure that that is clarified.
    Senator Sanders. But you will agree that the Bush 
administration was far behind virtually every other 
industrialized country in acknowledging the problem and moving 
to deal with the problem?
    Mr. Johnson. No, I wouldn't.
    Senator Sanders. You wouldn't?
    Mr. Johnson. I would not agree with that. I would not agree 
with that, because as a Nation, we have since 2001 been 
investing now over $37 billion in addressing this issue.
    Senator Sanders. I hear that you do not agree with that, 
and that is fine.
    Now, in terms of serious health problems, what we hear from 
the leading scientists of the world, that if we do not address 
global warming we are going to see an increase in dangerous 
flooding, we are going to see drought, we are going to see an 
increased danger, which we are already seeing, of forest fires. 
We are going to see hunger because of the loss of farm land. We 
are going to see wars being fought over limited resources. We 
are going to see an increase in such insect-caused diseases as 
malaria. That sounds to me like we may be facing some serious 
health problems.
    Do you disagree with that assertion?
    Mr. Johnson. Well, again, as I was trying to say to Senator 
Cardin, that under the Clean Air Act, there are specific 
definitions, and certainly interpretation of the definitions 
under the law focusing on endangerment.
    Senator Sanders. I am not asking--excuse me, we don't have 
much time. Just as a human being, just as a human being, do you 
happen to think that flooding, the impact of flooding, the 
impact of drought, the impact of forest fires, hunger, wars, 
malaria and other insect-borne diseases, do you think that that 
constitutes serious health problems?
    Mr. Johnson. As Administrator, I consider myself to be a 
human being, but I also, sir, agree that those are serious 
issues that require--and that is why I believe there is a 
compelling need to address them.
    Senator Sanders. Well. I think frankly your response tells 
us why the entire world is wondering what is happening in the 
United States on this issue. Thank you very much.
    Senator Boxer. Thank you, Senator Sanders.
    Senator Klobuchar.
    Senator Klobuchar. Administrator Johnson, I was listening 
to what Senator Sanders was asking, and some of the other 
questions about this finding that you have to make to meet the 
standards. It is the EPA v. Massachusetts case, so you have to 
show there is a dangerous standard. Could you describe it for 
me again, what it is?
    Mr. Johnson. When the Supreme Court made its decision in 
April of last year that CO2 is a pollutant, they in 
essence left me with a three-part decision. The three-part 
decision was, if you find that there is endangerment to public 
health or the environment, then you must regulate. If you find 
that there isn't endangerment to public health or the 
environment, then you don't regulate. Or if there are--again, 
my words--other conditions or other things that you may not be 
aware of.
    So we are as an agency, and certainly as an Administration, 
working through a deliberate process to evaluate that very 
important issue.
    Senator Klobuchar. OK. I have a really good idea for you to 
speed it up. Julie Gerberding testified before this Committee 
and I assume you think she is a trusted person, and with the 
Centers for Disease----
    Mr. Johnson. A great colleague.
    Senator Klobuchar. The Centers for Disease Control, you 
trust them, I would hope?
    Mr. Johnson. Yes.
    Senator Klobuchar. You remember what happened when she 
testified, and it turned out that some of her testimony was 
redacted and it was a big brouhaha, which you haven't been in, 
luckily. But in her testimony that was redacted, she actually 
said a lot of things that you could use tomorrow to say that it 
is a public health risk. Because I have it here, she talked 
about how the United States is expected to see an increase in 
the severity, duration and frequency of extreme heat waves from 
climate change. This, coupled with an aging population, 
increases the likelihood of higher mortality, as the elderly 
are more vulnerable to dying from exposure to excessive heat. 
That would seem to me to be a public health risk.
    Mr. Johnson. Again, those are the important parts of our 
consideration to determine, again, under the Clean Air Act, we 
are charged with evaluating whether there is endangerment, and 
whether that endangerment, and again----
    Senator Klobuchar. OK, but what I am saying is you have one 
agency of your Administration, in addition to that, talking 
about how some of the infectious diseases that can develop, 
talking about the air quality causing permanent lung damage, 
aggravating chronic lung diseases; vector-borne and zoonotic 
diseases, such as plague, lyme disease, West Nile virus, 
malaria, dengue fever, have been shown to have a distinct 
seasonal pattern. You have all of these things right in another 
agency that is telling you that this could create a public 
health risk.
    So I think this is what drives people in my State, when I 
started out talking about Ely, MN, crazy that you have one 
agency of the Government saying, oh, here it can be a public 
health risk, but then you are not able to use this report and 
say, this is a compelling reason, our own Government has found 
that there is a public health risk. That is my question.
    Mr. Johnson. One is, I have not said whether we are or are 
not using it. Certainly as an agency, we need to look at the 
entirety of the science and make a determination. Again, the 
threshold question that is posed by the Supreme Court is 
whether there is endangerment.
    For whatever reason there may be, endangerment is certainly 
important scientifically and certainly, what steps to take to 
mitigate. But certainly under the Clean Air Act, triggering 
action and next steps is whether there is or is not 
endangerment.
    Senator Klobuchar. I just think you have your endangerment 
in this report. You have seen the wildfires in California that 
this report also predicted would happen. In fact, it was 
redacted while these wildfires were going on.
    One other thing and then I will go into the next round 
here. I know that as one of the rationales for denying the 
waiver, you talked about how it could create a patchwork system 
as opposed to one Federal standard. But correct me if I am 
wrong, but the way the law works, if the California standard 
comes in, this would be the choice. There would be the 
California standard or there would be the Federal standard.
    Mr. Johnson. Thank you for mentioning that, because I tried 
to make it clear in the letter to Governor Schwarzenegger that 
the bases of my decision were on the three criteria under 
section 209 and compelling and extraordinary was the issue that 
the criteria, that was not met. I pointed out in the letter 
that that certainly isn't a context of what is the policy of 
both what is happening as a Nation, and that is the policy, 
again my words, policy context.
    But that was not the decision criteria. The decision 
criteria are very clear in section 209 on whether or not----
    Senator Klobuchar. That is fine. When I come back, I will 
talk about it. But you have said before that this could create 
a confusing patchwork of State rules.
    Mr. Johnson. Again, that is not one of the criteria for the 
decision.
    Senator Klobuchar. But you did say it.
    Mr. Johnson. But I certainly said that the----
    Senator Klobuchar. What I am trying to point out, to get 
the record straight, because this is a very useful political 
argument for people to use, it is not really true, because the 
way the law works, you will have the California standard or you 
will have the Federal standard. So you will have two standards 
that States could pick from.
    Mr. Johnson. Perhaps a better description would be 
checkerboard.
    Senator Klobuchar. So it is not a patchwork----
    Mr. Johnson. Perhaps a checkerboard.
    Senator Klobuchar. Well, it is like one checkerboard with 
one red and one black. Not a patchwork.
    Mr. Johnson. A patchwork of States.
    Senator Klobuchar. OK. I just wanted to make clear to the 
Country here that you said it would be a patchwork. It is not 
really. It is just two choices, one that you can use different 
ways to get to, which we will get into in the second round, and 
then this Federal standard that was a first step, a baby step, 
that we have taken as we have noted since I was in seventh 
grade. Thank you.
    Senator Boxer. Senator, thank you for making that point.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Madam Chair.
    Director, I would like to ask you some questions about the 
process by which this decision came to you. The first one is, 
did you direct the process, the internal administrative 
procedure by which this decision was brought to you and 
presented to you?
    Mr. Johnson. The process that the agency followed is the 
routine agency process for dealing with waivers, which include 
receipt, notice and comment, hearing. In fact, the Governor 
asked for additional hearing, which we did. Staff collected all 
of that, reviewed all of that information and gave me a series 
of briefings. That is all, certainly in my experience, a 
routine agency process.
    Senator Whitehouse. Did the staff briefings include staff 
recommendations?
    Mr. Johnson. Yes.
    Senator Whitehouse. How were those staff recommendations 
presented to you?
    Mr. Johnson. First of all, the staff presented me with a 
range of options. Then that range of options, all legally 
defensible, and within that there were certainly pros and cons 
for each of those. Certainly the staff had their opinions, 
which I certainly appreciate. I listened to those, I listened 
to comments by Members of Congress, the notice and comment. 
Certainly people within the Administration had their view. But 
it ultimately came to me in making a decision and a judgment 
call on my part, and I made that decision.
    Senator Whitehouse. How was it presented to you by the 
staff? What aspect of it? Office by office, who was involved?
    Mr. Johnson. The typical process is that those offices 
across the agency who are involved in helping to draft and 
understand both the science and the legal part, as well as the 
policy, as well as what the Clean Air Act said, those would 
typically be the offices involved in providing counsel and 
advice.
    Senator Whitehouse. They were in this case?
    Mr. Johnson. Yes, I recall they were, yes.
    Senator Whitehouse. Is it customary when decisions are 
brought to the director of the Environmental Protection Agency 
for the staff to endeavor to consolidate a recommendation and 
work out their disagreements, if there are in fact 
disagreements, before they come to the director?
    Mr. Johnson. Again, what my experience has been certainly 
as Administrator is the staff identifies what are the available 
options that are legally defensible, and within the confines of 
the law. That certainly identify what the pros and cons are for 
each of those. They understand and certainly I understand that 
the decision ends up being my decision.
    So again, we had a fulsome process. I certainly fully 
understand the issues. We were talking about litigation and 
litigation risk. Certainly in my experience in the agency, 
every decision, and every option on virtually every issue that 
I have confronted, there is litigation risk. Of course, that is 
again, ultimately my decision. I made the decision. I believe 
it was the right decision. I appreciate the great work of our 
staff.
    Senator Whitehouse. So as I understand it, there are three 
elements ultimately to the process by which you made your 
decision. One was an options analysis that the staff presented 
you with the pros and cons of the various, of the options that 
you had before you. The second was a recommendation that the 
staff made to you as to what your decision should be. The third 
was your decision, the ultimate decision for the agency. Is 
that correct?
    Mr. Johnson. I would add an earlier step, because part of 
the briefing process for me was, here is what the law says, 
here is what the past practice has been, past practices have 
been under section 209 of the Clean Air Act. So there was a, we 
call it a foundational briefing to set the stage for the 
decisionmaking.
    Senator Whitehouse. With respect to the recommendation 
phase of the process, is it customary for you as the 
Administrator to seek to have the different elements of your 
organization that are involved in one of these decisions in 
preparing a matter for your decision to try to come up with a 
consolidated recommendation to bring to your attention among 
the staff?
    Mr. Johnson. What is typical for me, at least certainly in 
my experience, is that as the staff briefs the options, then I 
frequently ask each of them if they would like to share what 
their opinion was. They can certainly pass. Certainly I also 
have those discussions with my policy advisors inside the 
agency.
    Senator Whitehouse. Is that different from the portion of 
the administrative decisionmaking process we talked about 
earlier, where they make a recommendation to you? I assume you 
are sort of asking them to do that.
    Mr. Johnson. Not necessarily. Not necessarily.
    Senator Whitehouse. Is that what you mean when you say you 
get a staff recommendation, is it you just, in the course of 
the options analysis may or may not ask them for their 
opinions?
    Mr. Johnson. No. Often, in some cases, there is a 
consolidated recommendation. In other cases, it is a range of 
options for me to consider.
    Senator Whitehouse. Who decides whether the staff is going 
to present you a consolidated recommendation or a range of 
options?
    Mr. Johnson. Typically I leave that up to the head of the 
office that is working on the particular issue at hand. Again, 
certainly as Administrator, I like to see the full range of 
options that are legally defensible.
    Senator Whitehouse. Why wouldn't you as Administrator want 
in every case not only to see the full range of options but 
also to force your staff, just as a matter of practice, to try 
to work together and make a consolidated recommendation for 
you? Wouldn't that be what you would try every time?
    Mr. Johnson. Well, again, I like to hear the opinions and 
all of the options. But under the law, it is not a popularity 
decision, it is not a vote. It is ultimately my judgment and my 
decision. I appreciate the great work our staff did.
    Senator Whitehouse. I will continue this later, if I may. 
Thank you, Madam Chairman.
    Senator Boxer. Thank you, yes. We are now going to do 4 
minute rounds. I just think, for the head of the Environmental 
Protection Agency to refuse to say that global warming is a 
threat to human health is at best embarrassing for the United 
States of America, and at worst, dangerous. Dangerous.
    I am going to put into the record, without objection, the 
IPCC report on public health impacts embraced by yourself, you 
said you agreed with them, and Dr. Julie Gerberding, who heads 
the Bush administration CDC. Among other things, increased 
malnutrition, consequent disorders involved child growth and 
development. Increase of the number of people suffering from 
death, disease, injury from heat waves, storms, fires and 
droughts, et cetera. We will put that in the record.
    [The referenced material was not received at time of 
print.]
    Senator Boxer. Next, you have stated, and your spokesperson 
was just, I think the word he used was disappointed or 
horrified, I can't remember the word, that we actually told the 
American people what were in these documents. I think it is 
important to place in the record the analysis by CRS dated May 
1, 2007. The Committee may determine on a case-by-case basis 
whether to accept a claim of privilege. They talk about it, it 
is an established, well-established by congressional practice 
that acceptance of a claim of attorney-client privilege is up 
to the Committee.
    So, I don't know why your spokesman is horrified that I 
want to make these documents public.
    Now, when can we expect the rest of the documents, Mr. 
Johnson?
    Mr. Johnson. First of all, Senator, I had asked that you 
respect the privilege because we are now in litigation with 
your own State.
    Senator Boxer. Well, I understand, but we went through 
that.
    Mr. Johnson. Certainly----
    Senator Boxer. I am asking you a question, sir. Sir? My 
responsibility is to the people of my State and this Country. 
Your salary is paid by those people. The people, the good 
people who made the recommendations, who by the way told you in 
unequivocal terms to grant the waiver--we have the information 
and we are going to put that into the record, without 
objection. They said there is almost certainly to be a lawsuit 
by California. EPA is likely to use the suit. That is what it 
says.
    So I am asking you a question, I would appreciate it if you 
would just answer the question. When can this Committee expect 
the rest of the documents?
    Mr. Johnson. I believe my staff have committed, as they are 
going through the process, I believe it is February 15th.
    Senator Boxer. Will those documents include, as we were 
told they would, e-mails between you and your staff and the 
White House and the executive branch, or the White House, the 
Vice President's office?
    Mr. Johnson. I know that we are processing them. The nature 
and the extent of, I would have to get back to you for the 
record.
    Senator Boxer. They told us that those were in the 
documents that we are anticipating. So as far as you know, we 
will get all of the information by February, you said 15th, is 
that right?
    Mr. Johnson. That is my understanding. That is correct.
    Senator Boxer. OK. I am trying to avoid subpoenas and all 
the rest of it.
    Now, you said you were briefed on the law. I place in the 
record the excerpts from legislative history of the California 
waiver provision. Here is what it says, Mr. Johnson. The 
Committee amendment requires the Administrator of EPA to grant 
a waiver for the entire set of California standards unless he 
finds that California acted arbitrarily or capriciously, nor is 
he to substitute his judgment for that of the State. So I will 
ask unanimous consent to place that in the record.
    [The referenced material was not received at time of 
print.]
    Senator Boxer. So let me just say, because my time is 
winding down, we will press for these documents. We hope you 
won't send them over with tape. We hope you won't stand over 
the shoulders of these good people here who work hard, where 
they have to now transcribe everything. This Committee has 
determined, and I know there may be minority views, but the 
majority has determined that these documents are important for 
the people of this Country to see.
    Therefore, we hope that you will not send them over with 
all of this tape. It is ridiculous. It is a waste of time and 
it hurts the American people. I just hope you will consider 
that.
    Senator Inhofe.
    Senator Inhofe. Thank you, Madam Chairman. Due to the fact 
that we are having another round and I will not be here for the 
third round, and I see that Mr. Holmstead is in the audience 
now, get out your pencil, because I would like to have you 
address this question, even though I won't be here to ask it. 
What is the logic of allowing only California to regulate a 
non-local but instead global pollutant? Do you advocate the 
repeal of section 209(b) of the Clean Air Act? Doesn't the very 
essence of the rationale for giving California a special 
prerogative to regulate mean that California must be unique, 
otherwise why not give every State the same right? If giving 
every State the same right to regulate a global pollutant would 
make no sense, why shouldn't California equally be prohibited 
from having its own standard?
    Now, that is what I would like to have you address. I have 
many more I am going to have for the record, because it looks 
like I won't be here for even the second panel.
    But let me just real quickly ask you a question I was going 
to ask you in the first round, Mr. Administrator. In order to 
obtain a waiver, California needs to show that its standards 
are consistent with Federal standards. Now, is that correct, 
there is a consistency requirement that is in the statutes?
    Mr. Johnson. Yes, sir. There are three criteria: arbitrary 
and capricious, compelling and extraordinary, and then other, 
which are consistent with, in essence, the section of the law.
    Senator Inhofe. Well, then I would ask, how can California 
meet the consistency requirement of the statute, because there 
are no Federal greenhouse gas standards?
    I feel compelled to make a couple of comments about some of 
the statements that have been made by other members of this 
panel. Because by not doing so, someone might think that 
perhaps we agree with them. There isn't time to do this, but 
when you talk about whether or not the anthropogenic are the 
major cause or a 90 percent or whatever percentage you want to 
attach to it, this is something that is not settled. The 
science is not settled. We have gone over this over and over 
again.
    I have actually used specific names of people who were very 
famous, very authentic scientists, leaders like Claude Allegre 
in France. Claude Allegre was a socialist, he was one of the 
top scientists who was on the other side of this issue, I say 
to my friends, 10 years ago. Now he has clearly, he said the 
science just flat isn't there. David Bellamy in U.K. is in the 
same position. He was one who felt very strongly 10 years ago, 
he was marching the aisles with Vice President Gore. Nir Shariv 
in Israel was another one that was that way.
    Then we noticed that there are several who showed up in the 
conference in Indonesia, in Bali, that took a different 
position. I was the only skunk at the picnic at the event that 
took place in Italy, Milan, Italy a few years ago. But this 
time, several scientists showed up and wanted to be heard and 
were not very well received.
    Then we have the 400 scientists that we released the names 
of these scientists, all of whom take issue with the fact that 
there is a consensus. They have all questioned that there is 
consensus.
    So it is not settled. Yet those who realize that the other 
side is now being heard and that more and more scientists are 
coming out and questioning it, I see a sense of panic in those 
who keep wanting to say louder and louder, the consensus is 
there.
    You were asked the question, Mr. Administrator, if you 
agreed with the IPCC. I don't agree with your answer, because I 
don't agree with them. But you said you do. Do you agree with 
their assessment that they cut the sea level rise expectations 
in half recently, which is only one twentieth of what the Gore 
sea level rises are? Do you agree with the IPCC in that case?
    Mr. Johnson. That is my understanding. I would agree.
    Senator Inhofe. Did you agree with the IPCC when they came 
out and they said the greenhouse gas emissions by livestock 
exceeds that of the entire transportation segment?
    Mr. Johnson. I don't recall that particular fact.
    Senator Inhofe. All right, I will give that to you, I will 
submit for the record.
    [The referenced material was not received at time of 
print.]
    Senator Inhofe. Thank you, Madam Chairman.
    Senator Boxer. Thank you.
    Senator Carper, let's try to keep to the 4 minutes, because 
we have three Governors waiting.
    Senator Carper. No problem.
    Mr. Administrator, I want to come back to my question 
relating to my letter of May 10, 2007 to you, where I raised 
the three questions. I appreciate your earlier response to my 
question. I just want to go back to the first one, you may 
recall my suggestion urging EPA to develop a mandatory 
inventory registry, if you will, of major greenhouse gas 
sources in the United States. I seem to recall in the Omnibus 
Appropriations bill that we passed a month or two ago, I think 
there is a time line that is called for. Do you recall what 
that is, and can you just again bring us up to speed as to 
where EPA is in regard to that time?
    Mr. Johnson. Yes. The appropriations language directed EPA 
to develop and publish a draft rule not later than 9 months 
after the date of enactment, and a final rule not later than 18 
months after the date of enactment.
    Senator Carper. My question of you was, are you all off and 
running on that?
    Mr. Johnson. Yes, we are.
    Senator Carper. OK. Do you expect to meet both time lines?
    Mr. Johnson. Our intent is to meet those, yes, sir.
    Senator Carper. If you can beat them, that would be just 
great, right?
    The other thing, a couple of my colleagues have alluded to 
the Supreme Court's determination that EPA must make an 
endangerment finding, and explicitly determine whether 
greenhouse gases cause or contribute to climate change. Just 
clarify for us, if you would, what is the status, please, of 
EPA's proceedings to respond to the court's remand? Are you in 
a position to provide me or any of my colleagues with the 
documents that your staff has developed to inform this 
decision?
    Mr. Johnson. At this point, sir, we are working to develop 
our full package, as I mentioned. That is our customary 
practice and it is certainly my intent to follow that is that 
as we proposed draft regulations, which obviously we will need 
to do for both vehicles as well as fuels, that endangerment 
would be part of that, our finding of endangerment as part of 
notice and comment.
    So my intent is we are following that practice. My staff 
has been evaluating the current legislation and at this point I 
don't have a date to say when that would be done. But we are 
working on it. I trust that we will be able to shortly advise 
you.
    Senator Carper. Are you in a position to provide us with 
the documents that your staff has developed in conjunction, to 
help inform you in this decision?
    Mr. Johnson. Well, again, we are in the internal 
deliberative process of trying to work through that. But 
certainly, after we have made that, I have made that decision, 
I would be happy to share that with you.
    Senator Carper. Thank you. The last thing, we spent a fair 
amount of time last year under the leadership of Chairman 
Boxer, with a lot of good work by Senators Warner and Lieberman 
and others of our staff to try to put together an economy-wide 
CO2 bill. I don't know that any of us have asked you 
today your views on that legislation.
    Mr. Johnson. Well, we always look forward to working with 
Congress to address this important and believe real issue of 
global climate change. We are in the process of finishing up an 
analysis of the Senator Warner-Lieberman, I am not sure who 
else, I apologize, that were all part of that. I believe that 
is going to be by--I will have to get back to you for the 
record, but I know that our analysis that, we are coming to 
closure on doing that analysis, which certainly at EPA and 
certainly I hope will inform the debate.
    Senator Carper. My hope is that it will be a supportive 
analysis and a timely one as well. Our leader says, Madam 
Chairman, he hoped to bring our legislation to the floor by 
maybe early June. So your analysis and hopefully your support 
would be most appreciated. Thank you.
    Senator Boxer. Actually maybe sooner than that.
    Senator Lautenberg, 4 minutes, please.
    Senator Lautenberg. Yes, we will try to move things along.
    Mr. Johnson, it took nearly 2 years to review this waiver 
decision. But on the same day that President Bush signed the 
new CAFE bill into law, you were able to make a decision. 
During that time, were you giving any guidance to the review of 
the decision? You said you didn't have direct contact with 
President Bush, if I understand you correctly.
    Mr. Johnson. On that point, I have routine conversations 
with the President and other members of the Administration. But 
putting that aside, let me try to walk through some of the big 
time lines.
    Senator Lautenberg. Sure, walk, please.
    Mr. Johnson. After California submitted the waiver 
petition, it wasn't until the Supreme Court ruled, and it 
certainly was the agency's position that it was not a 
pollutant. Therefore, the waiver was not applicable. Once the 
Supreme Court made the decision in April that it was a 
pollutant, then as I recall, it was within 2 weeks, I began the 
process which begins with a Federal Register notice, then 
follows with hearings. So that process was going, and I had a 
series of briefings by my staff. Once the public comment period 
closed, and recognizing that additional comments came in----
    Senator Lautenberg. It appears that you were waiting to do 
anything until that decision was handed down to kind of give 
you the, if I might say, the protection to go ahead and 
ignore----
    Mr. Johnson. Senator, Madam Chairman, may I clarify that?
    Senator Boxer. It is up to Senator Lautenberg, he controls 
the time here.
    Senator Lautenberg. Yes, please.
    Mr. Johnson. As I was going through my deliberative 
process, which as I said were the briefings and all the rest, I 
was also fully aware that Members of Congress were debating 
whether in fact the Clean Air Act would be changed or not. So I 
didn't know whether it was or wasn't. Ultimately it was not 
changed. So I was prepared to make my decision.
    The timing of the decision is one that I think is worth 
noting. Because I had planned a more orderly process of rolling 
out my decision by the end of the year----
    Senator Lautenberg. I think you have covered it. My last 
question is the Washington Post reported that technical and 
legal staffs cautioned Johnson, their language, against 
blocking California's tailpipe standards. The sources said that 
and recommended that he either grant the waiver or authorize it 
for a 3-year period before reassessing it.
    Now, if that is so, what compelled you to go against the 
advice of the lawyers and scientists at EPA? Do you think they 
were giving you faulty information?
    Mr. Johnson. No. Again, a great team of people, the lawyers 
and scientists and policy staff. They presented me with a wide 
range of options. Those options ranged from approval to denial. 
I listened to them carefully, I weighed the information and I 
made an independent judgment. I concluded that California does 
not meet the standard under section 209.
    Senator Lautenberg. It is too bad, Mr. Johnson, that with 
all that staff and all the information you had that you didn't 
somehow or other comport with the answer you gave me before 
that there is a problem that ought to be faced with the global 
warming and the California problem.
    Senator Boxer. Thank you.
    Senator Cardin.
    Senator Cardin. Thank you, Madam Chair.
    Let me just make an observation. It is interesting that it 
took almost 2 years and you use as one of the reasons that you 
needed or waited for a court decision because you disagreed 
with the application to start off with, and then the courts 
ruled that California was correct to be able to at least submit 
the waiver, then you go through a lengthy process. I guess my 
question to you is, have you learned anything from this? Can we 
expect that the normal practice of the Environmental Protection 
Agency will be this protracted in order for a State to get some 
guidance on a waiver? To me it is just unacceptable, 2 years, 
to have to wait.
    I remember when we had a hearing before this Committee in 
2007, and I asked you a question on timing, and tried to pin 
you down to July being the deadline for getting the answer to 
California. At that time, no one challenged that date as being 
unreasonable and yet, of course, it came and went.
    So I guess my question to you is that I hope we have 
learned from this experience is unacceptable, and it took too 
long in this case. You can justify it on the courts or on the 
process or this and that, the volume of information you 
received. But I will just tell you, I don't think it is 
acceptable for a State to have to wait this long. Now of course 
is not the end, because there is going to be litigation. There 
is going to be more that is going to have to come out.
    To me, we can do things better. I hope that we have learned 
something from this process.
    Madam Chair, I will be willing to take my answer in written 
form in order to save the time. I will yield back the balance 
of my time.
    Senator Boxer. Thank you, Senator.
    Senator Sanders.
    Senator Sanders. Thank you, Madam Chair.
    Mr. Administrator, my understanding is that a technical 
document, especially of the magnitude of the California waiver 
situation, would usually be prepared and made ready for 
distribution before a decision of this magnitude is announced, 
so that the legal basis for a decision can be defended and can 
be well-understood.
    Was it just a coincidence, therefore, that you announced 
your decision regarding the California waiver at a press event 
at 6:30 p.m. on December 19th on the evening that President 
Bush signed the Energy bill. It seems like a strange time to be 
making that announcement.
    Mr. Johnson. I would be pleased to explain. Again, the way 
the agency process works is briefings, then ultimately I make a 
decision, I turn to the staff, direct them to write the 
decision document. I turned to the staff, directed them to----
    Senator Sanders. Was it a coincidence that you happened to 
make a decision at 6:30 p.m., right after the President signed 
the Energy bill? Seems to be rather strange time.
    Mr. Johnson. Let me explain why. That later afternoon, and 
I don't recall what time, but my press office started receiving 
phone calls from major newspapers, saying that papers had been 
leaked, and that at least in their view, that it was mis-
representing what actually was true. They came to me and I made 
a judgment call that, rather than having inaccurate 
information, that I would announce the decision.
    So while that was not my preferred course, I had a more 
orderly course of action that I had planned to take of 
announcement, I felt compelled that the American people were 
owed what was the truth.
    Senator Sanders. So it was just a coincidence that all that 
happened to occur on the same day as the President signed the 
Energy bill?
    Mr. Johnson. Well, again----
    Senator Sanders. Was it a coincidence?
    Mr. Johnson [continuing].--I wasn't the person who leaked 
the information and----
    Senator Sanders. No, no, no, please----
    Mr. Johnson [continuing].--and caused the flurry of phone 
calls.
    Senator Sanders. Sir, please, I am asking you a question. 
The average American would find it rather strange that the head 
of a major agency at 6:30 p.m. on the evening that the 
President signs an energy bill, and you are under oath, would 
make this announcement in a press release rather than in a 
substantive legal argument on such an important issue.
    Mr. Johnson. Again, I acknowledge that this situation was 
unique. It was unique in that I submitted----
    Senator Sanders. You are saying it was a coincidence?
    Mr. Johnson. What I said was it is a unique situation. I 
explained what the situation is. I would be happy to, in 
greater detail for the record, if you would like. Again, my 
commitment to the Governor, members of this Committee, was that 
I would make a decision by the end of the year. As I have 
already testified, while I was deliberating----
    Senator Sanders. Mr. Johnson, could you understand that the 
American people might be somewhat dubious about your 
explanation that just on that particular evening at a press 
conference, on such a lengthy issue, with the Governor of 
California and the American people, it seems to me, are 
entitled to a lengthy, technical, legal argument as to why that 
waiver is rejected, 6:30 p.m. press release on the same day the 
President signs the Energy bill?
    Mr. Johnson. Again, I would be happy to, for the record, 
explain the circumstances that have happened. I said at the 
roll-out or the release my decision was unique. But given the 
circumstances I felt it was the best----
    Senator Sanders. The circumstances had nothing to do with 
the fact that the President was signing the Energy bill on that 
day?
    Mr. Johnson. As I said, I have already described the 
circumstances. We will be happy to----
    Senator Sanders. But you didn't answer my question. Did 
your release that day have nothing to do with the fact that a 
few hours before the President signed the Energy bill, nothing 
to do with it?
    Mr. Johnson. As I said----
    Senator Sanders. You didn't say, sir. You keep saying, as 
you said, you didn't say. I am asking you a simple question: 
was it related, was it not?
    Mr. Johnson. Well, as I tried to say, that I was aware that 
Congress was debating the issue whether to change the Clean Air 
Act. I wasn't sure whether Congress would or would not----
    Senator Sanders. Madam Chair----
    Mr. Johnson [continuing].--doubtful that the President 
would sign or would not sign.
    Senator Sanders. You were doubtful whether the President 
would sign or would not sign? Everybody in America knew that he 
would sign it. You were the head of the EPA, you were doubtful?
    Mr. Johnson. I wanted to have the advantage of making sure 
the President had indeed signed the legislation.
    Senator Sanders. Thank you.
    Senator Boxer. Thank you, Senator.
    Senator Klobuchar.
    Senator Klobuchar. Thank you.
    So then just to finish up what Senator Sanders was saying, 
so this wasn't a pure coincidence that this happened?
    Mr. Johnson. As I said, the factor that caused me to issue 
it on that day and that time was that there was mis-information 
that was being communicated, and that we had multiple phone 
calls from many press sources, and that I felt an obligation to 
correct that. As I said, I had already announced to my staff 
and directed them to begin preparing the technical documents. I 
knew that I wanted to meet and honor my commitment to the 
Governor and to members of this Committee and certainly 
Congress by the end of the year. The mechanism of doing that 
was a letter announcing what my intent was, so that I could 
honor those. The timing of it was, again, driven by the fact 
that mis-information was getting out there. Again, it was not 
my ideal roll-out plan at all.
    Senator Klobuchar. So this is the first waiver that has 
ever been denied under this Act?
    Mr. Johnson. I also consider it the first waiver decision 
and unique given the greenhouse gases. But you are correct.
    Senator Klobuchar. There have been like 50 granted?
    Mr. Johnson. Yes. Whether it is 50 or 100, this is the 
first one, and a major one, which again, I did not believe met 
the criteria under section 209.
    Senator Klobuchar. Right. I was thinking back to what we 
had talked about earlier with the checkerboard of the 
patchwork, which you have now said you have sort of backed off 
from, that it is not really a patchwork, instead of a 
checkerboard, it is two checkers, it is a choice of one 
standard or another. One of the things that I wanted to make 
clear here, so people understand, that the California standards 
don't mandate that the greenhouse gas reductions come from fuel 
efficiency alone, is that correct?
    Mr. Johnson. My recollection is that it also includes air 
conditioners as well, for example.
    Senator Klobuchar. So a combination of improved 
technologies, tailpipe emissions of greenhouse gases, use of 
alternative fuels, credits for air conditioner improvements, 
credits carried from another year or fleet, and credit trading 
among manufacturers? That is what I understand those are all 
involved.
    Mr. Johnson. One of the important features that Congress 
just passed was in fact giving the Department of Transportation 
the authority under law to be able to trade between trucks and 
cars. Certainly California already has that authority, and 
certainly we think that is a good thing.
    Senator Klobuchar. So looking back, because you keep 
talking about the 209(b) and the three ways that you could deny 
the waiver request, as you were looking at this, would be if 
California's determination was arbitrary and capricious, and 
that is not the reason you did it, right?
    Mr. Johnson. Again, that was not the principal reason why.
    Senator Klobuchar. The other one, there is one that says it 
is inconsistent with other Clean Air Act requirements, and that 
wasn't the reason?
    Mr. Johnson. Again, the reason I stated was the second one.
    Senator Klobuchar. That California does not need such State 
standards to meet compelling and extraordinary conditions. So I 
am thinking of this, this happened, like these wildfires, and 
your own Centers for Disease Control, the Administration saying 
that wildfires in West Coast States could happen. I am thinking 
about your own agency's report, which said, I believe, that the 
temperature has increased in the world one degree since the 
industrial age, and then they project something like three to 
eight degrees in the next century. Is that correct?
    Mr. Johnson. I don't recall those specific statistics, but 
I will take your word for it.
    Senator Klobuchar. Let me just tell you, Lake Superior, 
because these guys always talk about oceans all the time, Lake 
Superior, lowest level in 80 years. Why is that? Because al the 
ice is evaporating. So the level is going lower, and the barges 
can't come in, so they are using more and more barges. The 
snowmobilers are talking about a huge change in their 
lifestyles and in their recreation and in the sale of 
snowmobiles because of less snow. The resort owners have seen a 
30 percent reduction.
    One point, and this is in Minnesota, but they have these 
things in California, too, at what point do we see 
extraordinary conditions occurring that would meet the 
standard?
    Mr. Johnson. Again, as you are pointing out, it is not an 
issue that is exclusive to California. It is not unique to 
California. It is a global problem, it is a national problem.
    Senator Klobuchar. But if California can show that they 
meet the standard of extraordinary, just like Minnesota does 
with Lake Superior, why wouldn't they meet the standard?
    Mr. Johnson. Again, in my judgment, given the fact that it 
is a global problem and one facing, as you are saying, 
Minnesota and many other States, it is not exclusive. There is 
not a compelling need for that State standard. That is the 
basis of my decision.
    Senator Klobuchar. Well, we disagree. Thank you.
    Senator Boxer. Senator Whitehouse.
    Senator Whitehouse. Administrator, you just used the phrase 
``in my judgment'' as the basis for your decision. The 
legislative history of this California waiver provision 
specifically says, nor is he to substitute his judgment for 
that of the State. Did you evaluate that piece of legislative 
history in this in any way, and if so, how can you come before 
this body and say that the basis for this is your judgment, 
when that has been something that was effectively legislatively 
disabled in order to facilitate a free and open process 
administratively?
    Mr. Johnson. It is very simple, sir. The law, and I will 
quote, says ``Authorization shall be granted if the 
Administrator finds that,'' and then it lists the three 
criteria. So that is not a----
    Senator Whitehouse. But an Administrator----
    Mr. Johnson. It is not a rubber stamp.
    Senator Whitehouse. OK.
    Mr. Johnson. It is a judgment that I have to evaluate the 
data. I have to evaluate all the issues that we have been 
talking about as to whether in fact one or more, and it just 
takes one of the criteria not being met.
    So in my mind, when this is directing me to evaluate and 
make a judgment as to, that is the judgment that I am referring 
to.
    Senator Whitehouse. Well, the process that led to this, let 
me go back to that discussion we were having. You said that it 
is typical in your agency for there to be essentially four 
steps through this process. One, a process of briefing; second, 
an options analysis with all the options reviewed and evaluated 
by your staff; third, a consolidated recommendation from your 
staff as to the decision that they recommend that you make; and 
finally, your decision, correct?
    Mr. Johnson. Again, there are a lot of important sub-steps 
in that, such as here is the basis----
    Senator Whitehouse. Was anything that I said wrong?
    Mr. Johnson. No, no. Let me just add to that. There are 
very important steps----
    Senator Whitehouse. I would like to get to some questions, 
so I don't want you to slow-walk me through this by going into 
the minutiae of administrative procedure, if you don't mind. Is 
it correct that those are the four major elements that lead to 
your decision?
    Mr. Johnson. You missed another element, and that is 
summarizing and evaluating the notice and comments that came 
in.
    Senator Whitehouse. OK, understood. Was there a 
consolidated recommendation made by your staff on this waiver 
question?
    Mr. Johnson. As I recall, there was a series of----
    Senator Whitehouse. It is a yes or no question.
    Mr. Johnson. I don't recall that there was a consolidated 
recommendation on the briefing papers.
    Senator Whitehouse. Why, if it is typical in your agency 
for there to be a consolidated recommendation made by the 
staff, was there not a consolidated recommendation made by the 
staff on this particular question?
    Mr. Johnson. I thought I just answered the question by 
saying that I receive a wide range of briefings and option 
selections. Sometimes----
    Senator Whitehouse. That is a different thing. That is the 
options analysis you talked about.
    Mr. Johnson. Sometimes there is a consolidated 
recommendation, sometimes there is not.
    Senator Whitehouse. So it is not typical? You are telling 
me two things. You are saying that--you just agreed with me, 
and by the way, you are under oath, you just agreed with me 
that one of the key steps here was the consolidated 
recommendation by the staff. You just agreed with me that it 
was typical, that that was the standard process. Now you are 
saying, maybe sometimes, maybe not. You can't have it both 
ways. What is the process for your agency, which is a big 
agency and runs with procedures?
    Mr. Johnson. Let me correct the record, so that it is 
clear. It begins with a notice and comment process. Then the 
staff----
    Senator Whitehouse. Focus on the consolidated 
recommendation piece.
    Mr. Johnson. Again, there sometimes are consolidated 
recommendations, and those consolidated recommendations are in 
the form of here are the five options that we believe are 
legally defensible. Sometimes those consolidated 
recommendations are, here is our recommendation.
    Senator Whitehouse. What is the difference?
    Mr. Johnson. Sometimes it is a range, sometimes it is one.
    Senator Whitehouse. Yes, but who decides that they are 
going to give you just the options analysis versus a 
consolidated staff recommendation?
    Mr. Johnson. Again, I leave it up to the head of the 
particular office that is evaluating the particular petition or 
regulation or whatever.
    Senator Whitehouse. Isn't it just a matter of basic 
administrative discipline with a multi-division agency like 
yours to force them to the exercise of trying to get to a 
consolidated agency recommendation before you are asked to make 
a decision?
    Mr. Johnson. Again, my point is, the consolidated agency 
recommendation might include one option or it might include 
three options, it might include five options.
    Senator Whitehouse. So the options analysis and the 
consolidated recommendation are the same thing now? We have 
just been through how they are separate steps. Now you are 
saying that they are the same thing?
    Mr. Johnson. I would be happy to be very clear for the 
record, because it is clear that you seem, from my perspective, 
to be confused on the steps. So I would be happy to for the 
record----
    Senator Whitehouse. I think it would be important to 
clarify very specifically what the typical steps are for your 
agency in presenting a matter to you for decision--typically--
and compare that to how that was done in this case. Because 
what I am hearing is that there typically is a consolidated 
recommendation that comes from the staff, which makes sense. 
That is the way administrative agencies should ordinarily 
operate. It is in fact, to some degree, an administrator's 
responsibility to try to force his staff to come to a 
consolidated recommendation.
    That would seem to be the logical way to proceed. You have 
said that you didn't do that in this case. Given how peculiar 
the ultimate decision is, it raises the suggestion that there 
has been a manipulation of the agency process in this case, in 
order to allow you to make a decision that is neither supported 
by the facts nor by the law nor by your own staff's 
recommendation. It is a serious matter. So I hope you will give 
me a real answer to it and not just lots of gobbledygook about 
administrative law, which I am pretty familiar with. I have a 
specific question, and I think I have made it pretty clear, and 
I would like to make that for the record, so I don't take any 
further time.
    [The information was not supplied at time of print.]
    Senator Boxer. Thank you.
    Senators, I am just going to close this out by putting some 
things in the record and just completing the record, and then 
Governors, we are coming to you.
    You mentioned when Senator Whitehouse was saying, these are 
the four criteria, so there is one more, the public comments, 
the views. Do you know what percentage of those views that came 
in supported granting the California waiver?
    Mr. Johnson. I don't know the percentage, but I also know 
that this is not a popularity contest.
    Senator Boxer. I didn't ask you whether it was or wasn't. 
You said it was a criteria, sir. If it is a criteria, you 
corrected Senator Whitehouse, he didn't say it was a criteria, 
you said it was a consideration.
    Mr. Johnson. I said it was a consideration of public 
comments.
    Senator Boxer. Fine, and I asked you knew how those 
comments came out. Were they in favor of the waiver, were they 
against it?
    Mr. Johnson. There was a wide range of comments.
    Senator Boxer. No--wide range.
    Mr. Johnson. A hundred thousand commenters, probably 200 or 
so approximately substantive issues that were raised. It was 
clear that out of the 100,000 there were quite a few that some 
might characterize as a letter-writing campaign or a card 
campaign. Nonetheless, it is a sense of----
    Senator Boxer. So your assessment is it was a mixed view?
    Mr. Johnson. Clearly, that there was a, again, about 
100,000, many----
    Senator Boxer. I am asking, did you think it was a mixed 
view?
    Mr. Johnson [continuing]. Were to support it. But as I 
said----
    Senator Boxer. Some supported, some opposed?
    Mr. Johnson [continuing]. It is not a popularity contest. 
It is----
    Senator Boxer. I didn't ask you that. I asked you were the 
comments in favor of granting the waiver or against. I know it 
is not a popularity contest. That is not my question. You 
answered and said there were mixed views, some in favor, some 
opposed. I would place into the record the California 
complaint. In their analysis, they said 99 percent support the 
regulation of California.
    So I am going to place that into the record. I am sure when 
you get to court, you can argue that. But I want to put that in 
the record.
    [The referenced material was not supplied at time of 
print.]
    Senator Boxer. I am next putting in the record the Supreme 
Court's decision, which completely, completely undermined the 
EPA and this Administration's view on regulating greenhouse 
gases. Just so you will hear this, I think it is important to 
read just a sentence. ``That the DOT sets mileage standards in 
no way licenses EPA to shirk its environmental 
responsibilities. EPA has been charged with protecting public 
health and welfare.'' You were lectured by the Supreme Court.
    [The referenced material was not supplied at time of 
print.]
    Senator Boxer. Now, I want to get to Senator Sanders' 
questioning. Why did you announce this on the date that the 
President signed the Energy bill? Your answer was, well, there 
is no connection, no connection at all. I heard from my staff 
there were leaks going on and I wanted to set the record 
straight. That is what you said. Is that right? Am I giving a 
fair recitation of what you said?
    Mr. Johnson. Yes.
    Senator Boxer. Well, Administrator Johnson, I want to 
remind you that you are under oath, and I want to read to you 
your press release, your press statement. Then if you want to 
change your answer to this Committee, please feel free to do 
so. This is what you said at the press conference. ``Thanks, 
Jennifer, and good evening, and thank you all for joining me. 
Early today, President Bush signed the Energy Independence and 
Security Act of 2007, improving fuel economy and helping reduce 
U.S. dependence on oil. This bill delivers energy security 
benefits and brings a much-needed national approach, national 
approach, to addressing this national challenge, improving the 
environment for all Americans. I believe this is a better 
approach than if individual States acted alone.''
    Mr. Johnson, you based your entire statement on the fact 
that the President signed that. Do you still stand by your 
answer to Senator Sanders that it was just a coincidence?
    Mr. Johnson. I stand by my statement and I stand by this. 
Again, I made my decision for the California waiver under 
section 209 of the Clean Air Act. I found that California does 
not meet the compelling and extraordinary conditions.
    I also noted in the letter, that certainly is in the policy 
context, that Congress, and again, congratulated all of you for 
passing legislation. That was true the day the President signed 
it, and it is true today.
    Senator Boxer. Well, Mr. Johnson, let me just say, just 
really, as a human being to a human being, and I am going to 
ask Senator Sanders, I am going to give him 3 minutes, because 
to me, to me, when you say to him it had nothing to do with it, 
and in essence, and I will put this in the record without 
objection, your entire rationale was based on this. That is why 
Senator Klobuchar corrected you, in this statement you said a 
patchwork. She showed, there is no patchwork, there is two 
standards, the minimum Federal standard and the California 
standard. States are free to choose from one of those.
    So if I just might say, we are not going to open it up to 
all colleagues. I just believe on this point, Senator Sanders 
should, if he----
    Senator Carper. Madam Chair, I would like to have a minute 
just to may illuminate the perspective if I could.
    Senator Boxer. Well, if you could after Senator Sanders, 
and then we are going to the Governors, because this is to do 
with his question. I feel he has the right to followup on this.
    Senator Sanders. Mr. Administrator, I would very much 
appreciate for all of our goods if you could rephrase your 
answer to me. For your good as well, because you are under 
oath. To be very honest with you, the first that I have seen 
the press release is Senator Boxer making it public.
    There is concern about the politicization of many aspects 
of the Bush administration, including the EPA. I asked you if 
in fact it was just a coincidence that at 6:30 in the evening, 
when President Bush signed the Energy bill, that you in a press 
release released such an important statement as your refusal to 
grant the California waiver. You said there were other reasons, 
that leaks had been taking place and you wanted to respond to 
what you believed to be inaccurate information. Senator Boxer 
just made public what we should have known earlier, is your 
statement, which begins with stating that ``President Bush 
signed the Energy Independence and Security Act of 2007, 
improving fuel economy,'' this evening he did, ``and helping 
reduce U.S. dependence on oil. This bill delivers energy 
security benefits,'' et cetera, et cetera.
    The beginning of your statement in terms of why you 
rejected the California waiver has everything to do with the 
President signing the Energy bill. How can you come here and 
tell us that it was just a coincidence?
    Mr. Johnson. As I have tried to explain, that there were 
two events happening in a parallel path. One, I was 
deliberating on section 209 and the waiver petition, and the 
parallel path you all were debating whether to change the Clean 
Air Act, including that section. When it became clear that you 
were not going to change, therefore would not impact the 
decision that was before me, and in fact you did not change 
section 209----
    Senator Sanders. Let me ask you this----
    Mr. Johnson [continuing]. Then I was clear that I was able 
to make my decision on the Clean Air Act, section 209.
    Senator Sanders. You just told us that the reason you made 
the decision at 6:30 on that particular evening is you wanted 
to set the record straight, that there was misleading 
information. Why didn't you begin your statement by saying, 
look, this is just a coincidence, President signed the bill, 
but I want to make it clear, this misleading information, and 
that is why I am making my statement at 6:30 in the evening. 
Instead, what you do is you congratulate the Congress and the 
President for passing the Energy bill. That is your 
justification for rejecting the California waiver.
    Mr. Johnson. I certainly appreciate your advice on----
    Senator Sanders. No advice, that is what you said here.
    Mr. Johnson [continuing]. What I said. Again, it is 
factually correct that in fact Congress had passed, it is a 
good thing. I stand by that statement then, I stand by it now. 
As I point out, what I said was, if you will read the rest of 
the statement, ``In light of the global nature of the climate 
change, earlier this evening I called Governor Schwarzenegger 
to inform him that I have found that his State does not meet 
the compelling and extraordinary conditions needed to grant a 
waiver of Federal preemption.''
    Senator Sanders. That is exactly right. But that is in the 
middle of this paragraph. You begin your statement by 
recognizing the passage and the signing, is that correct, of 
the Energy bill. Is that correct?
    Mr. Johnson. Again----
    Senator Sanders. Did Senator Boxer read the statement that 
you made? Let's be clear. Did she?
    Mr. Johnson. Yes, you have the document before you.
    Senator Sanders. I have it right before me. Just wanted to 
make sure.
    Senator Boxer, thank you very much.
    Senator Boxer. Thank you.
    Now, Senator Carper, rather than open up a lot of time, I 
know that the point is made that there were leaks. I don't deny 
that there were leaks. I don't deny that. I don't question your 
veracity on the point. But I just want to underscore this, it 
has nothing to do with that. I don't deny your veracity on that 
point.
    What I do, what gravely concerns me, is that when you read 
the statement, the rationale for the denial, Mr. Johnson, is 
the bill that was signed. That is the issue. Not your veracity 
that there was--I don't doubt it. We have leaks every day and I 
understand that.
    But your statement should have said, I would have preferred 
to wait, but I am moving forward. So we don't deny your 
veracity on the fact that there were leaks. But what we are 
concerned about is when you say it had nothing to do with the 
Energy bill signing and then the whole basis for this denial. 
Which leads me to just one other question about dates. We are 
looking forward to receiving the documents on February 15th. 
When will you have the decision document ready for everyone to 
read?
    Mr. Johnson. As I have said to Senator Carper, my staff 
have advised me that by the end of February. Madam Chairman, we 
forgot, if we could have my letter to Governor Schwarzenegger 
put into the record, that would be appreciated.
    Senator Boxer. Absolutely, we will place that in the 
record, yes.
    [The referenced material was not supplied at time of 
print.]
    Mr. Johnson. Then also, concerning your question regarding 
the documents, I commit to provide you those documents as 
quickly as possible, according to the guidelines that our staff 
have discussed. These commitments and deadlines are best 
described in the January 18th letter, which I would also ask be 
placed into the record.
    Senator Boxer. So will we get the documents by February 
15th, was what you said before.
    Mr. Johnson. Again, quoting from the letter, we expect to 
provide any responses----
    Senator Boxer. So you are backing off from giving us the 
documents on February 15th?
    Mr. Johnson. I am quoting and commit to what our staff have 
agreed to.
    Senator Boxer. Sir, sir, help me here. Will we get the rest 
of the documents by February 15th?
    Mr. Johnson. I said we expect to, if I had finished the 
statement, we expect to complete our response and provide the 
documents by February 15th.
    Senator Boxer. Thank you. When will we have the decision 
document? Because all you have issued is this press release. 
When are you going to have the document?
    Mr. Johnson. I said, I expect by the end of February.
    Senator Boxer. So the end of February, you will have the 
decision document. OK.
    We are going to call up our Governors. Thank you, 
Administrator Johnson.
    Mr. Johnson. Thank you, Madam Chairman.
    Senator Boxer. Also the rest of our panel.
    We have Hon. Martin O'Malley, the Governor of Maryland; 
Hon. Jim Douglas, Governor of Vermont; Hon. Edward Rendell, 
Governor of Pennsylvania; Hon. Mike Cox, Attorney General of 
Michigan; and Doug Haaland, who is not elected, but the 
minority here wanted to hear from him. He is the Director of 
Member Services of the Assembly Republican Caucus of the State 
of California.
    So if we could proceed. I want to say to our Governors, we 
didn't expect that this would go on as long as it did. But it 
just shows you the intense feelings here on this. We really 
look forward to hearing from you.
    I would ask the Governors, do you have any preference in 
order, or should we just go down the panel? Is there anyone 
that needs to go first because of timeframe?
    Very good. Douglas, O'Malley and Rendell, then we will go 
to Hon. Mike Cox and to Doug Haaland. I am going to ask if you 
would stand and we are going to swear you in, as we swore in 
our previous witness.
    [Witnesses sworn.]
    Senator Boxer. Thank you so much, gentlemen. Why don't you 
start, Governor Douglas?

  STATEMENT OF HON. JAMES DOUGLAS, GOVERNOR, STATE OF VERMONT

    Governor Douglas. Thank you very much, Madam Chairman, 
Senators, members of this Environment and Public Works 
Committee. I appreciate the opportunity to appear today on 
behalf of the great State of Vermont.
    As the first State to adopt California's motor vehicle 
greenhouse gas emission standards and to successfully defend 
these standards against legal challenges by the automobile 
industry in Federal court, Vermont is a leader among the 12 
States that have adopted these standards and the 8 other States 
that have committed to adopting them. Vermont first adopted 
California's low emission vehicle standards in 1996, because 
its program placed more stringent standards on vehicle 
emissions than EPA's program. Vermont has updated its standards 
every time California's have been amended.
    In November 2005, Vermont became the first State to once 
again exercise its right under section 177 of the Clean Air Act 
to sign onto California's amendments. Vermont adopted 
California's standards as part of a comprehensive State 
greenhouse gas reduction plan that addresses our contribution 
to global warming. Climate change poses risks to the State's 
public health, welfare and economy.
    In Vermont, climate change could produce a shorter ski 
season, allow incursion of warmer climate tree species, which 
would replace the current mix of hardwoods that produce our 
spectacular fall foliage, and result in a dramatic change in 
the quality and quantity of maple sap. Ours is a rural State, 
and Vermonters have traditionally worked the land for their 
livelihood. Tourism, farming, logging and maple sugaring are 
major economic drivers. Global warming could threaten our way 
of life. We have an obligation to do all we can to protect our 
environment for future generations.
    Vermonters are proud that we have the smallest carbon 
footprint per capita in the United States. We are a ``net 
sink'' State: we absorb more carbon than we emit. Admittedly, 
Vermont's adoption of California's standards alone will not 
solve the global warming problem. But it is a significant step 
in the right direction that Vermont and other States must be 
permitted to take.
    In Massachusetts v. EPA, the U.S. Supreme Court endorsed 
the view that partial solutions to the problem of global 
warming are valid, and recognized that motor vehicles are 
significant contributors to greenhouse gas concentrations. This 
is particularly true in Vermont, where the transportation 
sector accounts for approximately 45 percent of greenhouse gas 
emissions.
    Under the Clean Air Act, both EPA and California are 
authorized to establish motor vehicle emission standards, 
provided that California receives a waiver of preemption from 
EPA. Congress adopted this two-car strategy for regulating 
motor vehicle pollution in 1967. In the 1977 Clean Air Act 
amendments, Congress authorized Vermont and other States to 
adopt California's standards.
    This is a State right that we embrace, and that must be 
safeguarded. EPA's recent waiver denial infringes on this 
important right, because without a waiver, the greenhouse gas 
emissions standards adopted by Vermont are not enforceable.
    Two years after California submitted its 2005 waiver 
request to EPA, the agency issued a letter denying it. The 
primary reason for denying the waiver was EPA's belief that the 
national approach set forth in the Energy Independence and 
Security Act signed into law on the same date, as you have 
noted, as EPA's letter, was preferable to California standards. 
EPA's stated reason is legally irrelevant under the statutory 
criteria for denying a waiver set forth in section 209 of the 
Clean Air Act.
    Moreover, the agency's assertion that the establishment of 
35 miles per gallon fuel economy standard by 2020 required by 
the Energy Independence and Security Act is more aggressive 
than California's standards is factually incorrect. To the 
contrary, California's standards go into effect earlier and 
result in deeper reductions. In 2016, 4 years before vehicles 
are required to meet the Federal fuel economy standard, 
California standards are expected to reduce greenhouse gas 
emissions in Vermont and the 11 States that have already 
adopted them by 79 percent more than the Federal approach.
    Finally, EPA's letter denying the waiver states that in 
light of the global nature of climate change, California does 
not have a need to meet compelling and extraordinary 
conditions. This conclusion ignores legislative intent and more 
than two decades of EPA precedent establishing that the term 
``compelling and extraordinary conditions'' does not mean 
conditions that are unique to California. If California's 
emission standards could only address air pollution problems 
that are unique to that State, a State's right to adopt high 
but achievable standards for the reduction of greenhouse gas 
emissions under the Clean Air Act would be meaningless.
    For these reasons, Vermont has joined with 15 other States 
in California's appeal challenging EPA's waiver denial as both 
legally and factually unsound.
    So these are the reasons why Vermont adopted California's 
greenhouse gas emission standards, and the reasons why EPA's 
waiver denial encroaches on the rights of Vermont and other 
States to do our part to assume a leadership role in averting 
the impacts from global climate change. Global warming is a 
complicated problem. It won't be solved by any one action. 
Coordinated State efforts to reduce emissions from the 
transportation sector should be applauded, and the statutory 
provisions authorizing these State actions must be upheld.
    Again, I thank you on behalf of the great State of Vermont 
to be here at the hearing today.
    [The prepared statement of Governor Douglas follows:]
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    Senator Boxer. Thank you so much, Governor, and all 
Governors, for your patience.
    Governor O'Malley, we are very happy that you are here.

 STATEMENT OF HON. MARTIN O'MALLEY, GOVERNOR, STATE OF MARYLAND

    Governor O'Malley. Thank you, Madam Chair. It is good to 
see you again, and it is good to be with the Committee. To you, 
Madam Chair and to the distinguished members of the Committee, 
it is my distinct honor and privilege to testify before you 
today on this shameful denial by EPA of the State of 
California's request for a waiver under the Clean Air Act, and 
to require more stringent automobile emissions standards, 
something that every reasonable person wants to see our Country 
doing more of, rather than doing less of.
    I would also like to give special thanks to my Senator, 
Senator Ben Cardin, for his relentless and unfailing leadership 
on this issue and so many issues related to our environment, 
the health of the Chesapeake Bay. As you know, Madam Chair, he 
was speaker of the house of delegates of the great State of 
Maryland, and he understands just how committed our State is to 
the cause of reducing global warming and protecting our 
environment, so that we can pass it on in a healthier condition 
to our children. So thank you, Senator Cardin.
    While we are here today to discuss the denial of a specific 
waiver request made by the State of California under the Clean 
Air Act, this is really about a much larger issue. This is 
about whether or not we are willing to make choices and create 
policies that promote sustainability, enhance our quality of 
life and protect the natural environment that we will leave to 
our kids and to our grandchildren.
    The EPA's grant of the waiver would have allowed Maryland, 
California and 15 other States to have imposed stricter 
automobile emissions standards on what amounts to 45 percent of 
the Nation's registered automobiles. By denying the latest 
waiver request, the EPA has halted progress on this long battle 
to save our environment, even though 15 other States in the 
Union had mustered together the political will as a people to 
make greater progress. Personally as an American, as well as a 
Marylander, I find that shameful.
    Because of this decision, a request long known to be 
legitimate under Federal law, suddenly, miraculously, overnight 
or in the darkness of night, on the eve of Christmas at 6:30 
p.m. suddenly lacks merit. The longstanding agreement that 
States should have the freedom to do more if they should so 
choose than the Federal Government to protect the environment 
is now being abrogated. It is being abrogated without any 
scientific justification and without any legal rationale.
    In the efforts of my State and 19 others to combat sea 
level rise and ozone pollution, now we are being told by the 
EPA, not worth pursuing. We recognize the need for uniformity 
and predictability in environmental regulation. The EPA's grant 
of the waiver would not undermine that need. There has not been 
a patchwork of standards, there have been two standards; one 
that more and more States were trying to adopt, which was the 
more rigorous California standards. Why is that? Because of the 
scientific evidence that climate change is actually happening 
much more rapidly than anyone would have anticipated, even 10 
years ago.
    There are two standards: one that actually moves to address 
climate change; and the other that would have us stand still. 
The EPA has granted the waiver so many times in the past, and 
its denial is what is injecting unpredictability into our 
policies and our laws when it comes to America's will to step 
up and do our part to reduce the effect of climate change.
    I find this decision, with all due respect to the 
Secretary, shameful, outrageous and irresponsible. It amounts, 
in essence, to the EPA saying to the States, how dare you make 
greater progress against climate change than what we are 
willing to make here in the Federal Government. It has no 
policy reason, there is no scientific reason, there is no 
health reason. It is one thing for the Federal Government to 
fail to step up under this Administration to confront climate 
change. It is quite another for this Administration to tell 
States that we are not free to step up and take greater action 
against climate change.
    I have submitted testimony, I do believe, Madam Chair, and 
I will, knowing that we have been over some of these things and 
not wanting to be repetitive, and knowing that we have other 
people on the panel to hear from, I will simply wrap up by 
saying that we must move forward to address this challenge. 
Really, this challenge epitomizes and underscores the real 
crisis, I think, in our Country, whether or not we still have 
that future preference, whether we still believe enough that we 
can make a difference in the world we live for our kids if we 
are willing to take action now. That is what 15 States, 
including Maryland, were trying to do until the Federal 
Government, from this absolutely indefensible decision, told us 
to back off, and that we are not allowed to make progress on 
the environment any more.
    I hope that the Committee will do everything in their power 
to reverse this shameful decision. Thank you.
    [The prepared statement of Governor O'Malley follows:]
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  Responses by Governor Martin O'Malley to Additional Questions From 
                             Senator Inhofe
    Question 1. If your view is that any emissions program California 
adopts must be granted a waiver by Environmental Protection Agency 
(EPA), why did Congress craft a three-part test in section 209(b), 
instead of just granting California a simple power to set its own 
emissions standards of any kind?
    Response. My view is that California should be granted the waiver 
based on the scientific and technological merits of the request and 
that the basis for the waiver is consistent with the conditions 
established in Section 209(b).

    Question 2. What is the logic of allowing only California to 
regulate non-local, but instead global pollutant? (a) Do you advocate 
the repeal of Section 209(b) of the Clean Air Act? (b) Doesn't the very 
essence of the rationale for giving California a special prerogative to 
regulate mean that California must be unique? Otherwise, why not give 
every State that same right? (c) And if giving every State the same 
right to regulate a global pollutant would make no sense, why shouldn't 
California equally be prohibited from having its own standard?
    Response. Your question is really directed to the application of 
CAA Sec. Sec. 1A 209(b)(1) (B)- whether California needs separate 
standards to meet compelling and extraordinary conditions. In carving 
out an exception for more stringent California motor vehicle emission 
standards Congress recognized California's unique and severe air 
pollution problems and its early leadership in the development of 
effective air pollution control programs. EPA has consistently 
interpreted this factor as requiring a determination of whether 
California needs a separate motor vehicle emission control program to 
meet its compelling and extraordinary air pollution problems, not 
whether any particular standard is necessary to meet its needs. In 
acting on previous waiver requests EPA has consistently determined that 
California's separate motor vehicle emission control program is 
necessary to address its air pollution problems, without regard to 
whether a particular emission standard is required by compelling and 
extraordinary conditions. Moreover even were that not the case the 
projected adverse impacts to the health and welfare of California 
citizens from global warming are numerous, serious well-documented and 
beyond dispute. It is further beyond dispute that motor vehicle 
emissions are a significant contributing factor to global warming. 
California's action in establishing motor vehicle greenhouse gas 
emission standards is clearly needed to reduce greenhouse gas emissions 
that contribute to rising temperatures and sea levels that will have 
devastating impacts on that state's coastline and water supply.
    I have not advocated for the repeal of CAA Sec. Sec.  209(b). Nor 
do I advocate for the right of each State to establish its own separate 
motor vehicle emission standards. The existing Framework has allowed 
other states with air pollution problems similar in nature or Degree to 
those experienced by California to piggyback on the California 
standards. This structure has produced technological innovation and 
significant environmental benefits, while avoiding a patchwork of 
different State standards.

    Question 3. Doesn't the detailing of three specific criteria, 
anyone of which could justify a waiver denial, indicate that Congress 
did not intend for the EPA to rubber stamp all waiver applications? It 
is one thing for the EPA to be deferential to California, but deference 
is not abdication, correct?
    Response. I have not advocated rubber-stamping all waiver 
applications. Rather, it is my view that the waiver should be granted 
based on its technical and scientific merit.

    Senator Boxer. Thank you so much, Governor.
    Governor Rendell.

STATEMENT OF HON. EDWARD G. RENDELL, GOVERNOR, COMMONWEALTH OF 
                          PENNSYLVANIA

    Governor Rendell. Good afternoon, Madam Chairman.
    Let me begin by thank you for your leadership not only on 
this issue, but on so many different environmental causes. Let 
me also begin by saying I agree with everything that Governor 
Douglas said and Governor O'Malley said, so I will try to just 
give you a snapshot into the problems that this action presents 
for the State of Pennsylvania.
    In 2006, we began the rulemaking process so that 
Pennsylvania could adopt the California standards. I think the 
Committee should know that in the history of the Commonwealth 
of Pennsylvania, we received a record-breaking number of 
comments, there is a public comment period during our 
rulemaking process, a record number of public comments in 
support of adopting the California standards. Those standards 
went into effect in Pennsylvania starting with the 2008 model 
year that of course begins in September 2007.
    We also want to register our complaint about the delay in 
this decision by the EPA, as California has done. In 
Pennsylvania, by 2025, when there is a full fleet turnover, the 
California Low Emissions Vehicle II program will reduce, and 
this is Pennsylvania only, the emission levels of volatile 
organic compounds by approximately 5,000 tons per year, and it 
will cut nitrogen oxide emissions by over 3,500 tons per year. 
Additionally, implementing the program will also reduce six 
toxic pollutants from 5 to 11 percent, including a 7 to 15 
percent cut in benzene, which as most of you know, is a known 
carcinogen.
    Realizing that these pollution reductions come from our 
transportation sector is very valuable for us, because it means 
that we can impose less strict regulations on our industrial 
employers and utilities. For Pennsylvania, which is still a 
very big manufacturing State, that is of crucial importance to 
us.
    It has been estimated that Pennsylvania contributes about 1 
percent of the world's greenhouse gases. With approximately 25 
percent of that total coming from transportation, the expected 
30 percent reduction in climate-changing greenhouse gas 
emissions from passenger cars and light duty trucks under this 
regulation is vitally important to us, and exceeds, far exceeds 
what Pennsylvania can expect to realize under the fuel 
efficiency requirements set forth in the recently enacted 
Energy Independence and Security Act.
    To use corporate average fuel economy or CAFE provisions as 
a grounds to say that the California approach is not needed is 
simply false, and the Pennsylvania experience bears witness to 
that. In a comparison by CARB, if Pennsylvania could cut 
greenhouse gases from automobiles using the California 
regulation as opposed to the Federal standard, it would prevent 
an additional 2.2 million metric tons per year of climate-
changing gases from reaching the atmosphere by 2016 and 6.6 
million metric tons per year by 2020.
    Additionally, I want to note that it will also save 
Pennsylvania drivers gasoline costs. It has been estimated that 
because of the efficiency that comes from the implementation of 
the California standards, the average Pennsylvania driver will 
save somewhere between $6 and $12 a month in gasoline costs.
    So it is clear to me that these regulations are crucial for 
the well-being of the State of Pennsylvania. Back in November 
2007, at my direction, the Pennsylvania Department of 
Environmental Protection, led by Katie McGinty, intervened in 
two lawsuits, one in district court and one in the court of 
appeals, for unreasonable delay of EPA's decision on the 
California waiver request. Since December 19th, Pennsylvania 
has joined with 14 other States to intervene in California's 
petition to the Ninth Circuit Court of Appeals for review.
    It is clear from the testimony and from the conversations 
you had with the Administrator and from what Governor Douglas 
and Governor O'Malley have said that the assertions by the 
Administrator as to why the California standards shouldn't be 
applied just don't make sense. As Governor O'Malley said, it 
isn't a patchwork, it is two separate and distinct standards, 
and we can live easily and the car companies and everyone else 
can adapt to two separate and distinct standards. As Governor 
O'Malley said, 45 percent of the vehicles in the United States 
would be covered by one standard, 55 percent by the other. That 
is pretty easy.
    Second, this talk about CAFE standards eliminating the need 
for this, not only is Governor O'Malley correct that, 
obviously, before 2016, we could be getting all the 
environmental benefits by the California standards, but even 
after that, these standards have a much greater effect on 
keeping pollutants from going into the environment than do the 
CAFE standards.
    That is not to say that the CAFE standards were not a step 
in the right direction. We applaud the Congress and the Bush 
administration for doing that.
    But we should do more. This is a real battle for the 
survival of this planet. Every sensible person understands 
that. We should take every reasonable step that we can. The 
California standards are reasonable, they make sense, they are 
more effective, and we should keep them.
    [The prepared statement of Governor Rendell follows:]
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    Senator Boxer. Thank you so much, Governor.
    Now, for a different perspective, Hon. Mike Cox, the 
Attorney General of Michigan. Welcome, sir.

STATEMENT OF HON. MIKE COX, ATTORNEY GENERAL, STATE OF MICHIGAN

    Mr. Cox. Thank you, Madam Chair. Thank you, members of the 
Committee, for hearing me today.
    I am Mike Cox, Attorney General for the State of Michigan. 
I will start off by saying, unlike Governor Rendell, I will not 
be agreeing with the people to the right of me, for this simple 
reason: the proposed waiver would for the first time allow 
California to regulate gas emissions from automobiles to 
address the purpose of global warming.
    I am here representing the State of Michigan and the State 
of Michigan's interests and I believe the interests of many 
States in advocating a comprehensive national solution, as 
opposed to a one State or multi-State solution to the global 
problem of greenhouse gas emissions and global climate change.
    As Michigan's Attorney General, I have been a strong 
proponent of State sovereignty and State rights. I have never 
hesitated from protecting the State of Michigan's right to 
preserve its environment when necessary and appropriate. As one 
who sees genius in our Federal system of governance, I believe 
issues that are not fundamentally national in scope and don't 
require a national solution should be delegated and handled by 
the level of government most able to accomplish the mission of 
serving the people: the States.
    Conversely, for problems that impact more than one State, 
regional if possible, but more likely national solutions and 
standards are needed. I appreciate California's unique history 
of air quality problems and the special status that California 
was given under the Clean Air Act, especially by section 
209(b). Because it was an early leader in addressing pollution 
from auto emissions. It is also clear that the waiver grew out 
of California's early regulatory expertise and the special 
problems that California and its cities had with smog.
    However, it is also clear as a legal matter that Congress 
never intended the exception of the Clean Air Act's otherwise 
broad-field preemption to allow California to issue separate 
State standards for pollutants that affect every State and 
every other country without meeting the requirements of section 
209(b) that California, and I will use the terms that are in 
the statute ``needs'' the requested regulation to ``meet'' the 
``compelling and extraordinary conditions'' in California.
    Against a backdrop of Constitutional principles concerning 
the supremacy of Federal law, the doctrine of federalism, it is 
especially implausible to attribute an intent to Congress in 
the Clean Air Act to allow California to issue separate State 
standards addressing global climate change. The objective of 
California's current waiver request is to address global 
climate change. The problem as I see it is that global climate 
change is not solely a California problem, nor is it solely a 
national problem. It is by definition and vernacular a global 
problem.
    Global climate change is a national and international issue 
which cannot be solved by individual States, nor can it be 
addressed by focusing on a single sector, automobiles. By doing 
that, you pit State against State. A single sector, 
automobiles, that by conservative estimates produce less than 7 
percent of the worldwide emissions.
    Greenhouse emissions come from numerous sources besides 
automobile emissions, including power plants, manufacturing 
facilities, aircraft, commercial vehicles, and naturally 
occurring emissions in the environment and in the use of 
agriculture. All these sources are global in nature. Article 6 
of the United States Constitution and common sense dictate that 
any effective global climate change regulatory scheme is 
necessarily a national policy that addresses or should address 
all the sources of U.S. emissions in the larger context of 
international emissions. Allowing California and the other 
States that adopt its regulations to impose what becomes a de 
facto national standard contravenes principles of federalism 
and undermines the possibility for our Nation to speak and act 
with one voice in addressing this global problem.
    California's proposed regulation will not be effective in 
controlling national and international emissions, because it 
only addresses a very small part of the total national 
worldwide emissions. Further, the proposed California waiver 
fails to engage in any meaningful analysis of the cost of such 
regulation. While I recognize the problems of our sister State, 
California, I must point out that the solution is not without a 
cost to the Nation, and particularly Michigan. This a tenuous 
time for the Nation's economy.
    So I would urge all concerned to move cautiously, 
especially with respect to an industry that contributes a 
significant proportion every year to our Nation's gross 
domestic product. Automotive job losses for the Nation would be 
felt more acutely, of course, in Michigan, and over the past 6 
years, our unemployment rate has grown from 3.8 percent in 2001 
to 7.6 percent in 2007, some 50 percent above the national 
rate. Data from those in the best position to judge and the 
most conservative estimates from the Nation's auto companies 
indicate that the net job loss at a minimum, depending on how 
you factor, would range from 60,000 to 100,000 jobs.
    Now, Congress recently debated, and by that I mean this 
Senate as well, the issue of global climate change.
    Senator Boxer. If you could complete. Thank you.
    Mr. Cox. Sure. When it passed the EISA, which raised 
mileage standards to 35 miles per gallon by 2020. In that case, 
representatives from all across the Country, not one State or a 
couple of States, debated the bill and decided to impose new 
CAFE standards, which took into account all the issues related 
to greenhouse gas emissions, as well as energy conservation.
    Senator Boxer. Mr. Cox, you have gone over more than a 
minute.
    Mr. Cox. Have I gone longer than Governor Rendell?
    Senator Boxer. Absolutely.
    Mr. Cox. I appreciate that.
    Senator Boxer. [Remarks off microphone.]
    Mr. Cox. Excuse me, I am sorry.
    Senator Boxer. That is all right.
    Mr. Cox. While the ink is barely dry on the new Energy 
Independence and Security Act of 2007, California's waiver 
request would de facto amend it, promulgating a new regulation 
that necessarily depends on changing corporate average fuel 
economy standards. Congress is the national policymaking body 
in our system of Government. Instead of criticizing EPA's 
decision, this body should make the national policy choices it 
is authorized and entrusted to do. The benefit of one national 
standard based upon the broad-based agreement of all the States 
through the use of our constitutionally empowered democratic 
branches of government would result in more uniform compliance 
and acceptance by all.
    Thank you.
    [The prepared statement of Mr. Cox follows:]
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    Senator Boxer. Thanks.
    Now, Mr. Haaland. A Minnesota name. I wanted to make it 
clear that our Governor and our Attorney General have submitted 
statements for the record, as well as the legislature, the 
majority. The views we are about to hear now are very 
important. They are the minority views of the Republicans in 
the Assembly, and we welcome you and we look forward to your 
testimony, sir.

    STATEMENT OF DOUG HAALAND, DIRECTOR OF MEMBER SERVICES, 
        ASSEMBLY REPUBLICAN CAUCUS, STATE OF CALIFORNIA

    Mr. Haaland. Thank you very much, Madam Chairman, members.
    I appreciate the opportunity to comment on the EPA's 
decision to deny California's waiver request. I am glad that I 
was preceded in the record by such august bodies as the 
Governor's office and the speaker's office.
    As a Californian, I am proud of the work that has been done 
to clean our air in preceding decades. As a child, I too 
remember traveling over the Tejons with my mom and dad into the 
L.A. Basin to visit relatives, and discovering air that my 
father referred to as so thick you could cut it with a knife. 
That pride is now tempered as an adult, in that California's 
waiver request is a radical change in direction from the 
efforts of preceding decades. It is understandable, but it is 
radically different.
    I would like to take this opportunity to thank EPA 
Administrator Johnson for denying California's request, because 
I believe his decision is a reasoned response to a process that 
has spun out of control in California. The reasons for this 
statement are twofold in nature. One is based on policy issues, 
the second is the legislative and regulatory process.
    On a policy basis, the regulations developed by CARB 
represent an extraordinary expansion of regulatory authority 
that no State has previously undertaken. As reflected by 
previous testimony, this is the first of its kind waiver. 
Following the broad statutory mandate contained in AB 1493 by 
Ms. Pavley in 2002, CARB has proceeded to develop and impose an 
unreasonable mandate requiring the regulated community subject 
to these regulations to account for upstream emissions 
associated with the production of fuel used by the vehicle.
    That policy as embodied in a scheme proposed by CARB would 
be an attempt to codify what is known as life-cycle costs. The 
policy implications of this effort are patently unfair, 
especially when you consider in the light of the regulatory 
scheme that is being produced as a result of AB 32, which 
hasn't been discussed here, in light of California's second 
decision to go forward with an overall State strategy to 
control greenhouse gases. This unjust intensification of 
regulatory authority is, as I said, unprecedented and has not 
been attempted in previous efforts.
    Finally, on a policy basis, the Clean Air Act prohibits the 
granting of a waiver if the State does not meet, as you have 
heard before, compelling and extraordinary conditions. The 
argument that California must set a standard for 14 States to 
follow as an attempt to impact climate change emissions does 
not rise to the level of a compelling and extraordinary 
condition. As you have heard, climate change is global. It is 
something that will require a coordinated global response. 
Fifteen States imposing technologically questionable 
regulations will in the end have a statistically insignificant 
impact on the global problem.
    When you consider, as I mentioned, the statistical impact 
of these regulations, in light of the fact that during the same 
time these regulations are proposed to go into effect, the 
country of China will produce over 500 coal-fired generating 
plants in its nation, and the impact in California, as has been 
produced in previous studies, shows that 25 percent of our 
carbon particulate matter arrives from China.
    As a result, when you examine the Administrator's 
declination of the waiver, it is not hard to determine that 
California has, as I pointed out, become the bank shot around 
Washington's perceived inability to take action. The State has 
an environmentally friendly majority in the legislature, where 
their agenda requires only a majority vote. With current and 
previous Governors willing to sign onto green agendas and 
produce what are called ground-breaking green initiatives, the 
waiver request that is the subject of this hearing is, I 
believe, the best example of this bank shot.
    As I indicated, I appreciate the Administrator stopping an 
out of control regulatory process. Were this process to go 
unchecked, it could badly divide the regulatory approach that 
has served our Nation so well. Certainly it will lead to 
standards, even though there be two. Other States will have the 
requirement to either choose between one which improves the 
ability of large and small States to offer consumer choice, 
decrease the cost of goods produced and place significant 
impediments to continued economic growth.
    As you have heard previously, in light of the current $14 
billion deficit in California, I don't believe that we have the 
luxury of continuing to create regulatory schemes that ignore 
economic realities of diminished inventories, reduced product 
sales or the elimination of markets for the products produced 
within the State.
    Thank you again, Madam Chairman, for this opportunity. I 
look forward to questions.
    [The prepared statement of Mr. Haaland follows:]
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    Senator Boxer. Thank you, sir.
    I am going to use my time to respond to what you said and 
also put something in the record and then turn to my 
colleagues. So if you could start the clock.
    I want to say to the Governors how much it means to us up 
here, those of us who are here and a lot of others in the 
Senate, that you are doing what you are doing in the States. 
Your voices are necessary. You are the ones that have stepped 
up to the plate, along with a lot of local officials, mayors, 
et cetera. We urge you on.
    As you know, we are grappling here, we are getting 
legislation through. I had to smile when Mr. Haaland said only 
a majority. When I was growing up, majority rules, you know. 
Now suddenly we need super-majorities to do everything around 
here. That creates some stumbling blocks for us.
    Having said that, it is because of the work you are doing 
and the fact that you are vocal about it. I want to ask you to 
please continue to be vocal about it. The bipartisan nature of 
what we see here with the three of you, and of course this 
extends to my Governor, the Governor of Florida, it goes on, is 
so important for the American people to see.
    So please continue what you are doing, because you put the 
wind at our back just a little bit as we reach for those 60 
votes that is not going to be easy to get. But we are going to 
push for it, let the American people see who is with us, who is 
not with us and they will decide at the end of the day when we 
have elections where majorities do matter, if you get 50.1, you 
win.
    So this is what we need you to do. Please continue to be 
strong in teaming up with my State. We need your voices.
    I just want to again underscore the fact that there will be 
no patchwork quilt. We have said it over and over again, two 
standards, and that has been the history of the Clean Air Act. 
The Supreme Court came down very hard against the EPA when they 
said well, EPA said, well, this is a different pollutant, this 
is greenhouse gases, this is different. The Court said, read 
the Clean Air Act. It explicitly says that climate change, 
pollution is part of the Clean Air Act. So clearly, we need to 
move forward.
    We also hear that this national standard is so great it is 
going to take care of the problem. The Court said, don't stand 
behind that DOT CAFE standard. That is not what EPA's job is. I 
will put in the record the fact that the California Air 
Resources Board did an analysis in all 19 States that are going 
to go for this standard and say that that standard will reduce 
CO2 emissions 85 percent more than the new Federal 
CAFE standard.
    So stick with it. You are onto this, you understand this. 
We want to do better. We should all do better, including the 
national government. But if we don't, you need to move.
    Now, what I want to place in the record is a letter I just 
received. Because I find it very touching, very moving, and I 
will make it available. It is a letter from the working people 
at the EPA. As EPA union officers, this is a letter to 
Administrator Johnson, we just got it today.
    We write to express our deep dismay and concern over the 
damage of EPA's reputation following your December 19th 
decision to deny the California waiver request on vehicle 
greenhouse gas emissions. It says that it has cast the agency 
in a negative light, and it goes on to praise the Administrator 
and say how excited they were when he was nominated. They go 
through what he said at his nomination hearing, and they said, 
we couldn't have asked for a more hopeful lead in your 
administrator-ship.
    Then they go on to say, in light of your Administration's 
repeated proclamations in support of the principles that he 
elucidated at his confirmation hearing, we are at a loss to 
understand your decision on the California waiver request. The 
appearance is that you have disregarded the very principles you 
proclaimed in your confirmation testimony and our agency's 
principles of scientific integrity.
    Given these circumstances, there is a broad and dark shadow 
over the integrity of any future agency decisions under your 
leadership. If your actions cause EPA to lose credibility, how 
does this make us the stronger EPA you claim to support? How 
can we attract the best and the brightest to work at our agency 
if our credibility for making science-based policy decisions is 
in doubt?
    The impact on employee morale can be devastating and may 
take years to recover. Your December 19th decision and its 
impact on EPA is reminiscent of the widespread chaos under 
Administrator Gorsuch, which resulted in many dedicated EPA 
employees quitting out of disgust and frustration. We call on 
you as EPA Administrator not to let this happen again.
    It is signed by Steve Shapiro, Bill Evans, Dwight Welch and 
William Herzey.
    [The referenced material was not received at time of 
print.]
    Senator Boxer. The point is, and why I think this is key, 
and also Jeffrey Bradco and Wendell Smith, I have a message to 
the people who wrote this letter and they represent thousands 
of employees. Don't leave. Don't leave, because brighter days 
are coming. We appreciate the work you do, even though the work 
you do has been disregarded in this case.
    So please keep the morale up, because you've got a lot of 
friends over here who care. So we will put that in the record, 
and now I will call on Senator Lautenberg.
    Senator Lautenberg. Thanks very much, Madam Chairman. I 
greet the Governors, particularly our neighbor, Governor 
Rendell, with whom we have lots of commerce, lots of contact. 
Governor, thank you for lots of leadership as well. I don't 
know our other colleagues as well.
    But as I listened to this, I listen with a degree of 
disbelief. Because when I hear that this will, and I feel 
terrible about Michigan, unemployment, we all have to care 
about those things, otherwise we wouldn't be the wonderful 
country that we are. But the fact of the matter is that change 
has to take place. Because mistakes were being made over a lot 
of years. We see other automobile companies, foreign-owned, 
foreign-led countries taking over the leadership position in 
sales in our Country. It is heartbreaking to me that an 
industry invented in our Country, the industry itself, not 
necessarily the automobile, and we have to get on with solving 
these problems.
    Our gentleman from California, the fact that you are in 
dispute with the leadership here, a policy matter, apparently 
suggests that you don't think conditions are so bad in 
California. You offer the argument that we have to look at 
China. But we are not saying that, OK, China, you are a larger 
country by virtue of numbers of people, and you ought to be 
telling us how to conduct our environmental policies here in 
this Country. That is the same thing that says to me, in a 
different way, well, OK, we ought to listen to the Federal 
Government here in Washington about how we conduct ourselves in 
California and other States across the Country.
    This is a problem that can be solved in part locally. To 
turn our backs on the opportunity to solve it I think is 
dereliction of duty. I have to tell you that. One of the things 
I know Governor Rendell, he has worked with Governor Corzine 
from my State, been willing to take bold steps to provide 
leadership in the face of EPA's inaction. Their excuses, in my 
view, were pure bureaucracy. That is what they sounded like.
    Well, yes, we have a law that we have to obey. Does the 
condition impose hardship on health and well-being? Well, we 
have to obey the law as it is. At what point do you say, look, 
we are firemen, and we have to put out this fire.
    One of the things, Governor Rendell, I know that you have 
done in Pennsylvania, in addition to increasing the fuel 
efficiency of vehicles, we should be examining ways to get some 
of these cars off the road altogether and provide options, like 
improved passenger rail and transit service. What happened with 
that recently improved line from Philadelphia to Harrisburg?
    Governor Rendell. Very instructive of how people will take 
mass transit if you improve it. We combined with Amtrak and 
both the State, and Amtrak put money in. We cut the time of 
that line from 2 hours to 90 minutes. Ridership has come up 
from 899,000 to over 1.2 million in less than 2 years.
    If I could, Senator, I don't mean to interrupt your 
remarks, but I think what we do in government all ties 
together. In 2009, this Congress will be asked to look at, I 
guess, the reauthorization of SAFETEA-LU or the progeny of 
ISTEA. If we don't, in this battle to reduce greenhouse gases, 
if we don't make a dramatically increased commitment to mass 
transit, to passenger rail and to rail freight in this Country, 
then we can talk about all these standards we want, and we are 
not doing our job.
    I am very proud that in Pennsylvania in June, 4 or 5 weeks 
before the bridge collapsed in Minnesota, we added a billion 
dollars annually to our transportation budget. Almost half of 
that went for mass transit, the highest investment ever in the 
State of Pennsylvania for mass transit.
    Again, that transportation bill will have more to do about 
our environment than anything we are talking about now. What we 
are talking about now is obviously keenly important. But the 
best way to reduce transportation gases is to get cars off the 
road.
    Senator Lautenberg. It is also good to get you to work on 
time, it is also good to reduce our dependence on foreign oil. 
It also brings so many benefits.
    Governor Rendell. Eliminate road rage.
    [Laughter.]
    Senator Lautenberg. Well, if the traffic is bad, you don't 
have a lot of room to rage. But it does increase the blood 
pressure across the Country.
    I would say that if we think that by not undertaking the 
costs per conversion now is going to get cheaper in the future, 
it is not going to happen. I thank all of you and I understand, 
Mr. Attorney General, that you have a particular dilemma in 
Michigan.
    Mr. Cox. May I address that, Senator?
    Senator Lautenberg. I am sorry?
    Mr. Cox. May I address that?
    Senator Lautenberg. That you have a particular dilemma?
    Mr. Cox. Yes.
    Senator Lautenberg. Well, I thought that was an acceptable 
statement.
    Mr. Cox. No, no, I appreciate that, and I don't think what 
I am saying is woe is me because we are Michigan and we are the 
automobile capital of the world. Part of my point is, with all 
due respect to the good Governor here, part of his argument in 
his statement is, it is good that you are doing what you are 
doing with auto emissions, because you won't hurt my industries 
in Pennsylvania and you won't impact the largest contributor to 
global emissions, the electricity industry or coal or steel or 
things like that. Which I understand completely. If I were 
Governor Rendell, I would say yes, let's regulate automotive 
emissions, greenhouse gases, let's dump it all on them and then 
you----
    Senator Lautenberg. I will let you stand face to face with 
Governor Rendell, and when you look up at his face, he has a 
rather imposing----
    Governor Rendell. The general would be right, if we hadn't 
taken steps to deal with coal-fired plants. We adopted higher 
mercury content regulations, it was a battle royale in the 
Pennsylvania legislature, but we got them through.
    So General, we want to take care of emissions wherever they 
come from. The auto industry is always telling us that if they 
make changes, it is going to cost them more money. Remember 
when airbags, the auto industry said, oh, my gosh, it is going 
to raise the price of cars, nobody is going to buy American 
cars. Now car companies fight to say how many side airbags they 
have. Isn't there one that has nine airbags in the car? They 
fight because people want them so much.
    The auto industry tried to tell us, in Pennsylvania, tried 
to tell us that adopting the California standards would raise 
the price of an automobile sold in Pennsylvania by somewhere 
between $1,000 and $2,000. Well, what is the trouble? We have 
New York, New Jersey, Pennsylvania all around each other. We 
don't buy enough cars that they could produce en masse the type 
of requirements that are necessary? It is baloney. It is what 
the auto industry has been telling us for years and years and 
years.
    Senator Boxer. I am going to ask Senator Lautenberg to 
complete his thoughts. But I just inept to say, I don't want to 
get into an argument about what Governor is doing what to what 
industry. This is about the California waiver. I think we 
should stick to it if we possibly can.
    Senator Lautenberg, I will give you an extra minute to 
complete your thought.
    Senator Lautenberg. Just 1 minute. Ford announced today 
they are terminating 54,000 jobs. This has little to do with 
the imposition of a standard. It is what exists----
    Mr. Cox. On the contrary, Senator, you are absolutely 
wrong.
    Senator Lautenberg. OK, then the papers are wrong, and the 
news is wrong.
    Mr. Cox. They are not terminating, they are offering buy-
outs, not all those----
    Senator Lautenberg. OK. That means the end of your job.
    Mr. Cox. But to think that more regulation of the domestic 
automobile companies doesn't decrease their worldwide----
    Senator Lautenberg. That is not my mission.
    Mr. Cox [continuing].--structure is absolutely wrong.
    Senator Lautenberg. You shouldn't accuse me of that. My 
mission is ten grandchildren that I have and the grandchildren 
of everybody in this Country who are faced with a plague on our 
being if we don't do something about this. Yes, job loss is a 
terrible thing, and we have to invest in our economy. Finally 
we are going to do something about it.
    But to say that the main reason for having these laws is to 
either punish an industry, help an industry, it is to make life 
better for our children and future generations. Thank you very 
much.
    Senator Boxer. If I could just say what the rules are, we 
have a lot of strong personalities here, each of us. So here 
are the rules. When a Senator has the time, the Senator will 
address the question to somebody. That is the way we are going 
to continue.
    Yes, Senator Cardin.
    Senator Cardin. Thank you very much, Madam Chair.
    Governor Rendell, first, let me thank you for your comments 
on mass transit and on dealing generally with the problems of 
global climate change. As you know, the Lieberman-Warner bill 
that this Committee reported out dealt comprehensively with the 
problems of carbon and greenhouse gas emissions. So we are 
concerned about all areas.
    But I couldn't agree with you more on mass transit. In that 
legislation that is moving forward, with the Chairman's help, 
we were able to get a sizable amount of new resources that will 
be used for mass transit dedicated for that purpose. Because we 
understand that is part of the solution. So we very much agree 
with the point that you made, in dealing with the global 
climate change issue, we have to deal more aggressively with 
alternative means of transportation. That is part of our 
strategy and we are going to continue to make that part of our 
strategy.
    Let me thank the three Governors particularly for being 
here. This is an issue in which I applaud the leadership, your 
leadership on this issue for the people of Vermont, 
Pennsylvania and Maryland. Governor O'Malley, thank God you 
didn't have to come to the EPA and ask for approval when you 
passed the Maryland Clean Cars Act. You were able to do that. 
Or when you established the Maryland Green Buildings Council or 
joined the Regional Greenhouse Gas Initiative, or issued your 
executive order for Global Climate Change Commission, or your 
Empowered Maryland, where you set as a goal for our people to 
reduce the per capita electricity consumption by 15 percent by 
2015.
    This is the type of leadership that Governor O'Malley has 
brought to the people of Maryland. We have mentioned over and 
over again federalism. We want you to give us ways in which we 
as a Nation can develop the right policies. I am disappointed 
we haven't been more aggressive on global climate change in 
this environment here in Washington. I would like to get more 
done.
    But we at least have the States that are moving forward in 
this area, and I thank you for that. Madam Chairman took us to 
Greenland, where we could see first-hand what was happening. 
But as Governor O'Malley knows, we could have taken you to 
Smith Island, which is not very far from here, and shown you 
the direct effect of global climate change.
    So my question to Governor O'Malley is, the sense of 
urgency here, Mr. Johnson sort of says, well, there is no 
compelling reason to allow the States to move forward. Maryland 
is the fourth most vulnerable State to sea level change in the 
Nation. So I would just like to get your reaction as to how 
urgent it is for the people of Maryland that we move forward on 
this type of legislation.
    Governor O'Malley. Senator, thank you. It is very, very 
urgent, you can sense that everywhere in our State. If you look 
at the threat from sea level rise, I have heard fourth most 
vulnerable, I have heard third most vulnerable. There are 
insurance companies now who refuse to insure properties in 
parts of Maryland because of the threat of the sea level rise.
    You look at the Chesapeake Bay. If we had fully 
implemented, if we had the California standard, we would see a 
30 percent, we would be able to reduce greenhouse gas emissions 
from cars and trucks by 30 percent; airborne nitrogen emission 
from cars and trucks deposited into our Chesapeake Bay would be 
reduced by 9 percent by the year 2025. We have seen the reports 
from the EPA telling us that the Chesapeake Bay is not on its 
way to recovery, but instead, all of these unchecked human 
behaviors, including our refusal to embrace these higher and 
better standards, the people of Maryland do not understand why, 
if the technology is there and why, if the ability for us to do 
these things is there, why on earth would we not do this before 
the Chesapeake Bay is irreparably damaged.
    I also beg your indulgence to correct something I 
inadvertently said, Madam Chair, earlier in my testimony, when 
I criticized this decision as having no justification by policy 
or science or reason or law. I inadvertently said that was the 
Secretary's decision. Of course, I should have said the 
Director's, the Administrator's decision, and I meant no 
offense to secretarial staff or any of the other dedicated 
people at EPA.
    Senator Cardin. Let me also point out, we have talked about 
sea level change. But the Chesapeake is warming, we know that, 
and that is causing a major impact with the sea grasses. Madam 
Chair, while we were waiting for this panel, I had a chance to 
talk with Governor O'Malley, with Senator Mikulski, talking 
about one of the problems we have of oysters in the Bay. We are 
losing our sea grasses in the Bay because of climate change.
    So I just applaud Governor O'Malley and the Governors that 
are here. This is an urgent issue, to deal with global climate 
change. It is affecting the quality of the life of people in my 
State and the Nation. I just think, we thank the Governors that 
we have the leadership in our State governments to move us 
forward on this issue. We are going to catch up to you. We are 
going to do it.
    Thank you.
    Senator Boxer. Thank you so much.
    Just before I go to Senator Sanders, I wanted to recognize 
that Ken Connolly is here. Will you just go like that, Ken? Ken 
was the chief of staff to the great former Senator Jim Jeffords 
here at this Committee. It was Senator Jeffords who wrote a 
very far-reaching bill on global warming that then was picked 
up by Senator Sanders that I was proud to co-sponsor. I am just 
thrilled to see you out here.
    With that, Senator Sanders.
    Senator Sanders. Thank you, Senator Boxer.
    I think one point that hasn't been made as strongly as it 
might is the very strong tri-partisan agreement that the EPA 
decision rejecting the California waiver was wrong. I mean, all 
over this Country and here, we have Republican Governors, 
Democratic Governors, Independents. I think the vast majority 
of the American people want us to be aggressive in addressing 
the crisis of global warming.
    Madam Chair, the State of Vermont is well-known for its 
sense of environmental responsibility. We take the issue very 
seriously. I am very pleased that the Governor is here 
representing that view. That position is also shared by Senator 
Leahy, Congressman Welch, our entire delegation, and I am sure 
the vast majority of the people of Vermont.
    I want to ask Governor Douglas, if I might, just two 
questions. You have heard during the course of discussion this 
morning and now afternoon that there are some people who say, 
hey, why should the State of Vermont and the other States, why 
should California go off on its own? Why don't we work with 
just one policy coming here from the Federal Government? What 
is the problem with that?
    The second point, Governor Douglas, I would like you to 
speak to, we have heard today, as we have often on this 
Committee in the past, about economic dislocation if we move 
forward aggressively in terms of cutting greenhouse gas 
emissions. I know that you, the University of Vermont, many of 
us, have talked about the incredible job-creating potential if 
we are aggressive about energy efficiency, solar energy, mass 
transportation, wind turbines and so forth and so on.
    So my first question is, why not let the State of Vermont 
wait? We have a Federal Government here, just wait patiently 
for the Federal Government to do what has to be done about 
global warming.
    Governor Douglas. Well, Senator, thank you for your 
acknowledgement of the great commitment and the environmental 
value and ethic that we have in the Green Mountain State. As 
you noted, we take it very seriously indeed. That is why we are 
such a leader in terms of the least emissions, the most 
emission-free energy portfolio, the cleanest air in the 
Northeast according to the EPA. We have provided tremendous 
environmental leadership in so many ways.
    I think I would answer the question about States versus 
Federal action by looking at the congressional decision 
beginning in 1967 to establish the two-car standard, to 
acknowledge that California prior to that time had been a 
leader in auto emissions regulation, and to allow that State to 
continue that leadership by granting it an exemption, and then 
allowing other States, through the Clean Air Act, to sign onto 
the California standards and have the two-car standard that we 
are talking about today.
    Second, I would note the recent litigation that has 
affirmed the legitimacy of that dual standard, that choice of 
standards, and addressing the alleged inconsistency with the 
CAFE standards. The Federal District Court in Vermont, after a 
16-day trial with thousands of pages of testimony, handed the 
State a very clear, decisive victory. It is on appeal now to 
the Second Circuit.
    Senator Sanders. But why didn't we patiently wait?
    Governor Douglas. I think it is the ethic that we both 
talked about. My colleagues and I are from, in I guess broader 
terms, the same area of the Country. We are part of a nine-
State effort called RGGI, the Regional Greenhouse Gas 
Initiative. The New England Governors and Eastern Canadian 
premiers have adopted some very aggressive standards for the 
11-jurisdiction region.
    Now, the premier and environment minister of Quebec have 
expressed an interest in adopting the California standards for 
their province, and other provincial leaders are starting to 
embrace them as well.
    Senator Sanders. I can see you are not going to go further 
in that area, so I will ask you the other question. What about 
the job-creating potential of an aggressive approach to 
reducing greenhouse gas emissions? Do you see potential there?
    Governor Douglas. Oh, absolutely. I really believe that we 
can become what our Lieutenant Governor has deemed the Green 
Valley, a sort of silicon valley for environmental engineering, 
sustainable technology companies. We have a lot of research 
underway now at the University of Vermont, at some private 
companies, some other institutions in Vermont. We are beginning 
to see an industry develop in hazardous waste cleanup, 
alternative energy design and installation, air quality 
monitoring. A lot of different environmental jobs that are 
quite well-paid and require a high level of skill.
    So the partnership that we have in Vermont between our 
institutions of higher learning and the business sector, I 
think, is very positive. It is growing and I think can play a 
tremendous role. China was mentioned earlier, and the 
relevance, in response to your question is that we had a 
mission a few months ago of business, education and government 
leaders from Vermont to go to China to talk about using the 
expertise that we are developing in our State to help them 
solve some of their environmental problems.
    I was the only American on the stage when the environmental 
exposition was opened in Beijing last June. I think it is 
because Vermont, maybe because of my winning personality, but I 
think it is because the State of Vermont is recognized as such 
tremendous leader, literally around the world, in its 
environmental stewardship.
    So we do take this seriously, and you certainly have 
throughout your career, for which we are all grateful. I hope 
that we can, if not adopt a more aggressive approach on a 
Federal level, allow the States to continue our leadership 
individually or regionally, working with our partners, so we 
can advance this important agenda.
    Senator Sanders. Thank you very much.
    Senator Boxer. Thank you, Senator.
    Senator Klobuchar, and then just so you can be thinking, 
because I know some of our witnesses at this side are lonely, 
we are going to give everybody 30 to 45 seconds to give us your 
final thoughts before we go to our last panel.
    Go ahead.
    Senator Klobuchar. Thank you. I keep wanting to ask, Madam 
Chair, Governor Douglas, I keep thinking I want to ask him what 
it is like to have Bernie Sanders as his Senator, and what is 
his best story and then remind him he is under oath, but I only 
have 5 minutes.
    [Laughter.]
    Senator Klobuchar. I wanted to extend on what Senator 
Sanders was asking, and the other Governors, to the other 
Governors. I just note that I always use this example of what 
Justice Brandeis would say, that the States are to be the 
laboratories of democracy, and that how one courageous State 
can move forward. Our State has done this, we have Eastern 
States here, but I will tell you, Minnesota, California, all 
over this Country.
    But I don't think he ever meant that there should be 
inaction by the Federal Government, which has, I think in part, 
contributed to our sitting here in this hearing room today. I 
just wonder, first, Governor Rendell, if you could expand. You 
talked about the economic piece of this and the costs, 
increasing the gas mileage standard how much, I always used to 
use an example, can save an average family of four between $500 
and $1,000 a year, where you see that shaking out in your 
State, such a large State.
    Then also, the economic opportunities. In our State, we 
have so many wind turbines now, they have opened a bed and 
breakfast in Pipestone, Minnesota. The package is you stay 
overnight and you look at a wind turbine in the morning. So you 
are welcome to come for a weekend.
    Governor Rendell.
    Governor Rendell. Let me say that you are right about the 
States being the laboratories in so many things. But in the 
development of alternative and renewable energy, which I think 
will be to the worldwide economy what biotech and information 
technology have been in the last quarter of a century, I think 
renewables will be to the next quarter of the century. We are 
seeing tremendous activity in each one of our States, all over 
the Country and in the State of Michigan, where Governor 
Granholm does recognize that as Governor Romney said and as 
Senator McCain said in their recent primary, that Michigan has 
to continue to look for new, better ways of building cars, new 
types of cars and also new types of economy for a diverse 
economy. We are all doing that.
    I am trying to persuade my legislature right now to do a 
billion dollar bond issue, most of which, some of which is for 
conservation and some of which is for incentivizing the growth 
of alternative and renewable industry.
    One wind energy company came to Pennsylvania after we 
adopted advanced energy portfolio standards, which I would hope 
the Congress would do for the Nation some day. But right after 
that, Gemasa, the second largest wind energy company in the 
world, came to Pennsylvania, created 1,000 jobs, including 700 
traditional manufacturing jobs in two locations. Because those 
huge blades have to be manufactured.
    So the great thing about alternatives and renewables is 
there is some traditional manufacturing as well as high-tech. 
So I think the sky is the limit for our economy. I want America 
very deeply to be the leader in developing all of these 
technologies, because that is where the jobs are going to be, 
the jobs of the future.
    Senator Klobuchar. Then we were talking about the Attorney 
General being a little lonely down there. I have one, I was 
listening to your legal argument here, and I was thinking about 
the fact, I had asked the Administrator this. They have allowed 
for 50 waivers before this. Certainly not all of the reasons 
for the waivers, let's look at the catalytic converter, smog 
and other things. So they get permission, they get a wavier and 
then other States do the same thing. So that is not unique to 
California, the problem. They just showed a compelling reason 
to get a solution and a waiver, and then other States followed.
    So what I am trying to get at here is, you clearly seem to 
be indicating that California couldn't do anything about 
getting a waiver to work on climate change, because it wasn't 
unique to California. It doesn't make any sense to me, when you 
look at the past for why these waivers were granted.
    Mr. Cox. Well, Senator, I think if you look at the actual 
language of 209(b)----
    Senator Boxer. Sir, is your mic on?
    Mr. Cox. It is. Senator, I think if we look at the actual 
language of 209(b), it requires for a waiver that there be a 
compelling and extraordinary circumstance for California. 
Unfortunately, the problem with greenhouse gases is that they 
are worldwide. They are not extraordinary to just California.
    Senator Klobuchar. But smog is worldwide, too. They have 
had smog problems in Baltimore, they have had smog problems in 
Houston and these other waivers were granted.
    Mr. Cox. Senator, if I could finish. As you pointed out, we 
both share Lake Superior. There are falling lake levels in Lake 
Superior, which you attribute to greenhouses gases. If we say 
that is the case, it is not extraordinary to California. In 
fact, it is a common problem throughout the United States. It 
is a common problem throughout the world, because in fact we 
know most of the emissions are produced by the rest of the 
world. We produce the most individually as a Country, but most 
of the emissions are produced by the rest of the world and 
greenhouse gases, it doesn't matter where it is emitted, unlike 
smog particulate in a particular metropolitan area, the heat 
that is held in is a worldwide----
    Senator Klobuchar. Could I just let Governor O'Malley have 
the last word and respond to that?
    Governor O'Malley. Senator, I was listening to the argument 
before. The notion that because it is a worldwide problem and 
because we are all going down because we are not addressing the 
problem quickly enough, therefore we shouldn't address it all 
until the rest of the world figures it out, is, I find, a very 
strange argument and one that runs counter to most of the 200 
year history of this Nation.
    We believe in the dignity of every individual. We believe 
as Americans that we have a role and a very important and 
revolutionary role, to advance the cause of mankind on this 
planet. There is no more important cause for us to advance than 
the science and the technology which we have in greater 
abundance than other countries do, and muster together again 
that political will to put behind it and to lead this effort, 
not to follow behind. What if we said on human rights, we are 
going to wait until China signs onboard, because human rights 
violations are a global problem, and we can't do anything about 
it until everybody else gets on board first.
    I find it ludicrous and I find it very, very deeply 
disturbing that we would even be having that sort of 
conversation when faced with the overwhelming scientific 
evidence that there are things that we can do about it and it 
needs to be done now before this climate change becomes 
irreversible.
    Senator Klobuchar. Thank you.
    Senator Boxer. Thank you.
    So now we are going to go down, starting from Mr. Haaland, 
and hear your last words of wisdom to this Committee. We will 
give you 45 seconds, and you can take up to that much.
    Mr. Haaland.
    Mr. Haaland. Thank you, Madam Chair. If I can, addressing 
both Governor O'Malley and Senator Lautenberg's reason for 
inclusion of China, the Governor's example of not taking action 
on human rights because China doesn't, the Senate actually 
voted in 1997 on a 95 to 0 basis to not act on Kyoto until it 
included developing nations. So inasmuch as China was excluded 
from Kyoto, I believe that the rationale for it stands.
    Also, Justice Brandeis was listed as an author of the 
phrase relative to States and experiments. If you look to 
California, our experiments in hybrid technology, in other 
areas, attempting to go down the path that these regulations 
address, hasn't been very successful. We had a zero emissions 
vehicle percentage of the fleet program and spent tens of 
millions of dollars installing equipment around the State 
buildings. There are very few electric vehicles plugged in. The 
hydrogen highway hasn't happened because of the intense 
infrastructure investment.
    We have an E85, the Governor went out and purchased over 
2,500, I believe is the figure, E85 vehicles. Unfortunately, 
there are only three E85 stations across the State. Those 
vehicles have ended up adding to the carbon content of the 
State's air because they are not properly thought out. That is 
the point. Think through before we act.
    Senator Boxer. Thank you.
    Attorney General.
    Mr. Cox. Thank you, Senator.
    I would start with this little inconvenience called the 
United States Constitution, which Article 6 says, has this 
concept of Federal supremacy, that problems that are inherently 
Federal in nature, national in nature, international in nature, 
should be dealt with by the executive branch and the Senate. 
The treaty-making power of Kyoto, all that rests and puts this 
problem at your doorstep and you haven't addressed it.
    When I hear about 17 States should be able to do this or 
that, or there is bipartisan agreement, there are 33 other 
States, both Democrat and Republican, who don't agree with that 
view. In fact, Senator Boxer's counterpart in the House, who 
helped draft every major piece of air legislation, that would 
be Congressman Dingle, over the past 55 years disagrees with 
much of what has been said here to the right of me.
    Finally, I agree with Governor O'Malley, it is about 
political will. But the political will appropriately under our 
system of government should be exercised right here on Capitol 
Hill.
    Senator Boxer. Governor Rendell.
    Governor Rendell. Just two quick thoughts.
    No. 1, it does make a difference in Pennsylvania. Even 
though this is a worldwide problem, by adopting these 
standards, we can keep a significant number of toxins and gases 
from going into the air in Pennsylvania. That is demonstrated, 
it is clear. So it does make a difference to each and every one 
of our 17 States, regardless of the fact that I agree it is a 
worldwide problem.
    No. 2, just to thank all of you for your leadership. I hope 
we get this done now. But we have to keep the pressure on and I 
am really looking forward to the transportation 
reauthorization, because I think it provides us with a unique 
opportunity to do something that will last for generation after 
generation.
    Senator Boxer. Governor Douglas.
    Governor Douglas. Madam Chairman, thank you again for your 
time and attention on this important topic. I appreciate the 
leadership Senator Sanders has shown for our State. We will 
keep doing what we can to advance this important matter.
    Very quickly, I would suggest that legally, this is the 
wrong decision by the Environmental Protection Agency. Federal 
district courts on both sides of our Country have held very 
clearly that States have the right under the law to exercise 
this option. Second, individual States have enjoyed rights 
under our Federal system to advance agenda items that they feel 
strongly about, that they feel are important to their 
citizenry. This is an important area in which State leadership 
ought to be respected.
    Finally, as we have said, nothing could be more important 
to the future of the quality of life of all the people we 
represent than the air that we breathe and the economic base of 
our States that is so important based on our traditions.
    Senator Boxer. OK. Last but certainly not least, Hon. 
Martin O'Malley, Governor of Maryland.
    Governor O'Malley. Madam Chair, thank you very much. It has 
been a great honor to be with all of you today and I thank you 
for your leadership and for seeing the importance of this. This 
has also been an extraordinary opportunity for me to express 
views and to be referred during the course of this panel as 
being on the right. That is the first time that has ever 
happened to me.
    [Laughter.]
    Governor O'Malley. We are going to continue to stand 
together and we are going to go to court and get this overruled 
as States. I trust that there will be another day when we will 
be able to regulate further greenhouse gas emissions here in 
the Federal level. The Supreme Court has said that we have the 
power to do it, that our Federal Government has the power to do 
it. In fact, they have rebuked the Federal Government for not 
doing more in the past. I trust we will get this overturned, 
and I thank you so very, very much for your commitment to the 
future of our environment and our children's future.
    Senator Boxer. Thank you.
    Let me close out this panel by saying a couple of words. 
First, Governor Rendell, I would like to invite you to be part 
of a future hearing we are going to be having, because I know 
you stood with my Governor and I think it was Mayor Bloomberg, 
President--no, Mayor Bloomberg--and called for a major 
infrastructure initiative. That was music to my ears, because I 
agree with everything that has been said here from the 
standpoint of cleaning up the air, from the standpoint of 
creation of jobs and easing some of the job losses. I think it 
is essential that we do that.
    So I hope you would respond favorably and I promise you, 
you will be on the first panel, so you won't have to sit 
around.
    [Laughter.]
    Senator Boxer. Not everything we do is as contentious as 
this.
    I also want to say to my friend, Mr. Haaland, welcome, all 
the way from California. I just want to say that you are right, 
that 11 years ago, we voted to say, let's not do anything until 
China acts. We don't feel that way any more. We have had votes 
since where a very strong majority, by the way, when the Senate 
was Republican, we had like 54 votes to say, we need to move 
forward.
    So you are absolutely right to point that out. But we have 
changed dramatically, given the information we have received.
    Finally, to my friend on the left, Hon. Mike Cox, let me 
just say a few things. Please know that as I say this it is 
with great respect. Because you are the top law enforcement, 
legal beagle in your State. You are the top lawyer. I think it 
is important that you look at what the Supreme Court said about 
greenhouse gas emissions. They lectured this Administration. 
They said that climate change emissions were included in the 
Clean Air Act.
    So this is nothing extraordinary. This is yet another 
waiver for yet another pollutant specifically mentioned in the 
Clean Air Act. I just want you to read both the Clean Air Act 
again and the Court's decision.
    Also, to say to you that at the end of the day, if we do 
work together, I agree with Governor Rendell. He says this is 
an economic opportunity the likes of which we have never seen. 
If Bernie Sanders had the chance and he gets going, you are 
just ready to go out there and pass every law, because the 
Silicon Valley people, and I represent them, I am proud to 
represent them, have told me, pass some strong national 
legislation and let the States continue to do what they do. We 
are going to see investments that will make the investments 
that occurred in the communications revolution just be dwarfed.
    So there is so much excitement here. I say to my friends in 
Michigan, and let me say since I mentioned Senator Sanders, he 
worked so hard to get a big piece of this Lieberman-Warner bill 
direct relief and help to the workers in the automobile 
industry and work with them in crafting this. We shouldn't 
approach this with fear or trepidation. We should step up to 
the plate. That is what America does.
    I think these Governors are doing it, and all I say to my 
friends on the other side, if you really step away from fear 
and embrace hope and the American can-do spirit, I think we are 
going to lead the world going out in future years. If we shrink 
and we fight and we get nothing done, somebody else is going to 
grab that ground, and it won't be America.
    But I just want to say to all of you, you have been 
terrific. You have been honest with us, you have been 
informative, and we thank you so very much. Thank you very 
much.
    I say now to my third panel, oh, my God, you are still 
here. We started at 10, it is 10 to 2. We have two of you. If 
you are still around, David Doniger, Policy Director, NRDC; 
Jeffrey Holmstead, Former Assistant Administrator for Air and 
Radiation, U.S. Environmental Protection Agency.
    If I could ask our Governors and all their throngs of 
supporters and friends to exit so we can hear from Mr. 
Holmstead and Mr. Doniger.
    Gentlemen, we thank you so very much for your patience. I 
am going to ask our colleagues to tiptoe out of the room so we 
can get started, because this is a very important panel. A lot 
of excitement in the Committee today.
    So you have heard this, I assume, from the beginning. I 
know that you know we are swearing in all our witnesses. If you 
wouldn't mind standing up.
    [Witnesses sworn.]
    Senator Boxer. Thank you so much.
    Mr. Doniger, why don't you start.

 STATEMENT OF DAVID DONIGER, POLICY DIRECTOR, CLIMATE CENTER, 
               NATURAL RESOURCES DEFENSE COUNCIL

    Mr. Doniger. Thank you very much, Chairman Boxer. It is a 
pleasure to be here, and I appreciate your long-suffering 
sitting in the Chair today.
    I learned some extraordinary things here. I would like to 
submit my testimony for the record and just reflect on a couple 
of things I heard. One of the most interesting things I heard 
was that Administrator Johnson virtually admits that he and 
presumably others in the Administration were waiting to see if 
Congress would change the Clean Air Act, so that they wouldn't 
have to make this decision.
    We know that in the last month or so, when the Energy bill 
was coming together, Members of the Congress who negotiated 
this bill considered some language which would have limited EPA 
at the Federal level and California from going farther than the 
new CAFE standards. The congressional negotiators closed on the 
Energy bill, rejecting that language and including instead 
language that did the opposite, section 3 of the final law. It 
provides that nothing in the law, the new Energy bill, affects 
any pre-existing law, including, and it especially calls out, 
environmental laws.
    I note also that the Energy bill doesn't provide for a 35-
mile per gallon standard. It provides for a standard of at 
least 35 miles per gallon in 2020. So it sets a floor in fuel 
economy terms and it leaves the Clean Air Act intact.
    What I learned is that Administrator Johnson was watching 
to see how that would come out. In fact, we know they weren't 
just watching. The White House sent two veto threats regarding 
the Energy bill to the Congress and included in both of those 
threats that it would be vetoed unless this language 
subordinating the Clean Air Act to the CAFE law was included. 
Congress declined to include it, stuck with the savings clause, 
and the President, who got some concessions in other areas of 
the Energy bill, concluded that he would accept the Energy bill 
with the savings clause, with the Clean Air Act protected, not 
subordinated, and he signed that law.
    It now sounds as though Mr. Johnson was sitting around 
waiting to see if Congress would provide him an excuse for not 
allowing California to go forward. It seems as though, having 
concluded that Congress wouldn't provide that excuse, they went 
back to try to rack through the Clean Air Act and find some 
excuse.
    I don't find the compelling and extraordinary conditions 
that the Administrator is making the slightest bit compelling. 
He is saying that he may wish that the Clean Air Act said that 
California had to have compelling and extraordinary local 
conditions. But it doesn't say that. It says compelling and 
extraordinary conditions. The EPA has interpreted this over the 
years, Mr. Ruckelshaus, who served under two Presidents, 
interpreted this language as not requiring a unique problem for 
California. In fact, it wouldn't make any sense to require a 
unique problem and then provide that other States can adopt 
what California adopts.
    So this is an extraordinarily flimsy argument. The records 
which you have been able to get from the Administrator show 
that the staff advised him exactly how flimsy and weak that 
argument was. It is going to be necessary, presumably, to test 
this out in court. But I am very confident that the State and 
Environmental Coalition, which has tackled this latest EPA 
refusal to deal with global warming, is going to win again. We 
won in the Supreme Court, as you all have mentioned. We have 
prevailed in two court cases that the Governors have mentioned, 
in Vermont and California.
    We prevailed in the legislative battle over whether the 
Clean Air Act would be subordinated or preserved. The 
Administrator is just violating the law. It is maybe not 
unexpected, given who he works for. But it is disheartening, 
nonetheless.
    The other thing I learned, and I will just close with this, 
is that, I believe it was Senator Sanders who summarized Mr. 
Johnson's testimony as saying that he had not talked to the 
President about this matter, and Mr. Johnson felt compelled to 
point out that he does have routine conversations with the 
President. I infer from that exchange that they did talk about 
the waiver, otherwise there would have been no need to say 
anything to distinguish what Senator Sanders had said. So they 
did talk about this. It does seem that your investigation has a 
lot of value to ferret out just exactly who ordered Mr. Johnson 
to make this decision.
    When he says he made this decision independently, I find 
that extremely hard to believe. Thank you.
    [The prepared statement of Mr. Doniger follows:]
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Response by David Doniger to an Additional Question From Senator Inhofe
    Question. What is the logic of allowing only California to regulate 
a non-local, but instead global pollutant? Do you advocate the repeal 
of Section 209(a) of the Clean Air Act? Doesn't the very essence of the 
rationale for giving California a special prerogative to regulate mean 
that California must be unique? Otherwise, why not give every State 
that same right? And if giving every State the same right to regulate a 
global pollutant would make no sense, why shouldn't California equally 
be prohibited from having its own standard?
    Response. In 1967 and 1977, Congress deliberately created a two-car 
system of air pollution standards with authority to set vehicle 
emission standards vested in both the Federal EPA and in California. 
Congress determined in 1967 that it was worth preserving the benefits 
of California's historical role in setting emission standards even as 
the Federal Government assumed a more prominent role.
    So while Congress in Section 209(a) preempted other states from 
setting emission standards, it preserved the role of California, 
subject only to the waiver requirement in Section 209(b). In short, 
while Congress agreed that the auto industry should not be subject to 
50 separate State standards, Congress determined that allowing two 
standards the Federal one and California's was a workable arrangement 
that assured the Nation the benefit of continued technological 
leadership from California while limiting the exposure of the auto 
industry to just two standards. California serves as the pioneer, 
setting standards that break ground in advance of Federal standards. 
From the start Congress anticipated that California's standards would 
be ``more stringent than, or applicable to emissions or substances not 
covered by, the national standards.'' H.R. Rep. No. 90-728 (1967),  
reprinted in  1967 U.S.C.C.A.N. 1938, 1958. Time and again, Congress 
and EPA have adopted the technologies proved up by California into 
subsequent Federal standards applying nationwide. Indeed, other nations 
have followed California's pioneering example, such that technologies 
pioneered in California are now standard equipment on cars made 
throughout much of the world.
    In 1977 Congress reiterated the value of California's role as a 
technological pioneer, stating its intent ``to ratify and strengthen 
the California waiver provision and affirm the underlying intent of 
that provision, i.e., to afford California the broadest possible 
discretion in selecting the best means to protect the health of its 
citizens and the public welfare.'' H.R. Rep. No. 95-294, at 301-02 
(1977). Congress also chose to adopt Section 177, which authorizes 
other states to adopt California's emission standards, as long as they 
do so identically. The point of so doing was to enable other states 
that share California's pollution problems to adopt the same remedies.
    On the basis of these enactments, in a 1984 waiver decision, 
Administrator William Ruckelshaus specifically held that California 
need not have a unique problem nor even the most severe version of a 
problem that it shares with other states. As he stated: ``[T]here is no 
indication in the language of section 209 or the legislative history 
that California's pollution problem must be the worst in the country, 
for a waiver to be granted.'' 49 Fed. Reg. 18877, at 18891, May 3, 
1984. If California had to have a unique problem, there would be no 
point in providing other states the authority to adopt California's 
standards.
    In Massachusetts v. EPA, the Supreme Court rejected EPA's argument 
that Federal regulation of motor vehicle emissions would make no 
difference to a global problem. The Court stated: ``Agencies, like 
legislatures, do not generally resolve massive problems in one fell 
regulatory swoop. . . . They instead whittle away at them over time, 
refining their preferred approach as circumstances change and as they 
develop a more-nuanced understanding of how best to proceed.'' 127 S. 
Ct. 1438, 1457 (2007). The same holds for California's actions. 
Especially when joined by 17 other states--12 that have fully adopted 
California's standards and five others that are in the process of so 
doing--California's standards will make a tangible reduction in U.S. 
and global levels of greenhouse gases. In fact, as California has 
found, its standards will reduce these emissions by more than twice the 
amount of the new Federal CAFE standards.
    In sum, NRDC sees no need for statutory change in Section 209. All 
we seek is EPA's faithful adherence to the law, which requires granting 
the waiver.

    Senator Boxer. Thank you.
    Welcome, Mr. Holmstead. You and I did a little debate on 
this issue on television, remember that? So it is nice to see 
you in person as well.

      STATEMENT OF JEFFREY R. HOLMSTEAD, FORMER ASSISTANT 
    ADMINISTRATOR FOR AIR AND RADIATION, U.S. ENVIRONMENTAL 
                       PROTECTION AGENCY

    Mr. Holmstead. Thank you. Thank you for having the patience 
and thanks to everyone who stuck around this long. I remember a 
long time ago when more people stuck around when I used to 
testify.
    Senator Boxer. Ah, yes.
    Mr. Holmstead. Thank you for your patience.
    Senator Boxer. It is a little easier on you now.
    Mr. Holmstead. It is nice to be here with my friend, David 
Doniger. He has pointed out a number of things, although few of 
them really have much to do with the legal issue that is in 
front of us.
    Just for the record, let me say, my name is Jeff Holmstead, 
and I am now a partner in the law firm of Bracewell and 
Giuliani. But I am not here appearing on behalf of my law firm 
or any clients. I am here in my personal capacity as someone 
who spent a lot of time over the last 20 years working on Clean 
Air Act and climate change issues. As everyone here is well 
aware, late last year Administrator Johnson announced his 
intention to deny California's request for a waiver. I know 
that you, and we have heard from others who are unhappy with 
this decision, but I think as a legal matter, it is the right 
decision. I believe that it is also right as a policy matter.
    Now, again, I think one of the Governors mentioned that 
this issue really goes back almost 40 years ago, when Congress 
first began to deal with air pollution issues. It decided, and 
some people may not be happy with this, but it did decide that 
there would generally be one set of uniform national emission 
standards for motor vehicles. That is the way the law has 
worked since 1967, and a few years later, that responsibility 
for setting those standards was given to the Environmental 
Protection Agency when it was first created.
    As you also know, there is this important exception that 
applies only to California. So it is kind of irrelevant, at 
least as a legal matter, that 17 other States or 40 other 
States. As a legal matter, the question here has to do with 
California. Then back in 1967, Congress explicitly recognized 
that California faced compelling and extraordinary conditions 
with respect to air quality because of its location, its 
geography, its weather patterns and because the vast majority 
of the air pollution that caused its dirty air came from 
vehicles driven on California roads. So Congress allowed, under 
certain circumstances, for EPA to waive this Federal 
preemption.
    Importantly, however, and as a legal matter it is important 
to note what the words actually say. It says in very strong 
terms, ``No such waiver shall be granted if the Administrator 
finds,'' and again, this is the Administrator, ``No such waiver 
shall be granted if the Administrator finds that California 
does not need such standards to meet compelling and 
extraordinary conditions.''
    Historically, there has been very little debate about what 
is meant by the phrase compelling and extraordinary conditions. 
It was undisputed except for, I think, one important instance 
that Mr. Doniger is well aware of. But it was generally 
undisputed that California faced very serious air quality 
problems, the air in many of its major cities was unhealthy to 
breathe, and that most of the State's pollution, really quite 
different from virtually everybody else, most of the State's 
pollution came from vehicles being driven on California roads. 
Thus, there was very little question as to whether the State 
needed its own more stringent standards to meet compelling and 
extraordinary conditions.
    Now, as we have heard this morning, or I guess now this 
afternoon, California seeks a waiver to deal with a very 
different type of problem, global climate change. As you have 
also heard, this is truly a global issue, a ton of 
CO2 emitted in New York or New Dehli has precisely 
the same impact on California as a ton of the same gas emitted 
in Los Angeles or Sacramento. The State is seeking a waiver not 
to provide healthier air for its residents to breathe, but to 
make what it admits is a minimal difference in global emissions 
of greenhouse gases.
    There is no denying that climate change is an enormously 
important issue. But based on the history and the structure of 
the Clean Air Act, it is also clear that compelling and 
extraordinary does not mean enormously important. It means that 
there must be something different about California relative to 
other States, something extraordinary that would justify 
differential treatment for California.
    In support of its waiver request, California lists a number 
of potential impacts that the State may face because of climate 
change, including impacts on tourism, public health, water 
resources and the like. Obviously these impacts are potentially 
very serious. But many other States face some or all of them. 
Nowhere does California really attempt to demonstrate in any 
meaningful way that the negative impacts it would face from 
climate change are extraordinary as compared to other States in 
the Union.
    Simply as a constitutional matter, it would be problematic 
if Congress were to favor one State over all the others unless 
there is a good reason for doing so, unless there is something 
different about that State to justify its special status. The 
special status of California only makes sense if section 209(b) 
is read to allow the State to address conditions that are 
compelling and extraordinary compared to other States.
    Senator Boxer. I am going to ask you to finish up right 
now.
    Mr. Holmstead. Oh, I didn't think I had gone my 5 minutes 
yet. If I have, I apologize.
    Senator Boxer. Time flies.
    Mr. Holmstead. I even timed myself last night.
    But the situation here really is quite different, and I am 
afraid that Governor Rendell and Senator Cardin maybe don't 
understand exactly what the waiver is. Because there is nothing 
about the waiver decision that actually creates healthier air 
to breathe. It doesn't result in----
    Senator Boxer. Well, that is so incorrect on its face I 
will put the documentation into the record.
    Mr. Holmstead. I would be----
    Senator Boxer. The studies on ozone are overwhelming.
    Mr. Holmstead. No, no, the studies----
    Senator Boxer. We have those and we will put them in the 
record.
    Mr. Holmstead. The studies that are in the record, 
actually----
    Senator Boxer. We will put studies into the record just to 
refute what you just said, sir.
    [The referenced material follows on page 143.]
    Senator Boxer. Now, do you want to just complete, because 
you have gone over.
    Mr. Holmstead. Yes, thank you. Emissions of traditional air 
pollutants that contribute to ozone and other problems are not 
affected by the waiver decision. I think as you undoubtedly can 
guess, this will go to court. I think this is a case in which 
EPA will be upheld, because it really doesn't have anything to 
do with Massachusetts v. EPA.
    [The prepared statement of Mr. Holmstead follows:]
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    Senator Boxer. Well, Mr. Holmstead, your testimony is so 
unbelievable to me. Now, I know you don't represent your firm, 
although it says Bracewell and Giuliani on your statement. We 
shouldn't have done that. But the fact is, the firm does 
represent the biggest polluters.
    But let me just say this. You are the one who made the 
argument that the Clean Air Act didn't cover greenhouse gas 
emissions. Not only was your theory struck down, but you were 
lectured by the Supreme Court, and again, we will put that in 
the record. They found, contrary to the opinion of EPA counsel, 
the Clean Air Act does not authorize EPA to issue mandatory 
regulations to address global change. They said in fact that 
was totally wrong.
    Now, your assertions then were wrong, you predicted EPA 
would win, you were wrong. You now say EPA is going to win 
this.
    Now, I have to tell you, I have great respect for your 
credentials, but your legal opinion doesn't square with the 
legal opinion given to Mr. Johnson by the EPA lawyers who pick 
apart your comment that there is no compelling or extraordinary 
circumstances. Again, I will put this in the record again, this 
is the lawyer speaking.
    California continues----
    Mr. Holmstead. This is the opinion of EPA lawyers? With all 
due respect, I don't think that is correct.
    Senator Boxer. These are the lawyers. These are the 
lawyers. Excuse me, sir. These are the documents. We will show 
them to you. I can't give them to you. We will show them to 
you.
    Mr. Holmstead. I am aware this is apparently from a 
briefing. That wouldn't be considered----
    Senator Boxer. It's not apparently a briefing. It is the 
recommendations. EPA has asserted attorney-client privilege 
over it. So don't tell me it is not an opinion of the attorney. 
So let's not argue over how many angels dance on the head of a 
pin. I will finish.
    California continues to have compelling and extraordinary 
conditions, in general, geography, climatic, human and motor 
vehicle populations. Many such conditions are vulnerable to 
climate change conditions, as confirmed by several recent EPA 
decisions. Wildfires, they go through it chapter and verse.
    So EPA's lawyers in the documents we have, to which Mr. 
Johnson is asserting executive privilege, dispute you 
completely. You were wrong before, and you don't seem to have 
any feeling of humility about it. You were so strong, you 
predicted how the Supreme Court would go. Not only did the 
Supreme Court rule against you in saying that greenhouse gas 
emissions were included in the Clean Air Act, they lectured the 
EPA. I have never seen anything like it. They lectured the EPA.
    Now, I read the Clean Air Act, and it is plain English. By 
the way, you are a lawyer, I happen to in general love lawyers. 
My husband is a lawyer, my son is a lawyer, my father was a 
lawyer. But I have to say, if you just read English, you can 
see that the Clean Air Act said in plain English, greenhouse 
gases, they used the word climate change emissions are covered.
    So you are standing on quicksand when you say that the 
lawsuit will be overturned.
    Your other point about, oh, this doesn't really involve 
other States, and I get your point, it does involve other 
States. That is why other States are suing along with 
California and why you heard three Governors from other States 
speak eloquently on the point. So I don't think it serves us 
well.
    Mr. Holmstead. Senator, my position was it would be illegal 
for Steve Johnson to consider how many other States had said 
they wanted to follow California's lead. That is not the way 
the law works. That was my point.
    Senator Boxer. Well, it is illegal for Steve Johnson to 
substitute his judgment for what California is asking. All you 
have to do is read the legislative history. I would just say, 
sir, having been called out once by the Supreme Court, you come 
before us with all this certainty. I just want to say with all 
due respect to you, you really ought to take another look at 
what you are saying.
    For example, you said something that is totally inaccurate. 
You said that this different standard is minimal, it is going 
to make a minimal difference, when the facts are out and the 
studies are out, 85 percent more than the new Federal CAFE 
standards.
    Mr. Holmstead. Senator, those are California's words.
    Senator Boxer. No, no, no, it is not California's words. It 
is a study.
    Mr. Holmstead. That is what California has said repeatedly. 
They have acknowledged a minimal directional difference.
    Senator Boxer. Do you not respect Governor Schwarzenegger?
    Mr. Holmstead. I certainly do, enormously.
    Senator Boxer. Do you not respect Attorney General Brown? 
Do you not respect the people of California who want this to 
happen? Sir, all I can say is that your conclusions that the 
waiver should be denied and that the Administrator is standing 
on strong ground is simply belied by the EPA's lawyers and 
everything else.
    I am going to close and ask David Doniger, do you think 
that California and the other States have a strong case in 
front of the Court?
    Mr. Doniger. Yes, Senator, I do. I think two quick 
comments. Mr. Holmstead has a track record that goes beyond the 
Supreme Court case. There are somewhere between 6 and 10 
decisions that have been overturned on pure legal grounds from 
his tenure. So----
    Senator Boxer. Would you make that available for the 
record?
    Mr. Doniger. Sure, we can make a list of those available.
    Senator Boxer. Thank you very much.
    Mr. Doniger. The second point is, this is all going to come 
down to, what does compelling and extraordinary mean. It 
doesn't mean unique. That has already been determined by the 
Administrator. It wouldn't make any sense for it to mean 
unique, because Congress has provided the other States can 
adopt the same standards.
    So to the extent that Mr. Holmstead is pinning all his 
hopes on compelling and extraordinary, meaning something that 
is affecting California only, it is not going to prevail.
    The last thing I would note just for the record is, I think 
Mr. Holmstead misquoted the current statute. It says, the 
Administrator shall grant the waiver unless he finds, unless he 
determines.
    Mr. Holmstead. No, I was reading right from the statute, 
Dave. We can double check that.
    Mr. Doniger. We can double check that.
    Presumptions run very heavily in favor of California. That 
is what the D.C. Circuit has said.
    Senator Boxer. That is what the EPA's lawyers have said in 
the documents, that we had to painstakingly transcribe because 
the EPA is hiding behind some Nixon-era decision on executive 
privilege, not recognizing that Mr. Johnson is not the 
President of the United States, he is an Administrator, and not 
recognizing that these documents are not classified, they have 
nothing to do with national security.
    So I think this is an outrageous decision. They are trying 
to run the clock, that is what this Administration is all 
about, and the people who were part of it before, run the 
clock, take 2 years with a bogus argument that you get lectured 
at wasn't even right, that the Clean Air Act doesn't include 
greenhouse gas emissions, run the clock, run the clock, 2 
years. Then at 6 o'clock, late at night, say, oh, well, we just 
passed the Energy bill, this is unnecessary, and then run the 
clock on these lawsuits. The American people have to pay to go 
to court, they pay for the lawyers, they pay for the time, they 
pay for the time of our Governor, of the other Governors. It is 
all on the clock, and it is all about beat the clock.
    What they are trying to do is nothing, nothing helpful in 
terms of reduction of greenhouse gas emissions. Thank God the 
States are moving forward. Thank God for that, the mayors are 
moving forward. Thank God the American people do not share the 
views that are expressed here by those who are associated with 
this Administration.
    I am going to close by saying today I am introducing a bill 
that would grant the California waiver. My co-sponsors so far 
are Feinstein, Lieberman, Lautenberg, Cardin, Whitehouse, 
Sanders, Clinton, Leahy, Kerry, Obama, Dodd and Mikulski. We 
will continue to get more co-sponsors as the days and weeks 
progress.
    But the fact is, this Administrator, I hope he will 
consider the views of the members of this Committee, the views 
of the Governors, the views of the people and instead of 
waiting to be told by a court or to be overruled by Congress, 
do the right thing. Grant the waiver, let the States protect 
the health and safety of the American people and this planet.
    We will stand adjourned.
    [Whereupon, at 2:15 p.m., the committee was adjourned.]
    Additional material submitted for record follows.]
    Statement of Hon. Jon S. Corzine, Governor, State of New Jersey
    Thank you for this opportunity to testify on the Environmental 
Protection Agency Administrator's denial of California's waiver to 
allow states to reduce greenhouse gas emissions from motor vehicles, 
and its significance to New Jersey. This decision is unacceptable and 
will negatively impact New Jersey's efforts to combat global climate 
change. Denying the waiver will have a profound effect on the health of 
New Jersey's citizens and our attempts to protect our natural resources 
and our economy.
    There is no mistaking the threats of global warming and the health 
hazards caused by ozone air pollution in our densely populated coastal 
state. However, the Administrator's denial of the waiver, ignores the 
threats of global warming. In response to the environmental and 
economic threats of climate change, states like California and New 
Jersey have worked to reduce their impacts of greenhouse gas emissions. 
But Administrator Johnson's decision has denied New Jersey and the 
other states a key resource in our efforts to address climate change.
    Recently, I signed an Executive Order that seeks by 2020 to reduce 
greenhouse gas emissions to 1990 levels, or by approximately 20 
percent, and calls for a total 80 percent reduction below 2006 levels 
by 2050. The goals in the executive order were then incorporated into 
the ``New Jersey Global Warming Response Act'', which was signed into 
law in July, 2007. These policies and goals are among the most 
aggressive climate control programs in the country.
    However, these goals cannot be met, unless the State is permitted 
to implement the California program, to decrease the emissions of motor 
vehicles. In 2004 the transportation sector accounted for 36 percent of 
New Jersey's total carbon dioxide emissions. Improving motor vehicle 
fuel efficiency and setting greenhouse gas emissions standards 
represent the greatest opportunity for significant energy savings in 
the transportation sector.
    The California greenhouse gas standards for motor vehicles are a 
key component in meeting those goals. The California greenhouse gas 
standards for motor vehicles must move forward so that not only 
California, but the 13 other states, including New Jersey, that have 
adopted the standards will be able to move forward in addressing the 
problem of global warming.
    The authority to implement this California Low Emissions Vehicle 
Program, has been confirmed by numerous court decisions that have 
upheld challenges to the California emissions standard and clarified 
the legalities for California to adopt such standards. In fact, in 
April, the United States Supreme Court ruled that greenhouse gas 
emissions from motor vehicles are pollutants that can be regulated 
under the Clean Air Act. This ruling and the Clean Air Act give states 
like California and New Jersey the jurisdiction to design a clean car 
program.
    In the Administrator's denial of the waiver, he cited concerns 
about creating a confusing patchwork of different State emissions 
standards. However, there are only two standards ? the California 
standard and the Federal standard. While these two standards are 
similar, they serve different purposes. The new energy bill will 
regulate fuel economy standards, but the California standard focuses 
primarily on regulating greenhouse gas emissions, which are the cause 
of global climate change. Instead, the only patchwork created would be 
the geographic distribution of the two programs.
    Administrator Johnson also cites the Energy Bill and its CAFE 
standards as a substitute for California's greenhouse gas standards. 
However, the two programs are not equivalent. The California Air 
Resources Board has analyzed the two programs and found the California 
program will have nearly double the emission reductions relative to the 
new energy law. The goals of the Energy Bill are to reduce energy 
consumption which is laudable, but it is not sufficient to protect the 
environment from the impacts of greenhouse gas emissions.
    We should not kid ourselves. The reason we are having this debate 
today, is because states are looking for ways to combat global climate 
change. New Jersey's situation is compelling as we will be adversely 
impacted by climate change. Global warming is the most urgent 
environmental issue we face. It is having a serious impact on New 
Jersey's public health, environment and economy in several ways.
    First, the effects of global climate change could be devastating to 
New Jersey's natural resources. New Jersey has 130 miles of highly 
populated coastline, as well as thousands of acres of coastal salt 
marshes and tidal flats, coastal wetlands, and tidal freshwater 
wetlands. These areas are highly vulnerable to the predicted sea level 
rise from global warming. Rising seas would inundate many acres of New 
Jersey's remaining coastal salt marshes and tidal flats that provide 
flood protection, water quality benefits, and habitat for native 
species. Sea level rise would alter flooding and salinity of the 
State's coastal wetlands, which are among the largest, most productive, 
and most diverse in the mid-Atlantic region, with substantial adverse 
impacts on wildlife and fisheries.
    Second, sea level rise could cause chronic flooding within this 
century, and sections of the State's highly developed coastline could 
be submerged by this flooding.
    Third, higher temperatures and increased frequency of heat waves 
due to global warming also may increase the number of heat-related 
deaths and the incidence of heat-related illnesses. Climate change 
models project a significant increase in the number of days above 90 
degrees Fahrenheit in New Jersey, which will increase heat stress, 
particularly for vulnerable urban populations such as the elderly and 
urban poor. In addition, an increase in temperature also means an 
increase in air pollutants in a State already has high air pollution. 
For example, in the summer of 2002, New Jersey had the highest number 
of ozone violations per monitoring station in the Nation. Ground level 
ozone concentrations throughout the entire State of New Jersey exceed 
current national health-based standards. Higher temperatures will tend 
to increase these health violations.
    In summary, the Administrator's decision to prohibit the states' 
ability to effectively reduce greenhouse gas emissions from motor 
vehicles is unacceptable. This decision will have a profoundly adverse 
effect on New Jersey and must be reversed. This is a non-partisan, 
state's rights issue, and I call upon the Administrator to fully 
explain his rational for his decision.
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