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S. HRG. 110–1269 

REGULATION OF GREENHOUSE 

GASES UNDER THE CLEAN AIR ACT 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 23, 2008 

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

( 

Available via the World Wide Web: http://www.access.gpo.gov/congress.senate 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

JOSEPH I. LIEBERMAN, Connecticut 

THOMAS R. CARPER, Delaware 

HILLARY RODHAM CLINTON, New York 

FRANK R. LAUTENBERG, New Jersey 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

AMY KLOBUCHAR, Minnesota 

SHELDON WHITEHOUSE, Rhode Island 

JAMES M. INHOFE, Oklahoma 

JOHN W. WARNER, Virginia 

GEORGE V. VOINOVICH, Ohio 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

LARRY E. CRAIG, Idaho 

LAMAR ALEXANDER, Tennessee 

CHRISTOPHER S. BOND, Missouri 

BETTINA POIRIER, Majority Staff Director and Chief Counsel 

ANDREW WHEELER, Minority Staff Director 

(III) 

C O N T E N T S 

Page 

SEPTEMBER 23, 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 .................... 3 

Klobuchar, Hon. Amy, U.S. Senator from the State of Minnesota ...................... 6 

Voinovich, Hon. George, U.S. Senator from the State of Ohio ............................. 7 

Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland ................ 9 

Craig, Hon. Larry, U.S. Senator from the State of Idaho .................................... 10 

Bond, Hon. Christopher, U.S. Senator from the State of Missouri ..................... 12 

WITNESSES 

Meyers, Robert, Principal Deputy Assistant Administrator, Office of Air and 

Radiation, U.S. Environmental Protection Agency ........................................... 14 

Prepared statement .......................................................................................... 17 

Nichols, Hon. Mary, Chairman, California Air Resources Board ........................ 58 

Prepared statement .......................................................................................... 60 

Burnett, Jason, Former Associate Deputy Administrator, U.S. Environmental 

Protection Agency ................................................................................................. 70 

Prepared statement .......................................................................................... 72 

Responses to additional questions from Senator Boxer ................................ 99 

Response to an additional question from Senator Inhofe ............................. 101 

Bookbinder, David, Chief Climate Counsel, Sierra Club ..................................... 103 

Prepared statement .......................................................................................... 105 

Response to an additional question from Senator Boxer .............................. 112 

Response to an additional question from Senator Cardin ............................ 112 

Response to an additional question from Senator Inhofe ............................. 113 

Kovacs, Bill, Vice President, Environment, Technology and Regulatory Affairs, U.S. Chamber of Commerce ...................................................................... 121 

Prepared statement .......................................................................................... 123 

Response to an additional question from Senator Boxer .............................. 135 

Responses to additional questions from: 

Senator Cardin ................................................................................................. 136 

Senator Inhofe .................................................................................................. 138 

Lewis, Marlo, Senior Fellow, Competitive Enterprise Institute .......................... 182 

Prepared statement .......................................................................................... 184 

Responses to additional questions from Senator Inhofe ............................... 202 

ADDITIONAL MATERIAL 

EPA Report to Congress, The Benefits and Costs of the Clean Air Act 1990 

to 2010 ................................................................................................................... 252 

(1) 

REGULATION OF GREENHOUSE GASES 

UNDER THE CLEAN AIR ACT 

TUESDAY, SEPTEMBER 23, 2008 

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC. 

The committee met, pursuant to notice, at 10 a.m. in room SD– 

406, Dirksen Senate Office Building, Hon. Barbara Boxer (chairman of the committee) presiding. 

Present. Senators Boxer, Cardin, Klobuchar, Whitehouse, Inhofe, 

Voinovich, Craig, and Bond. 

OPENING STATEMENT OF HON. BARBARA BOXER 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

The Chairman. On April 2, 2007, nearly a year and a half ago, 

the Supreme Court of the U.S. confirmed in no uncertain terms 

that EPA has authority to regulate greenhouse gas pollution under 

the Clean Air Act. The Court ended years of litigation by ruling 

against the Bush administration and it made clear that EPA must 

move forward. The language was very clear. 

At first, EPA moved ahead on greenhouse gas regulations, as the 

Supreme Court directed. EPA reviewed the science, as we know 

from Jason Burnett’s previous testimony, and the proposed 

endangerment finding that the White House refused to release. 

EPA Administrator Johnson reached the conclusion that, yes, 

greenhouse gases do endanger public welfare. He deferred the issue 

of endangerment of public health, which is equally clear, but the 

proposed endangerment finding drafted by EPA was all that was 

needed to issue regulations. 

Administrator Johnson told us in July of last year that EPA was 

planning to issue final rules on regulating greenhouse gases by the 

end of 1908. We also know from prior hearings that the 

endangerment findings and EPA’s proposal for regulation had been 

given the green light by Mr. Johnson and other cabinet officials. 

Unfortunately, after a long delay, the Bush administration 

stopped progress on this rulemaking in its tracks. The White House 

and Administrator Johnson discarded the key aspects of the work 

on this rule. Instead, they took the weakest step possible in order 

to further delay action. This was EPA’s ‘‘Advanced Notice to Proposed Rulemaking’’. The notice contained a series of letters from 

members of President Bush’s cabinet, and other executive officers, 

making arguments against Clean Air Act regulation. Even Administrator Johnson wrote an introduction to the notice, undercutting 

the work of his own EPA staff. 

2 

We know this routine all too well. This disregard for the law, 

misleading the public, and stonewalling, which we find unacceptable. Many of us do. The stakes could not be higher. The Intergovernmental Panel on Climate Change (IPCC) has warned of the dangers that global warming poses for all of us, such as droughts, extreme weather events, threats to water resources, more frequent 

and intense wildfires, threats to public health, and the extinction 

of up to 40 percent of the species on the planet. The Bush administration’s own departments have found similar facts. 

Time is not our friend. We have a window of opportunity which 

we must take advantage of. And every moment that we wait to address global warming makes it harder to do what is necessary to 

avert the consequences that would be devastating for our Nation 

and the world. 

We need to consider all of the tools available to us to avert the 

dangers of unchecked global warming. And I continue to believe we 

need a comprehensive law to reduce global warming emissions but, 

in the meantime, there is much that can and should be considered 

under the Clear Air Act. This law has a proven track record over 

the last 40 years. It has been very effective in reducing pollution 

and in saving lives. 

Our witnesses today will set the record straight on the value of 

the Clean Air Act and addressing greenhouse gas emissions. They 

will describe opportunities available now under the Act to move 

forward. This hearing will provide a road map for the next administration to finally take effective action on reducing global warming 

emissions. After this hearing, this committee will prepare a report 

to the next President on the Clean Air Act’s potential role in combating global warming, so that President will have the facts in 

front of him. 

I want to make one last point in the time I have remaining. We 

will hear a lot about how this would be a disaster for the economy. 

I want you to know that, in my home State, we are suffering from 

a horrific economic situation because we have the most mortgage 

foreclosures of any State. We have more than 25 percent of all of 

the foreclosures. And I will say this, our republican Governor, 

working with our democratic legislature, passed the toughest global 

warming legislation in the country. And I am told unequivocally, 

by both sides of the aisle in my State, that were it not for this law, 

and the fact that 400 new companies have been set up—solar, 

wind, geothermal—and I visited many of these new startups, that 

without this, we would be in far worse shape that we are in. Many 

of the workers that have been laid off from the construction industry are working putting roofs on, they are working in new enterprises all across my State. 

So, when you hear that this is devastating to the economy, I 

think it is important to note that we have tried it, we are doing 

it and, but for that, we would be in far worse shape than we are 

in at this point. 

Senator Inhofe. 

3 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. Thank you, Madam Chairman. Let me say first 

that the Senate Armed Services Committee has Secretary Gates 

there and I will have to be going back and forth—— 

The Chairman. I understand. 

Senator INHOFE [continuing]. in this same building here. I am 

hopeful that today’s meeting will focus less on political theatrics 

and more on the substantive matter before us today, which has 

very urgent and troubling indications for our already fragile economy. This matter has a very real possibility of regulating greenhouse gases under the Clean Air Act. 

Now, rather than trying to uncover who knew what and when 

during the deliberative process at the EPA, this hearing should 

begin our substantive look into the Clean Air Act and just exactly 

how it will work in relation to the regulation of greenhouse gases. 

Now, despite my disagreement with the Supreme Court in the 

Massachusetts versus the EPA case, I recognize that this committee has the responsibility to evaluate the implications of that 

decision which, in my view, have failed to focus until now. Therefore, I am grateful, Madam Chairman, for your decision to have 

this hearing today and hope that you will commit to work with us 

through this issue and take a hard look at all of the potential impacts, as the climate debate moves forward next year. 

As more and more analysis is done about the potential implications of regulating greenhouse gases under the Clean Air Act, the 

more alarming the consequences become. While some may seek to 

dismiss these analyses as scare tactics or exaggeration, let me offer 

up the recent D.C. Circuit Court decision vacating the current rule 

as a reminder of how strictly the courts interpret the provisions of 

the Clean Air Act. 

So, while some of the environmental community or the Agency 

may see an inherent flexibility in the act to soften some of the prescriptive permitting requirements that could be triggered if greenhouse gases are regulated, I am not so certain they should rush 

into these early decisions. My concern with the potential disastrous 

effect of this issue are not just mine alone, several other members 

on both sides of the Capitol and on a bipartisan basis, have already 

expressed concern publicly with the Massachusetts case. 

And, with the potential regulation of greenhouse gases into the 

Act, John Dingell, the Chairman of the House Energy and Commerce Committee, in a recent hearing, even called the situation a 

‘‘glorious mess, in that this has the rich potential for causing a fine 

economic mess and a splendid manufacturing industrial shutdown.’’ Pretty strong words from John Dingell, and I agree with 

that. 

We will also hear today from the United States Chamber of Commerce, who will voice a very strong opposition to any proposed 

rules into the Act and they will discuss the new analysis that finds 

over one million mid-sized to large commercial sector source could 

become exposed to PSD permitting requirements, including 92,000 

health care facilities and 100,000 schools and other educational facilities. In addition, almost 200,000 industrial manufacturing 

sources emit enough CO2 per year to become exposed to the PSD 

4 

permitting requirements, as well as over 17,000 large agriculture 

sector sources. 

Keep in mind that, as part of the PSD process, regulated sources 

are often forced to install best available control technology (BACT) 

which, in the case of CO2 , has not been determined. This additional requirement would lead to even more bureaucratic delay and 

legal challenges, in a time of record high energy prices, economic 

uncertainly, and dire financial news. And, with Treasury Secretary 

Paulson testifying at this hour, as we speak, on the largest government bailout in history, the only positive economic data I can gather under those scenarios is for the legal profession, as they will 

have a feeding-frenzy of new rules to challenge. 

Madam Chairman, this is only one example of the consequences 

of potential regulation under the Clean Air Act. There is also the 

State implementation plans, the New York Source Review Provisions, which can be applied in two different ways, and I could go 

on. 

It is my hope that this hearing will lead to a broader understanding of the dire implications of regulating CO2 , doing it 

through the courts, something that those proponents of this have 

failed to be able to do through the legislative process. So, I agree 

that it is a disaster for the economy and hopefully we can minimize 

some of the effects that will be coming from this. 

The Chairman. Senator, thank you. I think what you have laid 

out and what I have laid out shows why this is such an interesting 

committee. I mean, you know, one of us sees this as an opportunity 

to make life better for our people and to stimulate the economy and 

the other sees it as a major disaster. And that is why, in my opening statement, I talked about our experience in California—— 

Senator INHOFE. Mm-hmm. 

The Chairman.—in acting in a bipartisan way. I don’t know that 

I could convince you of this, I doubt that I can, or you can convince 

me of your position, but I think the respect we have for one another is very important—— 

Senator INHOFE. Yes. 

The Chairman.—and I appreciate that respect—— 

Senator INHOFE. And that’s why we have witnesses here. 

The Chairman.—in your testimony. 

Senator INHOFE. Mm-hmm. 

The Chairman. And I think what is important is, the one thing 

in your opening statement I would like to take issue with is something about political theatrics. I don’t know what you are talking 

about, political theatrics. What I am trying to do as the Chairman, 

and with your help as ranking member, is get to the facts. Get to 

the science, get to the facts. We may come out differently, but I 

don’t think there needs to be any theater about it at all. It is, it 

is really—I found that a little disturbing and I would hope that 

maybe you would reconsider in your future statements that you 

don’t imply that is what this is about, because I don’t really see it. 

Senator INHOFE. Well, Madam Chairman, I would have to check 

with staff—we have had 25, 26 hearings on these subjects and we 

have brought in people from all over. It is—there is a philosophic 

difference, we all know that. 

The Chairman. Yes. 

5 

Senator INHOFE. But I think this hearing today—one of the 

things that I am concerned about, of course, is the cost of this 

thing. Right now, we have some extremely dangerous economic 

signs and this could make that even more severe. 

The Chairman. I understand—— 

Senator INHOFE. Yes. 

The Chairman.—and that is totally legit. And that is where we 

depart. As I say, some of us see this as an economic opportunity 

and some as a disaster. That’s fair, but I hope that if you do see 

any political theatrics coming from this committee, at the moment 

they happen, just call it that. 

Senator INHOFE. Mm-hmm. 

The Chairman. But that is not what my purpose is. 

Senator INHOFE. That’s a good idea. 

The Chairman. And I thank you very much. And I know you 

have to go in and out and I respect that as well. Senator 

Klobuchar. 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR

FROM THE STATE OF OKLAHOMA

Madame Chairman, I am hopeful that today’s hearing will focus less on political 

theatrics and more on the substantive matter before us today, which has very urgent and troubling implications for our already fragile economy. This matter is the 

very real possibility of regulating greenhouse gases under the Clean Air Act. 

Rather than trying to uncover who knew what and when during the deliberative 

process at the EPA, this hearing should begin our substantive look into the Clean 

Air Act, and just exactly how it will work in relation to the regulation of greenhouse 

gases. Despite my disagreement with the Supreme Court in the Massachusetts v. 

EPA case, I recognize that this Committee has a responsibility to evaluate the implications of that decision, which in my view we have failed to focus on until now. 

Therefore, I am grateful, Madame Chairman, for your decision to have this hearing 

today, and hope you will commit to work with me through this issue and take a 

hard look at all of the potential impacts as the climate debate moves forward next 

year. 

As more and more analysis is done about the potential implications of regulating 

greenhouse gases under the Clean Air Act, the more alarming the consequences become. While some may seek to dismiss these analyses as scare tactics or exaggeration, I only offer up the recent D.C. Circuit Court decision vacating the CAIR rule 

as a reminder of how strictly the Courts interpret the provisions of the Clean Air 

Act. So while some in the environmental community or the Agency may see an inherent flexibility in the Act to soften some of the prescriptive permitting requirements that could be triggered if greenhouse gases are regulated, I am not so certain 

they should rush to those early conclusions. 

My concern with the potential disastrous effects of this issue are not just mine 

alone. Several other Members, on both sides of the Capitol and on a bipartisan 

basis, have already expressed concern publicly with the Massachusetts case, and 

with the potential regulation of greenhouse gases under the Act. John Dingell, the 

Chairman of the House Energy and Commerce Committee, in a recent hearing even 

called the situation a ‘‘glorious mess’’ and that this has the ‘‘rich potential for causing a fine economic mess and a splendid manufacturing and industrial shutdown.’’ 

We will also hear today from the United States Chamber of Commerce, who will 

voice their strong opposition over any proposed rules under the Act. They will discuss their new analysis that finds over one million mid-sized to large commercialsector sources could become exposed to PSD permitting requirements, including 

92,000 health care facilities and 100,000 schools and other educational facilities. In 

addition, almost 200,000 industrial manufacturing sector sources emit enough CO2

per year to become exposed to PSD permitting requirements, as well as over 17,000 

large agricultural sector sources. Keep in mind that as part of the PSD process, regulated sources are often forced to install Best Available Control Technologies, or 

BACT, which in the case of CO2 has not been determined. This additional requirement would lead to even more bureaucratic delay and legal challenges. 

6 

In a time of record high energy prices, economic uncertainty, and dire financial 

news, and with Treasury Secretary Paulson testifying at this hour on the largest 

government bailout in history, the only positive economic data I can gather under 

those scenarios is for the legal profession as they will have a feeding frenzy of new 

Rules to challenge. Madame Chairman, this is only one example of the consequences 

of potential regulation under the Clean Air Act. There are also the State Implementation Plans, the New Source Review provisions, which can be applied in two different ways, and I could go on. It is my hope that this hearing will lead to broader 

understanding of the dire implications of regulating CO2 under the Clean Air Act, 

which it was never intended to do, and that as we move forward into next year, 

this Committee will exercise its jurisdiction to prevent any of these harmful and unnecessary regulatory impacts from happening. 

OPENING STATEMENT OF HON. AMY KLOBUCHAR, 

U.S. SENATOR FROM THE STATE OF MINNESOTA 

Senator KLOBUCHAR. Madam Chair, thank you for holding this 

meeting. And I have to say I am disappointed we are having the 

hearing, but for very different reasons than Senator Inhofe. 

We were here almost 17 months ago to the day and listened to 

EPA Administrator Johnson outline his plans to reach a decision 

about whether greenhouse gases constitute an endangerment to 

public health or welfare as defined by the Clean Air Act. Seventeen 

months have gone by and still no decision. It is astounding that we 

are still waiting for a finding that the EPA’s own staff that should 

take no longer than three or 4 months. 

Of course, the EPA has announced their endangerment plans 

under protest, as the Chair so well pointed out. The Supreme Court 

effectively ordered the Agency to go back and determine whether 

greenhouse gases may be reasonably anticipated to endanger public 

health or welfare. The Court shifted the debate from whether the 

EPA should regulate greenhouse gases to how they should regulate 

them. The EPA apparently didn’t get the memo, because we are 

still talking about whether to regulate them at all. 

The EPA decided not to act as it had been instructed to by the 

Supreme Court. Administrator Johnson chose to issue an Advance 

Notice of Proposed Rulemaking, effectively leaving it to the next 

administration to respond to the decision. 

The cavalier attitude taken by this administration when it comes 

to climate change is offensive. When you contrast it to the hard 

work that is going on in the states all across this country, and municipalities, that understand we have to do something. 

In my State, fighting climate change has not been a partisan 

issue. We have a republican Governor and we have a democratic 

legislature and we work together on this issue to get one of the 

most aggressive renewable portfolio standards in the country. That 

is why it has been so disappointing that it has taken court battle 

after court battle and congressional hearing after congressional 

hearing to simply get the political leadership at the EPA to do their 

job. 

The Supreme Court has ruled carbon dioxide falls under the 

Clean Air Act. We shouldn’t have to debate it here, we shouldn’t 

have to push the EPA as hard as we do. We shouldn’t need to have 

oversight hearings like this one to ensure that our EPA is actually 

protecting the environment. We shouldn’t have to sit in a back 

room and look at this proposed endangerment finding with three 

senators where we can’t copy it and give it out publicly like it is 

7 

some kind of special national security secret document when it is, 

in fact, findings from the U.S. Government. We shouldn’t have an 

EPA that fails to act and blocks states from choosing to enact 

stricter environmental standards than the Federal Government. 

It angers me to think that political forces in this government believe that politics is more important than public health, more important than allowing the American people to receive the evidence 

and make judgments on their own. 

So, it sure comes to no surprise to the people in this room to 

learn that this administration plans to leave office without taking 

any regulatory action to address climate change. In the absence of 

Presidential leadership on this issue, many of my colleagues in 

Congress have tried to fill that leadership role. If properly constructed, these regulations could address the opportunities for 

low—cost emissions reduction. In the end, we are going to have to 

do the hard work next year of writing the comprehensive climate 

change legislation. The Lieberman-Warner-Boxer bill last summer 

was a start. Next year, we will begin again. 

Meanwhile, the Clean Air Act offers us the potential to get us 

moving, even before we complete the legislative package, and I 

urge the next President to get these regulations out as quickly as 

possible. We need to get started now. 

Thank you, Madam Chair, and I look forward to hearing from 

our witness. 

The Chairman. Thank you, Senator. Senator Voinovich. 

OPENING STATEMENT OF HON. GEORGE VOINOVICH, 

U.S. SENATOR FROM THE STATE OF OHIO 

Senator VOINOVICH. Thank you, Madam Chairwoman. I thank 

you for holding today’s hearing and I thank the witnesses for being 

here today. I look forward to your testimony. 

As I have listened to the conversation between Senator Inhofe 

and our Chairman, and now those from Senator Klobuchar—I have 

been on this committee for 10 years and our problem has always 

been that we have not been able to harmonize the environment 

with our energy needs, with our economy, and more recently, with 

the debate of oil, our national security needs. And hopefully, maybe 

next year, we will see a lot more of that happening because, if we 

don’t, we will just continue to be stymied as we have been for the 

last decade. 

Today we examine the Environmental Protection Agency’s use of 

the Clean Air Act to address the issue of climate change. As we all 

now, the Supreme Court in the Massachusetts case confirmed the 

EPA’s authority to regulate greenhouse gas emissions from motor 

vehicles under the Clean Air Act. The Agency has now issued an 

Advance Notice of Proposed Rulemaking (ANPR) that takes comment on the use of that authority and the various regulatory mechanisms that would come into play under the Act’s provisions. As 

the ANPR makes clear, however, allowing the Agency to proceed 

along this course would provide for an unprecedented expansion of 

the Agency’s power, with the potential of bringing the economy to 

a grinding halt. 

Let me be clear, I am for reasonable actions to address climate 

change. Actions that balance our country’s energy and economic 

8 

needs, but the CAA was not set-up to address climate change, a 

problem whose solution is both economy wide in its breadth and 

international in its scope. By allowing the Agency to address carbon dioxide as it were a traditional pollutant, we will be committing ourselves to inflexible and bureaucratic regulatory regime, 

which will surely harm the economy and will have little effect on 

global temperatures. And the economy, folks, is in real bad shape. 

Just ask the people in Ohio. 

Before the EPA can set vehicle emission standards, it must find 

that the greenhouse gases may reasonably anticipated to endanger 

public health and welfare. As in the ANPR, once an endangerment 

finding is made, the Agency is either compelled or authorized to 

regulate greenhouse gases under various other Clean Air Act provisions including the requirement to promote national ambient air 

quality standards, the new source performance standards (NSPS), 

and other requirements such as a new source review and title V 

operating permits. The ANPR contemplates regulating sources 

throughout the economy from mobile sources to refineries to office 

buildings. Many of us voted against the legislation that was 

brought before the Senate this summer, the Lieberman-Warner Climate Change Act, because of the enormous toll it would have on 

the economy, a $6.7 trillion tax increase, and the bureaucratic 

nightmare it would have created. But surely this pales in comparison to what the Agency now contemplates. The Chamber of Commerce estimates that proceeding with GHG regulation under the 

Clean Air Act would include over one million sources that previously have gone unregulated including large-scale single family 

homes, churches and schools. And, because established legal precedent does not allow the Agency to take cost into consideration 

when considering the Act, the economy would be driven to a halt. 

In fact, if the entire U.S. became—In fact, if the entire U.S. became 

a non-attainment area for greenhouse gases, as many believe would 

be required, the emission increases from business expansion and 

development would effectively be capped. That is, limited to what 

could be offset by other businesses, either shutting down or limiting their emissions. 

So, some have argued that the Agency has large discretion over 

how it implements CA requirements, whether it establishes the 

max, for example, or in defining what constitutes a major source 

for permitting purposes, but we will know that our regulatory landscape is largely decided through litigation and many previous attempts to build flexibility into the Clean Air Act measures that I 

have supported. 

The Court’s recent decision in relating to care of rule underscores 

this. We should not subject our economy to inflexible laws and regulations that were written at a different time to solve completely 

different problems, nor should we grasp at novel legal theories and 

claims of flexibility because we feel compelled to do something to 

address the issue. EPA’s plans to move forward with CAA regulation and greenhouse gases should be immediately halted and Congress should get back to the business of setting reasonable policies 

to address our country’s economic, environmental, energy, and national security interest. 

The Chairman. Thank you, Senator. Senator Cardin. 

9 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, 

U.S. SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. Thank you, Madam Chair. I would ask unanimous consent that my opening statement be included in the record. 

The Chairman. Without objection. 

[The prepared statement of Senator Cardin follows:] 

STATEMENT OF HON. BENJAMIN L. CARDIN, U.S. SENATOR

FROM THE STATE OF MARYLAND

Madam Chairman, Thank you for calling this hearing. 

Congress passed the Clean Air Act after recognizing that air pollutants were affecting the health of people and our environment. The Act was meant to provide authority for the EPA to protect our country from air pollutants. The question today 

is whether or not we have provided the tools necessary for the EPA to address the 

effects of greenhouse gases. 

The Supreme Court ruled that the law covers these gases, that the EPA was not 

living up to the standards of the Clean Air Act by neglecting to regulate them. 

The EPA itself has wavered in the past decade on whether these gases are a 

threat to public health and whether the Clean Air Act should be used to regulate 

them, adding to the uncertainty. 

Greenhouse gas emissions contribute significantly to climate change, and manmade greenhouse gases are believed to be largely responsible for the increase in average temperatures around the world. The industry and technology that we are 

proud of as Americans are contributing to this threat, and to protect the pride of 

those traditions, we need to address those effects. 

The energy we use and the cars we drive release greenhouse gases, and without 

regulation the effects on our climate are growing. Of the problems faced in the world 

today, the effects of greenhouse gases are among the most universal because of their 

tendency to redistribute beyond the site of emissions. 

This international impact is part of what makes it so important for America to 

emerge as a leader on issues of climate change. I have said repeatedly that strict 

climate change legislation is necessary for our national security, vital to our economic well-being, and critical to our environment. We have the opportunity to set 

an example that will prompt other nations to minimize the damage done by greenhouse gases. 

In order for us to show this kind of leadership, we need to address this problem 

in the most comprehensive way possible. Whether the existing 

Clean Air Act can sufficiently address this problem without overreaching its authority is the first question. 

The real focus of today is to clarify this issue, and to put the Congress, government agencies, and the American people all on the same page on climate change. 

We need to determine the most effective way to combat the effects of greenhouse 

gas emissions. In all likelihood, this will involve both new applications of existing 

legislation and new legislation to increase our efforts. 

Using our existing legislation is going to require a proactive emphasis on what 

we can do, rather than allowing ourselves to be distracted or absolved based on 

what we can’t do. 

We do not have time to wait to begin this fight, nor do we have the luxury of 

relying only on existing programs not specifically intended for it. Today our witnesses will help us to understand how to both fully utilize the tools we currently 

have, and to better equip ourselves for the future. 

Senator CARDIN. Let me agree with Senator Voinovich that our 

economy is in deep trouble, but it is not because we have too much 

regulation. Our financial institutions are really challenging us 

today, but I think that should teach us that we should be actively 

involved in trying to deal with public safety. Since 1963, the Clean 

Air Act has been critically important to the health of our country 

and our communities, dealing with airborne pollutants that endanger our health. 

This hearing is to deal with the regulation of greenhouse gases. 

The Supreme Court has said that it is appropriate for the EPA to 

make a finding in regard to greenhouse gases. This administration 

10 

has done everything it can to prevent that from happening, from 

not living up to its responsibility as it relates to protecting our environment by using the tools they have at its disposal, including 

the Clean Air Act. Greenhouse gases clearly impose a risk to our 

public health. 

We have had hearings on that, Madam Chairman, and we 

know—we’ve documented the impact of greenhouse gases and global climate change. We know the impact it is having throughout our 

country and throughout the world. In my own State of Maryland, 

I know what has happened with the sea level rises and what’s happened with the impact it has had on the environment of the people 

of my own State. We know that. We know the risks that are involved. And we also know, and it is well-documented by the scientific information, that what we do is affecting the greenhouse gas 

emissions. That we are partially responsible for the acceleration of 

global climate change and we can do something about it. 

So, I want to just thank the Chairman for holding this hearing. 

I think we have to look at the current laws to see how we can use 

the current laws, including the Clean Air Act, in order to deal with 

this public health risk. I think that is our responsibility and it is 

certainly the responsibility of the Environmental Protection Agency 

to use current tools. But, I do believe we need to give the agencies 

new tools to deal with this challenge and that is why the 

Lieberman-Warner bill was an important step by this committee to 

say look, we can find ways that we can provide help to deal with 

the right type of environmental activities. 

And I agree with the Senator from Ohio, it would not only help 

as far as our environment, but would help our economy and would 

help our national security. 

So, we need to look at whether we need to pass new laws or modify existing laws in order that our agencies have the tools that they 

need in order to protect the public health. By the way, also for 

America to be an international leader to deal with the environmental issues, because Americans are effected by what happens in 

other countries. So, this truly is an international issue, but our 

laws should be ones which demonstrate the leadership of our country and the commitment of our country to protect the health of our 

people. 

Thank you, Madam Chair. 

The Chairman. Thank you very much, Senator. Senator Craig. 

OPENING STATEMENT OF HON. LARRY CRAIG, 

U.S. SENATOR FROM THE STATE OF IDAHO 

Senator CRAIG. Thank you, Madam Chairman. 

Mr. Meyers, welcome to the committee. It is a significant hearing 

and I, like Senator Inhofe, am going to have to run, Madam Chair. 

I apologize. But I am going to do something else that is interesting, 

in the fact of this hearing and that hearing and the contradiction 

that these two hearings set up for the American public. And let me 

explain myself. 

Without question today, here in this committee, we are suggesting that EPA follow a certain procedure that will ultimately, 

ultimately create a dramatic increase in certain transportation 

fuels for this Nation. That is the reality of the low sulphur standVerDate Aug 31 2005 11:54 Jun 12, 2015 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\88911.TXT VERN
11 

ard in diesel fuels that has driven up the cost of movement of goods 

and services across our country, potentially substantially. Now, I 

am going over to the Energy Committee to examine why diesel fuel 

prices have gone up. Is it any reason the American public has decided that Congress’ performance rating is now at its lowest ever? 

If they watch this hearing and that hearing this morning, I doubt 

that the American consumer could possibly grasp what Congress 

has in mind, because they are in direct contradiction of each other, 

Madam Chair. There is no question in my mind that is a reality. 

I understand the economics of your State and your frustration 

about home mortgages. I also understand that, in June of this year, 

you had $5.00 gas prices, the highest gas prices of any State in the 

Nation, high fuel prices. Is it possible that those prices hurt the 

pocketbook of the average consumer that was paying the mortgage 

that finally defaulted? Oh, yes. It is possible. In fact, it is reality. 

The American economy today is going through shocks that it has 

never experienced before. Partly because of housing defaults, certainly because of energy costs—and part of the energy costs today, 

especially in the freight and transportation sector, is the high cost 

of diesel which is, in part, in part, a direct result of the new low 

sulphur standards. 

Well, those are the hearings that I am going to attend then 

today. I find them unique and I find them in full contradiction. It 

is not to suggest that we don’t play a role in climate change, and 

we must. And I think that the Chairman and I, and the members 

of this committee, have the same appreciation, frustration, and concern about how we deal with it. But when we rather, in a cavalier 

way, suggest that we can put another $6 trillion hit on the consumers of this country and keep this economy afloat, I suggest that 

we deserve the rating we are getting as a nonperforming, nonproductive Congress that can’t determine which direction to head 

for the sake of the American economy and, in this way, for the sake 

of the American consumer. 

If the financial shock that we are experiencing today does not 

bring a little reality to common sense and working together to solve 

problems, Madam Chair, then I am not sure that we’ve got much 

of a future left. I grow very frustrated. 

When truckers go out of business because they can’t afford to fill 

their trucks to haul the goods and services that keep the American 

consumer going, and part of that is a direct result of new standards 

that drive up the cost as demand goes with it, then we need a new 

context to the whole debate and an understanding about regulation 

and an understanding about balance. 

Over the years, as I’ve traveled the world on the climate change 

issue, and I deal with my colleagues around the world, and they 

say please pass, please bring into reality Kyoto and all of those protocols. I say wait a moment, there is one very real difference between what we do in this country and what you do in your countries. We have a Clean Air Act. We have law and, if we pass that 

and if we bring that—we will enforce it. You can play the political 

games in your countries but we will enforce it in our country because we operate under these standards, Madam Chair. 

There is no question we ought to pursue what EPA is doing and 

you are doing the right thing to do so based on the court actions. 

12 

That is not in criticism here. What is in criticism is reasonable and 

responsible balance that this Congress is failing on, and the American consumer now gets it—in the pocketbook. Boy, do they get it. 

Thank you for the hearing. 

The Chairman. You know, you are so right on the point. That’s 

why I’m so glad that today we are going to be passing, in a bipartisan way, at least that is what I hear, tax breaks for alternative 

energy that we have been stymied from doing. 

And, the fact is, we need competition with big oil. We don’t have 

enough oil in our country, 2 percent of all of the reserves are here 

and we use 25 percent of the world’s energy. So, we need competition for the old energy. We need competition. 

The second point I would make is, passing climate change, putting a price on carbon, would give a tremendous impetus to these 

new industries. The business people in my State think we have 

missed the boat, and you’ll hear more about this in the next panel, 

because they’ve told me—the republican and democratic business 

leaders, the venture capitalists, that we have blown it because we 

did not pass climate change legislation. And they tell me, unequivocally, that the investments that will flow from the venture capitalists to the new alternative energy is going to dwarf all of the investment that came into the communications revolution. 

So, again, what I love about this committee is you see the different ways we view these issues. 

And the last point I would make, which I think is critical, every 

time that this committee has passed a landmark law, and I have 

gone back, we have heard the voices of doom and gloom. ‘‘Oh, my 

God. Don’t pass the Clean Air Act, it is going to be a disaster.’’ ‘‘Oh, 

my goodness, safe drinking water? Don’t pass that. Don’t pass 

clean water’’ even though there were, in fact, rivers on fire in certain of our Midwest states from the pollution. 

So, I think what’s very important and what is coming through 

here, and I agree with my colleague, we are in some dire straits 

and Congress is not looked at in the way it ought to be looked at. 

And, there are reasons. Of course, he thinks there are different reasons from the reasons I think. I think it is failure to act with an 

eye toward the future and sticking to the old ways. That’s where 

I think we need change, but we will see what the people feel when 

they go to the polls. 

So, now I am going to go to Senator Bond. 

OPENING STATEMENT OF HON. CHRISTOPHER BOND, 

U.S. SENATOR FROM THE STATE OF MISSOURI 

Senator BOND. Thank you very much, Madam Chair. I was just 

on the floor talking about the most immediate crisis facing us in 

the financial crisis and I am pleased to hear that we had come to 

an agreement on these extenders. 

I will talk with you later about some of the energy comments you 

made, but I thank you for holding this hearing on the regulation 

of carbon under the Clear Air Act. 

Today, we are going to hear from people who thought it was OK to spend $6.7 trillion dollars, and raise the price of gas $1.40 a gallon, to regulate carbon dioxide. They failed to get their $6.7 trillion 

legislation passed into law, so now they want to use government 

13 

regulation to achieve the same end. It is hard to believe, but regulating carbon dioxide under the Clean Air Act would impose even 

more hardship on the American people than a $6.7 trillion Carbon 

Bill. That’s because using Clean Air Act regulations to cap carbon 

will subject one million commercial buildings to regulation, 200,000 

manufacturing operations to regulation, and 20,000 large farms to 

regulation. These figures come from a study done called Regulatory—these regulations have alphabet soup names like PSD, 

NSPS, HAP, and NSR. Permit applications for these regulations 

are tracked, not by numbers of pages, but by inches of thickness. 

Don’t even think about trying to get these permits and comply with 

these new regulations yourself, you are going to have to hire consultants to help you fill out all the forms. Then, you’ll have to hire 

lawyers to help you defend the lawsuits by environmental advocates like those testifying later today. Many of the firms now covered by these massive government regulations now suffer through 

this process already. Most say that it is OK because we are talking 

about big refineries, or chemical plants, or large industrial operations. That is who the Clean Air Act was intended to cover, the 

biggest polluters releasing traditional air pollution. But no one who 

voted for the Clean Air Act at the time thought it would apply to 

carbon dioxide or the massive amounts of carbon emissions. I happen to play a role in that. 

Some may remember the Byrd-Bond amendment. I prefer to call 

it the Bond-Byrd amendment, to permit acid rain credit trading. 

That worked because there were strategies and techniques available for capturing acid rain and reducing the acid emissions. But 

Congressman John Dingell, who practically wrote large sections of 

the Clean Air Act himself and its amendments, said that he certainly never intended for it to cover carbon emissions. We all know 

his quote about what a ‘‘glorious mess’’ regulating carbon dioxide 

would be. I agree it would be a mess, although hardly glorious. I 

personally think it would be a disaster. One million schools, hospitals, grocery stores, office buildings and churches would suffer, 

200,000 electrical, plastics, paper, chemical, metal fabrication, assembly and food processing operations would suffer. 20,000 greenhouses, nurseries, poultry, egg, vegetable, pig, and dairy operations 

would suffer. 

Clearly, people willing to impose a $6.7 trillion program and 

raise the price of gas $1.40 don’t care about that kind of suffering 

or what it would do to our country, but I do and I will continue 

to care about the needs about our families, farmers, and workers 

as we reduce carbon dioxide emissions. 

I believe we need to, and we must, and we will, continue to reduce the amount of carbon emissions. We need to do that by increased use of nuclear power, which has no emissions. We need to 

get more electric cars and we are working to get the batteries made 

in Missouri because electric cars are a very important means of reducing our dependence upon fossil fuels. 

But we are not going to get rid of it all. Any responsible study 

I’ve seen said 20 to 30 years from now we will still be having to 

depend upon fossil fuels for 70 percent to 80 percent of our energy. 

But we need to develop the clean coal technology that can get us 

there. That is going to be one other source. But we cannot afford 

14 

to reduce carbon emissions by regulation that would destroy our 

economy. 

I had the opportunity to visit East Germany right after the wall 

fell and I saw what a crippled socialist economy does to the environment, pollution in the streams, foul area, burning the worst 

kinds—because they couldn’t afford to clean it up. We can’t put 

ourselves in the position where we can’t afford to continue to clean 

our air. I thank the Chair. 

The Chairman. OK. Thank you. Senator, I love working with 

you, when we can agree, but we see things so differently. 

I am so glad my California people are here today because they 

always say, ‘‘Senator, why couldn’t you get 60 votes for the 

Lieberman-Warner bill?’’ and I say, ‘‘Well, it’s hard to explain’’—— 

[Laughter.] 

Senator BOND. I hope I can help them understand now—— 

The Chairman. You did, and I think that’s important. There’s 

friendship, there’s collegiality, there’s major disagreement. 

I would ask you to read 42 U.S. Code 7602, where expressly written in the Clean Air Act it says that we can—we have to regulate 

any pollutant related to climate change in weather. So, it’s in there 

and that’s why the Court chastised, and this is a republican Supreme Court, chastised us for not moving forward. 

So, anyway, I love your comments. I disagree with them, but it 

is what makes America who we are, the ability to have these disagreements. 

Well, now Mr. Meyers, I am sure that you are thrilled and delighted that you are now going to present your case for not doing 

this, so go right ahead. 

[Laughter.] 

STATEMENT OF ROBERT MEYERS, PRINCIPAL DEPUTY ASSISTANT ADMINSTRATOR, OFFICE OF AIR AND RADIATION, 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. MEYERS. Madam Chairman and members of the subcommittee, thank you for the opportunity to appear today regarding the potential for regulation of greenhouse gases under the 

Clean Air Act. 

Ten weeks ago, Administrator Stephen L. Johnson signed an Advance Notice of Proposed Rulemaking as the next step in the Agency’s efforts to develop an effective response to the Supreme Court’s 

decision in Massachusetts v. EPA. The Notice now remains open 

for public comment until November 28th. Currently, we have received over 200 comments, but we would realistically expect more. 

The NPR gives the EPA and the public a critically important opportunity to understand and address the implications of regulating 

GHGs under the Clean Air Act and responding to the Supreme 

Court’s decision. As detailed in this document, regulation of GHGs 

under one provision of the Clean Air Act could lead to regulation 

of GHG emissions under other provisions of the Act, potentially affecting large numbers of stationary mobile sources including 

sources not previously regulated under the Act. In a broader context, the NPR adds to substantial work already undertaken on climate change. 

15 

Since 2001, the Bush administration has devoted almost $45 billion in resources to addressing climate change, science, and technology. The administration is also implementing mandatory programs under the Energy, Independence, and Security Act that 

would prevent billions of metric tons of GHG emissions through 

2030. Overall, the Bush administration is implementing over 60 

Federal programs that are directed at developing and deploying 

cleaner and more efficient energy technologies, conservation, biological sequestration, geological sequestration and adaptation. 

To help lay the groundwork for my testimony in the NPR, which 

was signed on July 11th, I ask that a copy of the original petitions 

seeking GHG standards under the Clean Air Act and the EPA’s denial of that petition, be entered into the record for this hearing. 

The Chairman. Without objection. 

Mr. MEYERS. As members of this committee well know, individual provisions of the Clean Air Act can be exceedingly complex. 

In addition to statutory language spanning several hundred pages, 

there are several decades’ worth of Clean Air Act interpretations 

embodied in regulatory activity in various court decisions. Views on 

the proper interpretation of the Act can vary widely. During an 

interagency review of the NPR, other Federal agencies offered numerous critical comments and very serious questions. For the July 

11th NPR, the Administrator decided to publish these views and 

seek comment on the full range of issues raised in the comments. 

The NPR, in general, addresses a broad range of greenhouse gas 

and climate change issues before the Agency. It contains the Administrator’s preface, comments of other agencies, and each separate section details the nature of climate change and greenhouse 

gases, Clean Air Act authorities and programs, endangerment analysis under the Act, and mobile source petitions contained in Title 

Two of the Act. It also contains a lengthy discussion on stationary 

source authorities, including the discussion of permitting programs 

and the discussion of Title Six of the Act related to stratospheric 

ozone. Five technical support documents are provided and the document contains voluminous additional technical information. 

Within the NPR, EPA addresses and poses questions related to 

the Supreme Court’s decision in Mass v. EPA, additional mobile 

source petitions received by the Agency and related to ships, aircraft, and non-road equipment and several stationary source rulemaking efforts. The NPR also makes clear that the Clean Air Act 

was not specifically designed to address GHGs, which helps to illustrate the challenges and opportunity for new legislation. 

To sum up, I would offer the following points of observation. At 

500-plus pages, it is obvious that the Clean Air Act is an exceedingly complex law with many separate statutory interconnections. 

Having initially been enacted in its modern form in 1970 and subjected to numerous amendments, the Act has a far-reaching and 

wide—sweeping effect on power plants, industrial sources, literally 

anything that moves by powered propulsion, hazardous air pollutants, ozone-depleting substances, and many other separate matters, including the formulation of consumer products. The NPR reflects this basic statutory character, asking literally hundreds of 

detailed questions. Many outside of the Agency have commented on 

16 

the length of the NPR. I can tell you that it was indeed a challenge 

to keep the document as succinct as it is. 

A variety of Clean Act authorities will likely come into play if 

steps are taken to address GHG emissions from many types of mobile and stationary sources. Since these are detailed in the NPR, 

I will not repeat information on the various Clear Air Act stationary pathways of the NAC section 111, section 112 regulation, 

but would note that some authorities may trigger or preclude the 

use of other authorities, while other authorities would not have 

such an effect. As presented in the NPR, some Clean Air Act authorities are prescriptive, either by their terms or by their historical interpretation, by the EPA and the courts. Some provisions 

could provide more flexibility to tailor requirements and encourage 

technological development. 

Thus, it is difficult, as an initial matter, to project the ultimate 

outcomes of regulation pursuant to the Act. It is our hope and expectation that the NPR will assist the Agency’s understanding of 

the various issues presented. Controlling the GHG emissions under 

most provisions of the Clean Air Act could substantially expand the 

number of sources required to obtain preconstruction and operating 

improvements. The NPR provides information on these provisions. 

Others have taken note of their perspective sweep. But it is important, when addressing Clean Air Act programs, to conserve both 

the content of the regulations and the associated issues with regard 

to an implementation. 

Again, thank you for the opportunity to appear before you today 

and I am pleased to answer any questions. 

[The prepared statement of Mr. Meyers follows:] 

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The Chairman. Thank you. Mr. Meyers, as we know now, Mr. 

Johnson, and we saw the document, Mr. Johnson had signed a 

draft document where he proposed that there be an endangerment 

finding and, as you know, that endangerment finding was enough 

to begin the process for EPA to regulate these greenhouse gas 

emissions. 

What was the level of effort expended by EPA in working on the 

endangerment finding and proposed greenhouse gas rules between 

April and December 2007 in terms of the number of people involved and the allocation of budget resources? 

Mr. MEYERS. The Chairman. Look, I can’t hear you. Can you just 

give me an answer? I know you may have provided it. I want the 

people to hear you say what was the level—— 

Mr. MEYERS. Sure, I apologize. In the letter to Senator Feinstein, 

we detailed within the Office of Air and Radiation, I think, our estimate was approximately 55 personnel devoted to the effort. Expenditures, direct and contract—and this is detailed in the letter, 

so I am going on memory, you know, about—— 

The Chairman. What about dollars? 

Mr. MEYERS. About—— 

The Chairman. Sorry? 

Mr. MEYERS. About 55 people and around $6 million. I can provide the letter for the record. 

[The information referred to was not received at time of print.] 

The Chairman. Yes, I would appreciate if you would do that. So, 

all this went into it and then why is it that the thing was stopped 

in its tracks and we had to sit in the back and read, as Senator 

Klobuchar has eloquently pointed out, sit in that room with people 

looking over our shoulder? What happened from there? You spent 

this money—— 

Mr. MEYERS. Right. 

The Chairman.—you have to respond to the Court. The Court 

said clearly that carbon is covered by the Clean Air Act. What happened? Why was this all stymied? 

Mr. MEYERS. Well, the NPR is our response to the Court’s decision in Mass v. EPA. So, the Administrator decided that, given the 

complexity of the issues raised—— 

The Chairman. Well, I know about the NPR. What happened to 

this? You spent all this money, 55 people, we saw the document 

and it gets shot down. What happened? Why? What happened? 

Mr. MEYERS. Well, Madam—— 

The Chairman. Did the scientist change their minds on this? 

What happened? 

Mr. MEYERS. Well, Madam Chairman, in actuality, some of the 

resources that were reflected in the expenditures in 2007 are reflected in the NPR and the technical support documents, but—— 

The Chairman. But the endangerment finding didn’t go forward, 

is that correct? 

Mr. MEYERS. The document that you reviewed in chamber was 

not made public. 

The Chairman. Right. 

Mr. MEYERS. That’s correct. 

The Chairman. What’s the rationale behind keeping it secret? 

43 

Mr. MEYERS. I’m afraid you’re getting into issues that have been 

discussed between the committee and the administration regarding 

certain matters of privilege on these documents, so I don’t feel I am 

in the position to address these specific matters at this hearing. 

But, I know you have been in communication with the administration concerning the access and the reasons—— 

The Chairman. Well, we have a lot of reasons to worry. We have 

secret documents—thank God we had some whistle-blowers who 

made sure we saw it. We have to sit in a room over there—you 

admit we spent $6 million and had 55 people on the case and, at 

the end of the day, we are doing nothing. Just like with 

prochlorate, we doing nothing. 

Look, I am not mad at you but I have to say, for 6 months I have 

been trying to get Stephen Johnson here and he has ducked this. 

And you can’t answer certain questions. 

What about this one, we have learned that EPA’s process of developing greenhouse gas rules included a cabinet level meeting in 

November 2007 where an agreement was reached that greenhouse 

gases did endanger the public and therefore required regulation. 

Which cabinet level officials were you aware of that had been involved by that time? 

Mr. MEYERS. By what time? 

The Chairman. By this meeting, November 1907. 

Mr. MEYERS. I was not at the meeting. 

The Chairman. You don’t know about this meeting, then. November of—— 

Mr. MEYERS. I can’t testify to a meeting that I did not attend. 

The Chairman. All right. Well, we have someone here who knows 

about the meeting and, would you please ask to Mr. Johnson to 

provide to this committee who was at that meeting in November 

of 1907? 

Mr. Meyers, EPA has proposed a New Source Review Rule. In 

July, you prepared an analysis showing that it would increase 

power plant CO2 emissions by more than 73 million tons per year. 

Did you request public comment on this huge increase in CO2 emissions from the NSR rule? 

Mr. MEYERS. The NS—— 

The Chairman. New Source Review is NSR. 

Mr. MEYERS. I realize. Which proposal? 

The Chairman. I’ll read it again. EPA has proposed a New 

Source Rule. In July, you prepared an analysis showing that it 

would increase power plant CO2 emissions by more than 73 million 

tons per year. Did you request public comment on this huge increase in CO2 emissions from this change, this rules change? 

Mr. MEYERS. I would have to provide a response for the record 

on any rulemaking in which analysis is presented in the public 

record. Of course, public comment can be received. 

The Chairman. OK. How can you square keeping these impacts 

from the public with EPA statement in the NPR that public comment is very important on all issues relating to regulations of GHG 

emissions? 

Mr. MEYERS. Well, I think the NPR literally asks hundreds of 

questions to get that public comment on a full range of issues 

under the Clean Air Act, so I think—— 

44 

The Chairman. You didn’t on this one. You didn’t on this one. 

Look, it’s one thing to disobey the court, to deep-six an 

endangerment finding. That’s horrible. And I hope the American 

people get it. 

It’s another thing when you are involved with this new rule, and 

you know that it would increase CO2 emissions by 73 million, and 

you don’t even ask for public comment. That’s unbelievable to me. 

Senator Inhofe? 

Senator INHOFE. Well, thank you, Madam Chairman. 

Now, I understand that one of the points the Chairman is making here is that, perhaps since the electric utilities currently have 

to report carbon dioxide emissions, in your view does that mean 

that it is currently regulated under the Clean Air Act? 

Mr. MEYERS. Senator, that is a matter currently in litigation before the Agency and we have filed certain comments with respect 

to the EABs review of that issue on Section 821. I can’t detail the 

legal arguments, but generally speaking, we have contested the 

view that, on 821, as constituting regulation under the Act. 

Senator INHOFE. OK. There’s been a lot of talk about flexibility 

and the lack of flexibility. How do you believe that the CARE and 

the Clean Air Mercury Rule decisions have altered the Agency’s 

ability to find flexibility within the Act? 

Mr. MEYERS. Well, sir, on both issues we are currently—both on 

CARE and CAMR, we are concerned, currently concerned with the 

Justice Department interactions moving forward on the legal front. 

With respect to the CAMR decision, it was a narrow decision with 

respect to delisting under 112 C–9. With respect to the CARE decision, however, I think a fair reading of the decision does imply that 

the court, the three judge panel that ruled in this case, has certain 

concerns with our interpretation of cap and trade authority with 

respect to Section 110. 

Senator INHOFE. All right, Mr. Meyers. This is something I kind 

of wanted to get around to. I would like to have you explain what 

kind of effect setting CO2 emission limits for both new and existing 

power plants through the NSPS process and approving California’s 

Vehicle Greenhouse Gas Emission Standards, would have on global, global concentrations of CO2 . Would there be any guarantees 

that global concentration would decrease if this were to happen? 

Now, I would say that, during the discussion, the debate on the 

floor, the two reasons why only 38 members of the U.S. Senate 

would have voted for Lieberman—— 

Warner is two arguments. One, the economy, which we can get 

to. We know how devastating that would be. But the other one, 

whatever we do in this country could have the effect of getting industries to go to other countries where they don’t have these restrictions and where they don’t have emission requirement permits. 

And we saw studies that showed if we unilaterally did something 

in the United States of America, it would have the effect of increasing, and not decreasing, CO2 on a global basis. What guarantees 

would—that there would be any kind of global concentration reduction with this regulation, in your opinion? 

Mr. MEYERS. Well, I think California has detailed the effects following from its California program initiatives. I think that on the 

general matter of U.S. initiatives standing alone, we have analyzed 

45 

that in connection with the Warner-Lieberman legislation. What 

we showed was, without concerted international effort over the 

time period of roughly 100 years, global concentrations would rise 

to over 700 parts per million. Implementation of Warner—— 

Lieberman, without a concerted international effort would, on the 

order of 20 parts per million, decrease from that. 

So, clearly U.S. unilateral action alone is not sufficient or would 

be overwhelmed by international emissions. 

Senator INHOFE. Yes. State again the study that this, the genesis 

of this conclusion. You said—— 

Mr. MEYERS. Excuse me? 

Senator INHOFE. The study that you quoted. 

Mr. MEYERS. Oh, the study I quoted was our analysis that we 

provided the Congress with regard to Lieberman—— 

Warner. 

Senator INHOFE. Yes. That was very, very significant. I have people ask me—yesterday I was in Shady Point, Oklahoma. Madam 

Chairman, I doubt if you have ever been to Shady Point, Oklahoma. It’s a coal producing—— 

The Chairman. Have you been to Shady Lane in my state? 

[Laughter.] 

Senator INHOFE. No, I haven’t. 

The Chairman. You’re right, I haven’t been there. 

Senator INHOFE. And that question comes up. You know, I go 

back every weekend and I get the logical questions. They say, wait 

a minute. Let’s just say that we do everything that we can possibly 

do here, and it is enforceable and people respond, how is that going 

to reduce anything on a global basis? And, you know, it doesn’t. 

Now, we have another witness on the next panel I am going to 

ask some questions to. I understand the Small Business Administration’s Office of Advocacy raised serious concerns about this proposal. Are there any safeguards in the Clean Air Act that would 

guarantee that the impacts on small businesses would be considered, just be considered, for example being subject to SBAR panel 

under the Small Business Regulation Enforcement Act? 

Mr. MEYERS. Well, the provision you cited is actually not in the 

Clean Air Act, but the Agency would certainly obviously examine 

its affect of any regulations on small businesses as it is required 

to do under other statutes and to the extent that we would have 

a substantial impact on small businesses, certain actions would be 

required under SUBREFA, including possible SBAR. It depends 

upon the action and if the review is done with respect to the particular action. 

Senator INHOFE. Well, under Section 111, to what extent would 

the EPA be able to consider energy impacts? Now, I’m thinking 

about fuel switching and these things. Is that going to be a consideration? 

Mr. MEYERS. Well, in general, section 111 has standards for both 

new and existing source provisions. It is, I think we detail in the 

NPR, a more flexible provision of the Clean Air Act which couldn’t 

allow for consideration of energy impacts. But that, again, is in the 

context of how we’ve applied the law previously. Obviously, GHGs 

raise broad issues in terms of how they fit into the Act to which 

Senator Voinovich was referring. 

46 

Senator INHOFE. Yes, and I think Senator Craig talked about 

that, too. Thank you, Madam Chairman. 

The Chairman. Thank you. Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Chair Boxer. As 

Senator Inhofe knows, I was in Oklahoma a month ago, at Fort 

Sill—— 

Senator INHOFE. MM-hmm. 

Senator KLOBUCHAR [continuing]. to bid farewell to some of our 

National Guard troops and it was 109 degrees, so I wish I was at 

Shady Point because we needed a little shade there. 

Senator INHOFE. It was about 100 degrees at Shady Point. 

Senator KLOBUCHAR. Very good. 

OK, Deputy Assistant Meyers, I had some questions. First of all, 

the timing of this. I talked about, in my opening, that it was 17 

months ago that the Supreme Court and, from my perspective, the 

EPA has slow-walked this process and unnecessarily delayed these 

regulations. How much longer will the American public have to 

wait before we get these regulations? 

Mr. MEYERS. Well, Senator, I mentioned in my opening statement that the comment period for the NPR closes on November 

28th. Once that closes, it would be incumbent upon the administration to start to review the public comments received and decisions 

would flow from that. 

Senator KLOBUCHAR. So, that is what date? November? 

Mr. MEYERS. November 28th. 

Senator KLOBUCHAR. November 28th. And you guys get out of office—— 

Mr. MEYERS. Well, it is noon on the 20th or the 21st. 

Senator KLOBUCHAR. OK, so do you think you would have it all 

done by then? 

Mr. MEYERS. I would be hesitant to project, since the public comment period is still open. 

Senator KLOBUCHAR. Now, California, as you know, Minnesota, 

and a number of other states are waiting for the EPA to grant a 

waiver so that they can go forward with their greenhouse gas 

standards. If asked by your successor administration, since that is 

where we are ending up and I suppose you would have discussions 

with the next administration about what to do on this issue of the 

waiver, what would you advise them? 

Mr. MEYERS. Well, we have addressed the waiver petition that 

we have and the Administrator decided and detailed his reasons for 

not accepting the waiver. So, that is the Agency’s position right 

now with regard to the waiver. 

Senator KLOBUCHAR. What would you suggest they do on the 

endangerment finding? 

Mr. MEYERS. Endangerment—— 

Senator KLOBUCHAR. About what we are talking about here 

today. 

Mr. MEYERS. I think the NPR contains a fairly robust section 

with regard to endangerment and we also contain, in the 

endangerment TSD, roughly 100-plus pages of technical scientific 

information. So, I think the next administration will benefit from 

all of this activity and all the information that is provided—— 

47 

Mr. MEYERS. Do you think the public would benefit if we would 

make it public? That endangerment finding that we read in the 

back room? 

Mr. MEYERS. Well, the endangerment—again, the particular document was associated with the—it was not a stand-alone document. It was a draft proposal that was contemplated with respect 

to regulatory effort on Vogel, so it was not, it was not ever intended 

as a stand-alone document. 

Senator KLOBUCHAR. It looked like it stood alone to me. I mean, 

you know, it was—I don’t know how many pages? 30 or 50 pages. 

Now, your testimony asserts the potential complications from 

trying to regulate greenhouse gas emissions under the Clean Air 

Act, but as two members of the second panel have pointed out in 

their testimony, Mr. Burnett and Ms. Nichols, you don’t have to 

begin the process with the most difficult regulatory approaches. 

Would you agree, as they pointed out, that you could start with 

what they call the low-hanging regulatory fruit, with some of the 

easier things that would be done with low cost emissions, or no cost 

emissions, changes before building the more complicated regulatory 

process that we would need? 

Mr. MEYERS. Well, I think my opening statement, and I referenced the fact that it is very unpredictable to know exactly where 

you will end up under the Clean Air Act. Certainly in the NPR, we 

addressed, and especially the supplementary information in the 

TSD on stationary sources, different options for stationary source 

cost control. But, if the overall question is it a legally controllable 

process, can the EPA stage or roll-out different rule—making in the 

time-frame, that is one of the main things, one of the main questions we were asking because of the interconnectedness of the 

Clean Air Act. One action has some other activity in the other section of the Act, that is something to be very concerned about. And 

I don’t think we provided a definitive statement with the NPR—— 

Senator KLOBUCHAR. So, you don’t think we could triage this and 

do some of the easier things first? 

Mr. MEYERS. I think that is a question we are looking at and soliciting public comment on. I think, I think people can have opinions on that issue, but that broad of an issue with respect to GHGs 

has not been promulgated by the Agency or litigated in courts. 

Senator KLOBUCHAR. Mr. Meyers, Jason Burnett’s testimony in 

the past has indicated that President Bush and the administration 

initially agreed with the plan to regulate greenhouse gas emissions 

and later change, the administration later changed their mind or 

he changed his mind. Why do you think the President decided not 

to regulate greenhouse gas emissions? 

Mr. MEYERS. I don’t have a—I’m not sure exactly what you are 

referring to. 

Senator KLOBUCHAR. Well, if you look at Mr. Burnett’s testimony, he talks about how there was some movement to do this, 

that is why the endangerment finding came about, and then there 

was a meeting and supposedly there was a change in direction. 

Mr. MEYERS. I have briefly read, you know, are there particular 

sentences in his testimony which, I mean—— 

Senator KLOBUCHAR. So, you don’t know anything about this? 

48 

Mr. MEYERS. Mr.—I know Jason has submitted testimony, I 

mean—— 

Senator KLOBUCHAR. OK, well let’s go back to what President 

Bush said because he said that climate change is a serious global 

challenge. He said this. And, given the seriousness of this issue, 

why hasn’t the administration done anything? 

Mr. MEYERS. Well, I think, as I detailed in my opening statement, the administration is moving forward with about 60 Federal 

programs, has invested $45 billion in climate change technology 

science, and the Administrator committed, in March of this year 

and delivered in July, a voluminous, very detailed NPR which describes all of the issues of the Clean Air Act and greenhouse gas 

emissions, so I would submit that is a very considerable record. 

Senator KLOBUCHAR. It is a record, but it hasn’t had any effect. 

I know I am out of time here and I will do in writing my question 

about what you would know about President Bush—what Jason 

Burnett’s testimony. If you don’t know about Jason Burnett’s testimony, as least you can tell me what you know about why the administration changed direction. Thank you. 

The Chairman. Well, Senator, that is a very appropriate question. And if Mr. Johnson were here, it would be a lot easier to get 

the answer, but he has been in hiding since March. He has not 

come to any of our meetings. And I know it is not the most pleasant thing for him to do, but it is his job, and you would have had 

an answer. You might not have liked it, but at least you would 

have someone who could speak to it. Mr. Meyers doesn’t feel comfortable or doesn’t remember or something. 

Senator Voinovich? 

Senator VOINOVICH. Mr. Meyers, this may be the last opportunity 

that I can publicly thank you for your great service to the Environmental Protection Agency. I recall working with you on our efforts 

to get Clear Skies passed in the late hours, and working with Senator Carper and I to try to work something out. And I just wanted 

you to know how much I appreciate your service and the fact that 

you have agreed to stick around and not fly the coop before this 

administration ends. And I would like you to pass on to your family 

how much I appreciate, and all of us appreciate, the sacrifice that 

they have made so that you can serve our country. 

Mr. MEYERS. Thank you very much, Senator. 

Senator VOINOVICH. Senator Craig, in his comments, talked 

about a reasonable balance and I would like to get back to my 

problems over the years in this committee. That is, we haven’t harmonized the environment, our energy, our economy and our national security. What we do here in this committee has a large impact on the quality of life who live in our respective states. 

For example, my wife and I are trying to figure out which gas 

company we are going to sign up with for heating our home. It is 

around $12 an MCF. Back in 1971, it was around $2.50 an MCF. 

We can afford it, but there are millions of people in the United 

States that these high natural gas bills are impacting on their 

standard of living. In addition to that, decisions that have been 

made in terms of the availability of natural gas now, in terms of 

oil—today, the cost of oil is dramatic and, again, having a large impact on the quality of life and standard of living of our people. 

49 

So, I think that anyone looking in on this hearing today has to 

understand that this committee has had a large impact on this 

country during this period of time. And one of the things that logic 

dictates is that if we had intended for the Clean Air Act to include 

greenhouse gases, CO2 emissions, why in the world did we spend 

hours and hours and hours trying to put together a piece of legislation to deal with greenhouse gases? And why in the world are 

many of us, who weren’t happy with that piece of legislation, working to try to come up with a compromise bill that would be less intrusive on our economy, take recognition of the State of technology 

in terms of capturing and sequestering carbon, and also understanding that we need to have an international dimension to this 

for, if we don’t, we could do everything, shut down all greenhouse 

gases, and not really make any kind of real impact in terms of the 

global issue, global warming, that we are confronted with? And 

many of us are very concerned about it because we know the Chinese are putting on two coal-fired plants each week. And so we 

have to put what we are doing here in that context. 

So, one of the things that I would like to ask you is does the 

Clean Air Act provide any flexibility, consider how its regulations 

could put U.S. firms at a competitive disadvantage by raising their 

impact costs compared to foreign competitors? Especially outside of 

an international agreement with the world’s major emitters. And I 

want to say this publicly that any greenhouse gas legislation that 

we pass has got to have an international dimension so that we can 

bring in the other emitters as our partners and put money into 

finding the best technology that is available. 

Mr. MEYERS. Well, Senator, the Clean Air Act does provide, in 

some provisions, to account for emissions under Section 179 of the 

Act. But, if the question was referred to whether there is a specific 

provision to allow international competitive disadvantage or international actions by other firms, I am not aware of a specific statutory provision in the Act on that point. 

Senator VOINOVICH. So, what you are saying to me is that you 

can’t take into consideration the impact that this might have on 

our competitive position in the global marketplace? 

Mr. MEYERS. Well, what we can and can’t consider on various 

provisions of the Act varies, according to the statutory language. In 

some provisions of the Act like NACs, we can’t consider cost at all. 

In other provisions of the Act, we can consider costs. 

I think, in trying to address your question, I would say that I 

don’t know of any reference to international cost or international, 

you know, competition as a specific term within the Act that the 

EPA could rely on if it were to make that interpretation. 

Senator VOINOVICH. And Mr. Meyers, if EPA were to establish 

NACs for CO2 2, how long would it take before the emission reductions would actually be required? 

Mr. MEYERS. Well, the NACs process, it requires several steps. 

It would first require the listing of the pollutant and the production 

of a criteria document following the 108, 109 process. The Administrator then would need to consult with CSAC, determine the level, 

propose and go final. Once a final regulation is produced under the 

Act, that triggers the implementation provisions which require 

states to file implementation plans, those are triggered from the 

50 

final regulations. So, within a few years from initiation, you might 

be to a final rule and then you would have many years after that 

for the SIPs and for the final attainment dates. 

Senator VOINOVICH. Two to 3 years? 

Mr. MEYERS. No, in general, under SUBPAR one, there is 5 

years, with the possibility of extension for another 5 years, or a 

total of 10 years for attaining NACs. The plans are to designate— 

we have an interim step of designations from 1 year from the point 

in time in which the final rule goes and then we have the SIPs due 

in 1 year, with the possibility of extension of 1 year. Not to get too 

into the weeds, but you are correct. It is a multi-year process that 

requires many different steps under the NACs, both in setting the 

NACs and then in getting the State plans in and then establishing 

appropriate attainment dates. 

The Chairman. Thank you, Senator. Let me say again, on this 

quality of life issue, which is very key, I noticed that Senator 

Voinovich was focusing on the economics of it, which is very appropriate. That is why we need a middle class tax cut. That is why 

we need to make sure that people have alternatives to the old ways 

of energy so that we have some competition. 

We could agree or disagree at the end of the day, that’s why I’m 

excited to hear from our next panel on what are the effects on the 

economy of moving forward. 

But, you know something, I have to say Senator, you’ve got to 

think about the quality of life on the individual, which is what this 

is about. If people can’t breathe, they can’t work. If people’s kids 

are missing school, they may not be ready for the work force. So, 

in environmental laws, we have to weigh it all. And we may, at the 

end, disagree but I hope we would look at—I’m very willing to look 

at the economics, what it does to jobs, what it does to home heating 

fuel because, the truth is we do have a heat program and we have 

to help people get through this. We need to get alternatives. We 

also have to look at what it means to clean up the environment and 

look at the cost if we don’t, to their health, to their lungs. We have 

to look at what happens with unfettered global warming. 

I just read, and I am going to give this to my friend, Senator 

Voinovich, a report done by the American Pediatrics Organization. 

It is all these doctors that take care of kids. I was stunned that 

they said that the impacts of global warming, if it is unchecked— 

and we know the whole world has to do it, we are all aware of 

this—the fact is, if we don’t do it, the kids pay the heaviest price. 

And they list what happens, what diseases, what conditions, what 

happens from the higher temperatures, what happens from the 

new vectors. 

So, quality of life is very key and I would ask unanimous consent 

to place in the record ‘‘The Change in the Incidence of Adverse 

Health Effects Associated with Various Pollutants’’ since the Clean 

Air Act was put into place because what we are going to find is, 

lives have been saved. 

And where I agree with my colleague 100 percent, you’ve got to 

look at everything. Don’t forget the basics of what this committee 

is about, and that is protecting the health and safety of the people. 

I would call on Senator Whitehouse. 

51 

Senator WHITEHOUSE. Thank you, Chairman. Mr. Meyers, how 

involved were you with the California Waiver Application evaluation within EPA? 

Mr. MEYERS. I was certainly involved in the analysis on that decision. Many of the—it was a joint effort between OAR and our Office of General Counsel. 

Senator WHITEHOUSE. So, you were very closely involved? 

Mr. MEYERS. Yes, I would say I was closely involved. Yes. 

Senator WHITEHOUSE. Is it true that the advice and recommendation of the advisers within EPA to the Administrator was 

for Administrator Johnson to grant the waiver or at least grant the 

first few years of the waiver? 

Mr. MEYERS. I wouldn’t be aware of all of the advice and recommendations that the Administrator would have received, so I 

couldn’t State categorically that was the case—— 

Senator WHITEHOUSE. Can you tell us of anyone who gave him 

advice or any entity within EPA that gave him advice not to grant 

or partially grant the waiver? Can you name an entity or an individual within EPA who gave advice other than to grant the waiver, 

or at least grant the first few years of the waiver? 

Mr. MEYERS. As an individual, no. The options that the Administrator reviewed—— 

Senator WHITEHOUSE. No, no. I am not asking about the options, 

I am asking about the ultimate recommendation by the staff. Was 

there anybody affiliated with the EPA who gave advice, other than 

to grant the waiver or at least grant the first few years of the waiver? 

Mr. MEYERS. Within what time period would that question pertain to? 

Senator WHITEHOUSE. Within the decisionmaking process, as it 

came to—— 

Mr. MEYERS. Well, the—— 

Senator WHITEHOUSE [continuing]. you tell me what time-frame 

you are talking about. 

The Chairman. Can you answer the question, please, if you can? 

Mr. MEYERS. I am trying to answer the question, but—— 

The Chairman. Well, just divide it up into a time—frame then. 

Mr. MEYERS. I mean, the—— 

Senator WHITEHOUSE. Let’s start with ever, OK? 

[Laughter.] 

Senator WHITEHOUSE. With respect to the California Waiver Application—— 

Mr. MEYERS. Right. 

Senator WHITEHOUSE. Can you name any entity or individual 

within the EPA who ever gave Administrator Johnson the advice 

not to grant the waiver or at least the first few years of the waiver? 

Mr. MEYERS. I cannot identify an issue, or such a person at this 

hearing within my memory. 

Senator WHITEHOUSE. OK. So, why was the time-frame relevant 

if it never happened? 

Mr. MEYERS. Because, because the waiver was received for some 

time at the Agency, actually it may have even been received, or requested, predating my tenure, and then we went through Mass v. 

52 

EPA and there were various, various—I’m sorry, I’m confusing the 

issue. 

The waiver was before the Agency for some time, many months 

and more, so—— 

Senator WHITEHOUSE. And during that time, to your knowledge, 

no member of the EPA and no entity of the EPA ever recommended 

that Administrator Johnson not grant the waiver or at least not 

grant the first few years of the waiver, correct? 

Mr. MEYERS. If you are asking me with respect to remembering 

if an individual said that in my presence, in front of the Administrator, I would say I don’t have any memory of that. 

Senator WHITEHOUSE. Is that the only way you got information? 

Would you also read memos? 

Mr. MEYERS. Well, I—— 

Senator WHITEHOUSE. Did you have other ways of gathering information as the Director? 

Mr. MEYERS. Well, the question goes to the Administrator’s decisionmaking and who told—— 

Senator WHITEHOUSE. No, the question goes to what you knew, 

thought, read. I am just asking for information that you know. 

Mr. MEYERS. OK. 

Senator WHITEHOUSE. And you just tried to divide it off to only 

stuff that was said orally, in front of you, but you don’t limit yourself in your role to information that you gather orally in front of 

the Administrator, do you? You presumably read documents and 

you get staff briefings? 

Mr. MEYERS. Sure. 

Senator WHITEHOUSE. And, in light of that, did anyone within 

EPA ever recommend to the Administrator that he not grant the 

waiver, or at least not grant the first few years of the waiver? 

Mr. MEYERS. My response is—the question asked is that did anyone at the EPA—we have 17,000 people at EPA. I don’t know at 

every meeting who—— 

Senator WHITEHOUSE. To your knowledge. 

Mr. MEYERS. To my knowledge, no. 

Senator WHITEHOUSE. And it became the EPA’s plan to have a 

partial grant of the waiver, correct? 

Mr. MEYERS. EPA doesn’t, it isn’t a person. I don’t know that the 

EPA would have a plan. The EPA is an organization. 

Senator WHITEHOUSE. You know, I’d be prepared to agree with 

you on that in a lot of subjects. Was there not an internal decision 

made by Administrator Johnson to take a plan, to have a partial 

grant of the waiver, to the White House? 

Mr. MEYERS. That’s—I’m sorry. That was your question? Was 

there a plan to, for a partial waiver—— 

Senator WHITEHOUSE. Was there not an internal decision made 

at EPA to take a plan to grant a partial waiver, a partial grant of 

the waiver, to the White House and inform them of that plan by 

EPA? 

Mr. MEYERS. There—I think the Administrator has testified 

there were numerous meetings with respect to the waiver. 

Senator WHITEHOUSE. Yes, but as to the question that I just 

asked you. Would you like it read back? I would just like you to 

answer that question, not other questions. 

53 

Mr. MEYERS. Well, the question is very broad as to whether there 

was any plan. 

Senator WHITEHOUSE. Should we break it into smaller parts? 

Mr. MEYERS. No, Senator. I am just trying to answer the question. I am trying to be fully responsive to your concerns and your 

questions. 

Senator WHITEHOUSE. I am trying to understand the question. 

The Chairman. Can you repeat the question—— 

Senator WHITEHOUSE. The question is whether EPA made an internal decision to grant the waiver and the Administrator took that 

plan to the White House to give them advance notice of it? Did that 

happen? 

Mr. MEYERS. I believe the Administrator has testified that he 

had discussions with interagency colleagues concerning his plans 

on the waiver. With reference to your question, it omits, and I don’t 

mean to parse it too much, but you’re saying whether EPA as an 

organization made a decision. So, that is why I’m having difficulty, 

as EPA—— 

Senator WHITEHOUSE. Let’s back up a little. 

Mr. MEYERS. Sorry. 

Senator WHITEHOUSE. Did the Administrator go to talk to the 

White House about the California waiver situation? 

Mr. MEYERS. I believe he has testified that he had discussions 

with his interagency—— 

Senator WHITEHOUSE. To your knowledge, did he go to the White 

House and talk about this? 

Mr. MEYERS. I believe that he had discussions with regard to the 

waiver with members of the executive branch. 

Senator WHITEHOUSE. And did the—at the White House specifically. I mean, he is a member of the executive branch, that’s not 

very useful. I am asking you about the White House. 

Mr. MEYERS. Oh. I don’t know exactly where all of his meetings 

may have taken place. 

Senator WHITEHOUSE. Did one take—did any take place at the 

White House about this? 

Mr. MEYERS. I, I—— 

Senator WHITEHOUSE. You keep asking questions that I haven’t 

asked. You keep answering questions that I haven’t asked. If you 

could pay attention to the question, this might be a lot easier. 

Mr. MEYERS. Yes, sir. OK. 

Senator WHITEHOUSE. Did the Administrator go to the White 

House to give them notice that it was EPA’s plan, his agency’s plan 

at that point, to approve a partial grant of the waiver? 

Mr. MEYERS. I believe that is a question best directed to the Administrator. 

Senator WHITEHOUSE. He’s not here. We have you. You said you 

were closely involved. I am asking you of your personal knowledge. 

Mr. MEYERS. And, to my personal knowledge, I know the administrator had discussions at the White House—— 

Senator WHITEHOUSE. Regarding the California waiver? 

Mr. MEYERS. Right. But I was not present at those discussions 

with the Administrator so it is very difficult, if not impossible, to 

testify to exactly what was said at those meetings—— 

54 

Senator WHITEHOUSE. Were you present at meetings that prepared him for that—— 

Mr. MEYERS. I was present at numerous meetings in preparation 

for the consideration of the waiver, yes. I was at many meetings. 

Senator WHITEHOUSE. And, during those meetings, did it ever become clear that the EPA’s position, subject to the notification of the 

White House, was going to be a recommendation for a partial grant 

of the waiver? 

Mr. MEYERS. A partial grant for a waiver was certainly an option 

we spent a lot of time discussing, the Administrator spent a lot of 

time discussing. 

Senator WHITEHOUSE. And it was one that no one disagreed 

with, you already testified. 

Mr. MEYERS. I testified that I did not know or—— 

Senator WHITEHOUSE. Correct. 

Mr. MEYERS. I could not remember—— 

Senator WHITEHOUSE. You didn’t know of anybody who disagreed 

with it. 

Mr. MEYERS. Right. 

Senator WHITEHOUSE. And you were closely involved with the 

process. 

Mr. MEYERS. That is correct. 

Senator WHITEHOUSE. And he discussed it with the White 

House? 

Mr. MEYERS. I believe he has testified that he discussed the 

waiver—— 

Senator WHITEHOUSE. In fact, in December, he made his plan 

known to the White House, correct? 

Mr. MEYERS. I do not know a precise time-frame when he may 

have had discussions. 

Senator WHITEHOUSE. You don’t remember the time—frame? 

Mr. MEYERS. Well, I mean—obviously discussions occurred prior 

to December 19th, which was the date that the Administrator 

signed the letter to Governor Schwarzenegger but, if you—I don’t— 

I can’t. The Administrator has a lot of meetings and I don’t know 

of all the meetings that he has, so it is very difficult for me to respond to the issue of a particular meeting at a particular time that 

I did not attend. 

The Chairman. Senator Whitehouse, what I would like you to 

do—— 

Senator WHITEHOUSE. I think my time has expired—— 

The Chairman. I know, but I think it is so key. We need to get 

to the bottom of this. I would allow you to do one additional question and then if you could sum up what you think you’ve learned. 

[Laughter.] 

Senator WHITEHOUSE. To your knowledge, did the White House 

offer any opinion about the plan that the Administrator went there 

to give them notice of? And, if so, what was that opinion? 

[Pause.] 

The Chairman. Senator, would you repeat the question? 

Senator WHITEHOUSE. I think the—— 

The Chairman. Please repeat the question. 

Senator WHITEHOUSE. I’m actually comfortable with the question 

as I posed it. 

55 

The Chairman. I know, but I would like you to repeat it, for me, 

if you would. 

Senator WHITEHOUSE. May we have the clerk read it back? 

The Chairman. Yes. 

Senator WHITEHOUSE. I don’t want there to be any lack of clarity 

about the question so we can get to this answer. Could the clerk 

read back the question? 

The Chairman. Can the clerk read back the question, please? 

I’m sorry, are we waiting for the clerk, is that—— 

Sir, you are conferring with someone. Could you tell us who that 

is that you are conferring with? 

Mr. MEYERS. I’m sorry, I was talking to a representative from 

our Office of General Counsel. 

The Chairman. OK. 

Senator WHITEHOUSE. May I inquire as to the name, Chairman? 

May I inquire as to the name of the person? 

The Chairman. Could we have the name of your representative? 

Mr. MEYERS. Sure, sure. I was talking to Allison Starmann, who 

is with our Office of General Counsel. 

The Chairman. OK. 

Senator WHITEHOUSE. Thank you. 

The Chairman. Please read back. It was the last thing that was 

actually spoken. There was a very long pause. It would just go to 

right before the long pause. 

The Clerk. ‘‘The Chairman. Good, wonderful. Thank you so 

much. We are sorry to throw this curve at you.’’ 

The Chairman. It’s all right. I mean, we have a pause of 2 minutes. I need to have—I forgot what the question was, the pause 

was so long. It’s my fault and I need to hear it again. 

Senator WHITEHOUSE. I am too used to court reporters who read 

back the question, I’m sorry. 

The Chairman. Right, right. 

Senator WHITEHOUSE. A different routine here, I apologize, but 

thank you for your help. 

The Clerk. ‘‘To your knowledge, do you have any opinion about 

the plan that the Administrator went there to give them notice of 

and, if so, what was his opinion?’’ 

The Chairman. Mr. Meyers. 

Mr. MEYERS. Oh, the—I believe the Administrator did consult 

with officials in the executive branch—— 

Senator WHITEHOUSE. The question was about the White House. 

Mr. MEYERS. The White House, I believe he consulted with officials at the White house. 

Senator WHITEHOUSE. Yes. 

Mr. MEYERS. I believe that he informed them of his consideration 

of the California waiver. I believe—— 

Senator WHITEHOUSE. And specifically that he was planning to 

grant or partially grant it? 

Mr. MEYERS. I was not—earlier I testified that I was not at the 

meeting so I cannot testify as to what the Administrator may have 

said at a meeting that I—— 

Senator WHITEHOUSE. That’s fair enough. Did you help prepare 

him for that meeting? 

56 

Mr. MEYERS. I was part of the general effort and multiple meetings that prepared him on the California waiver. 

Senator WHITEHOUSE. And when he left for the meeting, was it 

everybody’s understanding that—— 

Mr. MEYERS. I—— 

Senator WHITEHOUSE [continuing]. that is what he was going up 

to do. Whether he did it or not is something you obviously cannot 

testify to—— 

Mr. MEYERS. I cannot remember to a specific day. I have literally—I run an office with 1200 people and probably have a dozen 

meetings every day, so I cannot testify clearly as to remembering 

a specific meeting prior to a meeting—— 

Senator WHITEHOUSE. Even though this is your Administrator 

going to the White House to discuss a matter that will effect about 

half of the country? 

Mr. MEYERS. I am testifying, I think I am testifying as to, I believe that he did go to the White House and did talk to people concerning the California waiver. You’re specific—— 

Senator WHITEHOUSE. Did the White House offer any opinion 

about the plan? 

Mr. MEYERS. I believe they may have offered various comments, 

depending on who was at the meeting. 

Senator WHITEHOUSE. And what were you told about what comments were made? What was brought back to you? What did you 

hear? What was reported to you, about that, about the opinions 

that the White House offered on that matter? 

Mr. MEYERS. I am trying to recollect my memory of events and 

am having trouble because it is asking me to recall specific meeting, a specific time, and a specific report back, perhaps from the 

Administrator, and I am not sure that I can remember events with 

that much detail, but I am trying to fully cooperate with your question and your committee and trying to give this a serious response. 

So, it would be my—— 

Senator WHITEHOUSE. Well, let me ask you it this way. The 

storyline that has developed on this is that, in a nutshell, the EPA 

staff agreed in to that a partial grant was appropriate, that you 

and others briefed the Administrator for his meeting with the 

White House, that he went up to the White House and that 

everybody’s intention was that he would disclose to the White 

House that you were planning to grant the partial waiver, that this 

was a matter of enormous consequence to California and a variety 

of other states, comprising nearly half of the population of the 

United States. That he went to the White House and, when he 

came back, there was a completely different plan. 

That sounds like something that would be memorable no matter 

how many meetings you had scheduled in your day. 

Mr. MEYERS. To my—I mean, the Administrator made his decision on the Waiver when he signed the document on the Waiver 

denying California’s request. That’s when—— 

Senator WHITEHOUSE. You mean, the moment before he signed 

it he hadn’t made up his mind? He waited until he had the paper 

in his hand and then suddenly something came over him? 

Mr. MEYERS. No, no, I’m just saying the decision document—the 

decision document—— 

57 

Senator WHITEHOUSE. We know that; that’s true as a matter of 

law. We’re trying to get into the process that happened behind it. 

Mr. MEYERS. The process behind it was that we had numerous 

meetings with the Administrator, we presented many options during the course of this time. He consulted with us. He consulted 

with his inter-agency colleagues, and—and then he ultimately 

reached a decision. 

Senator WHITEHOUSE. But your testimony—your testimony is 

that you can’t remember what opinion or position the White House 

offered—what you heard about the opinion the White House offered 

after this meeting between the Administrator and the White House 

on the California Waiver. That is what you’ve testified to today and 

that’s what I want to make sure I’m clear on. 

Mr. MEYERS. Sir, sir,—— 

Senator WHITEHOUSE. You don’t remember—— 

Mr. MEYERS [continuing]. I’m testifying in the context in which 

I’m testifying, which is—is trying to recall a—— 

the inference here is that there was a specific meeting, that he came back and 

he told me something specifically, as I’m—as I’m interpreting your question. There 

were numerous meetings. There were numerous consultations, so the difficulty I’m 

having in responding to your question, sir, is—is trying to remember—— 

Senator WHITEHOUSE. I hear the gavel. 

Mr. MEYERS [continuing]. to remember a specific event which— 

for which the date is not being provided me. 

Senator WHITEHOUSE. I hear the gavel, and I understand that I 

have gone considerably over my time. I appreciate very much—— 

The Chairman. It’s very important what—— 

Senator WHITEHOUSE. I appreciate the Chairman’s indulgence. I 

think that—the Q and A that I had planned could easily have fallen within the 5-minutes that I was allotted, and obviously it did 

not. 

The Chairman. No, that—that’s why I gave you the time. Listen—— 

Senator WHITEHOUSE. I appreciate the—— 

The Chairman. Listen—— 

Senator WHITEHOUSE [continuing]. Chairman’s courtesy. 

The Chairman. Senator Whitehouse, I just want you to know 

that what I think you’ve done with this series of questions is you’ve 

shown that what Mr. Johnson told us was not the truth, and we 

had asked the Justice Department to look at his statements regarding the Waiver. 

Now, Mr. Johnson, I don’t know if you remember, said, Oh, he 

didn’t remember any meetings. They were routine meetings. And, 

he said he had lots of views offered to him. We heard from this witness he remembers going to the White House—that they went to 

the White House, and that, in fact, he couldn’t remember anyone, 

at least, not in his time there, who said anything other than grant 

the Waiver, a partial Waiver. 

So, we’re going to send this to the A.G. to take a look at this. 

But I think that this—the reason I was glad to allow you to continue is because this decision on the Waiver was monumental. So 

many states in the teens, maybe even over 20 now, are hanging on 

this, because if George Bush doesn’t want to regulate global warming, other states do. So, that’s very, very key. 

58 

And—and by the way, we had Mary Peters come here and say 

she—to the Commerce Committee, on which I serve—admitted that 

she was lobbying against the Waiver. So, this was a monumental 

moment where the Administration against the rules were even 

having Mary Peters call Members of Congress. We had the whole 

auto industry. 

So, to say we had routine meetings about the Waiver? I think 

today we took a giant step forward in showing that wasn’t the case. 

And that’s why I thank you, and I would ask now that the next 

panel come up. Thank you, Mr. Meyers, for your help in this regard 

in getting to the truth. 

And I have asked that we do this quickly, because time is not 

our friend, and we have a lot of witnesses here, and we look forward to hearing from all of them. We have one, two, three, four, 

five witnesses. Each one has five. OK, we need to move quickly. 

I appreciate the patience of the panel. We’re going to start with 

Hon. Mary Nichols, who’s Chairman of the California Air Resources 

Board. Chairman Nichols, we so appreciate your coming. Then we’ll 

move down Jason, David, Bill, and Marlo. OK. 

Would you put on your—— 

STATEMENT OF HON. MARY NICHOLS, CHAIRMAN, 

CALIFORNIA AIR RESOURCES BOARD 

Ms. NICHOLS. There we are. Good morning, Madame Chairman. 

The Chairman. We’re asking you each to stay to 5 minutes because we have questions. Go ahead. 

Ms. NICHOLS. Yes. I have submitted my written testimony for the 

record, and I will not repeat it here. I have to admit, I am suffering 

from whatever that syndrome is where you have flashbacks, having 

listened to the previous testimony. 

As you know, Senator, I—I served as an appointee in the Clinton 

administration as the head of the office of Air and Radiation at 

EPA, and had many opportunities to testify before this panel and 

others. I never experienced anything quite like that, and I hope I 

never would have to be in such a position in my life. 

The Chairman. Well, welcome back. 

Ms. NICHOLS. But I think, frankly, the reason why that interchange took place is because of the fact that there has never been 

in my knowledge anything like the process or the result that occurred with that advance notice of proposed rulemaking. 

I was involved in—in—developing the new standards for ozone 

and fine particles that ultimately were upheld by the U.S. Supreme 

Court and the American Trucking Association vs. Brown, our case. 

Very, very highly contested set of standards, they were opposed by 

many organizations including the U.S. Chamber, the auto industry, 

and others. 

Many other agencies in the government had concerns and questions about whether EPA should be adopting those standards. 

There were vigorous and contested meetings held under the auspices of the Office of Management and Budget, but when a decision 

was finally made and was announced by the EPA, and there were 

hearings held, the Administration completely and totally backed 

EPA in its decisionmaking process. 

59 

And I believe that there is a—there simply has not ever been a 

situation where all of the other agencies turned on the Environmental Protection Agency in the way that they did publicly during 

this process. It’s not a good—it’s not a good sign, frankly, for the 

ability of the Administration to pull together, and I’m hoping that 

a result of this hearing will be some direction coming from this 

Committee to the next Administration as to how to approach interpretation of their legal authority. 

The term, Aslow walking was used, I believe, by Senator 

Klobuchar about how EPA approached their decisionmaking under 

the Clean Air Act here. I think of it as being a situation where 

we’re facing a crisis. We’ve all acknowledged that global warming 

is a crisis of global proportions, and the question is, what are we 

going to do about it? 

Clearly, Congress should act. Governor Schwarzenegger has supported your efforts, Senator Boxer, enthusiastically, to try to pull 

together an economy-wide program for the United States, something that we could take to the international community and—and 

use as part of the basis of a—of a truly global solution to this problem. 

But in the meantime, we don’t think it’s excusable to fail to act. 

That’s why California passed the 2006 Global Warming Solutions 

Act, which we’re now in the process of implementing, and why we 

believe EPA should use the authority that it has under the Clean 

Air Act. 

In my testimony, I outlined what I believe some of those abilities 

that it has to act are, and why we think EPA should be moving 

forward even without additional authorization, and I also would be 

happy to answer questions about why even though our State and 

many others frequently don’t see eye to eye about various matters 

of implementation with EPA, we still support the notion that EPA 

should exercise the legal authority that it has to help move the ball 

forward. Thank you. 

[The prepared statement of Ms. Nichols follows:] 

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The Chairman. Thank you, as usual, for getting right to the 

point. We appreciate it, Chairman Nichols. Jason Burnett, former 

Associate Deputy Administrator, U.S. EPA. Welcome, Jason. 

STATEMENT OF JASON BURNETT, FORMER ASSOCIATE DEPUTY ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION 

AGENCY 

Mr. BURNETT. Thank you. Madame Chairman, Senator Inhofe, 

Senator Whitehouse, thank you for the opportunity to testify about 

climate policy. The April 2d, 2007, Massachusetts versus EPA Supreme Court decision found that the Clean Air Act applies to 

greenhouse gases, and, therefore, shifted the debate from whether 

we address climate change to how we address climate change. 

Either the EPA will, using the Clean Air Act, or Congress will 

by developing a new, better law. To help understand options for climate regulation, I will identify three principles that I hope most 

can agree should be part of any sensible climate policy. 

First, act now. Common sense suggests that we act now to begin 

a smooth transition to a low carbon economy, rather than waiting 

longer and requiring a faster, more disruptive transition. If the 

U.S. does not act now, we risk becoming the importer, not the exporter, of the next generation of energy technologies. 

Second, be careful. Climate policy should expect and promote 

technological change but needs to be careful, because we do not 

know when or how new technology breakthroughs will occur. Climate policy should also recognize that any action we take alone 

will not be enough to avoid the risk of catastrophic climate change. 

We need to carefully design a system that will work so well, that 

other countries will want to mimic our success. 

And third, consider economics. Much discussion has focused on 

the cost of action, but inaction has its own costs. Inaction will lead 

to more resources spent adapting, and increased likelihood that 

large parts of our society will face serious harm if unable to adapt, 

and unavoidable damage to our natural systems and infrastructure. 

Inaction will also lead to increased security risks for regions of 

the globe that do—that do not have the infrastructure or institutions to adapt quickly enough. My testimony today builds off of 

work done by a large team of scientists, lawyers, engineers, and 

economists at the EPA and across the Federal Government. 

As Associate Deputy Administrator of EPA—former Associate 

Deputy Administrator of EPA, I had helped develop a plan for responding to the Supreme Court’s decision. This plan basically consisted of one regulation that would have increased the fuel economy 

of our cars and trucks. 

Another regulation that would have shifted our fuel supply away 

from a reliance on oil and toward more alternative and renewable 

fuels, and several regulations covering large stationary sources, 

such as power plants, oil refineries, and industrial boilers. These 

regulations would have been issued after a consideration of costs, 

benefits, energy implications, and technology, and would have included various market mechanisms, such as trading, to promote efficiency improvements in increased use of biomass, for example, 

farm waste, as an energy source. 

71 

By acting on this plan, we would ease the transition to a low-carbon economy. The plan also addressed the unique challenges of the 

Clean Air Act, such as making greenhouse gases fit better within 

the new Source Review program. These challenges stem from differences between greenhouse gases and most other types of air pollution. 

The next Administration, after careful consideration of these 

challenges, can issue Clean Air Act regulations that will be a solid 

step forward. However, these regulations alone will not get us 

where we need to go. The structure of the Clean Air Act is such 

that greenhouse gas regulations will not be as cost effective as they 

could be under an entirely new law. 

This will not be a major problem for the first few years because 

EPA can pursue inexpensive opportunities. Over time, however, 

EPA regulations will require greater investment and the unnecessary challenges of the Clean Air Act will become more apparent. 

This is why Congress must act. 

Ideally, Congress will pass new economy-wide cap and trade legislation that uses auctions to reduce taxes and avoid giving windfall profits to industry. Regulations should be upstream at the 

point where carbon fuels enter the economy, not where greenhouse 

gases enter the atmosphere. 

This law could seek aggressive reductions in emissions by depending more on new technologies, and could make sure this is a 

good, safe investment for our Nation by including a safety valve in 

case new technologies do not develop as quickly as predicted. In 

this way, new legislation can achieve more at lower risk, a result 

that’s good for the environment and good for the economy. The next 

president should immediately work with Congress to pass such legislation. At the same time, EPA should re-engage—— 

The Chairman. We want to make sure we have enough time for 

questions. 

Mr. BURNETT. Thank you.—re-engage on regulations under the 

Clean Air Act, with careful thought that Clean Air Act can become 

our Nation’s first climate change law, as Congress debates the 

transition to a new, better law. Thank you, and I would be happy 

to answer any questions. 

[The prepared statement of Mr. Burnett follows:] 

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The Chairman. Thank you, Mr. Burnett. Our next speaker is 

David Bookbinder, Chief Climate Counsel over at the Sierra Club. 

Welcome, sir. 

STATEMENT OF DAVID BOOKBINDER CHIEF CLIMATE 

COUNSEL, SIERRA CLUB 

Mr. BOOKBINDER. Thank you, Madame Chairman, Senator 

Inhofe, Senator Whitehouse. I guess in the—in the eyes of some 

people I may be one of the bad guys here. I’m the counsel—I was 

counsel in the Massachusetts versus EPA case. 

I’m counsel in the cases chivying EPA to try to get them to regulate greenhouse emissions—greenhouse gas emissions from power 

plants, refineries, other sources. I’ve been counsel in the auto industry challenges to California’s motor vehicle greenhouse gas regulations and in the case against EPA to overturn the Waiver, and 

I’m also counsel in the Bonanza Power Plant case, which Mr. Meyers referred to earlier as the one pending before EPA’s environmental appeals board. So, I’m in the thick of it. 

I’m trying to get regulation done, and the first thing I want to 

say is legislation, tailor-made legislation, is far preferable to these 

regulatory steps. We don’t have that legislation. Hopefully, we will 

get it. Until then, we’re going to have to go the regulatory path. 

There are two reasons for that. 

One, we need to do something, and two, December, 2009, the 

world is going to gather in Copenhagen to try and address climate 

change, and unless the president of the United States shows up 

with something in his hand to say the United States has begun to 

take action, we are going to lose our next best opportunity to address global climate change. 

If Congress comes up with comprehensive legislation by the end 

of 2009, terrific. If not, there is a single set of steps that I outline 

in my testimony that EPA can take as a regulatory matter. Now, 

I think it’s—I think the most important thing I can say today is 

the two bugaboos that we keep hearing about regulation need to 

be dispelled immediately. 

The first is the PSD program. This is an incredible red herring. 

The environmental community does not want to apply PSD to millions of sources. The agency doesn’t want it. Industry doesn’t want 

it. Nobody wants it, and EPA has already come up with some excellent ideas of how we do—how we can avoid it, even in the absence 

of a legislative fix to Section 165 of the Clean Air Act. 

There are ways to avoid it. We are advocating applying PSD only 

to the five to ten thousand ton sources. We do not want industry, 

meanwhile, you know, hiding behind the local church and Dunkin 

Donuts and claiming we’re out to regulate them. We are not. We 

do not want that. 

The second thing that—along those lines is the NAAQS—The 

National Ambient Air Quality Standards. We do not want a 

NAAQS for CO2 , and there are perfectly legitimate means under 

the Clean Air Act to avoid promulgating a NAAQS for CO2 . So, 

let’s just drop those. We don’t want them, industry doesn’t want 

them, Congress doesn’t want them, EPA doesn’t want them, the 

American people don’t want them. We can stop right there. 

104 

Let me just say one last thing about the regulatory approach. 

Many years ago, Senator Klobuchar and I graduated together from 

the University of Chicago law school, and she went off to her career, and I went off to Wall Street, and I spent many years working 

for the investment banks that are busy right now trying to resolve 

their problems. 

I represented corporations across the spectrum. I represented JF 

Corporation in its litigation against the United States over its asbestos liabilities. I represented Brown and Williamson Tobacco in 

its cancer cases. I have represented and dealt with corporate America. I understand how they feel about regulation and regulatory 

schemes. 

And the regulatory schemes that we can enact under the Clean 

Air Act are perfectly feasible and useful ways to begin addressing 

global climate change. And I will leave the specifics to—to my written testimony and save everyone a little more time. 

[The prepared statement of Mr. Bookbinder follows:] 

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The Chairman. Thank you so much. As I listen to you go through 

the cases, you won every one of those, did you not? Except not this 

last one because that isn’t done yet. 

Mr. BOOKBINDER. We—we have a pretty good track record, so 

far. 

The Chairman. Well, congrats to you. Now, it’s my pleasure to 

welcome Bill Kovacs, Vice President, Environment, Technology, 

and Regulatory Affairs, U.S. Chamber of Commerce. Welcome, Mr. 

Kovacs. 

STATEMENT OF BILL KOVACS. VICE PRESIDENT, ENVIRONMENT, TECHNOLOGY AND REGULATORY AFFAIRS, U.S. 

CHAMBER OF COMMERCE 

Mr. KOVACS. Thank you, Madame Chairman and Ranking Member Inhofe and Senator Whitehouse and the rest of the Committee. 

It is a pleasure to be here and—and let me sort of cut to the issue. 

I was glad to hear David say that even the environmental community doesn’t want regulation under PSD or NAAQS. That’s really 

very reassuring. 

And I think that, you know, frankly, the—the Supreme Court 

does in—in the way it puts the opinion out, it—it gives us options, 

and I think that that’s necessary. One is to find endangerment, and 

one is not to find endangerment, and—and, frankly, the other is a 

reasonable explanation of why they can’t or will not exercise discretion. 

That doesn’t mean that they can’t do a lot of other things such 

as limit the impact of—of—of how the Clean Air Act would work, 

and I think that that’s important. And—and that gets us to the 

ANPR. There’s been enormous criticism of—of the ANPR, and, 

frankly, the—the U.S. Chamber has criticized a lot of its provisions. 

But the one thing we do think that is important is that the 

ANPR is one hundred and 20 days of public comment, and we 

think that that’s crucial, because if—if you’ve looked at the record, 

it’s five, six hundred pages of what EPA would do. It’s several thousand pages of science. We’re having a very difficult time even getting a handle on it. 

And—and, so, when—as we try to look at this, there are two 

problems that we have with using the—the Clean Air Act. And let 

me say before we finish, we would also suggest that if this is going 

to be handled, that it should be handled by Congress, not the agency. 

But in terms of the Clean Air Act, there—there are two problems. One is the character of—of the emissions themselves really 

can’t be handled under the Clean Air Act. If you look at the fact 

there are about three hundred and 12 million tons of regulated pollutants under the Clean Air Act, CO2 by itself is about seven billion 

tons. So, you—you literally—CO2 2 swallows the Clean Air Act. 

But the second is the structure, and that’s probably where David 

and I have—have a little bit of—of disagreement, you know. And— 

and—But—but maybe we can work it out. And—but the thing is, 

is that they would like to sort of walk around and take parts of the 

Act and say, we only have to implement this half way, or we can 

take the low-hanging fruit as we get started. 

122 

It’s been very unfortunate, I think, the CARE decision is probably the best way to look at it. The courts sometimes don’t necessarily agree with us on those decisions. They have put inflexibility in there, and—and the problem that we have is the 

endangerment standard as it—as it is in Title II seems to run 

through the entire Act, so once you have a finding of 

endangerment, we may or may not have any choice on PSD and 

NAAQS. 

And—and what we’re trying to do is—is to honestly participate 

in EPA’s discussion. And the reason we had the study done is because we asked—we—we saw what EPA had said, and—and they 

looked at it and said, oh, yes, it’s only going to be a few hundred, 

a few thousand, but it’s something that’s manageable. 

And the question we wanted to ask is, well, let’s assume that it’s 

two hundred and fifty tons a—tons a year. Who would that pick 

up? And then we used DIA data, and we used Census Bureau data. 

And that’s how we got to the 1.2. The hundred and ninety thousand facilities that are the industrial sector are probably understandable, and—and a lot of them have used PSD, and—and they 

live under some of the NSPS and a lot of those. 

But it’s when you start picking up those office buildings and 

farms that would have some—that would use fossil fuels as a base. 

They get swept in, and so it would be great to say we can exempt 

all of them out, but I would suggest, since we don’t know what the 

courts are going to do, and the fact that they would be technically 

emitters under the Act, I don’t think we’re going to be able to separate them out. 

And if—and—and you have it with in your control, Madame 

Chair, to—to really make that kind of a distinction, because if you 

want to go in and limit the applicability to the Clean Air, I—you 

know, certainly you have—have the authority to do it. 

So, when we look at this, I think that—that the risk that we’re 

trying to point out is—and—and this is the biggest risk, if we’re 

wrong on the PSD issue—and I always say that, if we’re wrong— 

it automatically triggers PSD. And once it automatically triggers 

PSD, we’re literally into a case by case basis for 1.2 million facilities. Not all of which will be regulated, but it does throw them in. 

So, you know, my final conclusion is, we think that the ANPR 

is good. It’s—it’s generating a discussion on the Clean Air Act that, 

frankly, we need. I think it will help the Administrator make a better response to the Supreme Court, but, in the end, I think it’s 

going to have to be Congress that really makes the decision, because CO2 is—is a unique pollutant because of its size and its 

transport, and we think you are the better institution to handle it 

than the EPA. 

[The prepared statement of Mr. Kovacs follows:] 

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The Chairman. Thank you. And now, last but not least, Marlo 

Lewis, Senior Fellow, Competitive Enterprise Institute. Welcome, 

sir. 

STATEMENT OF MARLO LEWIS, SENIOR FELLOW, 

COMPETITIVE ENTERPRISE INSTITUTE 

Mr. LEWIS. Chairman Boxer, Ranking Member Inhof, Senator 

Whitehouse. Thank you for—— 

The Chairman. Is your mike on? 

Mr. LEWIS. Sorry. Thank you for the opportunity to testify. When 

Massachusetts versus EPA was being litigated, Plaintiffs denied 

that the case posed any risks to the economy. They derided all talk 

of slippery slopes and GDP losses as alarmist. Yes, they said an 

endangerment finding under Section 202 would require EPA to set 

new motor vehicle emissions standards, and, yes, such standards 

could have the effect of tightening fuel economy regulation, but, 

they said, EPA would be constrained by Section 202’s requirement 

to consider compliance costs. At worst, we’d all save money at the 

gas pump. 

Well, such assurances now ring hollow, thanks to several congressional testimonies by attorney Peter Glazer, the advance notice 

of proposed rulemaking, and the recent U.S. Chamber study, it is 

now clear that the remedy sought by plaintiffs in Massachusetts 

could trigger economy chilling regulation under the Prevention of 

Significant Deterioration program and the National Ambient Air 

Quality Standards program. 

EPA could be compelled to make massive changes in U.S. environment—environmental policy, energy systems, and economy, 

changes far more costly than any proposed in the Lieberman-Warner legislation which this Chamber did not see fit to pass. 

Even in regard to fuel economy, an endangerment finding could 

constrain EPA to regulate far beyond the point where Congress indicated it should stop. According to the ANPR, the fuel economy 

and renewable fuel standards Congress enacted in 2007 in the Energy Independence and Security Act will provide only 25 percent of 

the transport’s sector’s proportional contribution to meeting President Bush’s climate goal of no emissions growth after 2025. 

Climate activists spurn Mr. Bush’s goal as too weak. From the 

perspective of those who sued EPA in the Massachusetts case, 

EISA is an apple cart that needs to be upset. Both the ANPR and 

plaintiffs offer options to avoid or limit potential PSD and NAAQS 

burdens, arising from the Massachusetts case. 

These options involve questionable legal theories. For example, 

my friend, Mr. Bookbinder, and his colleague, David Doniger, 

would resuscitate a legal theory that Mr. Doniger’s organization, 

the Natural Resources Defense Counsel, successfully sued to overturn in 1976 in the case of NRDC v. Train. 

This is the theory propounded by then EPA Administrator, Russell Train, that EPA can avoid initiating a NAAQS rulemaking just 

by not planning to do the paper work. The ANPR suggests EPA 

could invoke the doctrine of administrative necessity to justify limiting the number of stationary sources subject to PSD regulation. 

Ironically, the ANPR cites a 1979 case, Alabama Power Company 

versus Cossil, in which the D.C. Circuit Court of Appeals shot 

183 

down an EPA attempt to limit the number of PSD regulated entities, based on the administrative necessity doctrine. Recent cases 

overturning EPA’s Clean Air Mercury Rule and Clean Air InterState Rule suggest that EPA’s ability to improvise around the law 

is quite limited. 

Besides, these artful dodges are a reflection on the Clean Air Act 

as an instrument of climate policy. The purpose of the proposed 

simplifications is not to improve environmental protection, but to 

get around the law. At best, irrational burdens would be minimized, not avoided, small entities would still have to file new paperwork. 

Congress did not intend for Section 202, which deals solely with 

motor vehicle emissions, to create an overwhelming road block to 

new investment in thousands of previously unregulated buildings 

and facilities, nor did Congress intend for Section 202, which requires EPA to consider costs when setting tailpipe standards, to 

trigger the most expensive NAAQS rulemaking in history, yet those 

policy disasters become real risks if EPA tries to pound the square 

peg of climate policy into the round hole of the Clean Air Act. 

The Clean Air Act is a flawed, unsuitable, potentially destructive 

instrument for regulating greenhouse gases. If the issues raised in 

the ANPR had been squarely before the justices back in April, 

2007, they might well have decided Massachusetts differently, and 

we would not even be having this hearing today. Thank you, again. 

I would be happy to address any questions. 

[The prepared statement of Mr. Lewis follows:] 

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The Chairman. Well, if—if—but, you know, if—Mr. Lewis and 

Mr. Kovacs, I hear you well. You’re talking to somebody here and 

my side of the aisle, I know, would much prefer to have legislation 

than rely on the Clean Air Act, although we do believe there are 

parts of the Clean Air Act that could be utilized, that, as Mr. Bookbinder said, would not be the tale of horrors that you have alluded 

to. So, let me just say this, just to get us squared away. Mr. Kovacs 

and Mr. Lewis, do you support legislation that would reduce greenhouse gas emissions? 

Mr. LEWIS. I do not. 

The Chairman. And how about you, Mr. Kovacs? 

Mr. KOVACS. It’s our position that we weren’t—— 

Mr. LEWIS. If you mean by that, regulatory requirements, yes. 

The Chairman. I—I—absolutely, yes. 

Mr. LEWIS. Then, I’d—— 

The Chairman. We’d have that part to it, too. You’d have to regulate it right at the source. Yes. 

Mr. KOVACS. Legislation is a broad term, but we have said that 

we would—we are working to try to—— 

The Chairman. Good. 

Mr. KOVACS [continuing]. reduce CO2 in the atmosphere. Our approach—in fairness, our approach may be different than yours, but 

we have certainly put a lot of time, effort, and thought into how 

it would be done. 

The Chairman. Well, how is your approach different from the 

U.S. Climate Action Partnership? Here’s what they say. U.S. Climate Action Partnership is a group of businesses and leading environmental organizations that have come together to call on the 

Federal Government to quickly enact strong national legislation to 

require significant reductions of greenhouse gas emissions. U.S. 

CAP has issued a landmark set of principles and recommendations 

to underscore the urgent need for a policy framework on climate 

change. 

Mr. Kovacs, how does the Chamber of Commerce stand on U.S. 

CAP? 

Mr. KOVACS. I think the problem that we have with—with U.S. 

CAP is, is that as they get into the specifics like cap and trade, we 

have a disagreement with them. We think there are ways that— 

that it’s got to be international in scope, it can’t harm the economy, 

and it’s got to be based on technology. 

And the Congress has been really excellent in—in trying to work 

the technology route. I mean, if you look at the last two energy 

bills, for example, there are about 120 technologies that we should 

be looking at. There are—— 

The Chairman. OK, wait, I don’t want to get off course. I—yes, 

I support some of that, too, but I’m trying to just nail this down, 

and I think Mr. Lewis’ was—was an honest answer. AI don’t like 

it, I don’t want more regulation.@ That’s an odd side beyond today’s world, but I appreciate it. I appreciate your honesty. Mr. 

Kovacs says, AWell, we don’t object to legislation, but we don’t really agree with U.S. CAP all the way because we—— 

Mr. KOVACS. We have not traditionally supported the regulatory 

approach—— 

The Chairman. OK. 

209 

Mr. KOVACS [continuing]. because we do not think it would work. 

The Chairman. All right. Good. OK. So, we’re getting down to 

here to where we are. Because it’s interesting to me to see some 

of the businesses that do support U.S. CAP, and I’m going to put 

this in the record without objection. Alcoa, Boston Scientific, BP, 

Caterpillar, Chrysler, Conoco, Deere, Dow, Duke, Dupont, Excellon, 

FPO Group, GE, Pepsi. 

So, I want it to be clear. Let the record be clear that a lot of businesses—and this doesn’t even go into a lot of Silicon Valley folks 

who strongly support legislation—because I don’t want people to 

think because the Chamber says in general we don’t like new regulations—there’s a lot of groups in the business community who actually driving these changes. 

And I want to get to the issue at hand, which is the use of the 

Clean Air Act. Because, frankly, if we don’t get legislation, that’s 

what’s going to happen. It’s going to be the way we go, because the 

Presidential candidates both agree we have to act. 

So, I want to get to what Mr. Bookbinder said here, and then I 

have a question for Mary Nichols, and that’ll be the end of my 

questions. When you said, let’s not scare the local church, the local 

donut shop, could you expand on what you mean by that? Is the 

implication there that there’s a scare tactic going on? That if EPA 

acts in any way, it’s going to somehow destroy our economy? Could 

you act—answer that question? 

Mr. BOOKBINDER. Yes, Senator Boxer, that is exactly what it is. 

It is a pure scare tactic that industry is saying if there is any regulation anywhere under the Clean Air Act, that automatically means 

that the PSD program will become applicable to millions and millions of entities, and the answer is, as I have said, nobody wants 

those entities regulated. 

And I find it extremely hard to believe that given some of the 

very good ideas that have come out of EPA already, including the 

idea of general permitting, that we can—that we can avoid that 

consequence and still focus on the major emitters, the ten thousand 

tons per year sources. We do not need to go after the churches and 

Dunkin Donuts. 

The Chairman. Mr. Lewis, I—I—whoa, whoa, whoa, 1 second. 

Let me finish. I will then add time to my—I’m going to add time 

>cause I have a question for Mary Nichols, but I absolutely will 

hear from you. 

Mr. LEWIS. And—and, just let me just say, it’s kind of ironic 

hearing industry talking about, yes, there’s no flexibility under the 

Clean Air Act, and—and we have to be very careful about the 

courts. Having spent a lot of time in courts on these things, I—I 

would be astonished if we wound up in the D. C. Circuit and there 

is an EPA regulation or clarification saying we’re not going—we’re 

going to have a general permit covering all these small sources. 

They won’t have to do anything. 

And that was supported unanimously by American business and 

the environmental community and Congress and everybody else. 

The D. C. Circuit would overturn that. I—I do not believe that 

would happen. I—I—yes. If when the courts see everybody coming 

into agreement on that, they take note of that. They’re very practical about these things. 

210 

The Chairman. All right. I—I—I’m going to give you a minute. 

Mr. LEWIS. OK. Thank you. I think it really doesn’t matter 

what—what we want. I think it matters what the law says. And 

the logical implications of what the law says. 

And the Chamber’s study is a very meticulous study. It is not an 

alarmist study. It’s a study by the numbers, and it shows that if 

you can spend seventy thousand dollars a year on fuel to heat 

your—your facility, or, as the EPA found, if you have a building 

that’s about sixty eight thousand square feet, then you emit two 

hundred fifty tons of carbon dioxide year. That’s not your potential 

to emit, that’s your actual emissions, and under PSD, you’re regulated if your potential to emit. 

OK, so, this is not made up stuff, and, you know, EPA does come 

up with all these interesting simplifications and administrative adjustments. One is this general permit, but there is not provision for 

a general permit in the PSD provisions. There is in the Clean 

Water Act. There isn’t in this. That is an indication of congressional intent, and all I’m saying is, there is a risk that these small 

entities would be swept up into this net, and I think it’s silly to 

deny that risk is real. 

The Chairman. Would you like to respond very quickly in 20 seconds? 

Mr. BOOKBINDER. Yes. The briefest response I can get is, who’s 

going to challenge that rule? Who’s going to go out there and say, 

we want to now regulate all these entities? 

The Chairman. Uh-huh. 

Mr. BOOKBINDER. Not—not business, not us, not anyone else. 

The Chairman. That’s a good point. Let me just make the case 

here, again, your statement of horrors of, you know, the Clean Air 

Act, of how horrible it is. If you ask most Americans, they’d say, 

thank goodness, because we couldn’t breathe, couldn’t go to work, 

but that’s another point. 

Let’s be clear. I, and the majority on this committee, not everyone, we want to have legislation that deals with this. The point of 

this hearing is to say, that the EPA has authorities as well, and, 

you know, clearly, some worry very deeply about this and others 

say it can be done. 

Now, I’m going to ask Mary Nichols to respond to two things, 

and then I’m going to turn the gavel over to Senator Whitehouse 

after I finish, and Senator Inhofe will have the floor. Chairman 

Nichols, I’d like you to respond to, because you are so intimately 

familiar with the EPA, an example of what could be done similar 

to what has been done by CARB, that would make some sense, that 

wouldn’t harm, you know, anyone, actually, but, perhaps, actually 

step up to the plate. You talked about it as low-hanging fruit that 

could be done pretty quickly. 

So, I want—I want to ask you some examples of that low-hanging fruit that you were able to do in California, and the last thing 

I want you to answer is, if you could talk about the economic opportunities that are presented by moving forward with going after 

global warming pollution, because I have said it and said it and 

said it, that in our State, given the horrible situation we have with 

the mortgage meltdown, even though we are hurting badly, a lot 

211 

of jobs are being created because of the laws that you are involved 

with. Could you talk to those things? 

MS. NICOLS. Thank you, Senator. On the first point, the first 

thing that EPA could do would be to rescind and reverse the decision on the California Waiver, and then proceed toward adopting 

a similar regulation for the auto industry. 

The reality is if the Pavly standards that EPA refused to allow 

us to enforce were in effect now, consumers would be saving money 

and the auto industry would be in better shape than they are right 

now. 

I had the opportunity to visit Detroit a couple of weeks ago. I 

know the companies are hurting. They want money to help them 

retool. They all talk about the technologies that they intend to 

bring on line that will meet the needs of consumers who now have 

gotten the message that because of high gas prices, we don’t believe 

that gas prices are going to plummet again to anything like they 

were in the past, not as a result of regulation, but as a result of 

real-world scarcity and economic conditions, and the public needs 

a chance to buy cars that emit less carbon and also cost less to 

drive. When we did the Pavly rules, we were thinking that there 

would be a payback period of maybe 4 years—— 

The Chairman. Explain what you mean by Pavly. Most people 

here—— 

Ms. NICHOLS. I’m sorry. Under California law, because California 

was given the authority under the Clean Air Act back in 1970 to 

adopt air quality standards—emissions standards, rather, that are 

more stringent than Federal standards for new motor vehicles, 

California passed a law authored by then Assembly member, Fran 

Pavly, so we always call it the Pavly law, which ordered my agency 

to adopt long term standards to reduce emissions of greenhouse 

gases from motor vehicles. The State did that, submitted the regulations to EPA, and in December of last year the Waiver was denied. 

That was the discussion that was being had earlier with Mr. 

Meyers. But the background to that is we know now that, for the 

first several years of those regulations, the auto companies could 

comply with those rules without any changes in technology, without breakthroughs, and that for the future, they need to be investing in the creation of cars that are low carbon emitting vehicles, 

and using technologies that they make available in other parts of 

the world to help our consumers deal with the high cost of gasoline. 

So, that’s the first thing that they should do. 

There are other things that they could do using existing authorities in terms of setting new standards for electricity generation and 

for greenhouse gases from the fuel supply as well. But, to get to 

your major point about the benefits and costs of all of this, we have 

been evaluating the cost of compliance with our state’s greenhouse 

gas law, as—as you indicated earlier. 

The California legislature passed a bill that requires us to reach 

1990 emissions levels by the year 2020, which is about a 30 percent 

reduction over business as usual, a challenging standard. But my 

board has produced a plan for doing that relies primarily, in addition to the auto standards and other auto and transportation related measures, on increased energy efficiency and renewable techVerDate Aug 31 2005 11:54 Jun 12, 2015 Jkt 000000 PO 00000 Frm 00215 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\88911.TXT VERN
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nologies, and on this we’re not operating alone. We’re cooperating 

with our public utilities commission, our energy commission—— 

The Chairman. And the point is, the question I had was that on 

the economy, you feel that it’s a positive? 

Ms. NICHOLS. The bottom line here is that, based on the economic modeling that we’ve been able to do for the State domestic 

product, we see an increase in growth over business as usual because of implementing this law. 

We see an increase in jobs overall in the economy, and, of course, 

we see savings, which we’re not trying to monetize at this point in 

terms of health impact, because the very same measures that we’re 

looking at to achieve these reductions in greenhouse gas emissions 

are measures that also have the effect of reducing the amount of 

carbon fuels that are being combusted, being burned, which means 

that we’re also saving air pollution and saving lives. 

The Chairman. The reason I ask that is because this is the overriding concern for my colleagues on the other side, which is that 

this is a disaster waiting to happen, it’s going to destroy everything, and I think what you’ve said here today in very clear terms 

is, it’s just not true. And this debate is, of course, going to continue 

on and on, but if—but I think it will result in the end in legislation. 

I’m giving Senator Whitehouse the gavel. He has a U.S. Senate 

request to make and then he’s going to recognize Senator Inhofe, 

and I thank everybody. I’ve got back-up meetings. Thank you. 

Senator Whitehouse. 

[presiding]. Thank you, Chairman. I would ask unanimous consent to place in the record a letter from the State of Connecticut 

regarding regulation of greenhouse gases under the Clean Air Act 

without objection. Senator Inhofe? 

Senator INHOFE. Thank you very much. 

Senator WHITEHOUSE. The letter shall be submitted. 

[The information referred to follows:] 

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Senator INHOFE. I have a unanimous consent request, Mr. Chairman, that I included—we included in the record that a statement 

from the American Farm Bureau Federation. It—it’s very good and 

it talks about concentrates—— 

Senator WHITEHOUSE. Without objection it will be included in the 

record. 

[The information referred to follows:] 

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Senator INHOFE. One of the things they talk about in the study 

done by Mississippi Farm Bureau Federation found that Title V 

permits alone would cost rice farmers in the State more than nine 

million dollars, so this we want to be part of the record. 

You know, Mr. Chairman, I normally don’t bring this up, but 

since this is probably, hopefully, the last meeting of this nature 

that we’re going to have this year before we adjourn, just let me 

say this. 

I know you three, the majority witnesses, you’re very nice people, 

and I know that you rejoice in this notion that somehow all science 

is settled and now we can get beyond that and see what we can 

do to resolve these problems, when, in fact, and I don’t blame—I 

see a sense of panic sometimes in some of these people, because 

one by one, people who were leaders, Claude Allegro is perhaps the 

leader, leading scientist in France, who was wanting everyone to 

sign the Kyoto Treaty. He’s now clearly on the other side of the 

issue now. 

David Bellamy from the U.K. was—was one of the top people 

that was—that was pushing for the—the—the ratifi—Kyoto Treaty. 

He’s now clearly on the other side. Nir Shaviv from Israel, the 

same thing. And you can go over and over and talk about these 

people and groups of scientists that have come and said, look, we 

were wrong on this thing. They’re—and besides that, we’re in a period of cooling right now, anyway. 

So, all these things are going on. And I would also have to say 

that when you talk about the—the U.S. CAP, it’s true there are a 

lot of businesses in the industries in America and a lot of members 

of the U.S. Chamber, I would say, Mr. Kovacs, who would stand 

to make a lot of money if we were to pass a bill like the LiebermanWarner bill, and I would—I, at one time, I listed all the members 

and how much they could stand to make on this thing, and I won’t 

do that today, but, nonetheless, we know that’s there. The Chairman was talking about to you—well, let me finish that line of reasoning. 

There are really three reasons that they could only garner thirty 

eight votes out of one hundred votes in the U.S. Senate to—to pass 

if there—if there had been a final passage vote of the LiebermanWarner. That’s one of the reasons. Science is coming in and creating it and certainly it’s not settled. 

The second one is the cost and I, you know, you can debate that, 

and I just disagree with you in a friendly way. I say to Ms. Nichols, 

every evidence I have seen shows how costly this would be. 

And third, the fact that you can’t do it in isolation. Mr. Bookbinder, I think it would be wonderful if everybody wanted to do 

this and would go to Copenhagen and they’d hold hands and say, 

well, we’re all going—we’re all going follow America, America’s the 

leader. That isn’t going to happen. 

You know these countries that are where we’re having job losses 

right now. The—the—the National Association of Manufacturers 

estimated it at some nine and a half million more manufacturing 

jobs would go to countries like India, China, Mexico, places where 

they could go ahead and continue if this bill were to pass. Studies 

have been made and they’re legitimate studies. So, you know, that 

is out there. 

246 

And, so, I just want to get on the record that there is not unanimity. I see a lot of panic but not unanimity in this—in these assertions. Now, as far as the U.S. CAP’s concerned. about half of 

those companies were opposed to the Lieberman-Warner bill. About 

half of them—they actually weren’t there in >05, I don’t believe, 

when they had the—the McCain-Lieberman bill. But, the groups— 

the companies that were supporting them, many of those had an 

opportunity to—either they’re making turbans or doing something 

else. So, the—Mr. Kovacs, how many businesses does the Chamber 

represent? 

Mr. KOVACS. Within the Federation, it’s about three point five 

million. 

Senator INHOFE. And about how many of them, in your view, 

have never been subject to Clean Air Act permitting requirements 

before? 

Mr. KOVACS. I mean, EPA tells us right now that there are 

roughly about 15 thousand that are subject to Clean Air Act permitting—— 

Senator INHOFE. Uh-huh. 

Mr. KOVACS [continuing]. requirements. 

Senator INHOFE. In your testimony, you indicated that many of 

the EPA suggested regulatory options would reshape business models and long-term planning for manufacturers’ part supplier and 

vendors. How so? 

Mr. KOVACS. The way the Clean Air Act works is that the second 

that an endangerment finding is made, literally upon implementation of that, which is regulation, PSD permits are required immediately for any new construction, so, literally, that day, the day 

that regulation starts, permits would—would be required or they 

could not commence construction or a modification of the—of an existing facility. 

Senator INHOFE. Uh-huh. In your testimony, you indicated that 

Title V would include a citizen’s suit provision. Now, can you elaborate on the impacts of this provision, what they would have on 

businesses? 

Mr. KOVACS. Well, right now, Title V applies to the 15 thousand 

entities that would be regulated by the Act. Under Title V, because 

the tonnage requirements is only a hundred tons, it would roughly 

be about 1.2 entities that would have to get a Title V operating 

permit. An operating permit’s just filing paper, but to get it, 

you’re—the citizen’s are entitled to bring a citizen’s suit literally 

against each one of the operating permits. 

Senator INHOFE. Yes. What do you think of that, Mr. Lewis? 

Mr. LEWIS. Yes, I mean, the PSD program is potentially a suffocating blanket on development, and because of the paperwork that 

you have to go through, there’s—just—if you look at EPA’s handbook on BACT, Best Available Control Technology, it—it’s just—it’s 

a five-step process, very complicated. 

So—so, it’s—it’s a great impediment to a small business constructing or renovating a new facility, even before it gets to installing the control technology, but this—this I think gets to Mr. Bookbinder’s point. He asked, well, who would bring a lawsuit to—to 

apply a strict letter of the law application of PSD to the courts? 

And I would say, anybody who doesn’t like development in his 

247 

backyard. Anybody who is upset that Walmart is going to ruin the 

character of our town will now have a pretext under the Clean Air 

Act to bollux up that kind of development. So, I think this is—the 

fear here is real. It’s not something to trivialize. 

Senator INHOFE. You know,—do you suspect there are a lot of 

people out there that just—you mentioned development—they don’t 

want development anyway? 

Mr. LEWIS. Yes, it’s called NIMBY—Not In My Backyard—or BANANAS—Build Absolutely Nothing Anywhere Near Anything. I 

mean, this is—this is, certainly, a force in local politics, and we all 

know that people who are clever can figure out how to use litigation under national law to—to change, you know, local development 

patterns, and, so, I think that would be—I mean, that’s the obvious 

answer to Mr. Bookbinder’s question, who would—who would ever 

want to do this. 

Senator INHOFE. But they want to control that. You know, back 

years ago when I was mayor of the city of Tulsa, there’s a guy that 

was, and it was a republican mayor of San Diego at that time, who 

had brought in a guy whose name of Dr. Robert Freilich, and I say 

that to the Chairman, who was going to come in and—and—and 

put circles around, you know, where—what you could do in these 

different areas. And they had actually hired him to come and do 

a plan for the city of Tulsa. 

Then I became Chairman of Tulsa, and I just asked a simple 

question. What about property rights? Do people care about property rights anymore? What do you think, Lewis? 

Mr. LEWIS. Well, I know I care, and my wife cares so deeply that 

she lives in Seal Beach, California. She—she’s one of Senator Boxer’s constituents, actually, and she is now spending most of her 

time trying to fight the city council there, which is attempting to, 

we think, illegally revise the Codes so as to prevent anyone from 

building a third story on—on—on their own properties. So, yes, I 

mean, there is this mentality out there that your home and your 

property is everyone else’s business but yours. 

Senator INHOFE. Yes, that’s right, and this is—you know, one of 

the problems we have in this Committee is we’re from different 

states. You know, I mentioned I was in Shady Point, Oklahoma, 

yesterday. Those people don’t understand what we could be talking 

about. 

So, you pull coal out of the—that currently supplies fifty 3 percent of the energy needed to run this machine called America, you 

pull it out of the mix, then how do you run the machine? You 

know, they—and how do I answer these people? It’s difficult to do. 

Well, I have to say the end of that story was, Dr. Robert Freilich— 

we did ask him kindly to leave, and he hasn’t been back since. So, 

we had very much concern—let me go a little bit longer because—— 

Senator WHITEHOUSE. Very briefly, if you don’t mind, Senator, 

because we do have to conclude the hearing and get on to other 

things. 

Senator INHOFE. OK, one last thing. Let me ask you this, Mr. 

Kovacs. You also have a lot of membership in the agricultural community. Do you—how do you think, just in what kind of answer— 

248 

if you want to give a brief answer or elaborate—this would affect 

your ag constituency and mine? 

Mr. KOVACS. I think whether it’s ag or industry or commercial, 

the one point that we—to take it out of the politics and put it in 

to just the reality and that is, David Bookbinder had said, well, 

who’s going to litigate? The fact is, we all agreed on the CARE decision, and now the D.C. Circuit overturned it. 

There is absolutely—there—there—during the Massachusetts 

versus EPA decision, there was a northeast coalition that was trying to get a NAAQS implemented for CO2 . The fact is, we don’t 

have any control over this. Someone is going to sue, and everyone— 

everyone has an equal chance of being impacted. 

We’re not saying they’re all going to be impacted, but what we’re 

saying is, as long as this question remains open, and it shouldn’t 

remain open. David and I agreed. These entities shouldn’t be regulated by EPA. But it isn’t closed, and if Congress doesn’t make the 

decision, then the courts will. 

Senator INHOFE. Thank you, Mr. Chairman. We’re still in our 

Senate Arms Committee, so we’ll go down to that one. 

Senator WHITEHOUSE. Thank you. I want to thank the witnesses. 

We’re going to conclude in just a moment because I know it—it’s 

12:30 already. I did want to react to one thing and ask one question. Ms. Nichols, you—you said in your statement that at this 

point, we all agree that global warming is a national and international crisis, I think was your words. Yes. 

I just want to point out that you may be in one of the five buildings in the United States of America in which that’s not agreed. 

This one, the headquarters of Exxon Mobil, the headquarters of the 

Chamber of Commerce, the Competitive Enterprise Institute, and 

I’ll allow one more for its player to be named later, but I think 

most people do get it. 

And I would note that we had a very interesting witness not too 

long ago in this Committee, sitting where you are now, who is the 

chairperson of the organization of all of the health directors of all 

of the states, and they came in with a very, very powerful substantive statement on the importance of addressing global warming. And just because of what I’m accustomed to around here, I 

asked her, well, what about the minority report? Should we see 

that also? She said, there is no minority report. 

And I said, you mean the health directors from Oklahoma, from 

Ohio, from Wyoming, from Idaho, from Tennessee, from Georgia, 

from Missouri, all of my colleagues here are unanimously agreed 

to this? And she said, yes. I said, well, how can you explain the 

difference between people in this building who can’t seem to get 

their heads around this problem with unanimity at your point? 

And she very politely said, well, each of us did take an oath to 

protect the health of the people of our states. So, I think that you 

may be in one of the few buildings in which people still aren’t accepting that this is an important public responsibility we have. 

But I do think the American public gets it, and I just wanted to 

remark on—on that. Mr. Burnett, you talked about the cost of an 

action, and as you heard in the discussion today, those who wish 

to ignore this subject run up always the concern about the cost of 

action. It doesn’t strike me that inaction comes free. 

249 

And I would be interested in—from any witness, any study, or 

analysis that you’re aware of that we should be looking at in this 

committee, that tries to calculate the cost of inaction. I can look 

forward to a day when we will be in a relatively similar situation 

to the one we’re in right now on this financial crisis. And people 

will look back and say where were you. 

And I want to make sure that, when that day comes, I can say, 

look, I made every argument at my disposal for this thing, so it 

would be helpful to get information on how to make that economic 

argument. It strikes me that the—there’s an internal cost-shifting 

issue. And some people will be winners and some people will be losers as a result of a cap and trade system. And it is our responsibility to even that out in well-crafted legislation. 

But one thing we know is that reducing our reliance, particularly 

on foreign oil, will put an end to, or at least reduce, an absolute 

hemorrhage of our national assets out into the hands and pockets 

of other nations in what has been described as the greatest transfer of wealth in the history of human kind. And we are on the losing end of that right now. 

If nothing else happens, it strikes me that putting an end to that 

makes our economy stronger and better off. And then we have the 

internal question of how you reallocate, but that’s the way I see it, 

and Mr. Burnett if you’d let me know if you have any sources to 

help flesh out the question of the cost of inaction. 

Mr. BURNETT. I appreciate the question, Senator, and I would be 

happy to provide for the record specific sources or—or studies of 

this sort, but—— 

Senator WHITEHOUSE. For the record is fine. 

Mr. BURNETT. There are basically—I would phrase it as two costs 

of inaction. The first is that if we do nothing now, we will have to 

do more later. 

Senator WHITEHOUSE. Uh-huh. 

Mr. BURNETT. And that will cause a more—a more significant 

steeper change—— 

Senator WHITEHOUSE. Sort of like compound interest to put it in 

economic terms. 

Mr. BURNETT. That—that’s right. There’s many very inexpensive 

opportunities now, and we should be pursuing those inexpensive 

opportunities so that we can begin a transition and begin developing the new technologies for a low-carbon economy. 

The second cost of inaction are the four costs that I described in 

my testimony. It’s the cost of adapting to climate change. It’s the 

cost because not everybody in society will be able to adapt, and it’s 

the cost to our infrastructure and our natural systems. The natural 

systems can’t adapt at the rate that we’re experiencing climate 

change. 

And, finally, other countries will not be able to adapt, and this 

will impose real security costs on the U.S. and other countries in— 

that—that have to deal with those security situations as reflected 

in the recent national intelligence estimate by this Administration. 

Ms. Nichols, did you want to say something? I’m sorry, I—— 

Ms. NICHOLS. I was just going to add that the—the most comprehensive study that I know of the cost of inaction was the one 

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250 

troversial in various respects, but one thing, in addition to what 

Mr. Burnett said that I think is striking is a world in which many 

poorer countries are either under water, suffering from disease, or 

otherwise unable to make their own economies work is a world in 

which, for example, U.S. farmers would be less well off because 

they won’t have people to export their products to. 

We really are interconnected, and there’s no question that a need 

is there to act globally. What we’re talking about here is really 

looking at measures that the U.S. could take today that are within 

the realm of what would help us protect ourselves, and I think 

that’s where perhaps there are some differences, whether we think 

there’s any cost at all that’s justifiable if there’s a benefit that we 

would experience here directly. 

The fact is that we’ve seen it time and time again that our regulatory system is capable of taking into account the absurdities that 

people worry about and—and making sure that we don’t implement 

them that way, but, I guess, If you want to justify inaction, you can 

find reasons to do it. 

Senator WHITEHOUSE. Yes. Well, if I—I’m from Rhode Island and 

we are the Ocean State. I’m told by a friend who’s doing some research on my—on one of my predecessors in the Senate from Rhode 

Island, Theodore Francis Green, that he was once asked, how big 

is Rhode Island, anyway? And he said, well, that depends. High 

tide or low tide? 

So, when you have a State where that’s the kind of way you answer that question, these risks are very, very real risks, and I very 

much appreciate the—if you want to take a minute and draw us 

to a conclusion, Mr. Lewis. 

Mr. LEWIS. Thank you, Senator Whitehouse. You described the 

unanimity of all of these health officials on the point that global 

warming is a clear and present danger to human health. 

I would just like to note that means that it is very unlikely that 

EPA would be able to get away with this—this strategy that they 

outline in the ANPR of only establishing a welfare or secondary 

NAAQS under the NAAQS program, having made an 

endangerment finding about carbon dioxide. 

They would have to make a health base primary NAAQS rulemaking, and that means that they would basically have 10 years 

at most to try to, what? Lower atmospheric carbon dioxide levels 

below where they are today? An impossible task, even complete deindustrialization of the United States would not accomplish that in 

10 years. 

Senator WHITEHOUSE. Understood. But you seem to have missed 

the forest for the trees. 

Mr. BURNETT. No, what I’m saying is that the proposed—that— 

that the claim that we don’t have to worry about letting the 

dominos fall and cleanup—— 

Senator WHITEHOUSE. Your larger claim though is that we don’t 

have to anything about this. 

Mr. BURNETT. No, I never said that. You are putting words in my 

mouth. I never said that. 

Senator WHITEHOUSE. I thought you said that precisely to what 

should be done. 

251 

Mr. BURNETT. No. The question to me was, do I support legislation like McCain-Leiberman or Leiberman—— 

Warner? 

Senator WHITEHOUSE. What would you do? 

Mr. BURNETT. My answer is no. 

Senator WHITEHOUSE. What would you do? 

Mr. BURNETT. Well, right now there are a ton of voluntary programs which, apparently, everybody thinks is inaction, which cost 

a lot of money. I think we need to do a lot of research. I think there 

are some deregulatory measures like, for example, we have the 

highest capital costs penalty under—in our tax system of almost 

any industrialized country for replacing new equipment—for replacing old equipment with new equipment. 

A change in the tax code would—would rapidly accelerate the 

turnover of capital stock, which is one of the best ways of improving energy efficiency and lowering emissions, at least per unit of 

GDP. 

Senator WHITEHOUSE. Have you read the Tragedy of the Commons? 

Mr. BURNETT. Have I read—— 

Senator WHITEHOUSE. The Tragedy of the Commons. 

Mr. BURNETT. Of course. Of course. 

Senator WHITEHOUSE. Do you believe that it is—— 

Mr. BURNETT. There is always—there is always a potential for 

tragedy in any commons—— 

Senator WHITEHOUSE. Yes. 

Mr. BURNETT [continuing]. but one must understand that regulation creates its own kind of commons, which is the politicization of 

a resource that also creates the risk of tragedies. My point is not 

that there are no risks of climate change, but that as I understand 

the science, the risks of climate change policy far outweigh the 

risks of climate change itself. 

Senator WHITEHOUSE. I think you are in a very, very, very small 

and eccentric group in having that understanding, and it seems to 

me that it’s extraordinary to imagine if you concede that the Tragedy of the Commons is a legitimate economic principle, it is impossible to see how purely voluntary actions could ever get our arms 

around the problem. That’s the very principle that is at the heart 

of the Tragedy of the Commons. 

Mr. BURNETT. Well, the alternative at this point in time, is to 

force us to act—to act in a way that assumes we have the technological capability to do something that we in fact can’t do. We do 

not now know how to meet the world’s energy needs without fossil 

fuel. 

Senator WHITEHOUSE. There is a great deal that we can do, and 

I am optimistic about our ability to do it. We are now well over 

time. I appreciate the witnesses and the hearing is adjourned. 

There are 2 weeks to add additional testimony to the record. 

[Whereupon, at 12:37 p.m., the hearing was adjourned.] 

[Additional material submitted for the record follows.] 

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