```

[Senate Hearing 110-1095]
[From the U.S. Government Publishing Office]

                                                       S. Hrg. 110-1095

   THE IMPLICATIONS OF THE SUPREME COURT'S DECISION REGARDING EPA'S 
  AUTHORITIES WITH RESPECT TO GREENHOUSE GASES UNDER THE CLEAN AIR ACT

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

                                HEARING

                               before the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 24, 2007

                               __________

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

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

                               __________

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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED TENTH CONGRESS
                             FIRST SESSION

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

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

                            C O N T E N T S

                              ----------                              
                                                                   Page

                             APRIL 24, 2007
                           OPENING STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from the State of California...     1
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     4
Lautenberg, Hon. Frank R., U.S. Senator from the State of New 
  Jersey.........................................................     7
Bond, Hon. Christopher S., U.S. Senator from the State of 
  Missouri.......................................................     8
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode 
  Island.........................................................    11
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......    13
Lieberman, Hon. Joseph I., U.S. Senator from the State of 
  Connecticut....................................................    14
Klobuchar, Hon. Amy, U.S. Senator from the State of Minnesota....    16
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware..    17
Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland    19

                               WITNESSES

Johnson, Stephen L., Administrator, U.S. Environmental Protection 
  Agency.........................................................    20
    Prepared statement...........................................    21
Reilly, William K., Senior Advisor, TGP Capital Founding Partner, 
  AQUA International Partners....................................    46
    Prepared statement...........................................    48
    Response to an additional question from Senator Boxer........    52
Browner, Carol M., Principal, The Albright Group, LLC............    52
    Prepared statement...........................................    54
Klee, Ann R., Partner, Crowell and Moring........................    60
    Prepared statement...........................................    62
Doniger, David, Policy Director, Climate Center, Natural 
  Resources Defense Counsel......................................    73
    Prepared statement...........................................    75
Glaser, Peter, Partner, Troutman Sanders, LLP....................    77
    Prepared statement...........................................    79
    Responses to additional questions from Senator Inhofe........    82

 
   THE IMPLICATIONS OF THE SUPREME COURT'S DECISION REGARDING EPA'S 
  AUTHORITIES WITH RESPECT TO GREENHOUSE GASES UNDER THE CLEAN AIR ACT

                              ----------                              

                        TUESDAY, APRIL 24, 2007

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:45 a.m. in room 
406, Dirksen Senate Office Building, Hon. Barbara Boxer 
(chairman of the committee) presiding.
    Present: Senators Boxer, Inhofe, Bond, Cardin, Carper, 
Klobuchar, Lautenberg, Lieberman, Thomas, Warner, Whitehouse.
    Senator Boxer. The Committee will come to order.
    We welcome everybody here. We look forward to a very 
productive morning. Senator Inhofe and I will take up to 10 
minutes for our opening statement, and then colleagues will 
have 5 minutes for their opening statements, and then we will 
go to the Administrator and then to our distinguished panel.

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

    Senator Boxer. On April 2, 2007, 22 days ago, the Supreme 
Court of the United States of America ruled that EPA has the 
ability to regulate greenhouse gases as an air pollutant under 
the Clean Air Act. This landmark opinion confirms that EPA can 
take action now, using existing law, to begin fighting to save 
our planet. The world's leading scientists tell us, including 
our own National Academy of Sciences, that prompt action is 
needed and we can't afford a delay.
    Because EPA chose to challenge the plain language of the 
Clean Air Act and go to court, rather than take immediate 
action, we have lost several critical years in the fight 
against global warming. With years of litigation, both time and 
taxpayer dollars have been wasted just in the effort to 
overcome EPA's resistance to regulating greenhouse gas 
pollution.
    I very much appreciate the Supreme Court's opinion in this 
matter, but I do regret that it was necessary, when the 
language of the Clean Air Act is so clear. EPA has the 
authority to regulate carbon dioxide and other greenhouse gases 
as an air pollutant because the Act's, and I am quoting here, 
``sweeping definition of air pollutant includes any physical or 
chemical substance which is emitted into the air.'' This is the 
Supreme Court saying this. EPA has authority to regulate carbon 
dioxide and other greenhouse gases as an air pollutant under 
the Clean Air Act because the Act's sweeping definition of 
``air pollutant'' includes any physical or chemical substance 
which is emitted into the air.
    Now, what I find interesting is that if you go and look 
closely at comments made by the Administration, they have 
actually admitted that the threat posed by global warming is 
very real, and requires our leadership to confront it. Just go 
to the White House website and read the President's own words 
under the heading, Leading the Global Effort on Energy Security 
and Climate Change.
    This is what the President says: ``The issue of climate 
change respects no border. Its effects cannot be reined in by 
an army nor advanced by any ideology. Climate change, with its 
potential to impact every corner of the world, is an issue that 
must be addressed by the world,'' President George W. Bush, 
July 13th, 2001.
    Upon issuance of a recent IPCC report on global warming, 
the Bush administration issued a press release stating, ``The 
report confirms what President Bush has said about the nature 
of climate change. It reaffirms the need for U.S. leadership.''
    The Bush administration's own Pentagon commissioned a 
report on global warming and national security. It includes 
that the U.S. will find itself in a world where Europe will be 
struggling internally with large numbers of refugees washing up 
on its shores, and Asia in serious crisis over food and water, 
disruption and conflict will be endemic features of life. And 
that is a report by the Bush administration's Department of 
Defense.
    The current administrator, Mr. Johnson, who is here today, 
has said in public statements that EPA takes this issue 
seriously. All of these words, ladies and gentlemen, should add 
up to action. But instead, Mr. Johnson, you chose to hide 
behind a bogus legal argument that was decimated by the Supreme 
Court. But now in light of this Court decision, there is an 
unmistakable green light for action now.
    EPA Administrator Johnson is here today to testify on 
behalf of the Administration, and Mr. Johnson, when we got your 
testimony on Sunday, I read it with great anticipation. Surely, 
I thought, the time has come for us to begin to tackle this 
problem together. We have had all these statements from your 
Administration, and you, the DOD, the IPCC, everybody, the 
President, the Supreme Court decision. But when you take away 
the rhetoric and the nice words and the 19 pages of EPA 
testimony delivered to us yesterday, and I surely hope that you 
are going to change some of that and give us some action. I 
surely hope that over the last 48 hours you have thought about 
this. But if you just give us what you gave us in writing, you 
don't get to the issue of global warming until page 17 in terms 
of what you are going to do about this--page 17 of 19 pages.
    Administrator Johnson says, ``It is impossible to date to 
understand and explain fully how the decision may have any 
specific impact.'' That is what you write to us. ``It is 
impossible to date to understand and explain fully how the 
decision may have any specific impact.''
    I don't know what decision you read, sir. This decision is 
so clear, and I urge you to read it again. Don't have it 
filtered by anybody. Just read the clarion call of that Supreme 
Court decision.
    And you write more about the great bureaucracy involved and 
the numerous procedural options even to grant California's 
request for a waiver to regulate global warming emissions under 
the Clean Air Act so California can get on with this challenge, 
according to the will of the California people, our Democratic 
legislature, our Republican Governor.
    So when we look behind the words of the current 
Administrator, we seem to be getting next to nothing. Again, I 
hope you have had a second thought and will give us something 
new today.
    Now, today we will hear from two former Administrators of 
EPA, both Republican and Democratic, and they will tell you EPA 
can begin to take action now on the California waiver for 
vehicle regulations, on vehicles nationally, on power plants 
and more. And early analysis on this was done years ago during 
the Clinton Administration, so a lot of the work has been done. 
There is no excuse for a delay.
    California's request for a waiver to regulate vehicle 
emissions has been pending for 16 months. I thought this 
Administration respected State's rights. Eleven additional 
States, including Maryland, Vermont, Connecticut, New York, New 
Jersey, Rhode Island, all represented on this Committee, as 
well as Washington and Pennsylvania, have moved forward to 
adopt the California standards.
    EPA stands in the way of action. Vehicles represent about 
one third of global warming emissions. California will cut 
emissions by one third. It is a serious start, but all of these 
States have been blocked by the Environmental Protection 
Agency. EPA could issue a notice for public comment today, and 
I hope you will do that. It is not in your statement, but you 
can still do that.
    In a few short months, this waiver could be in place. I 
expect action from EPA. I will pursue this issue with Mr. 
Johnson and this Administration week after week until 
California and 11 States are free to act and much more gets 
done.
    The stakes are high. The U.N. representing hundreds of the 
world's leading scientists told us our water resources are 
threatened, the most vulnerable in our society are threatened, 
and as many as 40 percent of the species on Earth--40 percent. 
I sat right here in this room last week where the scientists 
showed us that chart. Senator Whitehouse was there. Forty 
percent of God's creation is threatened with extinction if we 
don't act soon. We have heard from the Bush Administration that 
they respect the findings of this organization.
    So I would just say unless there is a change, the EPA's 
current plans, which Mr. Johnson will tout today, will leave us 
all in serious trouble. I have materials used in a briefing 
with the Administrator early this year where he was informed 
that the Bush Administration plan would allow global warming 
emissions to continue to grow and would make very little 
difference when compared to the status quo. There will be no 
stabilization of emissions under the current plans, and 
dangerous climate change will not be averted.
    And by the way, in the last few years, our emissions have 
gone up 3.3 percent since the Administration took office. We 
cannot afford to have our emissions increasing, and they are. 
That is not in dispute. Slowing the increase, which has up to 
now been the Administration's plan, doesn't protect us in the 
future. EPA has the tools to take action now. EPA has a duty to 
act. It is time for the U.S. to be the leader in this global 
fight. We can't afford to wait, and EPA has the full authority 
to act today.
    Thank you very much.
    Senator Boxer. And now for a different perspective. Senator 
Inhofe.
    [Laughter.]
    Senator Inhofe. Oh, not that different.

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

    Thank you very much. It is really good to see people that 
you haven't seen for a long time. Ms. Browner, I have always 
held you in a very high, high regard, but it has been a long 
time since I have seen you. It is nice to have you back.
    And of course, we see quite a bit of you, Stephen.
    Let me just mention that if you go to the website that 
Senator Boxer was talking about, I think you will see why, and 
I find myself also in agreement with many of the things that 
both the U.N. and the IPCC said. In that report, they said they 
downgraded man's contribution. They downgraded man's 
contribution by 25 percent. They have changed the sea level 
rise, downgraded that by 50 percent. They came out and said 
that livestock emissions emit more greenhouse gases than the 
entire transportation sector. So there are a lot of things that 
we just don't seem to talk about that came out in that report.
    But I thank you for having this so that we may examine the 
recent Supreme Court decision that, more than any other in 
recent years, usurps congressional authority. It represents 
judicial activism at its worse, where five judges chose to 
place their own policy concerns above the rule of law. Through 
this decision, the Court's liberal judges have not only chosen 
to provide the executive branch with authority it clearly was 
not granted, but to create a regulatory quagmire in which the 
EPA is granted the authority to regulate carbon dioxide through 
a statute which clearly was not intended to deal with it.
    Ironically, when the Clean Air Act was passed in the 
1970's, the doomsayers in society were not saying the world was 
going to turn into a ball of fire, but a ball of ice. Another 
ice age was coming and surely we were all going to die.
    The simple fact is that this issue is not only extremely 
complex from a scientific perspective, but also from an 
economic one. How it is handled will have profound consequences 
for every American because of fossil fuel energy is the very 
lifeblood of our economy. Attempts to eliminate greenhouse gas 
emissions will bring as yet unimagined hardships to American 
poor and elderly and working class.
    We talked about this in the last couple of hearings, the 
fact that the type of reductions that were mandated in the 
Kyoto Treaty and many of the other concepts that have come 
along would be equal to ten times the size of the Clinton-Gore 
tax increase of 1993. It is the poor and those on fixed 
incomes, the elderly and the working class that pay a greater 
percentage of this in terms of their income.
    The Constitution clearly intended Congress to be the branch 
of government to deal with extremely intricate and far-reaching 
questions, not for the executive branch to be handed sweeping 
authority based on tortured and stretched interpretations of 
statutory language. But we are where we are, and the Supreme 
Court has ruled, and whether that was wise or not, it has 
ruled.
    I do not envy you, Mr. Administrator. No doubt you are 
being pressured to exercise that authority that you have had 
forced upon you, and to make carbon regulation the central 
organizing principle of our society, but I caution you against 
it. I suspect that you, as a scientist, are all too well aware 
of how politicized the science of climate change has become. In 
the rush to forge a consensus, there has been a coordinated 
effort to squash scientific findings and voices which the 
alarmists find inconvenient.
    Yet as John Kollias recently wrote in the San Antonio 
Express News, he said, and I am quoting now, ``The scientific 
consensus used to be that the Earth was flat, that the sun 
traveled around the Earth, and until 30 years ago, that we were 
entering into a new ice age.'' That was the scientific 
consensus in those areas.
    Our understanding of the climate is now in its infancy, and 
more information is coming in all the time. Just last year, 
just a year ago I think this month, it was discovered that 
trees emit methane, which is an anthropogenic gas, a greenhouse 
gas. This is something that they didn't seem to know before. I 
have to ask the question: What else don't we know, if it is 
something as basic as trees emitting methane was something that 
was unknown?
    A study published last week, April 18, in the Geophysical 
Research Letters, finds that wind shear in the Atlantic will 
increase with global warming, leading to fewer and weaker 
tropical storms. So I would almost have to say, Madam Chairman, 
it looks like Al Gore got it wrong again. Apparently, the 
hurricanes might not be so angry after all.
    In assessing whether greenhouse gases endanger public 
health and welfare, how will you evaluate the most recent 
cutting edge findings which demonstrate what we all know to be 
true, that climate fluctuations, whether natural or caused by 
man, will have good as well as negative consequences. How will 
you work into your analysis the number of deaths and economic 
damage that would be averted in a warmer world due to an 
increased wind shear, and thus decreased Atlantic storm 
activity? How will you calculate increased food production from 
longer growing seasons? In short, how will you quantify both 
sides of this equation?
    I am sure you, Mr. Administrator, recognize that national 
ambient air quality standards for greenhouse gases cannot be 
crafted without putting every county in the Nation into 
nonattainment. Since even in theory, States could not possibly 
craft implementation plans showing they would attain a NAAQS 
standard, wouldn't EPA have to disapprove their plans and take 
over the programs?
    Now, that is something that we have gone through before. We 
did this in previous Administrations, finding ourselves out of 
compliance. It looks like we would be there again. Since China 
will become the world's biggest carbon emitter this year, 
wouldn't this mean we are putting China and other developing 
countries in charge of whether States receive their highway 
dollars?
    The Clean Air Act was never designed to control carbon 
dioxide. As Richard Lindzen, an MIT climate scientist said on 
the Weather Channel in March, ``Controlling carbon is a 
bureaucrat's dream. If you control carbon, you control life.''
    So, Mr. Administrator, you have a mess on your hands, and I 
urge you to think carefully about it.
    Thank you very much.
    [The prepared statement of Senator Inhofe follows:]

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

    Thank you Madam Chairman for holding this hearing today. As 
has been noted, Lieutenant General Robert Van Antwerp is 
currently Commander of the U.S. Army Accessions Command. His 
nomination to be Chief of Engineers comes at a very challenging 
time for the Army Corps, but he is certainly well qualified and 
highly regarded. I have no doubt that he will be successful at 
this new post.
    Although General Van's nomination is officially the 
jurisdiction of the Armed Services Committee, I think it is 
important that this Committee have a chance to hear from him 
prior to his confirmation. The Armed Services Committee, of 
which I am also a member, held a hearing and approved his 
nomination last month. There we heard from General Van on the 
wide range of issues that are the responsibility of the Chief, 
but it is this Committee that has the expertise regarding the 
Civil Works mission of the Corps of Engineers.
    The new Chief will face many difficult decisions and 
management challenges just within the Civil Works mission. He 
will need to oversee the continued rebuilding and improvement 
of the hurricane protection system in South Louisiana, with all 
of the engineering difficulties that presents. He will need to 
continue implementation of the many changes that have begun as 
a result of the hurricanes down there, such as the emphasis on 
integrated water resources management and the use of risk 
assessment tools to guide our decisions and inform the public.
    As the new Chief, General Van would take charge of a vast 
regulatory program that needs to begin providing clarity and 
certainty to the regulated community in the wake of two Supreme 
Court decisions that haven't seemed to clarify much of 
anything.
    The new Chief will need to implement whatever new policy 
provisions are included in the WRDA bill we all hope to have 
enacted as soon as possible. In particular, both House and 
Senate bills include various so-called ``Corps reform'' 
provisions. Whatever the final mix is, General Van as Chief of 
Engineers would be responsible for ensuring that these items 
are incorporated into the Corps procedures efficiently and 
effectively.
    Finally, on a note specific to my home State of Oklahoma-
General Van, over the past four years, State and Federal 
agencies have devoted much resources and effort to remediation 
and resident assistance at the Tar Creek Superfund Site in 
northeastern Oklahoma. I want to get your commitment to make 
the work at Tar Creek a top priority and to ensure timely 
cooperation with State agencies that are involved in assisting 
the area residents.
    General Van, upon confirmation you will face many difficult 
tasks, but I have every confidence that you will meet these 
challenges and be a strong leader for the Corps of Engineers.

    Senator Boxer. Thank you so much, Senator.
    We are going to call on Senators in the following order of 
arrival. It is going to be Lautenberg, Bond, Whitehouse and 
Thomas. All right?
    Senator Lautenberg.

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

    Senator Lautenberg. Thank you, Madam Chairman, for holding 
this hearing on EPA and how it once again failed to protect the 
health of the environment and the health of the American 
people.
    Thankfully, the recent Supreme Court ruling could reverse 
this trend. The Court's conclusion confirms that EPA can 
regulate greenhouse gases from vehicles. The EPA had argued 
that this was beyond its authority. I think some of that 
thinking may have been propelled from this Committee. At one 
point when we adopted a replication of Comedy Central, when it 
was said that global warming is nothing but a hoax perpetrated 
on the American people. Finally, perhaps we have dismissed that 
bad joke.
    To us, and anyone concerned about the environment, it is 
just plain common sense that EPA would regulate emissions from 
cars and trucks. These emissions account for approximately one 
third of all greenhouse gas emissions. And those emissions 
cause global warming, which leads to rising sea levels, risks 
to wildlife, and countless other effects to human beings.
    And so my question for the Administration, Mr. Johnson, as 
someone with your background, your intellect, your training, 
why has it been so difficult to convince you that your agency 
should act to protect our environment? It is obvious that you 
maybe believe that you are simply a soldier in the ranks, just 
doing your duty. However, you are a top general, a veritable 
chief of staff, leading the fight against the formidable enemy. 
And it was my hope, and frankly, Mr. Johnson, the hopes of 
grandchildren across this Country, that you would at least 
protest the orders that you were given and lead the fight 
against this enemy.
    Why have four previous EPA Administrators, including two 
right here today, argued for action when this Administration 
has chosen not to act? The EPA's mission is to protect human 
health and the environment. It takes bold action to fulfill 
that mission. Previous EPA Administrators, including the ones 
testifying here today, displayed that leadership. Administrator 
Reilly worked to curb the production of the CFCs that created 
the hole in the ozone layer. Administrator Browner saw that 
particulate matter had major health impacts. She responded with 
strong standards to improve air quality.
    It is time for this Administration to stop denying the real 
impacts of global warming, and instead to confront them. States 
are already taking action. Bold, visionary States, including my 
State of New Jersey, have adopted the California standard for 
emissions. This standard will work to reduce greenhouse gas 
emissions from cars by 30 percent by the year 2016. And all 
that is needed for these States to adopt these standards is a 
waiver from EPA, and they have waited more than a year for this 
waiver, but it still hasn't come.
    It is time for this EPA to be bold and act in the best 
interests of the American people by regulating greenhouse 
gases. I hope you will take on this task, Mr. Johnson, with all 
the skill, the knowledge and the honor that you possess.
    Thank you, Madam Chairman.
    Senator Boxer. Thank you very much, Senator Lautenberg.
    Senator Bond.

      OPENING STATEMENT OF THE HON. CHRISTOPHER S. BOND, 
            U.S. SENATOR FROM THE STATE OF MISSOURI

    Senator Bond. Thank you very much, Madam Chair.
    Welcome, Administrator Johnson. We appreciate this hearing 
on the Supreme Court's recent decision regarding EPA authority. 
This Supreme Court decision certainly does remind us of the 
power of activist judges using the courts to achieve 
legislative policy goals. I think it is interesting to note in 
this regard that we have Congressman John Dingell of Michigan, 
who as Chairman of the House Commerce Committee, basically 
wrote the 1990 Clean Air Act Amendments, saying that he 
purposely did not give EPA legislative authority to regulate 
carbon dioxide.
    Nevertheless, five members of the Court still have found a 
way to provide that authority. Congratulations. But we have our 
decision, and now the new law of the land. Some, as we have 
heard, are very eager and impatient for EPA to move forward. 
They want EPA to rush, rush, rush with new carbon regulations. 
They wonder why EPA can't just go ahead with new carbon 
regulations. They do not accept warnings and cautions that this 
is a complicated undertaking that must be undertaken very 
deliberately.
    They will be too impatient to accept that regulations that 
will pervade almost every corner of the economy, threaten the 
jobs of millions, raise the heating and power bills of hundreds 
of millions, might take a little time. They will berate this 
witness, as we will hear and have heard. They will accuse him 
of stalling and they will say: Why, Mr. Administrator, aren't 
you moving faster?
    Some have promised to hound you for quick action to call 
you back week after week, week after week, week after week, to 
ask you why is EPA taking so long to implement the new carbon 
regulations. Well, personally, I would like to see you get it 
right, rather than quick, because this is a long-term 
consideration.
    Well, when those who were saying you need to act 
immediately, it is more of a case of do what I say, not what I 
do. If you look at what some of the carbon proponents are 
doing. They are taking things much more slowly, much more 
deliberately. An example is what California says about how to 
implement a greenhouse gas program. It reads, ``Such an 
ambitious effort requires careful planning and a comprehensive 
strategy.'' Not a bad idea. That doesn't sound like hurry, 
hurry, hurry to me.
    Of course, it has been only 3 weeks since the Supreme Court 
decision, and you should have had a decision out yesterday. 
Maybe California thinks such an ambitious effort that requires 
careful planning and a comprehensive strategy would take maybe 
at least a few months.
    No, California does not think this will take weeks. It does 
not think it will take months. California expects their carbon 
regulation planning and development will take years. Here is 
the schedule they envision. It was passed in 2006. They think 
it will take 3 years to develop a plan, until 2009. They think 
it will take another 2 years to develop regulations, for 5 
years. And they think it will take another year, until 2012, to 
implement regulations.
    Well, the Supreme Court has passed over and eliminated the 
legislative consideration policy, which should have taken some 
time here. So all we have is a tight 6 year time table now that 
they have passed the law, to get the regulations implemented.
    Three weeks after the Supreme Court passed its new law, 
some seek to criticize. Of course, California is taking early 
actions, but so is the U.S. The President is committed to cut 
greenhouse gases by 18 percent or 100 million additional tons 
through 2012, and the President's Advanced Energy Initiative, 
with a 22 percent increase in clean energy and technology 
funding. The Asia Pacific Partnership is the most important 
thing we can do in global warming, to work with India, China, 
Japan and others, to get clean coal technologies to China and 
India, who together will put out five times more carbon 
emissions by 2012 than Kyoto cut. The President's 20/10 
Initiative announced in the State of the Union, sets an 
aggressive new goal to use 20 percent less gasoline in 10 
years; a biofuels mandate in the energy bill, as well as a host 
of other energy and conservation efforts.
    We have come a long way. We need a lot more to do, but we 
can't put the burden of unduly harsh stringent regulations on 
the backs of low-income families, low-income seniors, blue 
collar manufacturing families in my part of the world who 
depend heavily on coal for energy.
    Thank you, Madam Chair.
    [The prepared statement of Senator Bond follows:]

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

    Thank you, Madame Chairman, for hosting this hearing on the 
Supreme Court's recent decision regarding EPA authority to 
regulate greenhouse gases under the Clean Air Act.
    The Supreme Court's decision certainly does remind us of 
the power of activist judges using the courts to achieve policy 
goals. In this case, you have Congressman John Dingell, of 
Michigan who as Chairman of the House Commerce Committee 
basically wrote the 1990 Clean Air Act Amendments, saying that 
he purposely did not give EPA the authority to regulate carbon 
dioxide. Nevertheless, the courts still found a way to provide 
EPA that authority.
    But, we have our decision and it is now the new law of the 
land. Some, as we have heard, are very eager and impatient for 
EPA to move forward. They want EPA to rush, rush, rush with new 
carbon regulations. They wonder why can't EPA just go ahead 
with new carbon regulations.
    They do not accept admonitions that this is a very 
complicated undertaking that must be undertaken very 
deliberately. They will be too impatient to accept that 
regulations that will pervade almost every corner of the 
economy, threaten the jobs of millions, raise the heating and 
power bills of hundreds of millions, might take a little time.
    They will berate this witness, they will accuse him of 
stalling, they will ask why he isn't moving faster. They are 
promising to hound him for quick action, calling him back 
``week after week, week after week, week after week'' to ask 
him why is EPA taking so long to implement new carbon 
regulations.
    Well I think this is more a case of ``do what I say, not 
what I do.'' If you look at what carbon proponents are doing, 
they are taking things much more slowly, much more 
deliberately.
    Here, for example, is what California says about how to 
implement a greenhouse gas program. [Refer to Chart]. It reads, 
``SUCH AN AMBITIOUS EFFORT REQUIRES CAREFUL PLANNING AND A 
COMPREHENSIVE STRATEGY.''

                           ca on reducing ghg

                               emissions

                    ``. . . such an ambitious effort

                     requires careful planning and

                      a comprehensive strategy.''

    Source: California Air Resources Board, ``Proposed Early 
Actions to Mitigate Climate Change in California''

    That does not sound like ``hurry, hurry, hurry.'' Of course 
it has been only 3 weeks since the Supreme Court decision. 
Maybe California thinks that ``such an ambitious effort that 
requires careful planning and a comprehensive strategy'' will 
take at least a few months.
    No, California does not think this will take weeks. It does 
not think it will take months. California expects their carbon 
regulation planning and development will take years.
    Here is the schedule they envision. [Refer to Chart] 
California passed its Global Warming Solutions Act, AB 32, in 
2006. They will allow 3 years just to develop an overall 
greenhouse gas reduction plan. They will allow a total of 5 
years to develop reduction regulations. And they expect 
implementation of regulations to come no sooner than 6 years 
from enactment.

                       california global warming

                         solutions act of 2006

                                (ab 32)

    Passed.................................................2006.
...................
    Develop 
Plan......................................2009..................
..3 years
    Develop 
Regs......................................2011..................
..5 years
    Implement 
Regs.................................2012....................6 
Years

    And what do we have here? Three weeks after the Supreme 
Court's decision some seek to criticize EPA's actions.
    Of course, California is taking early actions to reduce 
greenhouse gas emissions. They have just released a list of 
actions they can take in the near future. Similarly, this 
administration is undertaking a host of actions to bring about 
lower greenhouse gases. Administrator Johnson's testimony is 
filled with pages and pages of examples.
    We have: the President's commitment to cut U.S. greenhouse 
gas intensity by 18 percent, or 100 million additional metric 
tons of reduced carbon-equivalent emissions through 2012; the 
President's Advanced Energy Initiative with a 22 percent 
increase in clean-energy technology funding; the Asia-Pacific 
Partnership to get new clean technologies to China and India 
who together will put out five times more new carbon emissions 
by 2012 than Kyoto will cut; the President's ``20 in 10'' 
initiative announced in the State of the Union setting the 
aggressive new goal for the U.S. to use 20 percent less 
gasoline in 10 years; a biofuels mandate we adopted in the 
Energy bill and now will most likely expand this year to 
increase our use of renewable and low carbon emitting ethanol 
and biodiesel; as well as a host of other efficiency and 
conservation efforts across the government.
    We have done a lot, and we will do more. But at a minimum 
we owe our constituents a thoughtful approach that will 
thoroughly consider and seek to minimize the pain imposed on 
them. We owe the low income family struggling to keep their 
homes warm in the winter. We owe the fixed-income seniors who 
can't keep their homes cool in the summer. We owe the blue 
collar manufacturing worker fighting to keep their families in 
the middle class. We owe the coal dependent States across the 
Midwest and South who face the harshest power bill increases. 
We owe workers in the chemical, fertilizer, plastics and 
manufacturing who face more of their jobs going overseas to 
China. We owe them careful planning and a comprehensive 
strategy.
    Thank you

    Senator Boxer. Thank you, Senator.
    I want to put a couple of things in the record at this 
point. First, I want to put in the record the names of the 
Supreme Court Justices who wrote this opinion and who appointed 
them. The majority of the five were appointed by Republicans, 
one by Ford, one by Reagan, and one by Bush I, and two others 
by Clinton. So I think it is important because Senator Inhofe 
said ``those liberal judges'' and Senator Bond said ``activist 
judges.'' So I just wanted to make sure that these liberal 
activist judges that we all understand that three of the five 
were appointed by conservative Presidents, or at least those 
who call themselves that.
    [The referenced material was not received at time of 
print.]
    Senator Bond. Madam Chair, I agree with that, but it 
doesn't make them right.
    Senator Boxer. Well, I am just putting in the record who 
appointed these judges. I think that that is a very important 
point.
    And also one more point, I want to put in the record the 
names of the 11 States that have asked EPA to grant the waiver 
they have waited 16 months for. For the record, California, 
Connecticut, Maine, Maryland, Massachusetts, New Jersey, New 
York, Oregon, Pennsylvania, Rhode Island, Vermont, and 
Washington.
    I also have another announcement. Senator Inhofe and I have 
made a decision that at this point, everyone here will make 
opening statements, but anyone coming from now on will forfeit 
their right to an opening statement, because we really need to 
get moving.
    So at this point, we are now going to hear from Senator 
Whitehouse, followed by Senator Thomas, followed by Senator 
Lieberman.

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

    Thank you, Madam Chair. Administrator, welcome back.
    We are here today for two troubling reasons. We are here 
today because global warming, as our Chairwoman knows only too 
well, is a serious and urgent problem that we have to address 
in our communities and our States and in our Country, and I 
would also say in our time.
    We are also here because of the decision handed down in 
Massachusetts v. Environmental Protection Agency reflects yet 
another instance of what I see as a disturbing legal trend, 
which is courts having to force your agency, the EPA, to do its 
job. Massachusetts v. EPA presents a major step forward to 
reduce automotive greenhouse gas emissions. As you know, 
Administrator Johnson, the ruling made clear that EPA does in 
fact have the authority under the Clean Air Act to regulate 
vehicle CO2 emissions, contrary to the Agency's 
constant insistence otherwise.
    I hope this ruling will compel your agency not only to 
recognize its authority, but also to act on it.
    Further, in issuing its opinion, the Court removed any 
remaining excuse your agency has for failing to approve long 
overdue waiver requests allowing Rhode Island and other States 
to set more stringent vehicle emissions standards than 
currently required under Federal law. EPA's years of legal 
stonewalling by delaying the implementation of these standards 
has allowed millions of tons of carbon dioxide pollution into 
our air and made it more difficult to reverse the effects of 
climate change.
    Make no mistake, climate change is already having a 
distressing effect on Rhode Island's treasured coastal 
environment and on our communities. The annual mean winter 
temperature in Narragansett Bay has increased significantly 
over the past 20 years, causing ecosystem changes such as 
reduction in abundance of winter flounder, a once-thriving 
species. Predicted sea level rise will endanger many parts of 
the Ocean State's coastline.
    Just last week, we were struck by a nor'easter that tore up 
our shoreline. Coastal erosion is obviously not a new 
phenomenon in Rhode Island, but as global warming continues to 
worsen, the damage will only increase.
    And then there is the other problem: EPA's track record in 
court during the Bush Administration. Over and over, weak 
public health protections have been overturned, where EPA has 
conceded illegal action. Consider these examples: three air 
toxics rulemakings in the past month alone; a national smog 
rulemaking, especially important to downwind communities in 
Rhode Island and the rest of New England; and another 
significant air pollution loophole that the Court said was 
sensible only in a humpty-dumpty world.
    Courts have even begun rebuking EPA for defying the law, 
reminding EPA of the proper way to appeal cases, for example, 
or what political considerations it must considers when it 
carries out the Clean Air Act.
    My experience with this Administrator was as Rhode Island's 
Attorney General when I had to join other Attorneys General 
from Northeastern States to sue the Bush administration for the 
pollution emitted by powerplants in the Midwest. Prevailing 
winds blow those emissions onto us in Rhode Island. The 
emissions from those Midwestern powerplants are so bad that 
even if in Rhode Island we stopped all our in-State emissions, 
we would still fail Federal ozone standards entirely due to 
pollution traveling in from out of State. We needed to go to 
court to get help from the Federal Government because you 
weren't there for us.
    I don't see how it is that we should have to do this to 
enforce the laws of the land against the big business 
interests. EPA has refused to carry out the duties already 
conferred upon it by Congress. This raises real questions about 
this Administration's commitment to protecting the people of 
this Country and its environment against harmful pollution.
    It also raises real questions about the dissonance between 
your fine words and your meager actions as Administrator. You 
were here before. You spoke beautifully, sir. But here we go 
again and again and again in the courts. As the Chairman has 
pointed out, we have had a lot of Republican Presidents. These 
are not liberal activist courts. These are courts applying the 
law, and over and over again your agency has been found 
failing.
    I look forward to learning more today about the steps you 
are taking to reconsider your decision and allow States like 
Rhode Island to move forward with efforts to curb the harmful 
effects of greenhouse gas emissions.
    Thank you, Madam Chair.
    Senator Boxer. Thank you, Senator.
    Senator Thomas.

          OPENING STATEMENT OF THE HON. CRAIG THOMAS, 
             U.S. SENATOR FROM THE STATE OF WYOMING

    Senator Thomas. Thank you, Madam Chair. I will go along 
with your idea of moving ahead, so I will be very short.
    Let me say that the Court ruled that EPA has authority to 
regulate greenhouse gases as an air pollutant. The Court did 
not rule that EPA must regulate greenhouse gases from motor 
vehicles since before EPA can do that, it must determine that 
emissions are gases that ``reasonably anticipate to endanger 
public health and welfare.'' This is part of the Court 
decision.
    So there is some room here to have to make some decisions. 
In any event, I don't call myself a climate skeptic. I am 
trying to be realistic about it, however, and certainly we all 
oppose the climate change legislation that would suffer 
consequences in the next election if we were opposed to that. 
On the other hand, let me tell you that people who are going to 
have to pick up the costs are going to be a little opposed to 
doing some of those things as well.
    Cheyenne Light Fuel and Power serves 80,000 customers. They 
offered for $3 a month a green pricing to customers. How many 
took advantage of it? Thirty people were excited about doing 
that.
    So I guess we just have to understand who is going to pay 
the costs, and we have to have bills that we can abide by 
before we pass them. We included in the Energy Policy Act the 
provisions that the government should participate in the 
demonstration of technologies before we move particularly 
forward. So I hope we can do that.
    We have already passed an energy bill. We already know how 
to do some of the things that will have an impact, such as 
clean coal. So before we pass too many regulations, we ought to 
be urging people to do the things that we know how to do that 
will have an impact on it.
    So I am concerned that we don't spend too much time working 
people up about the issue that we fail to find workable 
solutions, and that is what we are designed to do. So I am 
anxious to hear the Administrator's plans.
    Thank you.
    Senator Boxer. Thank you very much, Senator.
    Senator Inhofe, just a quick diversion here for a second. 
Did you want to say something?
    Senator Inhofe. Here is what I would like to know. I know 
that Senator Craig had a Statement he wanted to make. I notice 
that Senator Thomas had 2 minutes left, and I had 3 minutes 
left. If you will yield your 2 minutes to him, I will yield my 
3 minutes, and I will have his five. Does that sound good?
    Senator Thomas. That is fine.
    Senator Inhofe. All right.
    Senator Boxer. So here is what has been happening. We have 
been getting complaints because we made a decision that is not 
a popular one, and so both of us together, Senator Inhofe and 
I. And so what we are going to do is, anyone who shows up now 
would have 3 minutes, but in the future if people come after 
the first 30 minutes of a hearing, we are going to have to ask 
you to defer your opening Statement to your question time.
    So what we are going to do now is when any Senator comes, 
we will give them 3 minutes for an opening Statement. So it is 
Senators Lieberman, Klobuchar, and Carper.

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

    Senator Lieberman. Thanks, Madam Chairwoman, Senator 
Inhofe, and Administrator Johnson.
    Even before the Supreme Court issued its decision in 
Massachusetts v. EPA on April 2d, I think a lot of people in 
this Country, including a lot of the larger sources of 
greenhouse gas emissions, saw the inevitability of new Federal 
laws mandating cuts in greenhouse gas emissions. The only 
question was when. They felt that because they realized that 
the American people simply would not let the Federal Government 
stand idly by in the face of the scientific consensus that our 
children and grandchildren would suffer dearly for our 
inaction.
    What the Supreme Court decision adds, I think, is a sense 
of imminence, or if I may put it, Madam Chair, knowing your 
love for musicals and the words of a great musical, when it 
comes to global warming, I think something's coming, something 
good.
    The decision of the Supreme Court sends a message that if 
Congress does not enact nationwide requirements for reducing 
global warming pollution within the next few years, then the 
Environmental Protection Agency has the responsibility under 
law to promulgate such requirements.
    I understand that the Court did not order EPA to promulgate 
new rules, but in documents filed in that Court case, EPA 
itself has conceded the causal connection between man-made 
greenhouse gas emissions and global warming. And the 
Administration has accepted the findings of the 
Intergovernmental Panel on Climate Change.
    In light of those official positions, I cannot see how EPA 
can avoid issuing emission reduction requirements for 
greenhouse gases without inviting an even more forceful 
response from the courts than the one the Supreme Court gave on 
April 2d.
    I know that an agency can draw out the rulemaking process 
when it is reluctant to issue new regulations, but the law does 
place limits on administrative foot-dragging.
    I think, then, that greenhouse gas emitters and a lot of 
others are going to realize that they will see an EPA global 
warming rule in the foreseeable future unless, of course, 
Congress acts earlier. I am confident personally that Congress 
will act earlier. For one thing, I believe that it is clear 
that the private sector would like to see now a statute that 
charts a clear nationwide efficient and sensible course, rather 
than facing a multitude of State legislation on global warming, 
or agency rules that will be subject to litigation with all the 
uncertainties that that entails.
    Indeed, Congress has started to act, and what is most 
encouraging, has started to act in a bipartisan way. Last week, 
two members of this Committee, Senator Carper and Senator 
Alexander, one a Democrat and one a Republican, introduced 
bills that would achieve very substantial reductions in the 
greenhouse gas carbon dioxide from the electricity-generating 
sector of the economy.
    And last week, another member of the Committee, Senator 
Warner, who I am glad to say is the Ranking Member of the 
Subcommittee on Climate Change which I am pleased to chair, 
stated that Congress should establish new rules or controls to 
combat global warming. He said that the new Federal program 
must, ``allow for an economy-wide approach that incorporates 
market-based flexibility, provides for a measure of Federal 
investment in new technologies, includes cost containment 
mechanisms, and has environmental integrity.''
    I look forward to working with Senator Warner on our 
subcommittee to produce bipartisan anti-global warming 
legislation. So I am optimistic today about what this Congress 
and the Senate in particular can and will accomplish to curb 
global warming, but that does not relieve EPA of its legal and, 
in my opinion, moral obligation to act with all deliberate 
speed to comply with the Supreme Court's decision.
    In particular in an initial matter, I hope that 
Administrator Johnson will grant California's petition for a 
waiver of Federal preemption with respect to the State's 
greenhouse gas emission standards for vehicles. My State of 
Connecticut and other States have had the good sense to adopt 
the California standards and we await your action on that. 
Frankly, I don't see how EPA could deny the waiver petition 
now, without contravening the Supreme Court's holdings.
    Finally, Madam Chair, I want to express my own gratitude to 
my Governor, a Republican; my Attorney General, a Democrat; for 
the work they did, along with all the other petitioning States, 
municipalities and public interest organizations that led to 
this landmark Supreme Court decision, which is a victory in the 
battle to do something about global warming.
    Thank you very much.
    [The prepared statement of Senator Lieberman follows:]

     Statement of Hon. Joseph I. Lieberman, U.S. Senator from the 
                          State of Connecticut

    Thank you, Madame Chairwoman.
    Even before the Supreme Court issued its decision on April 
2, I think most large industrial firms in this country saw the 
inevitability of new Federal laws mandating cuts in greenhouse 
gas emissions. They were smart enough to realize that the 
American people would not let the Federal Government get away 
with inaction in the face of the scientific consensus that our 
children and grandchildren would suffer dearly for it.
    What the Supreme Court decision adds, I think, is a sense 
of imminence. The decision ensures that if Congress does not 
enact nation-wide requirements for reducing global warming 
pollution within the next few years, then the Environmental 
Protection Agency will promulgate such requirements.
    I realize the Court did not order EPA to promulgate new 
rules. But EPA has conceded the causal connection between man-
made greenhouse-gas emissions and global warming, and the 
Administration accepts the findings of the Intergovernmental 
Panel on Climate Change. In light of those official positions, 
I cannot see how EPA can avoid issuing emission-reduction 
requirements for greenhouse gases without inviting an even more 
forceful response from the courts.
    I am also aware that an agency can draw out the rulemaking 
process when it is reluctant to issue new regulations. But the 
law does place limits on administrative foot-dragging.
    I think, then, that sophisticated industrial concerns in 
this country realize that they will see an EPA global warming 
rule by 2010 unless Congress acts earlier.
    I think Congress will act earlier. For one thing, I think 
the private sector would like to see a statute chart a clear, 
nation-wide, efficient, and sensible course. I do not think 
American businesses want to subject themselves totally to 
agency rules that will be subject to litigation, with all the 
uncertainties that entails.
    Indeed, Congress has started to act. Last week, A 
Republican member of this committee, Senator Alexander, 
introduced a bill that would achieve very substantial 
reductions the greenhouse gas, carbon dioxide, from the 
electricity generating sector of the economy. I was pleased to 
co-sponsor that strong bill--just as I was pleased to cosponsor 
a comparably strong power plant pollution bill introduced by 
Senator Carper.
    Also last week, another Republican member of this 
committee, Senator Warner, stated that Congress should 
establish new rules or controls to combat global warming. He 
said that the new Federal program must ``allow for an economy-
wide approach that incorporates market-based flexibility, 
provides for a measure of Federal investment in new 
technologies, includes cost-containment mechanisms, and has 
environmental integrity. Most importantly, the Federal 
Government must ensure international participation by developed 
and developing nations.'' I happen to know of--and a lot 
about--a pending multi-sector, market-based climate bill that 
might serve as the basis for legislation that could earn 
Senator Warner's support.
    So I am optimistic about what this Congress, and the Senate 
in particular, can and will accomplish to curb global warming. 
That brewing action does not, however, relieve EPA of the legal 
and, in my opinion, moral obligation to act with all deliberate 
speed to comply with the Supreme Court's decision. In 
particular, and as an initial matter, I hope that Administrator 
Johnson will grant California's petition for a waiver of 
Federal preemption with respect to the State's greenhouse-gas 
emission standards for vehicles. Connecticut and other States 
have had the good sense to adopt the California standards. I do 
not see how EPA could deny the waiver petition without 
contravening the Supreme Court's holdings.
    Finally, Madame Chairwoman, let me just congratulate 
Connecticut, along with Massachusetts and all the other 
petitioning States, municipalities, and public-interest 
organizations for this landmark court victory. I am very proud 
to represent a State that stood on the right side of history 
here.
    Thank you, Madame Chairwoman.

    Senator Boxer. Thank you so much.
    Senator Klobuchar, 3 minutes.

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

    Senator Klobuchar. Thank you, Madam Chair. I apologize, I 
was late. We had an Agriculture Committee meeting in which we 
discussed the sudden decline in the honeybee population across 
the Country, including in Minnesota, something that may come 
your way, Administrator Johnson.
    I am pleased that this Committee has switched from talking 
about whether or not global warming exists, to how we can solve 
it, and to talking about under the Chairwoman's leadership how 
we can become an international leader in this area.
    Our State, and I can't remember when you came last time, 
Administrator Johnson, that this happened, but our State just 
recently adopted a very aggressive portfolio of standards for 
electricity, 25 percent renewable by 2020 and 30 percent for 
excel [phonetically]. I am very pleased it was done on a 
bipartisan basis, and signed into law by a Republican Governor.
    But I don't think that should be an excuse for inaction on 
the work that is being done in California and New Jersey and 
other States by the Federal Government. I think it was Justice 
Brandeis that once said that the States are the laboratories of 
democracy, but I don't think that he meant that they would be 
the only place where the action is taken in democracy.
    That is why I was so pleased by this Supreme Court opinion, 
which basically said that the EPA could avoid promulgating 
regulations for greenhouse gases only if, ``it determines that 
greenhouse gases do not contribute to climate change, or if it 
provides some reasonable explanation as to why it cannot or 
will not exercise its discretion to determine whether they 
do.''
    In the coming weeks as you decide whether or not to 
initiate an enforcement action for greenhouse gases, I strongly 
recommend that you consider the sound science. We heard about 
it in a very good briefing last week by the scientists from the 
Intergovernmental Panel for Climate Change. The report, as you 
know, was written by hundreds of scientists and reviewed by 
outside experts.
    I urge you to take seriously the findings of the scientific 
community, and I also encourage you to do what it takes to 
expedite this rulemaking process. As Senator Lieberman was 
mentioning, processes can start and they can go on and on and 
on. Clearly, what you are hearing from a number of people on 
this Committee is that this process must start immediately and 
it must be done on an expedited basis. The EPA needs to roll up 
its sleeves and get to work.
    Thank you.
    Senator Boxer. Thank you, Senator.
    Senator Carper, 3 minutes.

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

    Senator Carper. Thank you, Madam Chair.
    Mr. Johnson, welcome. Thank you for joining us today. We 
look forward to hearing from you, and our other witnesses, a 
couple of whom are sitting right behind you. It is nice to see 
you all.
    Earlier this morning, I was with a couple of our colleagues 
from the House, a Democrat and a Republican, and we were before 
a forum of folks who were interested in climate change. One of 
the questions of our panel was, what are the Presidential 
candidates likely to do, whoever is nominated or elected, what 
are they likely to do on climate change.
    Somebody is going to get elected President and Vice 
President, and they are going to have to put together a cabinet 
and they are going to have to figure out all the promises that 
they made in their campaigns, and how to get started on climate 
change. I look at all the Democrats that are running and I 
think they are all going to want to do something, and most of 
the Republicans will want to get going as well.
    I think we would make a big mistake if we waited until 
after the election to get started. We shouldn't have to wait 
that long. We don't have to wait that long. Frankly, I think 
people elected us, and the real message I took out of the last 
election is folks want us to get stuff done. They want us to 
find a way to work together. They want us to find a way to 
govern from the middle.
    The Supreme Court has given you a great opportunity at EPA 
to get started, and my hope is that you will do that.
    I am going to be asking you some questions. I will 
telegraph this pitch: I am going to be asking you some 
questions of thing that I think you can do absent any kind of 
legislation, whether it is my legislation, Senator Lieberman's 
legislation, or legislation that Senator Boxer has introduced, 
or Senator Alexander. There are some things that you can do, 
and I think you might want to do. And I look forward to having 
a chance to talk with you about that in just a few minutes.
    The important thing for us is to not do something foolish. 
The important thing for us is to not do something that is going 
to mess up our economy or put it in a tailspin or to somehow 
unduly burden consumers. We don't have to do that. There are a 
whole lot of things that we can do. If we fall short of passing 
a climate economy-wide bill like Senator Lieberman has 
introduced, if we come up short passing just an industry-
specific bill, like I have introduced with some colleagues, we 
have some other things we can do, and we look forward to 
talking with you about those at this hearing. Thank you.
    Thank you, Madam Chair.
    [The prepared statement of Senator Carper follows:]Senator 
Thomas Carper
    I'd like to thank the Chair for convening this hearing.
    I would not necessarily call myself a ``climate skeptic''. 
I do try to be realistic though, and with that in mind, I'd 
like to make a few remarks.
    I believe we owe it to the folks we represent to fully 
understand the consequences of the legislation and proposals we 
consider. It has been said, by some, that members who oppose 
climate change legislation will suffer some sort of 
consequences in the next election. I have even seen a recent 
poll that says three-quarters of Americans believe global 
warming is a problem.
    I remind my colleagues, however, that legislation which 
increases the price consumers pay for energy will also have 
consequences. I'd like to share an example from my home State 
of Wyoming.
    Cheyenne Light, Fuel & Power is an electric utility in my 
State. It provides energy to some 80,000 customers. For an 
extra $3.50 a month, they offered ``green pricing'' to 
customers; that means you could get power with no carbon 
emissions for just $3.50 extra, per month. I found it 
interesting that only 30 people signed up.
    Now, if that were an election, I don't think I'd want to be 
the one who made ``green pricing'' mandatory.
    I think we need to remember that these so-called 
``solutions'' to climate change cost a lot of money. We need to 
be honest about who we expect to pay those costs.
    We must also make sure that we can abide by laws before we 
pass them. That is why I included Sec. 413 in the Energy Policy 
Act of 2005 to demonstrate clean coal technology. That 
provision authorizes the government to participate in a 
demonstration of the technologies we need to move forward.
    It seems like we talk an awful lot about climate change 
lately. We seem to forget that we are already doing a lot to 
address it. We already passed an energy bill in 2005 that 
allows us to take significant action toward figuring our next 
steps.
    But this hearing is about the implications of a Supreme 
Court decision, and it is about what the EPA is going to do 
next.
    I did want to explain that there is a middle-ground to be 
had in this debate, however. I am concerned we spend so much 
time getting people worked up about this issue that we risk 
failing to find workable solutions.
    I am anxious to hear what the Administrator's plan is, and 
I yield the remainder of my time.

    Senator Boxer. Thank you.
    Senator Cardin.

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

    Senator Cardin. Madam Chair, let me first thank you for 
holding this hearing. It is nice to have you here, Mr. Johnson. 
I appreciate your testimony here today and the challenges that 
the Supreme Court has really laid to you to be aggressive in 
regulating the greenhouse gases. I look forward to your 
testimony. I can assure you that we want to work together.
    This Committee really wants to be aggressive in dealing 
with the issues of global warming, and we would very much 
welcome working with the Administration to come up with an 
aggressive plan to deal with in a responsible way our 
responsibilities here in the United States and show leadership 
internationally.
    So I look forward to your testimony and welcome.
    [The prepared statement of Senator Cardin follows:]

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

     Thank you for holding this hearing today.
     I represent a State which relies heavily upon the Army 
Corps of Engineers' civil works programs.
     Maryland has 31 miles of Atlantic Ocean coastline, which 
are the site of two critical Corps projects--a hurricane 
protection project at our premier beach resort community, Ocean 
City, and a mitigation project at Assateague Island National 
Seashore.
     The Chesapeake Bay is America's largest estuary. The 
Corps' oyster and habitat restoration, shoreline protection, 
and sediment management programs are integral to our efforts to 
restore the Bay.
     We have a geography and topography which makes the 
Chesapeake Bay particularly susceptible to erosion. This 
erosion contributes millions of cubic yards of sediment 
annually to the bay, adversely affecting water quality and 
clogging navigation channels.
     The Port of Baltimore is one of the largest ports on the 
east coast and a vital engine of economic activity, 
contributing $2 billion to the State's economy and employing 
18,000 Marylander's directly and tens of thousands more 
indirectly.
     There are 126 miles of shipping channels leading to the 
Port of Baltimore. Maryland also has more than 70 small 
navigation projects around the Chesapeake Bay and Atlantic 
Ocean. These navigation projects are critical to commercial and 
recreational fisherman, to local and regional commerce and to 
local economies.
     We rely heavily on the U.S. Army Corps of Engineers for 
flood protection in communities in Western Maryland and for 
water supply.
     In short, the Corps of Engineers has projects and provides 
assistance to virtually every jurisdiction in the State of 
Maryland
     Our efforts in Maryland focus on four areas:

      maintaining the navigational channels serving the Port 
of Baltimore and numerous communities in our State, and finding 
responsible and environmentally sound solutions for disposing 
of the dredged material from these channels,
      restoring the Chesapeake Bay and the rivers and streams 
which flow into the Bay,
      addressing the shoreline erosion problems on Maryland's 
Atlantic Coast , and
      mitigating for previous construction of civil works such 
as the rewatering of the C&O Canal in Cumberland.

    I have talked with met with the nominee and reviewed his 
impressive background. We need a Chief of Engineers that 
understands the importance of the range of issues facing 
Maryland and the nation. I think that Lt. Gen. Van Antwerp has 
the potential to bring to the job a strong background and a 
willingness to work with us that will combine to make him an 
excellent chief. I look forward to asking the nominee a few 
questions, and I anticipate working closely with him in the 
years ahead.
    Senator Boxer. Thank you, Senator.
    Just to reiterate to Senators and staffs, if they want to 
let their bosses know, we will give them an extra 3 minutes for 
their opening statement when they arrive, added on to their 
question time.
    Administrator Johnson, welcome and please proceed.

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

    Mr. Johnson. Thank you, Madam Chairman.
    Chairman Boxer and members of the Committee, thank you for 
the opportunity to testify today on the landmark Supreme Court 
decision, Massachusetts v. EPA.
    As you know from my previous appearances before this 
Committee, and over the last 6 years, this Administration has 
invested more than any other nation in the world, $35 billion, 
in a comprehensive climate change agenda. This aggressive, yet 
practical, strategy is supporting world class scientific 
research, providing tax incentives for renewable and 
alternative energy, forging results-oriented partnerships, and 
developing and deploying the next generation of clean 
technologies.
    Currently, EPA is moving forward to meet the Supreme 
Court's decision in a thoughtful, deliberative manner, 
considering every appropriate option and every appropriate tool 
at our disposal. Throughout our review, I have sought guidance 
from the agency's legal and policy professionals to understand 
the Court's findings, and what that means for EPA. Let me 
provide you with what are, in my view, the three most salient 
points from the decision that are directly relevant to today's 
hearing.
    First, the Court found that greenhouse gas emissions are 
indeed pollutants under the Clean Air Act.
    Second, the Court ordered EPA to reconsider its denial of a 
petition from the State of Massachusetts and several other 
groups seeking regulation of greenhouse gas emissions from new 
motor vehicles and engines. One of the most significant things 
EPA must determine is whether greenhouse gas emissions endanger 
public health or welfare based upon the requirements of the 
Clean Air Act.
    Finally, the Court was very clear that, if an endangerment 
finding is made, the Agency possesses considerable flexibility 
in how it regulates greenhouse gas emissions from mobile 
sources. It is incumbent upon us to act expeditiously and 
prudently, making decisions informed by the best available 
science.
    Along with addressing the decision's substantive 
ramification, the Agency is considering the appropriate 
procedural steps to take if the Court remands the petition. 
Whatever we decide on that and many other issues, I can assure 
you that we are committed to receiving broad public input prior 
to making sound decisions.
    As we review the Court's decision, the Administration will 
continue moving forward, both domestically and internationally 
to address the serious challenge of global climate change. 
Under the President's leadership, our Nation is making 
significant progress in tackling emissions. According to the 
International Energy Agency, from 2000 to 2004, U.S. emissions 
of carbon dioxide from fuel combustion grew by 1.7 percent, 
during a period when our economy expanded by nearly 10 percent. 
This percentage increase was lower than that achieved by Japan, 
Canada, the original 15 countries of the European Union, India 
and China.
    IEA data also shows that the United States reduced its 
carbon dioxide intensity by 7.2 percent between 2000 and 2004, 
better, for example, than Canada, Japan, or the EU 15.
    I would also note that the U.S. is on track to meet and 
possibly exceed the President's goal to reduce greenhouse gas 
intensity by 18 percent by 2012. By contrast, only two of the 
original EU 15 countries in the Kyoto Protocol are on schedule 
to meet their Kyoto targets.
    As part of our forward progress, just this morning we 
signed the formal notice that starts the public process for 
considering the California waiver petition process. This is in 
keeping with my and the Agency's commitment to expeditiously 
begin the process following the Supreme Court ruling. The 
decision we make in response to Massachusetts v. EPA will be 
integrated in the Administration's existing climate policy and 
will build on the progress we have already achieved.
    Again, thank you for the opportunity to testify. Before I 
take questions, Madam Chairman, I would like that my full 
written statement be submitted for the record.
    Thank you very much.
    [The prepared statement of Mr. Johnson follows:]

  Statement of Stephen L. Johnson, Administrator, U.S. Environmental 
                           Protection Agency

    Good morning Madam Chairman and Members of the Senate 
Committee on Environment and Public Works. I appreciate the 
opportunity to appear before you today to discuss the 
Environmental Protection Agency's (EPA) efforts to address the 
challenges posed by climate change. Today I will speak to you 
about both the Administration's ongoing work to address climate 
change and the recent Supreme Court decision in Massachusetts 
v. EPA.

                              introduction

    President Bush and the Environmental Protection Agency are 
firmly committed to taking sensible action to address the long-
term challenge of climate change. Long before the Supreme Court 
issued its decision in Massachusetts v. EPA, the Administration 
had been implementing aggressive steps to tackle climate 
change, both domestically and internationally. We will continue 
to move forward with the President's comprehensive climate 
change agenda as we consider the ramifications of the Supreme 
Court's decision.
    President has requested, and Congress has provided, 
substantial funding for climate change science, technology, 
observations, international assistance and incentive programs--
approximately $35 billion since 2001. Federal programs are 
helping to further reduce scientific uncertainties associated 
with the causes and effects of climate change; promoting the 
advancement and deployment of cleaner, more energy efficient, 
lower carbon technologies; encouraging greater use of renewable 
and alternative fuels; accelerating turnover of older, less 
efficient technology through an array of tax incentives; and 
establishing numerous international climate partnerships with 
the world's largest greenhouse gas emitters. Through a 
comprehensive suite of mandates, incentives, and partnerships, 
the President's climate change policies are contributing to 
meaningful progress in reducing the growth rate of U.S. 
greenhouse gas emissions, even as our population grows and our 
economy continues to expand.

                    administration climate strategy

                  Progress Toward the President's Goal

    In 2002 President Bush committed to cut U.S. greenhouse gas 
intensity by 18 percent through the year 2012. This commitment 
was estimated to achieve about 100 million additional metric 
tons of reduced carbon-equivalent (MMTCO2) emissions 
in 2012, with more than 500 MMTCO2 emissions in 
cumulative savings over the decade.
    According to EPA data reported to the United Nations 
Framework Convention on Climate Change (UNFCCC), U.S. 
greenhouse gas intensity declined by 1.9 percent in 2003, by 
2.4 percent in 2004, and by 2.4 percent in 2005. Put another 
way, from 2004 to 2005, the U.S. economy increased by 3.2 
percent while greenhouse gas emissions increased by only 0.8 
percent.
    To build on the substantial progress in meeting the 18 
percent intensity reduction, President Bush has announced four 
major energy policies in the last 2 years. In his 2006 State of 
the Unions Address, President Bush proposed the Advanced Energy 
Initiative (AEI)--a 22 percent increase in funding for 2007 for 
clean-energy technology research to change how we power our 
homes, business, and cars. The 2008 President's Budget includes 
$2.7 billion for the AEI, an increase of 26 percent above the 
2007 Budget.
    This year, in his State of the Union Address, the President 
announced his ``20-in-10'' initiative, which sets an aggressive 
new goal for the United States to use 20 percent less gasoline 
in 2017 than currently projected. As part of this effort, the 
Administration recently sent legislation to Congress to create 
an Alternative Fuel Standard (AFS) which would mandate the use 
of 35 billion gallons of alternative fuel in 2017. Should the 
AFS become law, it will complement and build upon the Renewable 
Fuel Standard (RFS), which EPA recently finalized. The AFS 
would rely on credit, banking and trading mechanisms that EPA 
developed for the RFS, thereby achieving market efficiencies 
while ensuring the use of an increasing amount of renewable and 
alternative fuel by our Nation.
    Another component of the 20-in-10 plan is reforming cars, 
and for further increasing light truck and SUV standards. We 
believe new technologies can be deployed to significantly 
improve fuel economy without impacting safety. If enacted, this 
legislation will reduce projected gasoline consumption by up to 
8.5 billion gallons in 2017.
    When approaching the issue of greenhouse gas emissions from 
the transportation sector, it should be recognized that 95 
percent of such emissions consist of carbon dioxide, with the 
remaining 5 percent of emissions consisting of nitrous oxide 
and methane exhaust emissions and hydroflourocarbons from air 
conditioners. In addressing greenhouse gas emissions from the 
transportation sector, the President's 20-in-10 plan recognizes 
that on-board technology to control carbon dioxide emissions 
from vehicles does not currently exist. Therefore, the 20-in-10 
plan addresses two primary factors that can reduce carbon 
dioxide emissions from vehicles; greatly increasing the use of 
renewable and alternative fuels and increasing the fuel economy 
of vehicles.
    Fuels, such as cellulosic ethanol, can offset lifecycle 
greenhouse gas emissions by over 90 percent when compared with 
gasoline derived from crude oil. Biodiesel can result in the 
displacement of nearly 68 percent of lifecycle greenhouse gas 
emissions relative to diesel made from petroleum. Increasing 
the use of such fuels in the transportation sector has the 
potential to make substantial reductions in greenhouse has 
emissions. For any given fuel, increasing the fuel economy of a 
vehicle will decrease greenhouse gas emissions. Combining the 
fuel savings from reforming and increasing CAFE with reductions 
achieved under the AFS, annual emissions of carbon dioxide from 
cars and light equivalent of ``zeroing out'' annual emissions 
from 26 million automobiles.
    As part of the ``20-in-10'' commitment, the President has 
also issued an Executive Order in January of this year that 
directs the government to reduce fleet petroleum consumption by 
2 percent annually, increase the use of alternative fuels by at 
least 10 percent annually, increase the purchase of efficient 
and flexible fuel vehicles, make government buildings more 
efficient, and take other steps with regard to improving energy 
efficiency with respect to the government's purchase of power. 
The President's budget also redirects Department of 
Transportation funds to a new $175 million highway congestion 
initiative for State and local Governments to demonstrate 
innovative ideas for curbing congestion. These ideas include 
congestion pricing, commuter transit services, commitments from 
employers to expand work schedule flexibility, and faster 
deployment of real-time traffic information. In just 1 year, 
wasted fuel accounts for more than 20 million metric tons of 
carbon dioxide emissions.
    In addition to these initiatives, the President's Farm Bill 
proposal includes more than $1.6 billion of additional new 
funding over 10 years for energy innovation, including bio-
energy research, energy efficiency grants, and guaranteed loans 
for cellulosic ethanol plants.

                      u.s. epa climate initiatives

    While EPA explores options in response to the recent 
Supreme Court decision in Massachusetts v. EPA, we will 
continue to implement the initiatives that have proven 
effective in reducing greenhouse gas emissions, and which form 
an integral component of the President's comprehensive strategy 
to address climate change.
    EPA climate programs include a wide array of partnerships, 
which rely on voluntary measures to reduce greenhouse gas 
intensity, spur new investments, and remove barriers to the 
introduction of cleaner technologies. Many of these partnership 
programs provide near-term solutions that focus on reducing 
emissions. These programs complement the work of other Federal 
agencies investing in long-term research and development 
programs, such as the Department of Energy's (DOE) FutureGen 
and fuel cell development programs. EPA is also one of many 
Federal agencies participating in the multi-agency Climate 
Change Technology Program.
    In addition, EPA also invests in a long-term global change 
research and development program. EPA's global change research 
focuses on understanding the effects of global change 
(particularly climate change and variability) on air and water 
quality, ecosystems, and human health in the United States. The 
goal of the program is to produce timely and useful information 
and tools that enable resource managers and policymakers to 
more effectively consider global change issues in decision-
making. The program's activities are coordinated with other 
Federal agencies' climate change research through the U.S. 
Climate Change Science Program.

                             Transportation

    While transportation is crucial to our economy and our 
personal lives, it is also a significant source of greenhouse 
gas emissions. Travel growth has outpaced improvements in 
vehicle energy efficiency making it one of the leading economic 
sectors in greenhouse gas emissions. Through a combination of 
new technology development, voluntary partnerships, consumer 
information and renewable fuels expansion, EPA is working to 
reduce greenhouse gas emission from this sector. By focusing 
both on vehicles and fuels, these efforts follow the same 
successful approach the Agency has used to cut emissions from 
motor vehicles.

                   Reducing Vehicle Fuel Consumption

    EPA's SmartWay Transport Partnership is a public-private 
partnership that aims to reduce greenhouse gas emissions, fuel 
consumption, and criteria pollutants from ground freight 
transportation operations. Nearly 500 companies, including some 
of the nation's largest shippers and carriers, have joined the 
SmartWay program.
    The efforts of these companies, which include the use of 
fuel efficient technologies and anti-idling practices, will 
reduce greenhouse gas emissions and fuel consumption. EPA 
estimates that by 2012, the companies that participate in the 
SmartWay Transport Partnership will cut carbon dioxide 
(CO2) emissions by up to 66 million metric tons per 
year, and nitrogen oxide (NO2) emissions by up to 
200,000 tons per year. It will save to heat 17 million houses 
for 1 year.
    EPA also is working to develop and commercialize new, 
State-of-the-art low greenhouse gas technologies at its 
National Vehicle and Fuel Emissions Laboratory in Ann Arbor, 
Michigan. EPA invented and patented the world's first full 
hydraulic hybrid vehicle system, capable of achieving a 40 
percent reduction in greenhouse gas emissions and a 60-70 
percent improvement in fuel economy.

             Promoting Today's Transportation Technologies

    EPA is also working to maximize the potential of today's 
fuel-efficient technologies. For example, the recent phase-in 
of ultra low sulfur diesel fuel opens up new markets for clean 
diesel passenger cars and pickup trucks. These vehicles are up 
to 40 percent more efficient than conventional gasoline 
vehicles, reducing life-cycle carbon dioxide emissions by up to 
20 percent.
    In addition, EPA has ongoing efforts to keep the public 
informed about the fuel economy performance of the vehicles 
they drive. As evidenced by the million plus monthly ``hits,'' 
the on-line Green Vehicle Guide has proven to be a popular 
consumer tool to help car shoppers identify the cleanest and 
most fuel efficient vehicles that meet their needs. EPA 
recently issued new test methods designed to improve the 
accuracy of window sticker fuel economy estimates to better 
reflect what consumers actually achieve on the road. We also 
redesigned the fuel economy label to make it easier for 
consumers to compare fuel economy when shopping for new 
vehicles.
    Ensuring Access to Clean Renewable and Alternative Fuels. 
The Energy Policy Act of 2005 established the Renewable Fuel 
Standard (RFS)--a requirement for the use of 7.5 billion 
gallons of renewable fuels in the U.S. by 2012. EPA recently 
completed this rulemaking. The U.S. Department of Energy (DOE) 
now projects that ethanol use will greatly exceed the legal 
requirement, EPA estimates that the RFS will reduce carbon 
dioxide equivalent greenhouse gases by 8 to 13 million tons, 
about 0.4 to 0.6 percent of the anticipated greenhouse gas 
emissions from the transportation sector in the U.S. in 2012.

                           Energy Efficiency

    EPA has long recognized that energy efficiency offers one 
of the lowest cost solutions for reducing energy bills, 
improving national energy security, and reducing greenhouse gas 
emissions--all while helping to grow the economy through 
increased electric grid reliability and reduced energy costs in 
the natural gas and electricity markets.

                              Energy STAR

    In 1992 the EPA introduced Energy STAR as a voluntary 
labeling program designed to identify and promote energy-
efficient products. Computers and monitors were the first 
labeled products. Through 1995, EPA expanded the label to 
additional office equipment products and residential heating 
and cooling equipment. In 1996, EPA partnered with the U.S. 
Department of Energy for particular product categories. The 
Energy STAR label is now on major appliances, office equipment, 
lighting, home electronics, and more. EPA has also extended the 
label to cover new homes and commercial and industrial 
buildings.
    Through its partnership with more than 8,000 private and 
public sector organizations, Energy STAR delivers the technical 
information and tools that organizations and consumers need to 
choose energy-efficient solutions and best management 
practices. Over the past decade, Energy STAR has been a driving 
force behind the more widespread use of such technological 
innovations, such as LED traffic lights, efficient fluorescent 
lighting, power management systems for office equipment, and 
low standby energy use. In 2006, Americans, with the help of 
Energy STAR, saved $14 billion on their energy bills and 
prevented greenhouse gas emissions equivalent to those of 25 
million vehicles--the number of cars in California and Illinois 
combined.

                             Energy Supply

    In partnership with a variety of Federal agencies and other 
organizations, the Agency is currently engaged in a number of 
initiatives that foster development and deployment of cleaner 
energy production technologies. The power generation sector is 
a critical element in addressing climate change because the 
combustion of fossil fuels for non-transportation energy uses 
constitutes roughly 40 percent of the greenhouse gas inventory 
for the United States, with the majority of these emissions 
resulting from the burning of coal.

              Coal and CO2 Capture and Storage

    Coal is an important fuel to achieve energy security and 
increase economic prosperity in the United States. Currently, 
about 50 percent of electricity in the United States is 
generated from coal, and according to DOE, at current rates of 
consumption, coal could meet U.S. needs for more than 250 
years. To achieve our goal of energy security coal must 
continue to play a major role in the generation of significant 
contribution to reducing greenhouse gas emissions from coal-
fired electricity generation, while allowing continued use of 
our ample coal reserves. To address the potential environmental 
impact of coal-fired power plants, EPA, DOE, and others are 
exploring technological innovations that would allow coal to be 
burned more efficiently and with fewer emissions. Recognizing 
the importance of advanced coal technology, EPA is working to 
ensure that these new technologies are deployed in an 
environmentally responsible manner.
    The Administration is investigating the prospects for 
carbon dioxide capture from power plants and other industrial 
sources and long-term storage in geologic formations. EPA's 
role consists in ensuring that carbon capture and storage is 
developed and deployed in a manner that safeguards the 
environment. We are currently focusing our efforts on two 
fronts: (1) partnering with public and private stakeholders to 
develop an understanding of the environmental aspects of carbon 
capture and storage that must be addressed for the necessary 
technologies to become a viable strategy for reducing 
greenhouse gases; and (2) ensuring carbon dioxide storage is 
conducted in a manner that protects underground sources of 
drinking water, as required by the Safe Drinking Water Act.

                   Combined Heat & Power Partnership

    Combined Heat and Power (CHP) is an efficient, clean, and 
reliable approach to generating power and thermal energy from a 
single fuel source. By installing a CHP system designed to meet 
the thermal and electrical base loads of a facility, CHP can 
increase operational efficiency and decrease energy costs, 
while reducing emissions of greenhouse gases that contribute to 
climate change. EPA's CHP generation. The Partnership works 
closely with energy users, the CHP industry, State and local 
Governments, and other stakeholders to support the development 
of new projects and promote their energy, environmental, and 
economic benefits.

                        Other Industrial Sectors

    A number of EPA's climate initiatives cut across multiple 
industrial sectors:

                            Climate Leaders

    Climate Leaders is an EPA partnership that encourages 
individual companies and other organizations to develop long-
term, comprehensive climate change strategies. Partners develop 
corporation-wide greenhouse gas inventories, including all 
emission sources of the six major greenhouse gases 
(CO2, CH4, N2O, HFCs, PFCs, SF6), set an 
aggressive corporate-wide greenhouse gas emissions reduction 
goal to be achieved over 5 to 10 years, report inventory data 
annually, and document progress toward their emissions 
reduction goals. Since its inception in 2002, Climate Leaders 
has grown to include nearly 100 corporations whose revenues add 
up to almost 10 percent of the United States' gross domestic 
product and whose emissions represent 8 percent of total U.S. 
greenhouse gas emissions. Five organizations have achieved 
their GHG reduction goals--Baxter International, General Motors 
Corporation, IBM Corporation, National Renewable Energy 
Laboratory and SC Johnson.
    High GWP Gas Voluntary Programs EPA has a set of voluntary 
industry partnerships that are substantially reducing U.S. 
emissions of high global warming potential (high GWP) (HFCs) 
and sulfur hexafluoride (SF6)-are manufactured for commercial 
use or generated as waste byproducts of industrial operations. 
Some of these gases have valuable uses as substitutes for ozone 
depleting substances. However, some species of these gases, 
while released in small quantities, are extremely potent 
greenhouse gases with very long atmospheric lifetimes. The high 
GWP partnership programs involve several industries, including 
HCFC-22 producers, primary aluminum smelters, semiconductor 
manufacturers, electric power companies and magnesium smelters 
and die-casters. These industries are reducing greenhouse gas 
emissions by developing and implementing cost-effective 
improvements to their industrial processes. To date, these 
voluntary programs have achieved significant emission 
reductions and industry partners are expected to maintain 
emissions below 1990 levels beyond the year 2010.

                         International Efforts

    EPA's global leadership on climate change extends not only 
to our suite of domestic programs, but also to our pioneering 
and effective international partnerships.

                     Methane to Markets Partnership

    The United States launched the Methane to Markets 
Partnership in November 2004 with active participation from 
EPA, DOE, the U.S. Agency for International Development, and 
the State Department. The Methane to Markets Partnership is a 
multilateral initiative that promotes energy security, improves 
environmental quality, and reduces greenhouse gas emissions 
throughout the world. The Partnership consists of 20 Partner 
countries, and involves over 350 private sector and other 
Network.
    Under the Partnership, member countries work closely with 
private sector development banks, and other governmental and 
non-governmental organizations to promote and implement methane 
recovery and use opportunities in four sectors: oil and gas 
systems, underground coal mines, and landfills and animal waste 
management systems. Capturing and using ``waste'' methane not 
only provides an additional energy source that stimulates 
economic growth but also reduces global emissions of this 
powerful greenhouse gas. The United States has committed up to 
$53 million for the first 5 years of the Partnership. EPA 
estimates that this Partnership could recover up to 500 billion 
cubic feet of natural gas (50 MMTCO2) annually by 
2015.
    Asia-Pacific Partnership on Clean Development and Climate 
(APP) EPA is an active participant in this Presidential 
initiative, which engages the governments and private sectors 
in six key nations--Australia, China, India, Japan, the 
Republic of Korea and the United States--that account for about 
half of the world's economy, energy use and greenhouse gas 
emissions. Partners are enhancing deployment of clean energy 
technologies to address their energy, clean development, and 
climate goals. An example of APP success is the leveraging of a 
$500,000 U.S. Government grant to build the largest coal mine 
methane power facility in the world in China, which, when 
completed, will avoid the annual equivalent emissions of one 
million cars. Another success story is the provision of 
technical support to China to develop a voluntary energy 
efficiency label similar to Energy STAR.
    This Administration is meeting unparalleled financial, 
international and domestic commitments to the reduction of 
greenhouse gas emissions, and as outlined today, EPA plays a 
significant role in fulfilling those commitments. The 
initiatives discussed above represent only a sample of EPA's 
climate change activities. We will continue to move forward to 
address climate change in ways that produce meaningful 
environment benefits and maintain our nation's economic 
competitiveness.
    The recent Supreme Court decision in Massachusetts vs. EPA 
comes against the backdrop of this Administration's 
comprehensive climate policy. My testimony will now discuss the 
Supreme Court's decision.

                       the supreme court decision

    On April 2, the Supreme Court issued its decision in 
Massachusetts v. EPA. Prior to the Supreme Court decision, the 
D.C. Circuit had upheld EPA's denial of a petition to regulate 
greenhouse gas emissions from new motor vehicles under Section 
202(a)(1) of the Clean Air Act. In our briefs before the 
Supreme Court, we raised three arguments for why the Court 
should affirm the D.C. Circuit's decision. The Court, in a 5-4 
decision, disagreed with our three arguments and reversed the 
lower court decision.
    First, the Court found that Massachusetts had standing to 
sue and therefore could challenge the petition denial in 
Federal court. Specifically, the Court found that Massachusetts 
had suffered a risk of injury due to EPA's decision. One 
noteworthy finding in the majority's opinion is that it gave 
the State ``special solicitude'' in establishing the 
constitutional standing requirements. The dissent, written by 
Chief Justice Roberts, suggested he found this to be an 
unjustified expansion of established constitutional principles 
and precedent.
    Second, the Supreme Court held that the Clean Air Act 
authorizes EPA to address global climate change through the 
regulation of greenhouse gas emissions from motor vehicles. 
Importantly, the Court did not hold that EPA was required to 
regulate greenhouse gas emissions under section 202, or any 
other section, of the Clean Air Act. Rather, the Court merely 
concluded that greenhouse gas emissions were ``air pollutants'' 
under the Clean Air Act, and, therefore, they could be 
regulated under section 202 by the EPA subject to certain 
determinations as discussed below.
    The Court also considered whether--given the authority to 
regulate greenhouse gas emissions under section 202 the Clean 
Air Act--EPA properly decided not to regulate greenhouse gas 
emissions from motor vehicles. EPA's decision stemmed in part 
from expressions of uncertainty as stated in a 2001 National 
Research Council report on the science of climate change. In 
denying the petition in 2003, EPA also had articulated 
additional policy reasons for why even if the Agency had 
authority to regulate greenhouse gas emissions, it was not 
appropriate to do so at that time. Those reasons included the 
Administration's achievements through and investments in 
technology advancement and voluntary programs, as well as 
recognition of the global nature of addressing climate change 
concerns, which must take into account developing nations such 
as China and India. In contrast, the Court found that EPA could 
not consider such ``policy considerations'' as a basis for 
denying the petition.
    The Court held that, on remand, EPA must decide whether or 
not greenhouse gas emissions from motor vehicles cause or 
contribute to air pollution that is reasonably anticipated to 
endanger public health or welfare, or to explain why scientific 
uncertainty is so profound that it prevents making a reasoned 
judgment on such an endangerment determination. Importantly, 
the Court's decision explicitly left open the issue of whether 
EPA can consider policy considerations when writing regulations 
in the event EPA were to make an endangerment finding. Indeed, 
the Court seemed to recognize that EPA has significant latitude 
with regard to any such regulations.
    What is next? The Supreme Court will send the case back to 
the U.S. Court of Appeals for the District of Columbia. Then 
the Court of Appeals will most likely issue an order sending 
the petition back to EPA.
    While technically the petition is not yet back before the 
agency, EPA is exploring and studying the issues raised by the 
Court's decision, including potential ramifications on other 
provisions of the Clean Air Act. The Agency fully recognizes 
the decision as one of the most important environmental law 
decisions in year--accordingly, we are trying to assure that 
the Agency is in the best possible position to address its 
ramifications. However, given the complexity of the decision 
and the very short time that has elapsed since the Court issued 
the opinion, at this early date it is impossible today to 
understand and explain fully how the decision may have any 
specific impact.
    What I can tell you today is the Court left open the 
question of what procedure EPA is to follow on remand regarding 
a potential endangerment finding. Any such process should 
various procedural options to consider, including whether we 
should reopen the public comment period on the petition; 
whether we should hold a public hearing or hearings; and 
whether we should, or, are required to, use rulemaking 
procedures to decide the petition.
    In addition, I am aware of a number of other pending 
petitions, judicial cases, and permitting actions in which 
parties might reference the Supreme Court's decision in support 
of or against various positions. For example, the Governor of 
California 2 weeks ago met with me and my staff to discuss his 
views regarding the impact of the decision on California's 
request for a waiver of Clean Air Act preemption of its 
standards regulating greenhouse gases from certain motor 
vehicles. The D.C. Circuit Court of Appeals currently has 
before it consolidated challenges to 2006 revisions to the
    Section 111 New Source Performance Standards for utility 
boilers, and some of these challenges are based on arguments 
that we should regulate CO2 emissions from the 
boilers as part of the revised NSPS--this case was severed and 
stayed pending the Court's decision in Massachusetts v. EPA. 
There are air permit applications pending before the agency in 
which similar arguments have been made, and there are cases 
being litigated in the courts addressing California's and other 
States' greenhouse gas standards for motor vehicles.
    All these actions present complex issues of their own, and 
I cannot comment at this time on how the Supreme Court's recent 
decision may or may not relate to them. In my position as 
Administrator, I also must be mindful that the appropriate 
process is followed in addressing these issues, which requires 
that I not prejudge any determinations. At the same time, all 
these decisions make clear that we must be aware of potential 
broader ramifications. I can assure you that we are focusing 
not only on the complex issues directly addressed in the 
Massachusetts v. EPA decision, but on these issues as well.

                               conclusion

    The Administration remains committed to addressing climate 
change in a manner that promotes a healthy environment and a 
healthy economy. Today, I have outlined the myriad of programs, 
partnerships, and investments the Administration is deploying 
to meet this challenge. We look forward to analyzing the 
choices we must make in light of the Supreme Court decision.
    Thank you.

    Senator Boxer. OK. You have just stated that you have 
started the process to grant the waiver. Is that what I heard?
    Mr. Johnson. Madam Chairman, what I said is we have started 
the process, which is a public notice and comment on the 
petition itself. Written comments are due June 15, and there 
will be a hearing on May 22, in Washington, DC.
    Senator Boxer. OK. Can you give us a time line after the 
hearings are complete? What is your time line for making a 
decision?
    Mr. Johnson. What I committed to the Governor is that we 
would move expeditiously, but responsibly. Not knowing what the 
comments will be, that was the extent of my commitment.
    Senator Boxer. I am asking you more than that, because you 
don't report to the Governor, you report to us and to the 
President. So I am asking you what do you see your time line 
as? Give us a sense of it. Give us the quickest. Give us the 
longest.
    We need to know. We have Senators sitting here whose States 
have put out a lot of taxpayer money. We want to know what the 
schedule is. We are very happy that you did add this to today's 
testimony. We expected it. We are very happy it happened, but 
please tell us what is your general feeling as to how long it 
will take.
    Mr. Johnson. What I said to the Governor and the California 
Air Resources Board was that I would act on their request 
shortly after the Supreme Court had ruled its decision. I have 
honored that commitment, and I am reporting to you today that I 
will act expeditiously.
    Senator Boxer. Well, your people who work for you have told 
us that it could take three to 4 months maximum. Would you 
agree that that is accurate, three to 4 months to get this 
done?
    Mr. Johnson. I won't commit to a specific three to 4 month 
schedule because I don't know what the comments are.
    Senator Boxer. Do you agree with them that it could be done 
in three to 4 months?
    Mr. Johnson. Again, I would like to hold that in abeyance 
until I see what the comments are.
    Senator Boxer. OK. Well, we will call you back here right 
after the comment period has expired to then get your opinion, 
because I think I am asking you a very general question. Give 
me the shortest time. Give me the longest time. And you won't 
give us that answer, and we have had 11 States waiting for 16 
months. So when the comment period is completed, we will have 
another hearing. I will ask you about that.
    Now, it is my understanding that California has never been 
denied a waiver. Is that your understanding?
    Mr. Johnson. That is my understanding.
    Senator Boxer. OK. So you have laid out the early part of 
the schedule, but you will not know the rest of the schedule 
until you have seen the comments. So the comments are completed 
on what date?
    Mr. Johnson. The comment period closes June 15.
    Senator Boxer. OK. So then we will at that point set up a 
hearing to get your timeframe.
    Can you give me a schedule as to when you will take action 
to make an endangerment finding for emissions of greenhouse 
gases that would require regulation under the Clean Air Act?
    Mr. Johnson. As I said, Senator, the decision is complex, 
analyzing the endangerment, and the standards of what the Clean 
Air Act says. For the decision, we will move expeditiously, but 
we will move responsibly.
    Senator Boxer. OK. Now, let me again read to you what our 
President has said: ``The issue of climate change respects no 
border. Its effects cannot be reined in by an army nor advanced 
by any ideology. Climate change, with its potential to impact 
every corner of the world, is an issue that must be addressed 
by the world.'' Now, in addition, the Department of Defense has 
warned us.
    So, you are still telling me it is complex. So you can't 
give me any timeframe as to when you would make a finding as to 
whether or not this is a danger.
    Mr. Johnson. As I have said, we are going to be moving 
expeditiously, but we are going to be moving responsibly.
    Senator Boxer. When are you going to undertake this issue 
of determining whether or not you will make an endangerment 
finding?
    Mr. Johnson. It started on April 2, as soon as the Supreme 
Court issued its decision. That is when we began to consider 
the ramifications.
    Senator Boxer. And when you say we began, I assume this is 
behind closed doors. So what have you done so far, since April 
2nd?
    Mr. Johnson. I have had a number of briefings inside the 
Agency, and across the Federal Government.
    Senator Boxer. You have had briefings. And when will those 
briefings conclude?
    Mr. Johnson. As soon as I am satisfied that I have looked 
at all the options, and particularly what the Supreme Court has 
directed us to do, of making the decision as to whether there 
is an endangerment finding. Clearly, the Supreme Court said, as 
you pointed out, we have significant latitude in developing 
regulations under Section 202 of the Clean Air Act. I want to 
carefully consider all those options before I make a decision.
    Senator Boxer. OK. I just want to call your attention to 
the fact that the Court wrote on page 18, ``The harms 
associated with climate change are serious and well 
recognized.'' Just so that I understand, and I am going to have 
a second round, so I will hold here and turn to Senator Inhofe, 
but as I understand it, you have started within the Agency a 
review as to whether or not climate change, global warming is a 
danger, and whether or not you will make that endangerment 
finding, but you have no schedule as to when you will complete 
this.
    It takes me to Senator Carper's point. Either we are going 
to start or we are going to lose more time. We have lost a lot 
of time. So we will stay on this, and I would expect that you 
will be hearing from me for an update on how these meetings are 
coming, and at what point do you say, we are going to make a 
finding. Because I think it has been stated by others here who 
are attorneys that you have to be in good faith here. 
Everything the President has said, the DOD has said, you 
yourself has said, your spokespeople have said, and the embrace 
of the IPCC says, and our National Academy of Sciences says, 
that this is a danger.
    It just seems to me, and I sense this and I hope I am 
proven wrong, believe me, that I don't hear in your voice a 
sense of urgency as to when to decide to make this finding. But 
we will get back to it in the second round.
    Senator Inhofe.
    Senator Inhofe. Thank you, Madam Chairman.
    Administrator Johnson, I keep listening to my colleagues on 
this side as if you can just snap your finger and have this 
done. Even as Senator Bond said, in California, that the 
legislature said initially 4 years, and I understand maybe 6 
years to get into this issue.
    Those who say that we should rush into action, maybe I am 
wrong on this, but I am going to read to you the provisions of 
the Act that are potentially relevant to CO2. Stop 
me if you think any of these you would disagree with. All 
right?
    Mr. Johnson. Yes, sir.
    Senator Inhofe. Title I, that is your power and your 
manufacturing portion, Sections 108, 109, 110, 111, 112, 129, 
165, 172 and 173. That is in Title I.
    Mr. Johnson. Those are all the sections of the Clean Air 
Act under Title I that may be impacted by this decision.
    Senator Inhofe. All right. Title II, that is the 
transportation sector, and again, stop me if I am wrong on 
this. That would be Sections 202, 209, 211, 213, and 231, and 
then Titles V and VI, which is the permitting Sections 502, 
612, and 615.
    I guess there may be more, but my point is based on the 
Supreme Court decision earlier this month, is it reasonable to 
assert you can simply rush out on these regulations?
    Mr. Johnson. I think that would be irresponsible, sir.
    Senator Inhofe. Having gone through a similar thing in 
years past in terms of States getting into attainment, if you 
found that carbon dioxide constitutes an endangerment to public 
health, and you set ambient air quality standards, do you 
believe that some of the counties would be in attainment and 
others would be out? Or do you believe, as I believe, that all 
counties could be out of attainment?
    Mr. Johnson. I wouldn't want to speculate, Senator, as to 
what the impact would or wouldn't be. Again, my first focus is 
evaluating the Supreme Court decision with regard to motor 
vehicles and what this means. Other parts of the Clean Air Act 
add to the complexity. I said this decision is very complex and 
that we want to take sufficient time, moving expeditiously, but 
responsibly to act.
    Senator Inhofe. Let me ask you this. How would States 
demonstrate a plan to attain these standards if in fact ambient 
air quality emissions would continue to climb because of China, 
India, Mexico, Brazil, other developing countries? Even if the 
States were to shut down all manufacturing, shut down all 
generation plants, couldn't they still be out of attainment?
    I think that is the reason, as the Chairman pointed out in 
quoting President Bush, he said it is a problem that has to be 
addressed by the world, not just by us. What is your thinking 
about that? Am I way off base when I say that a State could 
shut down everything and still have the problem?
    Mr. Johnson. It is clear that for global climate change, 
both from developing as well as developed nations, we need to 
be working together. By our own estimates, by the year 2015, 
developing nations will actually overtake developed nations 
with regard to greenhouse gas emissions.
    So it is not good enough just for the U.S. to be doing it 
alone, but in fact to be doing it on a world scale. That is why 
the President, under his leadership, has initiated the Asia 
Pacific Partnership, the Methane to Markets Partnership and 
other programs to try to reach out and help that part of the 
world.
    Senator Inhofe. The amount that we have in this 
Administration as proposed, and we have spent in terms of 
technology and in terms of the partnership approaches is a huge 
amount. I don't know how anyone can say that we are not 
addressing it in terms of a percentage of the overall budget, 
because it has been just unbelievable.
    In my State of Oklahoma, it is my understanding there are, 
with clean coal technology, three pending applications for 
coal-generated electricity. And yet we went through 15 years 
between 1990 and 2005 without licensing any coal generation 
plants. We were talking about China. China has been cranking 
out about one every 3 days.
    Do you see any indication, sitting over here where you sit 
and looking around the world, that this is not just a huge 
world problem, if we recognize it as a problem, if the findings 
are that carbon dioxide constitutes an endangerment to public 
health, that we in this Country can do it without other 
countries participating?
    Mr. Johnson. Senator, it is a global problem, and we need 
help across the world.
    Senator Inhofe. Yes. If you were to regulate greenhouse 
gases under the Clean Air Act, do you believe that the 
structure of the Act is well suited for regulation?
    Mr. Johnson. Well, that is one of the questions we are 
asking ourselves, Senator, as part of our analysis, whether in 
fact all the parts of the Clean Air Act, which you recited, are 
applicable and whether that is the best approach.
    Senator Inhofe. Yes. If you were to craft new source 
performance standards, what factors would go into the 
determination of those standards?
    Mr. Johnson. At this point, Senator, I wouldn't want to 
speculate on new source performance standards, particularly 
those under Section 111. Again, the focus of the Supreme Court 
decision was on motor vehicles, which is Title II of the Clean 
Air Act, which is where our focus is, but also considering what 
the implications are across other parts of the Act, including 
the NSPS, the new source performance standard.
    Senator Inhofe. And in those standards, wouldn't you 
include the cost benefits?
    Mr. Johnson. That is one of the issues that, depending upon 
under what part of the Clean Air Act, that we would consider 
regulating.
    Senator Inhofe. I understand that. This is a problem 
because they always say that we can't do that, and I saw the 
Administrator shaking her head. I look forward, Administrator.
    But it is my understanding that was just if it is an 
endangerment of public health that you would not use it. Maybe 
I am wrong on that, but I can assure you that the cost is going 
to be something that is going to be discussed at some length.
    How wide-ranging is the authority that the Supreme Court 
has granted you? You have new authority now. Does this go into 
regulating fuels, power plant emissions, factories? How wide-
ranging is it?
    Mr. Johnson. They spoke to Section 202 on motor vehicles, 
but we are assessing both the impact under Title II, as well as 
under other titles of the Act, from stationary sources under 
Title I, all the way to Section 615 which addresses the 
stratosphere.
    Senator Inhofe. Yes. When they first started talking about 
this--
    Senator Boxer. Senator, your 7 minutes are up. So could you 
finish?
    Senator Inhofe. I am finished. Thank you very much.
    Senator Boxer. Thank you.
    We are going to go back and forth in order of arrival.
    Senator Lautenberg.
    Senator Lautenberg. Thank you.
    Mr. Johnson, what we all heard here this morning is that 
just using California, for instance, as an example, we saw the 
placard that confirmed a point of view that it could take up to 
6 years to be able to start reducing greenhouse gas according 
to the standards of global warming and greenhouse gases.
    But do we do better by not starting because it is going to 
take so long to get these changes into place?
    Mr. Johnson. Senator, we began reviewing this decision as 
soon as the decision was issued on April 2. It is very complex. 
As Senator Inhofe pointed out, there are many parts of the 
Clean Air Act that may be impacted. I want to make sure that I 
consider all options, carefully consider them. I understand the 
sense of urgency that has been expressed here. I want to move 
expeditiously, but I do want to move responsibly.
    Senator Lautenberg. Yes. What is the biggest 
responsibility? Is it to make sure that prices don't go up 
some? Or is it to protect the lives of those in the future, the 
lives, the health and the lives of those who will be here 
during the years ahead? What is the biggest responsibility? 
Public health?
    Mr. Johnson. The biggest responsibility is, according to 
the Supreme Court, is to maximize----
    Senator Lautenberg. The Supreme Court?
    Mr. Johnson. Well, they have given a very specific 
direction, if you will. Justice Scalia, even though dissenting, 
put a three part test or three steps that his summarizes what--
--
    Senator Lautenberg. How about your summary?
    Mr. Johnson. Well, my summary is: the first step is to 
determine under the Clean Air Act whether cause and contribute 
then triggers the endangerment finding. As the Supreme Court 
says, if it does, then I am required to regulate. If it does 
not, then I am not required to regulate.
    Senator Lautenberg. Isn't there something in the mandate at 
EPA that when there are questions about whether or not public 
health was endangered, that they have to move on it? We know 
that it is a complicated task. We know that it has been looked 
at for years. We also know that there has been enormous 
resistance on the part of EPA to get going on these things.
    We also know that there was considerable doubt at EPA about 
whether or not it pays to move it. In the opinion of the Court, 
when they issued their opinion, they said in their view, EPA 
nevertheless maintains the decision not to regulate greenhouse 
gas emissions from new motor vehicles contribute so 
insignificantly, in EPA's view. And they go on to say that 
petitioner's injuries, that the Agency cannot be hailed into 
Federal court to answer for them, for the same reason. EPA 
doesn't believe that any realistic possibility exists that 
relieve petitioners so they could mitigate global climate 
change and remedy their injuries.
    And here we have heard about the futility of our pursuit 
because China and India are going to contribute more greenhouse 
gas in the future. So we are saying, if the fire is next door 
in the building down the block, why bother? It is not getting 
to us. I don't see that kind of laissez faire attitude, to say, 
well, it is going to be terrible anyway; why bother?
    They say here, directing EPA's view, the predicted increase 
in greenhouse gas emissions from developing nations, 
particularly China and India, are likely to offset any marginal 
domestic decrease.
    So is it your view that it is not worth bothering because 
these other countries are just going to make it bad anyway?
    Mr. Johnson. Senator, my view is to implement what the 
Court has directed me to do under the Clean Air Act. That is 
what I am in the process of doing. I am going to do it 
expeditiously, but I am going to do it thoughtfully and 
responsibly.
    Senator Lautenberg. Well, we know you are thoughtful. We 
just wish you were more hasty.
    Thanks very much.
    Senator Boxer. Thank you, Senator.
    Senator Thomas.
    Senator Thomas. Thank you, Madam Chairman.
    Administrator, if you kind of take a broad look at 
regulation versus incentives for reducing carbon and having 
cleaner energy produced, how do you measure those two things in 
terms of the accomplishment of our goals?
    Mr. Johnson. I think we all recognize there are many tools 
in our toolbox for dealing with global climate change. 
Legislation is one tool. Regulation is a second tool, and 
partnership programs are certainly a third tool. What our 
experience to date at EPA is that our partnership programs are 
working. They are delivering environmental results. They are 
reducing greenhouse gas emissions, whether it be our ENERGY 
STAR Program or our Methane to Market Program, or as we move 
into our Asia Pacific Partnership Program, or Climate Leaders 
Program.
    All the programs that I mentioned in my written testimony, 
all contribute to reducing greenhouse gas emissions. Of course, 
what is before me today, which is the subject of this hearing, 
is now, given the Supreme Court's decision, what does this mean 
for regulation at EPA. That is what I am sorting through right 
now.
    Senator Thomas. Sure. I understand. There is, of course, 
California, for example, has great demands for energy, and 
those demands keep growing. They say we don't want any energy 
made from coal, but that will turn the lights off if they don't 
do that.
    So we need to balance between having regulations and moving 
toward that, and having ways to produce energy in another way, 
it seems to me, in order that we have to have energy. We have 
to have energy.
    Mr. Johnson. We have to have energy.
    Senator Thomas. It is a little hard.
    You mentioned the Asia Pacific Partnership. I think one of 
the witnesses there believes that the activities with the Asia 
Pacific Partnership, if I can quote his statement, ``utterly 
ineffective effort to look busy.'' How do you react to that 
assessment?
    Mr. Johnson. Well, as one of the world's leaders, we are 
the first country to reach out to our Asia Pacific partners to 
actually begin addressing global climate change, and on 
specific projects, specific areas such as, like you said, clean 
energy, clean coal technology, to actually deliver results.
    So I am very proud of the fact that we are the first 
country to reach out and that we are working to deliver 
results, not only here in the United States, but across the 
globe.
    Senator Thomas. Climate change is kind of a global issue, 
isn't it?
    Mr. Johnson. It is.
    Senator Thomas. I guess I continue on the Energy Committee 
and dealing with some of these things, it is sort of a balance 
between having some regulations, which is rather easy to do, 
and sit here and do it in the Congress; it is another to be 
able then to produce the energy that is necessary under those 
regulations. So I hope we can give as much attention to doing 
some of the things we now know how to do. Nuclear energy, for 
example, is very clean. We know how to do that. We know how to 
make clean coal. We can reduce that, but still we haven't done 
anything to encourage IGCC plants. We haven't got FutureGen on 
the ground yet, and those kinds of things.
    So you noted in your testimony that since 2001, we have 
spent $35 billion on CO2 reductions in the 
government.
    Mr. Johnson. Yes.
    Senator Thomas. How does that compare with what other 
countries are doing? How do you evaluate the effectiveness of 
that $35 billion?
    Mr. Johnson. That is an unparalleled investment. No other 
country in the world has invested as much as the United States. 
Not only is that investment for science and technology, as well 
as some tax incentives, but we are delivering programs. I 
talked about some of those programs, certainly in the 
partnership area, and we are delivering real results.
    Senator Thomas. Thank you very much.
    Thank you, Madam Chairman.
    Senator Boxer. Thank you very much, Senator.
    Senator Whitehouse?
    Senator Whitehouse. Thank you, Chairman Boxer.
    Administrator Johnson, in your view, what is the single 
greatest environmental hazard facing our Nation and our world 
right now?
    Mr. Johnson. I would not identify one. As Administrator, I 
see a number of challenges.
    Senator Whitehouse. Pick the one that you think is the most 
serious.
    Mr. Johnson. I don't see one as being the most serious. I 
see a number of issues ranging from clean water and 
infrastructure, to air issues, including global climate change, 
to dealing with hazardous waste sites.
    Senator Whitehouse. So you think global warming is on 
exactly the same scale and of no greater hazard to our Nation 
and our world than, say, an infrastructure issue or the cleanup 
of toxic waste facilities?
    Mr. Johnson. I would say that they are all very serious 
issues in need of environmental protection, and they all need 
to be addressed in an appropriate way.
    Senator Whitehouse. Isn't it part of your job to rank them 
in terms of priority and define what the most significant 
hazards are that our Country faces, so that you can, if there 
is in fact a difference, proceed against it with due regard for 
the priority that it entails?
    Mr. Johnson. Indeed, it is my responsibility to protect 
public health and the environment, and I take that 
responsibility, as I have for 26 years at EPA, very seriously. 
But to put all the Agency resources on one issue to the 
exclusion of others would be foolhardy, in my opinion.
    Senator Whitehouse. I think you will agree that that was 
not the question I asked, was it, Administrator?
    Mr. Johnson. I wasn't sure where you were headed, sir.
    Senator Whitehouse. Don't anticipate where I am heading. 
Just answer the question. That is all you need to do. And the 
question is: What is the most serious environmental hazard that 
we face in our Country and our Nation? Is that a complicated 
question?
    Mr. Johnson. It is not complicated at all, and I will give 
you my same answer. I think that there are a number of issues 
of equal importance, and that it is important as a Nation, and 
certainly as an Agency, that we address all of those, including 
global climate change.
    Senator Whitehouse. You astonish me.
    In the months leading up to the Massachusetts v. EPA 
decision, what was your view of the argument that you had 
regulatory jurisdiction in this area?
    Mr. Johnson. Senator, I now accept what the Supreme Court 
has said. What I thought of the opinion before doesn't really 
matter because it is now the Supreme Court's decision. I accept 
it. CO2 is a pollutant and now I am moving 
expeditiously, but responsibly, to decide what are next steps 
at EPA.
    Senator Whitehouse. I am asking you what you thought 
beforehand of the argument.
    Mr. Johnson. As I said, I am not going to get into 
revisionist history. It was the Agency's position. I am the 
head of the Agency. We thought that it was not clear as to it 
being a pollutant. That is certainly what our position was. 
Clearly, for the Court, it was not a unanimous decision, five 
to four, so clearly the Supreme Court had questions even of 
itself. But for now, I accept the decision and now my focus 
is----
    Senator Whitehouse. Did you think it was a legitimate 
argument being made by the other side?
    Mr. Johnson. Again, I accept the Court's decision and I am 
moving forward with----
    Senator Whitehouse. I am not asking you about going 
forward. I am asking you about going back. That is the focus of 
my question. The question is, what did you think then? Did you 
think that this was a credible argument? Did you think that 
these were, you know, crazy people? That this was a wild idea 
that you didn't need to prepare for the eventuality that you 
might lose the case?
    Mr. Johnson. It was a credible argument and, again, my 
focus is now on the decision moving forward, not revisiting the 
past.
    Senator Whitehouse. But in evaluating your performance, I 
think we need to evaluate the past, don't we?
    Mr. Johnson. I will leave that up to you, sir.
    Senator Whitehouse. OK. Well, here is where I am. I think 
you agreed that it was a somewhat legitimate credible argument, 
even though the EPA took the contrary position. It is at least 
one of the most significant environmental issues facing our 
Nation and our world. Wouldn't it be prudent in a situation 
like that to prepare a little bit in advance so you are not 
starting on day one after the decision comes down? Wouldn't it 
be prudent to have in place some of the administrative 
infrastructure ready to move forward in the event that the 
decision went against you?
    Mr. Johnson. Senator, I think what is prudent is to focus 
on the decision that was made and what our next steps are, and 
that is where I am focusing my attention. What was done in the 
past, whether it was under Administrator Browner's tenure or 
Administrator Reilly's, is interesting historically, but what 
is before the Agency now is a decision by the Supreme Court. 
How that is carried out under the Clean Air Act is my 
responsibility and I take it very seriously. I am working on it 
very carefully, but expeditiously and responsibly.
    Senator Whitehouse. But how it is carried out under the 
Clean Air Act now--my apologies. My time is exceeded.
    Senator Boxer. Thank you.
    Senator Lieberman.
    Senator Lieberman. Thanks, Madam Chair.
    Mr. Johnson, thanks for your testimony. I want to ask you a 
couple of questions emanating from the Supreme Court decision.
    In your written testimony today, you say, ``that the Court 
left open the question of what procedure EPA is to follow on 
remand regarding a potential endangerment finding.'' I was 
troubled by that, and let me put it in this context. As I have 
followed EPA decisionmaking processes in these regards, once 
the Agency has found an endangerment, which is to say that a 
pollutant endangers public health and welfare, then it has 
generally speaking acted to eliminate the factors that caused 
that endangerment, by its regulations.
    So why would the procedure in this matter be any different 
than the ones EPA has followed to date with respect to other 
pollutants that it finds endangers public health and welfare?
    Mr. Johnson. Well, Senator, you are absolutely right. In 
fact, the procedure, the process is that we need to look at all 
of the science, look at what the Clean Air Act directs us to do 
under the various sections. In this case, the Supreme Court 
focused on Section 202(a) dealing with motor vehicles.
    So what does that mean with regard to the Clean Air Act? 
And has an endangerment finding been made? So just like we have 
done for other pollutants, that is one of the key steps to 
address, is there endangerment. And so we are following that 
same process on that very important question of endangerment, 
and then if there is, certainly the Supreme Court has directed 
us that we must regulate.
    Of course, if they say that isn't endangerment, then we 
should not regulate.
    Senator Lieberman. Right. So tell me what you meant when 
you said in your statement, then, that the Court left open the 
question of what procedure the Agency is to follow on remand 
regarding the potential endangerment finding? In other words, 
in what way would you contemplate, and I know you have to make 
a finding. I am obviously not asking what your finding will be 
at this point. But how might you change the procedure from what 
it has been traditionally been under your leadership or that of 
your predecessors?
    Mr. Johnson. Again, we would follow the same procedure that 
we have for other rulemakings. If we chose to go down that path 
and there was an endangerment finding made, again, the first 
question, which the Supreme Court clearly left to me: is there 
an endangerment finding or not? And if there is, then proceed 
with regulation. But as they point out, the Supreme Court also 
uses the phrase, even in that, there is ``significant 
latitude,( that is the point in that phrase, in developing regs 
under Section 202 of the Clean Air Act.
    Senator Lieberman. OK, I've got you. So in some sense what 
you have answered alleviates some of my concerns, as I 
understand your answer, which is to say that while the Court 
left open the question of what procedure you would follow on 
remand regarding the endangerment finding, that it is your 
intention to follow the procedures that you generally follow.
    Mr. Johnson. Yes.
    Senator Lieberman. Thank you.
    I have one final question. In writing for the majority of 
the Court, Justice Stevens noted, ``EPA does not dispute the 
existence of a causal connection between manmade greenhouse gas 
emissions and global warming.'' Is that correct?
    Mr. Johnson. That is correct.
    Senator Lieberman. OK. So it would seem then that the only 
way you as EPA Administrator could avoid finding that manmade 
greenhouse gas emissions endanger public health and welfare 
would be if you determined that global warming does not 
endanger public health and welfare. As a scientist, and a 
respected scientist, surely you acknowledge that global warming 
does endanger public health and welfare; that there is enough 
evidence to suggest it. Is that not correct?
    Mr. Johnson. Senator, global warming is a serious issue, 
and I certainly support, as does the President, the two IPCC 
reports that have been referenced earlier. Taking into context 
what the Clean Air Act directs me to do, and making the 
endangerment finding, is precisely what I am in the process of 
doing. And so, again, I am not prejudging that decision. It is 
complex, but that is certainly the heart of the first step of 
the process that I need to go through in making the decision, 
because if I make an endangerment finding, then we must 
regulate. If I don't make an endangerment finding, then we 
don't regulate.
    Of course, the Court also, if you will, identifies a third 
option, which then says you have to explain why we chose the 
third approach.
    Senator Lieberman. Thanks. My time is up.
    Thank you.
    Senator Boxer. Thank you, Senator.
    Senator Warner, welcome.
    Senator Warner. Thank you, Madam Chairman. I welcome this 
opportunity with our distinguished Administrator. In the next 
row behind us there are many familiar faces that have been in 
this room in years past. So I look forward to their testimony.
    I am down on the Armed Services Committee running that 
hearing with the Chairman this morning, so I am sorry not to 
have been here earlier.
    So you are about to make this endangerment to public health 
decision. What sort of timeframe are you looking at?
    Mr. Johnson. Senator, that has been the million dollar 
question all morning.
    Senator Warner. If you have answered it, then I have kindly 
contributed a worthwhile question to this hearing. Is that it?
    [Laughter.]
    Senator Boxer. From my perspective, absolutely.
    Mr. Johnson. Senator, I answered the question. I am not 
sure that everyone on the Committee likes my answer.
    Senator Warner. I want to give a little bit of preamble to 
the question. Because our Country, on this Administration, is 
spending quite a substantial amount of money trying to 
stimulate, private sector and everybody else, to sort of on 
their own do certain things. So it seems to me that two trains 
moving along, a rather heavy expenditure on our taxpayers, 
moving in this direction, and now your key finding, and back to 
the question of what is your timeframe.
    Mr. Johnson. Senator, my response is that I am moving very 
expeditiously, but I am going to move responsibly before making 
a decision. Clearly, this is an issue of great importance. 
Global climate change is a serious issue. But I believe that I 
need to take all the science, the policy implications, the 
legal implications into account before I make a decision as to 
what the next steps are, given the Supreme Court decision.
    This is an issue that has been debated since the late 
1970's. There have been multiple legal opinions, there have 
been multiple analyses done. Having said that, that is not an 
excuse for not addressing what the Supreme Court said. I am 
just merely pointing out that there is a lot of history. Again, 
my interest is to move expeditiously, but move responsibly. 
This is a major decision by the Supreme Court, and what 
follows, whatever decision I end up making, will be a major 
decision as well. I want to make sure that I have sufficient 
time, but at the same time I want to be responsible.
    Senator Warner. I have your answer very clearly in mind. 
Let me suggest that, I hope you are not just going to take 
everything that you recounted, all the money, opinions and so 
forth, you will assess those. But what new initiatives might 
you take that probe other areas of knowledge to bring into this 
difficult equation, all aspects of it? In other words, aren't 
there some areas that independently you might go out and seek 
some advice and some ideas? Let's move beyond the frontiers as 
they are now and try and find other opinions.
    Mr. Johnson. Those are among the options that we are 
considering. Again, I am considering all options, given the 
Supreme Court decision. Again, the Supreme Court decision, as 
you know, was focused on motor vehicles. But it has potential 
implications for other areas of the Clean Air Act, from 
stationary sources to other parts of the Clean Air Act. I want 
to make sure we are considering those before making a decision.
    Senator Warner. Lastly, how are you proposing to work 
through the complex issues leading to the rest of the world? 
Therein, the Secretary of State is primarily responsible. We 
have to act in concert with the other nations. We cannot simply 
push America so far ahead that we begin to jeopardize our 
economic stability in the world and competitiveness.
    How do you factor that in?
    Mr. Johnson. Sir, you are asking the very question that I 
am asking my staff and my colleagues across the Government: 
What are the requirements under the Clean Air Act, how or 
should these other factors be taken into consideration? Those 
are very important questions. Again, I am emphasizing why this 
is a complex decision and one, in my opinion, that we should 
not rush to judgment. We need to move expeditiously, which I 
am, but let's not rush to judgment.
    Senator Warner. Thank you very much.
    Thank you, Madam Chairman and our distinguished Ranking 
Member.
    Senator Boxer. Next is Senator Klobuchar.
    Senator Klobuchar. Thank you, Madam Chairman and 
Administrator Johnson.
    As I am listening to this and you correctly acknowledge 
that the Supreme Court decision is about Section 202 and the 
emissions from mobile sources. But you are also saying it is 
possible as you perceive it, some kind of rulemaking, you would 
include stationary sources as well?
    Mr. Johnson. What I said, Senator, is that we are 
evaluating the implications, not only for the motor vehicle 
section, Section 202, as you point out, but also for other 
sections of the Clean Air Act, which include stationary 
sources. We are evaluating what are the implications of the 
Supreme Court decision for these other areas.
    Senator Klobuchar. But you are evaluating it, but is it 
possible that you would promulgate some sort of rules regarding 
stationary sources? Is that one of the things you are 
considering, or are you just seeing what effect doing something 
about emissions would have, mobile sources would have on 
stationary ones?
    Mr. Johnson. My first focus is dealing with the petitions 
before the Agency, actually not yet before the Agency. The 
Court has not remanded or, if you will, sent the decision 
officially to the Agency, which I expect soon. We don't even 
have the decision officially before the Agency. So my focus is 
on the motor vehicle piece and also considering other 
implications.
    Senator Klobuchar. So it could require another Supreme 
Court decision to get you to the place of looking at the 
stationary sources?
    Mr. Johnson. Again, I am looking at what are all the 
implications. This decision is complex. Then determining what 
our next steps are under the Clean Air Act.
    Senator Klobuchar. Do you consider yourself as some kind 
of, as the EPA, independent mission by virtue of your job to 
move on this outside of the Supreme Court decision? You 
personally just in answer to one of the questions that you and 
the President support the findings of the scientists for their 
reports that I addressed in my opening comments. So is there 
something outside of the Supreme Court decision that would give 
you the authority you would need to start moving on this?
    Mr. Johnson. Senator, under the Clean Air Act, the 
responsibility for making the decision on the Clean Air Act 
rests with the Administrator. But just as all administrators, I 
think good government includes working with my other Federal 
colleagues, including the White House.
    Senator Klobuchar. OK. In your opening comments, you talked 
about how you had seen the growth of greenhouse gas, it went up 
by less than 1 percent in 2005. You said it showed the 
Administration's program to address global warming is 
delivering real results. Then I saw this report released by the 
Department of Energy that said that the slow growth in 
emissions from 2004 to 2005 can be attributed mainly to higher 
energy prices that suppressed demand, low or negative growth in 
several energy-intensive industries, and weather-related 
disruptions such as Katrina.
    So how do you respond to their take on why we saw slower 
growth, compared to your take?
    Mr. Johnson. I think there are many reasons why we see a 
reduction. One of those, which we have talked about before is, 
for example, our ENERGY STAR program. We keep track of that. 
This past year, Americans saved $14 billion in energy bills and 
prevented greenhouse gas emissions equivalent to 25 million 
cars. We track that. So we think that program and other 
programs are making a difference.
    Clearly there are other factors that make a difference, as 
the Department of Energy has pointed out as well.
    Senator Klobuchar. And I just want to again reiterate that 
this report said that that slow growth could be attributed 
mainly to these other factors, beside any kind of program. 
Because it says mainly to higher energy prices, suppressed 
energy demand, low or negative growth in several energy-
intensive industries, and weather-related disruptions in the 
energy infrastructure along the Gulf Coast that shut down both 
petroleum and natural gas operations.
    Mr. Johnson. I would also ask you to take a look at what 
our trends are, not just over 1 year. Certainly, as you look 
year to year at the trends of greenhouse gas intensity, in 
fact, it is not just that one snapshot of 1 year, as the 
Department of Energy said, but the long-term reduction in 
greenhouse gas intensity.
    Senator Klobuchar. Thank you.
    Senator Boxer. Thank you, Senator.
    Senator Carper and then Senator Cardin. And then, what I am 
going to do, because Administrator Johnson has to go to a 
meeting, I am going to ask unanimous consent if it is OK, 
rather than just decree this, that Senator Inhofe and I would 
have an additional round, and if members don't mind, we will 
then go to the former EPA Administrators, who have been waiting 
patiently.
    Is that all right?
    Senator Inhofe. I object. Let me explain why. Never in the 
years I have been on this Committee and in the 4-years that I 
chaired it, witnesses always, most of the time, tell us what 
time they are available. He was available until 11:30. And I 
don't recall one time I had my staff check on it, that we have 
not kept our commitment to a witness. I don't think we should 
do it. I think at 11:30, that witness should be excused and we 
should go to the next panel.
    Senator Boxer. Well, Senator, his staff has agreed he can 
stay and extra 10 to 15 minutes.
    Senator Inhofe. If that is the case, that is different.
    Senator Boxer. The point is, I don't want to get into an 
argument about this. But let's just move on. Otherwise everyone 
else will have a round, and if the Administrator leaves in the 
middle, I can't help that. But we are going to move forward 
with Senator Carper.
    Senator Inhofe. I just want to find out----
    Senator Boxer. I wouldn't say it if it wasn't accurate. 
Thank you.
    Senator Carper. I don't object to moving forward. Mr. 
Johnson, welcome again. I talked about this a little bit 
before, and I just want to come back to it again.
    I would be interested in us finding out what we can do now, 
not next year, not in the next Administration, but what can we 
do now? Not necessarily what we can do, but to some extent what 
you can do, what you and the folks you have at EPA can do, that 
none of us are going to quarrel with that would help lay the 
groundwork for moving forward. I have introduce legislation 
that focuses on the utility sector, as you know. You and your 
folks were good enough to model that proposal, along with the 
President's proposal and the earlier proposal by Senator 
Jeffords. We are grateful for that.
    Mr. Johnson. Thank you.
    Senator Carper. Here is what I am interested in finding 
out. In terms of things that can be done now, we have heard 
from several people that among the steps that can be taken, the 
first one could be developing a detailed registry of an 
inventory of greenhouse gas sources in the U.S., having a 
better understanding of the major sources of greenhouse gases. 
My view is to help us target our regulations better.
    Another important first step would be to develop health and 
safety standards for carbon sequestration. As you may know, I 
am an advocate, a strong advocate for clean coal. I want us to 
be able to use coal to generate electricity, and I would like 
to do it in a way that puts out a lot less CO2 and 
other bad stuff into our air.
    One of the things that is going to make sure that happens 
is the ability to inject carbon dioxide gases into the ground. 
If we are going to ask people to do that, we ought to have a 
proper set of rules governing that practice.
    The third item I am going to ask you to comment on deals 
with whether or not EPA could help us with agriculture 
sequestration and carbon dioxide. We have talked about this, 
our farmers can be part of the solution to global warming. The 
bill that I have introduced with some of my colleagues seeks to 
promote those efforts and to reward them.
    I would like to see EPA develop standards and practices for 
our farmers to begin implementing, so they can sell offsets in 
a cap and trade system.
    Those are really small, but I think not insignificant steps 
that could be useful in helping us to answer the question how 
to regulate greenhouse gases. What I want you to do, I am not 
going to ask you to commit to a time table here to say, this is 
when we will promulgate regulations or this is when we are 
going to start writing the regulations or this is when I am 
going to invite the comment on proposed regulations.
    But what I am looking for is your reaction. Those three 
areas, are those three areas that could be potentially 
fruitful, potentially beneficial, that are not full of 
controversy, that we could actually get started? And if we pass 
legislation this year, and that is great, whether we do or not, 
having done those things, make progress on those things, better 
inform the legislative process?
    Mr. Johnson. Those are three very important issues. 
Certainly, again, as part of our overall decision as to next 
steps after we sort through the endangerment findings, carbon 
sequestration, whether it is geologic or agriculture driven, 
and what kind of additional guidance, besides the guidance we 
put out in March in terms of regulation, those are all very, 
very important questions. I look forward to working with you, 
Senator, and certainly I will have my staff followup with you 
as to next steps.
    Senator Carper. Again, there are three that I am interested 
in focusing on. One, implementing a detailed registry and 
inventory of greenhouse gas sources here in the United States, 
that would be No. 1. No. 2 is to establish health and safety 
standards for the operation of geological sequestration of 
greenhouse gases. That would be No. 2. And the third we would 
like to work with you on is to establish standards and 
practices for the measurement and verification of emissions 
offsets for agricultural sequestration.
    I just want us to get started.
    Mr. Johnson.  I look forward to future conversations.
    Senator Carper. Thanks. I look forward to that as well.
    Senator Boxer. Thank you very much. Senator Cardin.
    Senator Cardin. Thank you, Madam Chair.
    Administrator Johnson, I have listened very carefully to 
your answering my colleague's questions. There is no question 
that you have the responsibility to carry out the Supreme Court 
decision. I hear you say that. But you also have the 
responsibility to implement the authority of Congress and the 
intent of Congress and to carry that out.
    I think another key responsibility you have as the 
Administrator, you have the opportunity given to you by 
Congress, given to you by your position as Administrator, and I 
see Administrator Browner, who served in a Democratic 
administration, and Administrator Reilly, who served in a 
Republican Administration. I think both of those individuals 
carried out that responsibility, knowing what they could do to 
help future generations as far as the environment of our 
Country with great distinction.
    I just would hope that you would talk with them and use 
this opportunity you have as Administrator to say at the end of 
the day what you want to make sure you have accomplished, 
within the authority given to you by Congress, a better 
environment for future generations. I understand you have to 
make a decision on the California waiver, that you need to go 
through a process in making that decision. And we want you to 
go through that process. It has a direct effect on the people 
of Maryland. As you know, Maryland is one of those States whose 
legislature passed the California standards, and we need the 
California waiver to be granted in order for our State to move 
forward.
    To me, I think it is kind of an easy decision, quite 
frankly. I know that you are in a comment period that, I 
believe you said expires on June 15th, starts today, by the 
signing and then ends on June 15th.
    Mr. Johnson. The 15th, right.
    Senator Cardin. So I am just going to say what I think is 
reasonable. I know I can't pin you down to a specific time. But 
I think it is reasonable, within 30 days after the comment 
period ends, for us to have a decision on the California 
waiver. I am just letting you know how I think we are going to 
be judging your time schedule on that. Thirty days seems 
reasonable to me. Any objections?
    Mr. Johnson. As I said earlier, I want to withhold judgment 
on a timeframe until I have seen what the nature and the extent 
of the comments are.
    Senator Cardin. But understand how we are going to be 
looking at this.
    Mr. Johnson. I understand, sir.
    Senator Cardin. No. 2, in the endangerment determination, 
listening to Senator Lieberman make the connection between, we 
have already acknowledged the problems with greenhouse gases 
and global warming and climate change. So I think that also is 
going to be a kind of easy decision for you to make, that there 
clearly is an endangerment. You go back in the EPA, as early as 
1998, when there were determinations made about the danger of 
greenhouse gases, and the scientific information since 1998 has 
only gotten stronger and more dramatic.
    So I would hope that that timeframe would also be done in a 
rather quick way. But I just urge you, as you are going through 
that process, don't slow down. In fact, speed up as to ways in 
which you can use the regulations over motor vehicles, 
automobiles, as you have said, which was the Supreme Court 
decision, but also in other sources to deal with this. So you 
already have a game plan in place that you can aggressively 
move forward. I expect that you are going to make the right 
decision on endangerment.
    But I hope then we don't have to go through another lengthy 
process before we can start implementing changes, so that we 
can really make a start. That is important, not only for 
America, U.S. direct interests. But as has been pointed out by 
so many of my colleagues, if we are going to have the 
credibility internationally, we have to lead by example. If we 
just keep dragging our feet, saying, OK, we have finished this 
process, let's go through the next process and that is going to 
take another couple hundred years before we get there, I think 
it compromises America's standing internationally. You have 
that opportunity, as the Administrator, to set the leadership.
    I really do believe not only Americans are looking at this, 
but the international community. And the Supreme Court has 
given all of us hope that we can come together as a Nation to 
exercise our responsibility. I understand you have to go 
through your procedures. But I would hope it is not going to 
be, well, we have to wait for A to be done before we can plan 
for B. Because right now, we should be having, on the planning 
stages, working with us, working with the Congress, working 
with the different interest groups.
    What we are going to do to really change the impact that 
Americans have by their automobiles on greenhouse gases and 
what impact we have on the other sources. As important as motor 
vehicles may be to the solution, I think close to one third of 
the greenhouse gas problems, we need to look at the other 
sources of problems as well.
    So I just urge you to carry out your responsibility as the 
Administrator, and I look forward again to working with you. 
Thank you, Madam Chair.
    Mr. Johnson. Thank you.
    Senator Boxer. Thank you.
    We will have you out at a quarter of, as your staff said 
you wanted to be. So I will take my last 5 minutes, and if 
Senator Inhofe wants his, that is fine.
    I have been listening carefully to you. You have used the 
word complex many times during this hearing. I have been around 
here since 1983. I was in the House for 10 years, then I came 
over here. I have been to so many hearings, and you kind of get 
used to when people use words like difficult to understand, 
difficult to comprehend, complex, confusing, that sometimes it 
is a code word for, we are just going to take our sweet time.
    It is an impression that I sense throughout the Committee 
here, that we are a little worried about slowing up. Senator 
Carper talks about, let's not wait until a long time, Senator 
Cardin was very clear on, he expected action in 30 days. 
Senator Warner asked a question to you about this. And of 
course there are some who I think agree with the fact that it 
ought to take a long time. But I would have to say that most of 
us are looking forward to your acting.
    As far as I know, search the record, we didn't wait for 
another country to act before we passed the Clean Air Act. We 
didn't wait for another country to act before we passed the 
Clean Water Act, even though other countries did contribute to 
the pollution in both cases. So the fact is, we need to act, 
and we shouldn't hide behind China. I am offended by that. 
Since when do we wait for China to do the right thing before we 
act, whether it is in foreign policy or labor regulations or 
environment or anything else?
    First, it seems to me the EPA under George Bush the second, 
not the first, has hidden behind legalistic arguments. Those 
arguments were shot down by the courts. Let me tell you what 
they said about China, you went in there, not you personally, 
your lawyers went in and said, we can't act until China and 
India act. Listen to what they said, they took it on. They 
said, ``It is not dispositive that developing countries such as 
China and India are poised to increase greenhouse emissions. A 
reduction in domestic emissions would slow the pace of global 
emissions increase, no matter what else happens elsewhere.''
    So get out behind China, get out from behind India and 
let's get going. So with that in mind, you have said that you 
are looking at a number of options of what to do. And those are 
all being discussed by your staff since the day after the 
Supreme Court case, which is heartening to know that you went 
right to it.
    So I am asking you that at the end of May, would you come 
forward and let us know what those options are that you are 
considering? Not your final conclusions, but what are those 
options.
    Mr. Johnson. Senator, I will be happy to discuss with you 
where we are in our decision process. Again, it is complex.
    [Laughter.]
    Senator Boxer. We get it.
    Mr. Johnson. Good. Thank you.
    Senator Boxer. I am not asking you about where you are in 
the process. I am asking you, will you come before us or put in 
writing by the end of May all the things you are now discussing 
behind closed doors? Your salary and mine, paid for by 
taxpayers. Will you come and let us know at the end of May, 
either personally or in writing, as to what are the options 
your staff is considering to do about global warming?
    Mr. Johnson. I would be happy to share with you 
considerations, and wherever we are in our discussions.
    Senator Boxer. So I will take that as a yes, that we will 
have from you by the end of May what options you are 
considering to addressing greenhouse gas emissions?
    Mr. Johnson. That by the end of May, we may not be ready 
for evaluating----
    Senator Boxer. No, no, I wasn't asking you for an 
evaluation. I want to know what you are considering, what is 
the laundry list that you are considering. I think this 
Committee has an interest in that, because frankly, if there 
are things on that, for example, Senator Carper gave you three 
very interesting ideas. We want to know, are those on the list. 
I am going to take it as a yes, you said you would, so let's 
just not waste a lot of time, and hopefully you will be able to 
do that, because you are going to come here in June to discuss 
where you are on the waiver, so we will ask you about that as 
well.
    I want to ask you about the coal to liquid fuel. Isn't it 
true that coal to liquid fuel emit more CO2 than 
traditional petroleum products?
    Mr. Johnson. With present technology, that is correct.
    Senator Boxer. OK, very good. Because that is important as 
we look at any fuels bill looking forward. We want to make sure 
we don't go ahead with fuels that commit us to even more 
greenhouse gas emissions. We want to have some standards in 
that.
    Also, are you aware that your plans for reducing greenhouse 
gas emissions using the intensity as your central focus means 
there will be more global warming and not less?
    Mr. Johnson. Senator, just a few weeks ago I was meeting 
with the other environment ministers as part of a G8 plus 5 
environment ministers meeting. Among the conclusions that they 
reached as environment ministers was the need to consider 
sustainable economic development in the equation as we address 
global climate change. Addressing greenhouse gas intensity is 
one of the ways of doing that. That is why we are doing that, 
because it is important to consider economic sustainability.
    Senator Boxer. Well, let me just make a point here. You 
have praised the IPCC report. We have to start reducing, not 
reducing the increase. That is the trick. We have to actually 
start reducing.
    Senator Inhofe, you have a minute--five minutes, 5 minutes 
and a half.
    Senator Inhofe. I appreciate Senator Carper bringing up the 
farmers and how it affects this. I come from a farm State. When 
I look at what has happened, the price of natural gas going 
from $2 to about $7.6 just in the last 4 years, which is one of 
the main ingredients of the price of fertilizer and the other 
things, I think that the farmers really need to be a part of 
this, and need to understand how this is all affecting them.
    I won't take any more time, because you have been very 
patient and very honest in your answers and I appreciate it 
very much. But I think we made a commitment to you to be out of 
here 12 minutes ago, and I am going to keep that commitment. 
Well, it is too late to keep that, but I will do the best I 
can. Thank you.
    Mr. Johnson. Thank you.
    Senator Boxer. Thank you very much, Administrator Johnson. 
See you soon.
    Mr. Johnson. Thank you, Madam Chairman.
    Senator Boxer. And if we could move along and have our two 
very patient former EPA Administrators come forward. We are 
going to go right into your testimony.
    Which one of you would like to proceed first? Is there an 
order that you have decided upon? Well, why don't we start with 
Mr. Reilly, because he was the first EPA Administrator, before 
Administrator Browner. We will start there and move forward. 
And the former General Counsel of EPA is going to join you, so 
please, do. Ann Klee is coming.
    Mr. Reilly, we really welcome you. We are so appreciative 
to the whole panel for being here and being so patient. Go 
ahead.

  STATEMENT OF WILLIAM K. REILLY, SENIOR ADVISOR, TGP CAPITAL 
         FOUNDING PARTNER, AQUA INTERNATIONAL PARTNERS

    Mr. Reilly. Thank you, Madam Chair, Senator Inhofe, members 
of the Committee. It is a great honor----
    Senator Boxer. Is your mic on? I know, you haven't done 
this in a while.
    Mr. Reilly. I haven't done this in a while, no. This is the 
Committee for whom I did it. Senator Lautenberg and Senator 
Lieberman were here at that time.
    I am very pleased to testify here, and I salute you for 
organizing this hearing so promptly after the Supreme Court's 
decision.
    I would say at the outset that were I the EPA 
Administrator, I would welcome this decision. I think that the 
decision farmers the issue of planetary protection in a 
somewhat limited but a very useful way, limited to the extent 
that it applies to the Environmental Protection Agency. But 
essentially I think what this decision does is put the ball, 
frankly, in your court. It calls for action. We will not 
regulate carbon dioxide or the other greenhouse gases 
adequately without the full range of interests being involved, 
without the kind of attention to the complexities of the 
questions that Administrator Johnson was referring to being 
addressed by the Congress.
    Nevertheless, the specific responsibility now is very 
clear. It does rest on the Environmental Protection Agency to 
respond to the Court's decision. It has huge ramifications. I 
might say that I am appearing in a private capacity, but for 
the last several years, I have been co-chair of the National 
Commission on Energy Policy. It has had a highly inclusive 
membership, very extensive research financed by Hewlett 
Foundation and others. It in my view has, and it has been 
analyzed by the Energy Information Agency, its costs have been 
found to be reassuringly modest.
    I suggest that that could be a starting point for the 
Country with respect to addressing the full range of issues 
involved in carbon dioxide regulation. I think frankly it has 
the best prospects for enactment of any of the depending bills 
at this time.
    The EPA has a number of responsibilities now, and I will 
suggest several areas in which I think they ought to 
concentrate. First of all, what this Country, what the world 
needs very urgently is a sequestration rule. Industry needs it. 
The utility industry particularly needs it. China needs it. 
Beginning on the development of a sequestration rule ought to 
be the primary objective, priority in response to this 
decision.
    Second, I would say that, with respect to sequestration, 
too, EPA has tremendous experience in underground injection. 
The Department of Energy has a good deal of money that is now 
engaged in looking at the issues with respect to sequestration. 
It would be extremely helpful if some of that funding were 
available to the professionals who deal with underground 
injection at EPA and could bring that expertise fully to bear 
on the Energy Department's activities.
    Turning to the States, my advice to the Environmental 
Protection Agency is, collaborate with them, and in some cases, 
get out of the way of them. I am very pleased to hear that 
there will be action now with respect to the waiver for the 
regulation of CO2 for vehicles in California. I 
would also encourage the Agency to work with Governor 
Schwarzenegger on the executive order policy he established, to 
have low carbon fuels. I would point out, both of these matters 
have tremendous public support, bipartisan support in 
California, including from Conoco Phillips, the Nation's 
largest refiner, with respect to the low carbon fuels.
    I would look very carefully at what the European Union has 
done, particularly with respect to allocation. They have over-
allocated in the first instance. We need to learn from their 
mistakes. That has had pernicious effects on the effectiveness 
of their regulations, it has caused the price of permits to 
plummet and has created windfalls for some firms and 
disillusion on the part of many. We need to understand what 
they have done, so that we don't repeat it.
    China and India are key, as has been said today. Someone 
has referred to the issue as involving coal cars, China and 
America. That is how the carbon dioxide, and that is how the 
planetary protection from greenhouse gases will be achieved. In 
my time we had a great deal of experience with China, technical 
assistance to the Chinese for recovery of methane from coal 
mines, CFC elimination. The Chinese, in my experience with 
them, and I have a good bit, would welcome this technical 
assistance. They are themselves trying to improve the energy 
efficiency of their economy. They will learn, I think, from 
experience with us and be more ready to accept sequestration 
when the time comes.
    The final point I would make, if I might, Madam Chairman, 
is when I took office in February 1989, we immediately began 
work to try to implement, to develop a comprehensive Clean Air 
Act. That included several provisions: upper atmospheric ozone 
protection; ground level ozone; toxics; and the very path-
breaking acid rain program. Four months later, we submitted 
that legislation to the Congress.
    You will find, I believe, if you consult, and the 
Administrator does, the very savvy, experienced professional 
staff at the Environmental Protection Agency, who have been 
preparing for this day for the better part of 20 years, that 
they are much more prepared than we might imagine. Challenge 
them to respond.
    One other point I would make is, the recommendations I have 
made to you are all actions the Administration and the 
Administrator can take, irrespective of their decision with 
respect to endangerment. I very much hope that the 
Administrator makes that decision. But essentially, I believe 
that, as I said, we are asked now to get on the right side of 
history. We have an extraordinarily important opportunity. The 
Supreme Court has identified it for us. The rest of us, I 
think, need to respond. Not just the Agency, but I hope very 
much the Congress as well. Thank you.
    [The prepared statement of Mr. Reilly follows:]

 Statement of William K. Reilly, Senior Advisor. TGP Capital Founding 
                  Partner, AQUA International Partners

    Madame Chairman, Senator Inhofe, Members of the Committee, 
my name is William K. Reilly. I served as Administrator of the 
U.S. Environmental Protection Agency under President George H. 
W. Bush, from 1989 to early 1993.
    Thank you for the opportunity to appear before the 
Committee. I applaud your initiative on this urgent and 
compelling matter. And I am pleased to appear with my 
distinguished successors, Administrators Johnson and Browner. 
With your permission, I will submit my formal statement for the 
record.
    Though I am appearing on my own behalf, I note for the 
record that since 2002 I have co-chaired the bipartisan 
National Commission on Energy Policy. Our 2004 report 
recommended a mandatory program to reduce greenhouse gases with 
various safeguards, as well as addressing many other issues in 
energy policy, including oil security, supply, efficiency, 
technology, and more. The Commission's staff continues to 
confer widely with Members of the Senate and the House on these 
matters. Were I the EPA Administrator, or a Member of Congress, 
I would recognize the extensive research and inclusive 
membership of the Commission, and take the Commission's 
recommended policy on climate change as both an effective 
national starting point and also as the policy proposal that 
stands the most realistic chance of being enacted. Extensive, 
detailed research financed generously by the Hewlett and other 
foundations underlies the Commission's recommendations. The 
Energy Information Agency has analyzed the costs of the 
Commission's proposals and concluded they are reassuringly 
modest. So my advice to the Congress and the Administration is, 
take a hard look at the Commission's report.
    You've asked me to discuss EPA's role in the wake of the 
Supreme Court decision holding that EPA has authority as a 
matter of law to regulate carbon dioxide. I'm not going to 
delve into the legal reasoning or the language of the Court's 
decision. I read it as expansive with regard to taking action 
on harmful pollutants. Suffice to say, the law has now been 
settled and EPA does have the authority. I might add that if I 
were EPA Administrator, I would welcome that authority.
    The Court's decision is of immense consequence and signals 
the growing significance of concern about climate change. The 
decision represents the intersection of science and public 
policy. All that follows must be grounded in good science. 
Indeed, the science is becoming increasingly compelling. This 
Administration, as well as those of President Clinton and of 
President Bush, whom I served, deserves great credit for their 
support for the scientific research underpinning our 
understanding of climate change. The nation has spent billions 
of dollars to get to this point. This year's reports of the 
Intergovernmental Panel on Climate Change (IPCC) affirm the 
high degree of confidence that hundreds of participating 
scientists have in the scientific findings.
    When I was named EPA Administrator, one of my first 
briefings was on climate change, by Dr. Frank Press, then 
president of the National Academy of Sciences. EPA also had 
underway in the policy office a couple of reports on the 
effects of climate change and policy options to address them. 
Most of this work and the work of others was premised on 
computer modeling and projections, and the findings were 
subsequently subjected to a lively debate about the assumptions 
inherent in the models and their accuracy.
    We are no longer limited to relying on computer models. As 
the IPCC reports made clear, we are already seeing signs of 
climate change and variability associated with the buildup of 
greenhouse gases in the atmosphere. The models have been 
greatly refined and it is my understanding that they now 
comport well with the mounting evidence from field observations 
and related research in any number of areas, from wildlife 
behavior to snow pack and melting glaciers, to sea level rise, 
changes in precipitation, temperature records that cannot be 
dismissed as merely the result of urban heat island effect, and 
more.
    Not all matters are resolved, of course. Questions remain 
about the timing, the magnitude, and the local impact of the 
effects, and there is still much to learn about how the systems 
function to shape climate on earth. But given what the IPCC 
reported, we cannot afford to wait until all matters are 
resolved. That was the thrust of the amicus brief that I 
submitted in concert with Administrators Browner, Costle and 
Train. We have not required in the past, nor should we require 
in the future, an unrealistic level of certainty in addressing 
serious and urgent problems such as climate change, even as we 
acknowledge that we may have to change course, to take more or 
less aggressive action as further information becomes 
available. To delay action on climate change means that down 
the road, what we do will necessitate more expensive and more 
draconian measures.
    In light of this evidence and the Supreme Court's decision, 
what should EPA do?
    The Court's decision confronts the EPA with a choice of 
contesting the scientific consensus regarding the causes of 
global warming, which it has conceded, and then of asserting or 
rejecting in its judgment the merits of regulating what the 
Court has determined to be a ``pollutant.'' It is difficult to 
see how the Agency can now refrain from moving forward to 
regulate greenhouse gases from automobiles and by implication 
from other sources as well. The practical realities must be 
faced, however. The regulation of greenhouse gases is hugely 
consequential for many sectors of the economy, as for the 
health and well-being of Americans and others. To ask EPA to 
assume the full burden of recommending in a regulatory program 
the full gamut of measures necessary to the task is 
unrealistic. It is particularly so given that the Agency is 
part of an Administration that has consistently declined to 
embrace the regulation of carbon dioxide. One cannot expect a 
robust rulemaking in such a circumstance. The situation cries 
out for Congressional action and that, in my view, is a 
principal merit in the Court's decision.
    So it is enormously ambitious to expect that a regulatory 
agency alone, even one as well-versed as U.S. EPA, can craft a 
regulatory regime governing something so far-reaching with such 
substantial impacts on our economy and industry, on the natural 
resources on which we depend, on U.S. foreign policy and the 
prospects for development in the world's poorest countries. And 
yet that is the challenge.
    I would note that regarding the Clean Air Act of 1990, with 
which I had something to do, it took more than a decade for 
this legislation to come together on acid rain, standards for 
air toxics, upper atmospheric ozone depletion, and the other 
issues it addressed and for the political context to ripen. EPA 
staff had spent the 1980s preparing the analyses which they 
knew would one day be needed when the moment came that clean 
air legislation stood a serious chance of passage. Between my 
swearing in and the President's submission of a comprehensive 
legislative proposal to Congress, we required just four months.
    That we could move so quickly is a tribute to the 
substantial and rigorous work done by the Agency during the 
1980s, including seminal work on emissions trading with 
Environmental Defense Fund and Resources For the Future, 
analyses of costs and benefits, and more. The acid rain trading 
program, which emerged from the 1990 clean air law and which by 
all accounts has been a resounding success, is the reference 
case for our way into a cap-and-trade regime for carbon 
dioxide.
    I would be remiss if I didn't state my high regard for the 
senior career staff in the EPA's Air Office and those who 
served in what was our Office of Policy, Planning and 
Evaluation. Contrary to the belief in some quarters, they are 
not eco-cowboys who find something to regulate under every rock 
they lift. They are smart, creative, experienced, and dedicated 
people, and they grasp full well the implications and 
tradeoffs, the costs and benefits associated with fulfilling 
their mission to clean up and safeguard our nation's air. The 
country has been well served by these civil servants, and I 
expect no less from them in dealing with climate change.
    During the past few years they have been carrying out the 
research and analysis of options for regulating greenhouse 
gases just as in the 1980s they prepared analysis of directions 
a new clean air act might take. What are realistic targets and 
timetables? Would analysis show a carbon tax to be more 
effective? Or a cap-and-trade system? What are the downsides? 
Clearly, a carbon tax is beyond EPA's jurisdiction and I would 
be wary of recommending one if the implication was that EPA 
would therefore take no steps to regulate carbon pursuant to 
the Agency's authority.
    For an emissions trading program, do we want a safety valve 
to contain costs? What is the point of regulation, which 
sectors? How would permits be distributed, how many, and based 
on what criteria? What are the implications of these 
approaches? What is the state of technology, the connections 
with other emissions of concern, notably mercury, sulfur 
dioxide and other criteria pollutants? EPA staff are more 
prepared than we know to put forth the options for designing a 
carbon policy. They have spent more than 15 years preparing for 
this moment. So my advice is, challenge them to present the 
policy options.
    I do not expect that even with heroic efforts, these 
matters will translate immediately into a regulatory program. 
There is a lengthy regulatory process, as you know, involving 
not just interagency reviews, but consultations with States and 
industrial sectors and others outside the federal family. There 
are formal administrative procedures to follow and a record to 
prepare, and that could be substantial for an issue as complex 
as regulating carbon dioxide. And of course, there is the 
potential for litigation once a rule is adopted. Bill 
Ruckelshaus once observed that 4 of every 5 major EPA decisions 
wind up in court.
    To be sure, there is much activity in Congress, both in the 
Senate and the House, and I believe that ultimately the issue 
of climate change needs to be addressed by Congress. That said, 
there is no reason for EPA to delay. On a parallel track, EPA 
should begin the regulatory process for carbon dioxide. This 
would be a timely and useful step, and would both inform the 
legislative debate and keep pressure on Congress to continue 
its work. At the same time, EPA's efforts now will prepare the 
Agency for quick progress in implementing any legislation after 
enactment, as was the case after passage of the 1990 Clean Air 
Act.
    I would welcome the full involvement of the President and 
the Administration in these deliberations. Indeed, that would 
help engage some who are still skeptical about the science or 
the nation's ability to take the issue head on, and would help 
ensure that economic impacts, foreign policy concerns, and 
other important considerations are taken into account. I do not 
support the case for awaiting the arrival of a new President 
and a new Administration to address this issue.
    Besides beginning this process, there are a number of other 
important steps the Agency should take.
    First, California has a request pending for a waiver to 
reduce CO2 emissions from automobile fuels by 30 per cent, 
beginning with the 2016 model year. I understand that process 
is getting underway, and I would urge all due speed. 
California's proposal is the product of a bipartisan effort and 
has tremendous public support. The Supreme Court's decision 
should remove any roadblocks with respect to the review 
process.
    Second, I would urge EPA to take a good look at what 
Governor Schwarzenegger of California has called for, via 
Executive Order, to set a low carbon standard for fuels. This 
seems to me a very innovative approach to ensure that, as we 
struggle with the very real issue of oil security, we do not 
substitute for what we now use new fuels with worse greenhouse 
gas impacts. I doubt any regulatory entity has the experience 
with fuels that EPA does, with a world-class mobile source 
laboratory in Michigan, and from the Agency's prior experience 
in removing lead from gasoline, and the work regarding 
particulates, ozone, and the recent well-regarded rule lowering 
sulfur content in diesel fuel. I applaud Administrator 
Johnson's decision and the support he had from the 
Administration in getting this rule out. It is one of the most 
significant contributions to clean air. I should point out that 
the low carbon standard for fuels initiative also enjoys 
widespread support in California, including that of 
ConocoPhillips, the nation's largest refiner.
    Third, I would like to see EPA develop the regulatory 
approach for carbon capture and sequestration. That is the key 
to using our abundant coal resources and to ensuring that other 
countries with substantial coal reserves do not undo all that 
we might accomplish in reducing greenhouse gases. Because of 
its experience and its record in dealing with underground 
injection, EPA's Water Office in partnership with other parts 
of the Agency, and most importantly with the Department of 
Energy, is well-suited to undertake this task. It is my 
understanding, however, that although the Energy Department has 
substantial funding to develop this critical technology, EPA 
has little, making it difficult to draw on the Agency's 
experience and credibility with the various stakeholders. I 
would add that many in the power industry want to see a 
regulatory program for carbon capture and sequestration 
quickly, lest the absence of a regulatory framework delay 
testing and deployment of this promising, indeed, essential 
technology. Not just America, but China, India and other coal-
rich nations stand in urgent need of carbon sequestration 
technology.
    Fourth, a number of States are taking action on greenhouse 
gas reductions and I would ensure that EPA is well-versed on 
these actions and the regional compacts that are beginning to 
emerge. A national program invariably invites the question of 
federal pre-emption and that will surely surface with respect 
to regulating carbon dioxide. Moreover, it behooves us to learn 
from what the States are doing. I would add that virtually 
every law in the EPA administrator's portfolio had origins at 
the State level, none more so than California and air quality.
    I would also call your attention to the good work of the 
Center for Climate Strategy, which has been working with a 
couple of dozen states to prepare greenhouse gas inventories, 
consider policy options, costs, and associated measures, with 
an eye toward State action and the role of states in 
implementing a national program.
    Fifth, I would urge EPA to become fully versed in the 
European Union's emissions trading program. There is evidence 
that too many credits were distributed in the first round of 
permit allocations, resulting in less than optimal performance, 
a drop in permit values, and a windfall for some firms. We need 
to learn from that experience in this area of allocation, lest 
we repeat it.
    Sixth, I would encourage EPA and others in the federal 
government to remain on top of climate developments in China 
and India, two critical countries with respect to greenhouse 
gas emissions. My experiences in China with the Energy 
Foundation's China Sustainable Energy Program suggest that 
although not now party to any international protocols requiring 
it to reduce greenhouse gases, China is well aware of the 
potential impacts and is taking measures to improve efficiency 
of energy use. We will need to engage these countries in 
international forums and we would be well-served by following 
developments in those countries closely, and by establishing 
contacts at the technical level which I believe the Chinese 
would welcome.
    In closing, let me state that as important as a mandatory 
national program is to reduce carbon dioxide emissions, it is 
but one measure we need. If scientists are right about the 
impact of doubling carbon dioxide in the atmosphere over pre-
industrial levels, which is where we are heading under business 
as usual indeed, we may see a tripling or more if we don't take 
action soon then we will be called on to make far more drastic 
cuts in greenhouse gas emissions, well below today's level, 
even while we continue to grow in population and economic 
activity.
    That goal would be achievable only with a suite of policies 
and programs going beyond a cap-and-trade system. We will need 
substantially improved mileage standards for automobiles, 
trucks, and other vehicles, which will help on oil security as 
well. We will want a national renewable portfolio standard to 
advance deployment of renewable energy technologies, much as a 
couple of dozen States have already enacted. We will need to 
invest heavily in technology research, development, and 
deployment. I mentioned carbon capture and sequestration. 
Cellulosic ethanol and other promising bio-fuels also merit 
increased funding. We will want to move aggressively on 
efficiency standards. Some 22 or so are currently under 
development at the Department of Energy. We will need to 
involve the States, for they have a major role in building 
codes, water resource management, land use and transportation 
planning. They build and operate public buildings and 
institutions, and we now know that for all of the design 
techniques to improve energy efficiency, most of the savings 
come in operations over the life of a facility.
    And as important as mitigation is in fending off the worst 
scenarios, we will need to prepare to adapt, for the science is 
telling us that we are seeing the effects today and we know 
that carbon dioxide and other greenhouse gases are long-lived 
in the atmosphere, so more elevated concentrations are already 
built into the system.
    Congress has engaged the climate issue in a direct and 
serious way. Within the next several months, there may be a 
window of opportunity for legislation on climate change. You 
know better than I. After that, we may well see 2008 campaign 
politics adding to the hurdles. That would make EPA's endeavors 
all the more important. I wish you and your colleagues success. 
The country, indeed the entire world, is counting on it.
    Thank you.
                                ------                                

 Response by William K. Reilly to an Additional Question From Senator 
                                 Boxer

    Question Earlier this year, a buyout of Texas Utilities 
Corporation was led by an investor group primarily led by 
Kohlberg Kravis Roberts & Company, Texas Pacific Group, and 
Goldman Sachs & Company. Articles written at the time indicate 
that conversations about TXU's coal plants occurred prior to 
the buyout bid. When was the first time you discussed TXU's 
proposed coal plant constructions with Fred Krupp, President of 
Environmental Defense, as well as any other environmental 
organization representatives? Also, when did you communicate 
with any of them about the investor group's plans to reduce the 
number of coal plants built?
    Response. I first communicated the investor group's 
interest in negotiating future TXU power plant development 
plans with Natural Resource Defense Council's Ralph Cavanagh on 
Saturday, February 10, 2007. I described generally the 
framework of the investor group's thinking about future plans 
of Texas Utilities affecting the environment, should the 
investor group succeed in acquiring the company. I later 
communicated the same message of interest in negotiating with 
Fred Krupp of Environmental Defense and Dave Hawkins of NRDC on 
Monday, February 19, 2007.

    Senator Boxer. Thank you so much, former Administrator 
Reilly. I think your words were very straightforward and 
eloquent.
    Now we will hear from former EPA Administrator Browner, who 
was appointed by the Clinton Administration and served well. We 
are going to add another minute thirty, so you will have six 
thirty.

 STATEMENT OF CAROL M. BROWNER, PRINCIPAL, THE ALBRIGHT GROUP, 
                              LLC

    Ms. Browner. Thank you very much, and thank you, Madam 
Chair, for the opportunity to be here, Senator Inhofe and 
members of the Committee.
    Madam Chair, if I might begin by applauding your leadership 
specifically on the issue of climate change and particularly 
the introduction of the Sanders-Boxer legislation. Let me also 
join with my predecessor, Mr. Reilly, in recognizing the 
tremendous people who work at the EPA, the long-serving, career 
scientists, engineers and lawyers. As he has said, they have 
been thinking about this day for a very, very long time.
    I am here today to speak to you about the most important, 
the most pressing environmental public health issue the world 
has ever faced. I am very pleased with all the things I was 
able to accomplish during my tenure, my 8 year tenure at EPA, 
including the fact that in 1998, in response to a question from 
Congressman DeLay, we wrote a legal memorandum reviewing the 
Clean Air Act and determined that the Clean Air Act on the 
books, passed by Mr. Reilly's leadership in 1990, does in fact 
allow EPA to regulate greenhouse gas emissions.
    Mr. Reilly, myself and two other Administrators joined 
together to file an amicus brief in the Supreme Court matter. I 
am very, very proud of the fact that the legal memorandum was 
actually referenced in the Supreme Court's opinion. This is a 
landmark decision. There are a number of things EPA can and 
should do.
    I am encouraged that Administrator Johnson today announced 
that they will commence a process with respect to the 
California waiver. Let me say, as someone who made a lot of 
regulatory decisions, it is not unreasonable, as Senator Cardin 
suggested, that they could be done by the middle of this 
summer, as apparently the EPA's staff themselves has suggested. 
That is not an unreasonable timeframe. The States have been 
waiting. They deserve an answer.
    Second, I think they can make an endangerment finding. I 
made several during my tenure at EPA. They have more science 
than any decision EPA has ever sought to make. They have an 
overwhelming amount of science on which they can base an 
endangerment decision. Again, I think they can do this in a 
timely manner. This is not something that should take years. It 
make take several months, but certainly not years. If they move 
forward in a manner which suggests years, they are simply 
dragging their feet.
    In addition to what EPA can do today, and there are many 
other things, I do believe, as Mr. Reilly said, that it is 
incumbent upon Congress to act. The magnitude of this problem 
is such, it will take the leadership of this body to put in 
place the kind of programs that I ultimately think will be 
important.
    It is interesting, when you look at our 30, 35 years of 
history with respect to environmental protection in this 
Country, of the Clean Air Act, the Clean Water Act, there are 
really three things that have always guided our efforts. First 
is the science. As I already said, we have an abundance of 
science. Second, we have been guided by a belief that American 
innovation and ingenuity will rise to the occasion, will find 
the answers.
    Someone spoke previously about chlorofluorocarbons. In 
1990, when this body, when the Congress decided to ban 
chlorofluorcarbons, there were debates about there are no 
replacements, what are we going to do, we won't have 
refrigeration. Well, guess what? Once Congress said, they're 
banned, and Mr. Reilly played an important role in that, once 
that was said, good old American innovation and ingenuity found 
a solution. We found it more quickly and for less money than we 
anticipated. We can meet this challenge.
    The third principle that has guided us is a moral 
imperative, an imperative that we protect our environment, that 
we protect the health of our people. And so we should be guided 
here. I believe that EPA has the morals, and with the Supreme 
Court decision, the clear legal authority to set greenhouse gas 
standards in accordance with the Clean Air Act, to limit 
climate change, to protect the health of future generations.
    It is said that nine-tenths of wisdom is being wise and 
kind. Congress also had the prerogative to ensure that EPA does 
its duty, to hold EPA accountable and ultimately to take bold 
action on its own. We have the science. The will has been 
summoned. The technology will follow. Have no doubt: we can 
address this problem. Anything else would be a felony against 
the future, a failure to meet our responsibility to our 
children and theirs.
    I thank you for the opportunity to be here to talk about, 
again, what I believe is the greatest threat to environmental 
and public health and a security threat to this world. Thank 
you.
    [The prepared statement of Ms. Browner follows:]

   Statement on Carol M. Browner, Principal, The Albright Group, LLC

    Good morning, Madam Chairman, Senator Inhofe, and members 
of the Committee. I appreciate the opportunity to speak to you 
today on the most pressing environmental and public health 
issue that our country, and for that matter the world, has ever 
faced. That is, climate change.
    During my 8 years as the Administrator of the EPA, I worked 
hard to protect the environment and public health, both for our 
generation and future generations. Today, I would like to 
discuss how the current EPA can use the mandate given by the 
Supreme Court in Massachusetts v. EPA to respond to the climate 
change crisis immediately.
    First--the EPA can grant California its federal waiver to 
enforce its own greenhouse gas standards. California has thus 
far outpaced the Federal Government on greenhouse gas 
regulation--it has ignored critics and naysayers, moving ahead 
with an aggressive plan. The EPA should in turn recognize this 
plan by granting California the authority to put it into place. 
Second--EPA should act now on setting greenhouse gas standards 
for vehicles and power plants, two significant sources of 
emissions.
    These are a few things EPA can do right now to regulate 
emissions, but it is not enough. The magnitude of the Supreme 
Court decision warrants Congressional leadership and immediate 
action as well.
    As we seek to address climate change, both through the 
actions of EPA and through Congress, three realities should 
guide us. First, that the science on climate change cannot, at 
this point, be in doubt. Second, that we can find common-sense, 
cost-effective ways to regulate greenhouse gas emissions. And 
third, that EPA and Congress now have the undisputed authority 
and responsibility to regulate the emission of greenhouse 
gases.
    When it comes to science, the facts continue to roll in, 
and the scientific community has reached a consensus. The 
considered judgment of twenty-five hundred of the world's top 
climate change scientists, 11 national scientific academies, 
and hundreds of scientists contributing to the IPCC is simply 
this: climate change is real, it is caused by human activities, 
it is rapidly getting worse, and it will transform both our 
planet and humanity if action is not taken now.
    Such action need not bankrupt us or disrupt our economy. We 
can and we must find cost- effective ways to meet greenhouse 
gas standards. Historically, American innovation and ingenuity 
have served us well. Let us harness them now. In the past, we 
have been willing to set standards without having in hand the 
actual technology necessary to meet such standards. For 
example, when Congress decided to ban chlorofluorocarbons, 
there
    was no technology to replace CFCs. But once Congress made 
the decision, there was a guaranteed market for replacement; 
companies competed with each other and, within a relatively 
short time, there was a replacement, and at far less cost than 
had been anticipated. We may not have a perfect formula for 
cutting greenhouse gas emissions yet, but that is no reason to 
hold off on setting regulations and enforcing them.
    The EPA has the moral--and now the legal--authority to set 
greenhouse standards in accordance with the Clean Air Act to 
limit climate change and protect the heath of future 
generations. It is said that nine-tenths of wisdom is being 
wise in time. Congress also has the prerogative to ensure that 
EPA does its duty and to take bold action on its own.
    We have the science; the will has been summoned; the 
technology will come. Have no doubt - we can stop global 
warming. Anything less would be a felony against the future, a 
failure to meet our responsibility to our children and theirs. 
My request is that we do our duty.
    Thank you very much. Now I would be pleased to respond to 
any questions you might have.
    Thank you.

    Attachment A: ``EPA's Authority to Regulate Pollutants 
Emitted by Electric Power Generation Sources'' Memorandum from 
Jonathan Z. Cannon to Carol M. Browner, April 10, 1998.
    Attachment B: Testimony of Gary S. Guzy before a joint 
hearing of the Subcommittee on National Economic Growth, 
Natural Resources and Regulatory Affairs of the Committee on 
Government Reform and the Subcommittee on Energy and 
Environment of the Committee on Science, US House of 
Representatives, October 6, 1999.

    ATTACHMENT A:

                     i. introduction and background

    This opinion was prepared in response to a request from 
Congressman DeLay to you on March 11, 1998, made in the course 
of a Fiscal Year 1999 House Appropriations Committee Hearing. 
In the Hearing, Congressman DeLay referred to an EPA document 
entitled ``Electricity Restructuring and the Environment: What 
Authority Does EPA Have and What Does It Need.'' Congressman 
DeLay read several sentences from the document stating that EPA 
currently has authority under the Clean Air Act (Act) to 
establish pollution control requirements for four pollutants of 
concern from electric power generation: nitrogen oxides 
(NOx), sulfur dioxide (SO2), carbon 
dioxide (CO2), and mercury. He also asked whether 
you agreed with the Statement, and in particular, whether you 
thought that the Clean Air Act allows EPA to regulate emissions 
of carbon dioxide. You agreed with the Statement that the Clean 
Air Act grants EPA broad authority to address certain 
pollutants, including those listed, and agreed to Congressman 
DeLay's request for a legal opinion on this point. This opinion 
discusses EPA's authority to address all four of the pollutants 
at issue in the colloquy, and in particular, CO2, 
which was the subject of Congressman DeLay's specific question.
    The question of EPA's legal authority arose initially in 
the context of potential legislation addressing the 
restructuring of the utility industry. Electric power 
generation is a significant source of air pollution, including 
the four pollutants addressed here. On March 25, 1998, the 
Administration announced a Comprehensive Electricity Plan 
(Plan) to produce lower prices, a cleaner environment, 
increased innovation and government savings. This Plan includes 
a proposal to clarify EPA's authority regarding the 
establishment of a cost-effective interstate cap and trading 
system for NOx reductions addressing the regional 
transport contributions needed to attain and maintain the 
Primary National Ambient Air Quality Standards (NAAQS) for 
ozone. The Plan does not ask Congress for authority to 
establish a cap and trading system for emissions of carbon 
dioxide from utilities as part of the Administration's 
electricity restructuring proposal. The President has called 
for cap-and-trade authority for greenhouse gases to be in place 
by 2008, and the Plan States that the Administration will 
consider in consultation with Congress the legislative vehicle 
most appropriate for that purpose.
    As this opinion discusses, the Clean Air Act provides EPA 
authority to address air pollution, and a number of specific 
provisions of the Act are potentially applicable to control 
these pollutants from electric power generation. However, as 
was made clear in the document from which Congressman DeLay 
quoted, these potentially applicable provisions do nor easily 
lend themselves to establishing market-based national or 
regional cap-and-trade programs, which the Administration 
favors for addressing these kinds of pollution problems.

                       ii clean air act authority

    The Clean Air Act provides that EPA may regulate a 
substance if it is (a) an ``air pollutant,''and (b) the 
administrator makes certain findings regarding such pollutant 
(usually related to danger to public health, welfare, or the 
environment) under one or more of the Act's regulatory 
provisions.
A. Definition of Air Pollutant
    Each of the four substances of concern as emitted from 
electric power generating units falls within the definition of 
``air pollutant. under section 302(g). Section 302(g) defines 
air pollutant'' as

    any air pollution agent or combination of such agents, 
including any physical, chemical, biological, [or]--radioactive 
. substance or matter which is emitted into or otherwise enters 
the ambient air. Such term includes any precursors to the 
formation of any air pollutant, to the extent that the 
Administrator has identified such precursor or precursors for 
the particular purpose for which the term ``air pollutant'' is 
used.

    This broad definition States that ``air pollutant'' 
includes any physical, chemical, biological, or radioactive 
substance or matter that is emitted onto or otherwise enters 
the ambient air SO2, NOx, CO2, 
and mercury from electric power generation are each a 
``physical [and] chemical . . . substance which is emitted into 
. . .  the ambient air,'' and hence, each is an air pollutant 
within the meaning of the Clean Air Act.\1\
---------------------------------------------------------------------------
    \1\See also section 103(g) of the Act (authorizes EPA to conduct a 
basic research and technology program to develop and demonstrate 
nonregulatory strategies and technologies for air pollution prevention, 
which shall include among the program elements ``[i]mprovements in 
nonregulatory strategies and technologies for preventing or reducing 
multiple air pollutants, including sulfur oxides, nitrogen oxides, 
heavy metals, PM----10 (particulate matter), carbon monoxide, and 
carbon dioxide, from stationary sources, including fossil fuel power 
plants.'')
---------------------------------------------------------------------------
    A substance can be an air pollutant even though it is 
naturally present in air in some quantities. Indeed, many of 
the pollutants that EPA currently regulates are naturally 
present in the air in some quantity and are emitted from 
natural as well as anthropogenic sources. For example, 
SO2 is emitted from geothermal sources; volatile 
organic compounds (precursors to ozone) are emitted by 
vegetation and particulate mater and NOx, are formed 
from natural sources through natural processes, such a 
naturally occurring forest fires. Some substances regulated 
under the Act as hazardous air pollutants are actually 
necessary in trace quantities for human life, but are toxic at 
higher levels or through other routes of exposure. Manganese 
and selenium are two examples of such pollutants. EPA regulates 
a number of naturally occurring substances as air pollutants, 
however, because human activities have increased the quantities 
present in the air to levels that are harmful to public health, 
welfare, or the environment.
B. EPA Authority to Regulate Air Pollutants
    EPA's regulatory authority extends to air pollutants, 
which, as discussed above, are defined broadly under the Act 
and include SO2, NOx, CO2, and 
mercury emitted into the ambient air. Such a general Statement 
of authority is distinct from an EPA determination that a 
particular air pollutant meets the specific criteria for EPA 
action under a particular provision of the Act. A number of 
specific provisions of the Act are potentially applicable to 
these pollutants emitted from electric power generation.\2\ 
Many of these specific provisions for EPA action share a common 
feature in that the exercise of EPA's authority to regulate air 
pollutants is linked to determination by the Administrator 
regarding the air pollutants' actual or potential harmful 
effects on public health, welfare or the environment. See also 
sections 108, 109, 111(b), 112, and 115. See also sections 
202(a), 211(c), 231, 612, and 615. The legislative history of 
the 1977 Clean Air Act Amendments provides extensive discussion 
of Congress' purposes in adopting the language used throughout 
the Act referencing a reasonable anticipation that a substance 
endangers public health or welfare. One of these purposes was 
``to emphasize the preventative or precautionary nature of the 
act, i.e., to assure that regulatory action can effectively 
prevent harm before it occurs, to emphasize the predominant 
value of protection of public health.'' H.R. Rep. No. 95294 
95th Cong., 1st Sess, at 49 (Report of the Committee on 
Interstate and Foreign Commerce). Another purpose was ``No 
assure that the health of susceptible individuals, as well as 
healthy adults, will be encompassed in the term 'public 
health,' . . .'' Id. at 50. ``Welfare'' is defined in section 
302(h) of the Act, which States:
---------------------------------------------------------------------------
    \2\See. e g., section 108 (directs Administrator to list and issue 
air quality criteria for each air pollutant that causes or contributes 
to air pollution that may reasonably be anticipated to endanger public 
health or welfare and that is present in the ambient air due to 
emissions from numerous or diverse mobile or stationary sources); 
section 109 (directs Administrator to promulgate national primary and 
secondary ambient air quality standards for each air pollutant for 
which there are air quality criteria, to be set at levels requisite to 
protect the public health with an adequate margin of safety (primary 
standards) and to protect welfare (secondary standards)), Section 110 
(requires States to submit State implementation plans (S1Ps) to meet 
standards); Section 111 (b) (requires Administrator to list, and set 
Federal performance standards for new sources in, categories of 
stationary sources that cause or contribute significantly to air 
pollution that may reasonably be anticipated to endanger public health 
or welfare); section 111(d) (States must establish performance 
standards for existing sources for any air pollutant (except criteria 
pollutants or hazardous air pollutants) that would be subject to a 
performance standard if the sources were a new source), section. 112(b) 
(lists 188 hazardous air pollutants and authorizes Administrator to add 
pollutants to the list that may present a threat of adverse human 
health effect or adverse environmental effects); section 112(d) 
(requires Administrator to set emissions standards for each category or 
subcategory of major and area sources that the Administrator has listed 
pursuant to section 119(c)); section 112(n)(1)(A) (requires 
Administrator to study and report to Congress on the public health 
hazards reasonably anticipated from emissions of limited hazardous air 
pollutants from electric utility steam generating units, and requires 
regulation if appropriate and necessary); section 115 (Administrator 
may require State action to control certain air pollution if, on the 
basis of certain reports, she has reason to believe that any air 
pollutant emitted in the United States causes or contributes to air 
pollution that may be reasonably anticipated to endanger public health 
or welfare in a foreign country that has given the United States 
reciprocal rights regarding air pollution control) Title IV 
(establishes cap-and-trade system for control of SO2 from 
electric power generation facilities and provides for certain controls 
on NOx).
---------------------------------------------------------------------------
    [a]ll language referring to effects on welfare includes, 
but is not limited to, effects on soils, water, crops, 
vegetation, man-made materials, animals, wildlife, weather, 
visibility, and climate, damage to and deterioration of 
property, and hazards to transportation, as well as effects on 
economic values and on personal comfort and well-being, whether 
caused by transformation, conversion, or combination with other 
air pollutants.\3\
---------------------------------------------------------------------------
    \3\The language in Section 302(h) listing specific potential 
effects on welfare, including the references to weather and climate, 
dates back to the 1970 version of the Clean Air Act.
---------------------------------------------------------------------------
    EPA has already regulated SO2, NOx, 
and mercury based on determinations by EPA or Congress that 
these substances have negative effects on public health, 
welfare, or the environment. While CO2, as an air 
pollutant, is within EPA's scope of authority to regulate, the 
Administrator has not yet determined that CO2 meets 
the criteria for regulation under one or more provisions of the 
Act. Specific regulatory criteria under various provisions of 
the Act could be met if the Administrator determined under one 
or more of those provisions that CO2 emissions are 
reasonably anticipated to cause or contribute to adverse 
effects on public health, welfare, or the environment.
C. EPA Authority to Implement an Emissions Cap-and-Trade Approach
    The specific provisions of the Clean Air Act that are 
potentially applicable to control emissions of the pollutants 
discussed here can largely be categorized as provisions 
relating to either State programs for pollution control under 
Title I (e.g., sections 107, 108, 109, 110, 115, 126, and Part 
D of Title I), or national regulation of stationary sources 
through technology-based standards (e.g., sections 111 and 
112). None of these provisions easily lends itself to 
establishing market-based national or regional emissions cap-
and-trade programs.\4\
---------------------------------------------------------------------------
    \4\Title 1V of the Act provides explicit authority for a cap and 
trade program for SO2 emissions from electric power 
generating sources.
---------------------------------------------------------------------------
    The Clean Air Act provisions relating to State programs do 
not authorize EPA to require States to control air pollution 
through economically efficient cap-and-trade programs and do 
not provide full authority for EPA itself to impose such 
programs. Under certain provisions in Title I, such as section 
110, EPA may facilitate regional approaches to pollution 
control and encourage States to cooperate in a regional, cost-
effective emissions cap-and-trade approach (see Notice of 
Proposed Rulemaking: Finding of Significant Contribution and 
Rulemaking for Certain States in the Ozone Transport Assessment 
Group Region for Purposes of Reducing Regional Transport of 
Ozone, 62 F.R. 60318 (Nov. 7, 1997)). EPA does not have 
authority under Title Ito require States to use such measures, 
however, because the courts have held that EPA cannot mandate 
specific emission control measures for States to use in meeting 
the general provisions for attaining ambient air quality 
standards. See Commonwealth of Virginia v. EPA, 108 F.3d 1397 
(D.C. Cir. 1997). Under certain limited circumstances where 
States fail to carry out their responsibilities under Title I 
of the Clean Air Act, EPA has authority to take certain 
actions, which might include establishing a cap-and-trade 
program.\5\ Yet EPA's ability to invoke these provisions for 
Federal action depends on the actions or inactions of the 
States.
---------------------------------------------------------------------------
    \5\For example, section 110(c) requires EPA to promulgate a Federal 
implementation plan where EPA finds that a State has failed to make a 
required submission of a SIP or that the SIP or SIP revision does not 
satisfy certain minimum criteria, or EPA disapproves the SIP submission 
in whole or in part in addition, section 126 provides that a State or 
political subdivision may petition the Administrator for certain 
findings regarding emissions from certain stationary sources in another 
State. If the Administrator grants the petition, she may establish 
control requirements applicable to sources that were the subject of the 
petition.
---------------------------------------------------------------------------
    Technology-based standards under the Act directed to 
stationary sources have been interpreted by EPA not to allow 
compliance through intersource cap-and-trade approaches. The 
Clean Air Act provisions for national technology-based 
standards under sections 111 and 112 require EPA to promulgate 
regulations to control emissions of air pollutants from 
stationary sources. To maximize the opportunity for trading of 
emissions within a source. EPA has defined the term 
``stationary source'' expansively, such that a large facility 
can be considered a ``source.'' Yet EPA has never gone so far 
as to define as a source a group of facilities that are not 
geographically connected, and EPA has long held the view that 
trading across plant boundaries is impermissible under sections 
111 and 112. See, e.g., National Emission Standards for 
Hazardous Air Pollutants for Source Categories; Organic 
Hazardous Air Pollutants from the Synthetic Organic Chemical 
Manufacturing Industry, 59 Fed. Reg. 19402 at 19425-26 (April 
22, 1994).

                            iii. conclusion

    EPA's regulatory authority under the Clean Air Act extends 
to air pollutants, which, as discussed above, are defined 
broadly under the Act and include SO2, 
NOx, CO2, and mercury emitted into the 
ambient air. EPA has in fact already regulated each of these 
substances under the Act, with the exception of CO2. 
While CO2 emissions are within the scope of EPA's 
authority to regulate, the Administrator or has made no 
determination to date to exercise that authority under the 
specific criteria provide under any provision of the Act.
    With the exception of the SO2 provisions focused 
on acid rain, the authorities potentially available for 
controlling these pollutants from electric power generating 
sources do not easily lend themselves to establishing market-
based national or regional cap-and-trade programs, which the 
Administration favors for addressing these kinds of pollution 
problems. Under certain limited circumstances, where States 
fail to carry out their responsibilities under Title I of the 
Act, EPA has authority to take certain actions, which might 
include establishing a cap-and-trade program. However, such 
authority depends on the actions or inactions of the States.

    ATTACHMENT B:

    Statement of Gary S. Guzy, General Counsel, U.S. Environmental 
                           Protection Agency

    Thank you, Chairman McIntosh, Chairman Calvert, and. 
Members of the Subcommittees, for the invitation to appear here 
today. I am pleased to have this opportunity to explain the 
U.S. Environmental Protection Agency's (EPA) views as to the 
legal authority provided by the Clean Air Act (Act) to regulate 
emissions of carbon dioxide, or CO2.
    Before I do, however, I would like to stress, as EPA 
repeatedly has Stated in letters to Chairman McIntosh and other 
Members of Congress, that the Administration has no intention 
of implementing the Kyoto Protocol to the United Nations 
Framework Convention on Climate Change prior to its 
ratification with the advice and consent of the Senate.' As I 
indicated in my letter of September 17, 1999 to Chairman 
McIntosh, there is a clear difference between actions that 
carry out authority under the Clean Air Act or other domestic 
law, and actions that would implement the Protocol. Thus, there 
is nothing inconsistent in assessing the extent of current 
authority under the Clean Air Act and maintaining our 
commitment not to implement the Protocol without ratification.
    Some brief background information is helpful in 
understanding the context for this question of legal authority. 
In the course of generating electricity by burning fossil 
fuels, electric power plants emit into the air multiple 
substances that pose environmental concerns, several of which 
are already subject to some degree of regulation. Both industry 
and government share an interest in understanding how different 
pollution control strategies interact. These interactions are 
both physical (strategies for controlling emissions of one 
substance can affect emissions of others) and economic 
(strategies designed to address two or more substances together 
can cost substantially less than strategies for individual 
pollutants that are designed and implemented independently). 
EPA has worked with a broad array of stakeholders to evaluate 
multiple-pollutant control strategies for this industry in a 
series of forums, dating back to the Clean Air Power Initiative 
(CAPI) in the mid-1990's. While the CAPI process focused on 
SO2 and NOx, a broad range of 
participants, including representatives of power generators, 
the United Mine Workers, and environmentalists, expressed 
support for inclusion of CO2 emissions, along with 
SO2, NOx, and mercury, in subsequent 
analyses. One conclusion that emerged from these analytical 
efforts is that integrated strategies using market-based ``cap-
and-trade'' approaches like the program currently in place to 
address acid rain would be the most flexible and lowest cost 
means to control multiple pollutants from these sources.
    On March 11, 1998, during hearings on EPA's fiscal year 
appropriations, Representative DeLay asked the Administrator 
whether she believed that EPA had authority to regulate 
emissions of pollutants of concern from electric utilities, 
including CO2. She replied that the Clean Air Act 
provides such authority, and agreed to Representative DeLay's 
request for a legal opinion on this point.
    Therefore, my predecessor, Jonathan Z. Cannon, prepared a 
legal opinion for EPA Administrator Carol Browner on the 
question of EPA's legal authority to regulate several 
pollutants, including CO2 emitted by electric power 
generation sources. The legal opinion requested by Rep. DeLay 
was completed on April 10, 1998. It addressed the Clean Air Act 
authority to regulate emissions of four pollutants of concern 
from electric power generation: nitrogen oxides 
(NOx), sulfur dioxide (SO2), mercury, and 
CO2. Because today's hearing is focused exclusively 
on CO2, I will summarize the opinion's conclusions 
only as they relate to that substance.
    The Clean Air Act includes a definition of the term ``air 
pollutant,'' which is the touchstone of EPA's regulatory 
authority over emissions. Section 302(g) defines ``air 
pollutant'' as any air pollution agent or combination of such 
agents, including any physical, chemical, biological, [or] 
radioactive . . . substance or matter which is emitted into or 
otherwise enters the ambient air. Such term includes any 
precursors to the formation of any air pollutant, to the extent 
that the Administrator has identified such precursor or 
precursors for the particular purpose for which the term ``air 
pollutant'' is used.
    Mr. Cannon noted that CO2 is a ``physical [and] 
chemical substance which is emitted into. . .  the ambient 
air,'' and thus is an ``air pollutant'' within the Clean Air 
Act's definition. Congress explicitly recognized emissions of 
CO2 from stationary sources, such as fossil fuel 
power plants, as an ``air pollutant'' in section 103(g) of the 
Act, which authorizes EPA to conduct a basic research and 
technology program to include, among other things, 
``[i]mprovements in nonregulatory strategies and technologies 
for preventing or reducing multiple air pollutants, including 
sulfur oxides, nitrogen oxides, heavy metals, PM--10 
(particulate matter), carbon monoxide, and carbon dioxide, from 
stationary sources, including fossil fuel power plants.'' 
(Emphasis added.)
    The opinion explains further that the status of 
CO2 as an ``air pollutant'' is not changed by the 
fact that CO2 is a constituent of the natural 
atmosphere. In other words, a substance can be an ``air 
pollutant'' under the Clean Air Act's definition even if it has 
natural sources in addition to its man-made sources. EPA 
regulates a number of naturally occurring substances as air 
pollutants because human activities have increased the 
quantities present in the air to levels that are harmful to 
public health, welfare, or the environment. For example, 
SO2 is emitted from geothermal sources; volatile 
organic compounds (VOSs), which are precursors to 
harmful ground-level ozone, are emitted by vegetation. Some 
substances regulated under the Act as hazardous air pollutants 
are actually necessary in trace quantities for human life, but 
are toxic at higher levels or through other routes of exposure. 
Manganese and selenium are two examples of such pollutants. 
Similarly, in the water context, phosphorus is regulated as a 
pollutant because although it is a critical nutrient for 
plants, in excessive quantities it kills aquatic life in lakes 
and other water bodies.
    While CO2, as an ``air pollutant,'' is within 
the scope of the regulatory authority provided by the Clean Air 
Act, this by itself does not lead to regulation. The Clean Air 
Act includes a number of regulatory provisions that may 
potentially be applied to an air pollutant. But before EPA can 
actually issue regulations governing a pollutant, the 
Administrator must first make a formal finding that the 
pollutant in question meets specific criteria laid out in the 
Act as prerequisites for EPA regulation under its various 
provisions. Many of these specific Clean Air Act provisions for 
EPA action share a common feature in that the exercise of EPA's 
authority to regulate air pollutants is linked to a 
determination by the Administrator regarding the air 
pollutant's actual or potential harmful effects on public 
health, welfare or the environment. For example, EPA has 
authority under section 109 of the Act to establish National 
Ambient Air Quality Standards for any air pollutant for which 
the Administrator has established air quality criteria under 
section 108. Under section 108, the Administrator must first 
find that the air pollutant in question meets several criteria, 
including that:
    it causes or contributes to ``air pollution which may 
reasonably be anticipated to endanger public health or 
welfare;'' and its presence in the ambient air ``results from 
numerous or diverse mobile or stationary sources . . . .''
    Section 302(h), a provision dating back to the 1970 version 
of the Clean Air Act, defines ``welfare'' and States:
    all language referring to effects on welfare includes, but 
is not limited to, effects on soils, water, crops, vegetation, 
man-made materials, animals, wildlife, weather, visibility, and 
climate, damage to and deterioration of property, and hazards 
to transportation, as well as effects on economic values and on 
personal comfort and well-being, whether caused by 
transformation, conversion, or combination with other air 
pollutants.
    Thus, since 1970, the Clean Act has included effects on 
``climate'' as a factor to be considered in the Administrator's 
decision, as to whether to list an air pollutant under section 
108.
    Analogous threshold findings are required before the 
Administrator may establish new source performance standards 
for a pollutant under section 111, list and regulate the 
pollutant as a hazardous air pollutant under section 112, or 
regulate its emission from motor vehicles under Title II of the 
Act.
    Given the clarity of the statutory provisions defining 
``air pollutant'' and providing authority to regulate air 
pollutants, there is no statutory ambiguity that could be 
clarified by referring to the legislative history. 
Nevertheless, I would note that Congress' decision in the 1990 
Amendments not to adopt additional provisions directing EPA to 
regulate greenhouse gases by no means suggests that Congress 
intended to limit pre-existing authority to address any air 
pollutant that the Administrator determines meets the statutory 
criteria for regulation under a specific provision of the Act.
    I would like today to reiterate one of the central 
conclusions of the Cannon memorandum, which Stated: ``While 
CO2, as an air pollutant, is within EPA's scope of 
authority to regulate, the Administrator has not yet determined 
that CO2 meets the criteria for regulation under one 
or more provisions of the Act.'' That Statement remains true 
today. EPA has not made any of the Act's threshold findings 
that would lead to regulation of CO2 emissions from 
electric utilities or, indeed, from any source. The opinion of 
my predecessor simply clarifies--and I endorse this opinion--
that CO2 is in the class of compounds that could be 
subject to several of the Clean Air Act's regulatory 
approaches. Thus, I would suggest that many of the concerns 
raised about the statutory authority to address CO2 
relate more to factual and scientific, rather than legal, 
questions regarding whether and how the criteria for regulation 
under the Clean Air Act could be satisfied.
    I also want to note, however, EPA has strongly promoted 
voluntary partnerships to reduce emissions of greenhouse gases 
through the EnergyStar and Green Lights programs and other non-
regulatory programs that Congress has consistently supported. 
These successful programs already have over 7,000 voluntary 
partners who are taking steps to reduce greenhouse gas 
emissions, reduce energy costs and help address local air 
pollution problems. These programs also help the United States 
meet its obligations under the United Nations Framework 
Convention on Climate Change, which was ratified in 1992. I 
would also note, as EPA has indicated in past correspondence 
with Chairman McIntosh and others, in the course of carrying 
out the mandates of the Clean Air Act, EPA has in a few 
instances directly limited use or emissions of certain 
greenhouse gases other than CO2. For example, EPA 
has limited the use of certain substitutes for ozone-depleting 
substances under Title VI of the Act, where those substitutes 
have very high global warming potentials. I wish to stress once 
more, however, that while EPA will pursue efforts to address 
the threat of global warming through the voluntary programs 
authorized and funded by Congress and will carry out the 
mandates of the Clean Air Act, this Administration has no 
intention of implementing the Kyoto Protocol prior to its 
ratification on the advice and consent of the Senate.
    This concludes my prepared Statement. I would be happy to 
answer any questions that you may have.

    Senator Boxer. Thank you so much for your eloquence as 
well.
    Ms. Klee, we welcome you. You are now with a private firm, 
but you were the counsel----
    Ms. Klee. I was the General Counsel of EPA through July 
2006.
    Senator Boxer. We welcome you. Go right ahead. You will 
also have 6 minutes.

     STATEMENT OF ANN R. KLEE, PARTNER, CROWELL AND MORING

    Ms. Klee. Thank you, Madam Chair, Senator Inhofe, members 
of the Committee. My name is Ann Klee, and as Senator Boxer 
noted, I was the former General Counsel of EPA. I am now a 
partner in a private law firm, Crowell and Moring, in 
Washington, DC.
    Before I begin, I would like to emphasize that the views 
that I express today are purely my own. I am not here on behalf 
of any client or any industry sector.
    I would like to make three points about the Supreme Court's 
decision. First, I think as both former Administrators have 
alluded to, the Massachusetts decision has clearly changed the 
regulatory landscape with respect to greenhouse gases, by 
increasing significantly, I think, the likelihood of more 
regulation of new motor vehicles and ultimately stationary 
sources.
    That does not mean, however, that it will have a meaningful 
effect in terms of reducing the global atmospheric 
concentrations of greenhouse gases. I do not believe that it 
will.
    At best, the Massachusetts decision forces the square peg 
of greenhouses gases through the round holes of EPA's existing 
regulatory tools under the Clean Air Act. Although that may 
reduce U.S. emissions over time, it makes little sense from a 
regulatory perspective.
    We have all heard about the Supreme Court's decision and 
the fact that it puts to rest the question of whether not 
greenhouse gases are air pollutants under the Clean Air Act. 
The Court held that they are, and therefore are potentially 
subject to regulation.
    But that is not the end of the analysis. Under Section 202 
of the Clean Air Act, EPA is required to set standards for new 
motor vehicles only if in the judgment of the Administrator 
those gases cause or contribute to air pollution that can 
reasonably be anticipated to endanger public health and 
welfare.
    To date, and this is important to note, EPA has never made 
that finding with respect to greenhouse gas emissions or carbon 
dioxide. Nor did the Court concluded that greenhouse gas 
emissions endanger public health or welfare. So until that 
timing is made, while EPA may regulate greenhouse gas 
emissions, it is under no legal obligation to do so.
    It is also true, however, that the Court's narrow 
interpretation of what the Administration may consider when he 
makes that endangerment finding may very lead to an affirmative 
finding and ultimately regulation. It is equally true that the 
reasoning of the Supreme Court's decision will likely 
eventually be applied by proponents of regulation to support 
additional controls on stationary sources.
    The fact that EPA has the authority under existing law to 
regulate carbon dioxide for climate control purposes does not 
mean that regulation, at least not regulation using existing 
regulatory tools, will be effective. To the contrary, it is my 
view that the Clean Air Act in its current form simply isn't 
well suited to deal with a global air pollutant like 
CO2. That view is shared by my predecessors in the 
Office of General Counsel at EPA. Administrator Browner has 
referred to the Cannon memo that the Supreme Court cited that 
was prepared during her tenure at EPA. The fact that they 
shared that view I think may account for why the previous 
Administration also did not seek to regulate carbon dioxide 
under the current Clean Air Act.
    While both of my former predecessors were of the view that 
the Clean Air Act provided EPA with the authority to regulate 
carbon dioxide, both concluded that revisions to the law would 
serve to clarify EPA's authority to craft the most effective 
regulatory mechanisms to deal with carbon dioxide emissions and 
climate change. The National Ambient Air Quality Standards 
program is a very good illustration of why the fundamental 
structure of the Clean Air Act may not be well suited to 
address carbon dioxide.
    Under the current law, EPA could certainly make an argument 
to list carbon dioxide as a criteria pollutant and then set 
national standards, which would have to be achieved. But in 
order to trigger the regulatory mechanism that would then 
prompt reductions in emissions, EPA would have to set the 
standard essentially at a level below current atmospheric 
concentrations. That in turn would mean that the entire Country 
would be designated a non-attainment area. No State would ever 
be able to achieve attainment, and certainly not within the 12 
year statutory deadline, simply because greenhouse gas 
emissions are going to continue to grow dramatically in 
countries like India and China. That is just one example of why 
the Clean Air Act structure may not work.
    Climate change is an international issue and calls for an 
international solution. That is not to say that the United 
States should act, or that the United States should hide behind 
the country of China. Of course, we should act. But the reality 
is that we are. Businesses across the United States are 
significantly reducing their carbon footprint. They are 
increasing energy efficiency, investing in new technologies and 
reducing emissions. Administrator Johnson has articulated just 
a few examples of the programs that the Administration is 
currently pursuing. Those programs, those combined efforts are 
having an impact.
    While we are slowing the growth of greenhouse gas emissions 
domestically and working toward reversing the trend line, China 
is dramatically increasing its greenhouse gas emissions at a 
pace commensurate with its rapidly growing and largely 
unregulated economy. It is a magnet for more cars, more 
manufacturing, more emissions. Whatever we do here must not 
result in the relocation of U.S. businesses and U.S. jobs in 
countries that are not also reducing their emissions. Unless 
our trading partners are part of the global effort to address 
climate change, piece-meal regulation in the United States will 
achieve little and may in fact result in increased global 
emission.
    The Supreme Court has answered one question, but it has not 
solved the problem. To do that, we need to identify the best 
tools to effectively address climate change. We need to develop 
the new technologies that are necessary for clean energy 
production, advanced coal technology, ICC, nuclear. And we need 
to work with China and India to ensure that they, too, are part 
of the international effort to reduce greenhouse gas emissions.
    Thank you, Madam Chair, for the opportunity to testify on 
this very important issue.
    [The prepared statement of Ms. Klee follows:]

         Statement of Ann R. Klee, Partner, Crowell and Moring

    Madam Chairman, Members of the Committee, I am pleased to 
be here today to testify on the issue of EPA's authority to 
regulate greenhouse gas emissions under the Clean Air Act in 
the wake of the Supreme Court's decision in Massachusetts v. 
EPA, No. 05-1120, 549 U.S. -------- (2007). Before I begin, 
however, I would like to make clear that my testimony today 
reflects my personal views and analysis of the law based upon 
my experience as General Counsel of the U.S. Environmental 
Protection Agency (from 2004 until August 2006), as Chief 
Counsel of this Committee (from 1997 until 2000), and most 
recently as a lawyer in private practice.

                                overview

    On April 2, 2007, the U.S. Supreme Court issued its 
landmark vacating the Environmental Protection Agency's (EPA's) 
denial of a petition to regulate greenhouse gas emissions from 
new motor vehicles. The Court's majority found that greenhouse 
gas emissions are ``air pollutants'' under the Clean Air Act 
and, therefore, potentially subject to regulation if, in the 
judgment of the Administrator, they ``cause or contribute to 
air pollution which may reasonably be anticipated to endanger 
public health or welfare.'' The Court did not reach the issue 
of whether greenhouse gases from new motor vehicles, in fact, 
endanger public health or welfare, but it potentially 
significantly constrained EPA's discretion with respect to that 
determination.
    Undoubtedly, the decision has changed the regulatory 
landscape. The determination that greenhouse gases are air 
pollutants will likely lead EPA to regulate greenhouse gas 
emissions, and carbon dioxide (CO2) in particular, 
from new motor vehicles. It also likely will lead to regulation 
of stationary sources of greenhouse gases since the Clean Air 
Act's stationary source provisions are also triggered by an 
``endangerment'' finding. In this respect, the decision is a 
significant one--an endangerment finding under one program will 
make it very difficult for EPA not to regulate under other 
programs.
    The decision will not, however, have any meaningful impact 
in terms of addressing global climate change. Forcing the 
square peg of greenhouse gas emissions through the round holes 
of EPA's existing regulatory tools--tailpipe standards, 
national ambient air quality standards, new source performance 
standards, etc.--may have the effect of reducing U.S. emissions 
over time, but it will do nothing to reduce atmospheric 
concentrations of greenhouse gases, which is the true measure 
of effectiveness of regulation for climate change purposes. 
Unless our trading partners, China and India in particular, are 
also part of the effort to reduce global emissions of 
greenhouse gases, piece-meal regulation in the United States 
will not only achieve little; it may, in fact, have the 
unintended effect of leading to increased emissions by 
encouraging the relocation of U.S. businesses to countries not 
subject to greenhouse gas regulation.

                   the massachusetts v. epa decision

    The Massachusetts case involved a challenge to EPA's denial 
of a petition to regulate greenhouse gas emissions from new 
motor vehicles under section 202 of the Clean Air Act. EPA 
denied the petition on the grounds that it lacked the authority 
under the Act to regulate emissions for climate change purposes 
and, in the alternative, that even if it had the authority to 
set greenhouse gas standards, it would not be ``effective or 
appropriate'' to do so at this time. On appeal to the Supreme 
Court, petitioners raised two central questions: (1) whether 
EPA has the statutory authority to regulate greenhouse gas 
emissions from new motor vehicles under section 202 of the 
Clean Air Act; and (2) if the Agency does have the authority, 
whether its stated reasons for declining to regulate greenhouse 
gas emissions from new motor vehicles was consistent with the 
statute.\1\
---------------------------------------------------------------------------
    \1\A substantial portion of the Majority's opinion focuses on the 
issue of standing and, in particular, whether the petitioners in this 
case have satisfied the elements of Article III standing under the 
Constitution. After setting forth a novel theory of standing premised 
upon ``a special solicitude'' for the State of Massachusetts based upon 
its ``stake in protecting its quasi-sovereign interests,'' the Stevens 
Majority concludes essentially that loss of Massachusetts coastline 
constitutes sufficient injury in fact that might be traced, in some 
small part, to climate change and redressed, again in some small part, 
by future regulation of emissions from new motor vehicles. Chief 
Justice Roberts, in a dissenting opinion joined by Justices Scalia, 
Thomas and Alito, would have rejected the challenge to EPA's action as 
nonjusticiable. The dissent notes that there is no basis in law for the 
Majority's ``special solicitude'' for the State of Massachusetts in its 
standing analysis. Furthermore, as the dissent sets forth in some 
detail, the State's injury is neither particularized, nor imminent; the 
injury cannot reasonably be traced to the lack of regulation of 
greenhouse gas emissions from new motor vehicles, particularly given 
the numerous and complex factors that affect all predictions with 
respect to climate change; and, finally, the injury cannot be 
meaningfully addressed by the action sought--regulation of new motor 
vehicles--because emissions from new motor vehicles account for only a 
minute percentage of the global atmospheric concentration of carbon 
dioxide. For these reasons, the State of Massachusetts and the other 
petitioners cannot meet the three requirements of Article III standing.
---------------------------------------------------------------------------
    Writing for the Majority in a 5-4 decision, Justice Stevens 
answered the first question in the affirmative, concluding that 
the Clean Air Act's language is unambiguous and that carbon 
dioxide is an ``air pollutant'' within the meaning of the Act 
and, therefore, potentially subject to regulation. Justice 
Stevens went on to reject the basis upon which EPA had decide 
not to regulate greenhouse gas emissions at this time. Justice 
Scalia filed a dissenting opinion on the merits on behalf of 
himself, Chief Justice Roberts, and Justices Alito and Thomas. 
The dissenting opinion reached the opposite conclusion with 
respect to both questions.
    The term ``air pollutant'' is defined in the statute as 
``any air pollution agent or combination of such agents, 
including any physical, chemical,. . .  substance or matter 
which is emitted into or otherwise enters the ambient air.'' 
Focusing solely on the language following the word 
``including,'' Justice Stevens adopts the view that carbon 
dioxide is a chemical or physical substance emitted into the 
air and must therefore be an air pollutant.\2\ His opinion does 
not address whether carbon dioxide meets the first element of 
the definition, namely whether it is first an ``air pollution 
agent.'' As EPA argued in its brief, and as Justice Scalia 
noted in his dissenting opinion, the fact that the statutory 
definition uses the words ``any'' and ``including'' does not 
end the analysis. As he points out, ``in order to be an air 
pollutant' under the Act's definition, the substance or matter 
[being] emitted into the . . . ambient air' must also meet the 
first half of the definition--namely it must be an ''air 
pollution agent or combination of such agents.'' The phrase 
following the term ``including'' can be illustrative of the 
kind of substances that might also be air pollution agents, but 
does not necessarily substitute for the first element of the 
definition. EPA provided the following example, quoted by 
Justice Scalia, in support of this point: ``The phrase any 
American automobile, including any truck or minivan,' would not 
naturally be construed to encompass a foreign-manufactured 
[truck or] minivan.'' Scalia Dissent at 9.
---------------------------------------------------------------------------
    \2\As Justice Scalia noted in footnote 2 of his dissenting opinion, 
this interpretation of the language of the definition of ``air 
pollutant'' would make little sense as it would then follow that 
``everything airborne, from Frisbees to flatulence, qualifies as an air 
pollutant.'' Scalia dissent at 10.
---------------------------------------------------------------------------
    Having concluded that greenhouse gas emissions are ``air 
pollutants'' within the meaning of the statute, Justice Stevens 
has ``little trouble concluding'' that EPA is ``authorize[ed] 
to regulate greenhouse gas emissions from new motor vehicles in 
the event that it forms a ``judgment'' that such emissions 
contribute to climate change.'' Slip op. at 25. Section 
202(a)(1) of the Act provides that EPA ``shall by regulation 
prescribe . . .  standards applicable to the emission of any 
air pollutant from any class or classes of new motor vehicles 
or new motor vehicle engines, which in [the Administrator's] 
judgment cause, or contribute to, air pollution which may 
reasonably be anticipated to endanger public health or 
welfare.'' To date, EPA has never made an endangerment finding 
with respect to carbon dioxide.
    Finally, the Court rejected EPA's alternative basis for its 
decision not regulate greenhouse gas emissions from new motor 
vehicles at this time. EPA had argued that even if the Clean 
Air Act did authorize the Agency to regulate greenhouse gas 
emissions from new motor vehicles, that it appropriately 
exercised its discretion not to make an endangerment finding 
and regulate those emissions at this time. The Agency based its 
decision on, among other things, the continuing scientific 
uncertainties that were summarized in a 2001 National Academy 
of Sciences Report, as well as legitimate policy 
considerations, including the President's comprehensive 
approach to addressing climate change through investment in 
technology and voluntary actions. As EPA noted, ``establishing 
[greenhouse gas] emissions standard for U.S. motor vehicles at 
this time would . . . result in an inefficient, piecemeal 
approach to addressing the climate change issue. . . . .A 
sensible regulatory scheme would require that all significant 
sources and sinks of [greenhouse gas] emissions be considered 
in deciding how best to achieve any needed emissions 
reductions.'' 68 Fed. Reg. 52,929-931.
    The Court, however, concluded that EPA''s exercise of its 
``judgment'' in this case was based upon ``reasoning divorced 
from the statutory text'' and therefore invalid. Slip op. at 
30. Even though the statute is silent with respect to how the 
Agency shall exercise its ``judgment'' in the context of an 
endangerment finding, and even though the term ``endanger'' is 
not defined in the statute, the Court substantially constrained 
the Agency's ability to exercise its judgment, at least with 
respect to a determination under section 202 of the Act. In 
effect, the Court held that ``EPA can avoid taking further 
action only if it determines that greenhouse gas emissions do 
not contribute to climate change or if it provides some 
reasonable explanation as to why it cannot or will not exercise 
its discretion to determine whether they do.'' Slip op. at 30. 
With respect to the latter, the Court suggests that the only 
basis for not exercising its discretion would be if ``the 
scientific uncertainty is so profound that it precludes EPA 
from making a reasoned judgment as to whether greenhouse gases 
contribute to global warming.'' Slip op. at 31.
    Significantly, the Court did not reach the question of 
whether EPA must actually make an endangerment finding, only 
that its explanation for making, or not making, such a finding 
must be based upon permissible statutory grounds--i.e., the 
relationship between greenhouse gas emissions from new motor 
vehicles and public health or welfare.

               implications of the massachusetts decision

    In the wake of the Supreme Court's decision, there has been 
both a call for EPA to take immediate action to begin 
regulating carbon dioxide emissions from motor vehicles and, 
perhaps more interestingly, intensified lobbying for 
Congressional action on climate change legislation. The former 
is hardly surprising. The Supreme Court held that carbon 
dioxide is an air pollutant, thereby setting the stage for EPA 
to initiate the regulatory process, or at least the process for 
deciding whether or not to make an endangerment finding. The 
latter, however, suggests that even advocates of regulation 
recognize that the victory of the decision may be a hollow one. 
If the goal is truly to reduce the atmospheric concentration of 
carbon dioxide and other greenhouse gases that scientists 
indicate are causing or contributing to global warming, and all 
of its attending effects, regulation under the Clean Air Act is 
not the answer. As discussed in greater detail below, the tools 
of the Clean Air Act are simply not well suited to address a 
global pollutant like carbon dioxide.
    First, it is important to understand exactly what the 
Court's decision does, and does not, require.

     As noted above, the Court did not reach the issue of 
whether EPA must make an endangerment finding. On remand, 
however, if the Agency opts not to make an endangerment 
finding, it must articulate why there is such profound 
scientific uncertainty that it cannot make that finding.
     If the Agency does make an endangerment finding, it must 
then propose regulations to address greenhouse gas emissions 
from new motor vehicles. That is really the only true 
regulatory mandate of the Supreme Court's decision.
     Significantly, the Agency retains substantial discretion 
with respect to the content of any regulation. The Majority 
opinion states that ``EPA has no doubt significant latitude as 
to the manner, timing, content and coordination of its 
regulations with those of other agencies.'' Slip op. at 30.
     The Supreme Court's decision does not address stationary 
sources and therefore does not require that EPA undertake any 
action with respect to the regulation of stationary sources.

     epa's existing statutory authority to regulate air pollutants

    As noted above, the Court's decision could have far-
reaching implications beyond simply the regulation of mobile 
sources under section 202 of the Clean Air Act. First, the 
Court's holding that greenhouse gases are ``air pollutants'' 
means that EPA has broad authority to regulate greenhouse gases 
under all the significant Clean Air Act programs, including the 
National Ambient Air Quality Standards (NAAQS), New Source 
Review (NSR), New Source Performance Standards (NSPS), 
Prevention of Significant Deterioration (PSD), stratospheric 
ozone (Title VI), and mobiles sources and fuels (Title II) 
programs. Second, the Court's constrained approach to the 
endangerment finding may limit, although not preclude, EPA's 
ability to decide not to regulate greenhouse gas emissions 
under those programs since they, like section 202, are 
triggered when the Administrator determines that an ``air 
pollutant'' causes or contributes to air pollution that ``may 
reasonably be anticipated to endanger public health or 
welfare.'' Having the authority to regulate under existing law, 
however, does not mean that regulation will be effective.

                 national ambient air quality standards

    Section 108 of the Clean Air Act requires the Administrator 
to publish and, ``from time to time thereafter revise,'' a list 
of air pollutants: (1) emissions of which, in his judgment, 
cause or contribute to air pollution which may reasonably be 
anticipated to endanger public health or welfare; and (2) that 
are emitted from numerous or diverse mobile or stationary 
sources.\3\ Once a pollutant is listed, EPA is required to 
establish primary and secondary air quality standards for that 
pollutant.
---------------------------------------------------------------------------
    \3\The six listed criteria pollutants are: ozone, nitrogen dioxide, 
particulate matter, sulfur dioxide, carbon monoxide and lead.
---------------------------------------------------------------------------
    States deemed to be in attainment must develop State 
Implementation Plans (``SIPs'') demonstrating how they will 
maintain compliance; nonattainment States must develop SIPs 
demonstrating how they will come into attainment with the 
standards ``as soon as practicable'' but no later than five 
years after designation.\4\ States that fail to submit SIPs or 
to come into attainment within the statutory deadlines attain 
face potential sanctions, including the potential loss of 
highway funding, and a federal takeover of their CAA programs.
---------------------------------------------------------------------------
    \4\The statute provides that States must come into attainment 
within five years, but it authorizes EPA to grant one five-year 
extension. Additionally, states can seek two additional one-year 
extensions. Thus, under the CAA, can get up to twelve years to attain 
the (non-ozone) NAAQS.
---------------------------------------------------------------------------
    Although the argument could be made that CO2 
meets the statutory threshold for designation and regulation as 
a criteria pollutant, it is evident that this would make little 
sense from a regulatory perspective. If the standard were set 
at a level intended to force reductions in emissions, i.e., at 
some atmospheric concentration below current levels 
(approximately 370-380 parts per million CO2, then 
the entire country would be designated as being in 
nonattainment.\5\ This would trigger the regulatory mechanisms 
of the NAAQS program--SIPs, NSR, reasonably available control 
technologies (RACT )to reduce emissions--but the reality is 
that none of the measures will have any effect in terms of 
bringing any individual State or county into attainment. Unless 
international emissions are also reduced, global CO2 
concentration will continue to increase and the entire United 
States would remain in nonattainment status. Even with 
international reductions, which are not currently occurring, 
the statutory deadline for compliance--a maximum of 12 years--
is patently unrealistic and unachievable. This should be of 
concern to States that face potentially significant penalties 
for persistent nonattainment. For these reasons, it should be 
clear that the NAAQS program is ill suited to address a global 
pollutant like CO2.
---------------------------------------------------------------------------
    \5\Alternatively, if the standard were set above current levels of 
CO2, the entire country would, at least for the short term, 
be classified as an attainment area and no regulatory mechanisms to 
reduce emissions would be triggered. This result, would be short-lived, 
however, as emissions from China and India continue to increase 
dramatically. Thus, regardless of what individual States or counties do 
with respect to their CO2 emissions, global atmospheric 
concentrations will continue to increase.
---------------------------------------------------------------------------

                    new source performance standards

    Section 111(b)(1)(a) of the Clean Air Act requires the 
Administrator to adopt new source performance standards for 
categories of emission sources that ``cause[], or contribute[] 
significantly to, air pollution which may reasonably be 
anticipated to endanger public health or welfare.'' EPA is also 
required to review, and, if appropriate, revise, the NSPS every 
eight years to ensure that the standards continue to protect 
public health and the environment. CAA  111(b). These 
standards are developed on a specific unit-by-unit basis, and 
apply to both attainment and nonattainment areas. Emission 
standards under the NSPS program must reflect ``the degree of 
emission limitation achievable through the application of the 
best system of emission reduction'' that has been ``adequately 
demonstrated,'' while considering the ``costs of achieving such 
reductions and any non-air quality health and environmental 
impact and energy requirements.'' CAA  111(a)(2).
    In the wake of the Supreme Court decision, EPA could issue 
sector-specific emissions standards for CO2, 
assuming that it makes the necessary endangerment finding. 
These standards, however, by definition would not be economy-
wide and furthermore would generally apply only to new sources. 
It is true that the Agency could, through multiple rulemakings, 
ultimately seek to regulate a number of industry sectors, but 
the process would certainly be a lengthy one extending over a 
period of many years. The standards themselves must be based 
upon the best demonstrated technology, which EPA has 
interpreted to mean technology that is in existence and widely 
commercially available. This could further limit the value of 
NSPS in terms of achieving significant and immediate reductions 
in emissions.

                         cap and trade programs

    Most proponents of regulation or legislation to address 
greenhouse gas emissions argue that the most effective means of 
achieving reductions is through a market-based cap and trading 
program. In a more limited context, EPA has successfully 
implemented a trading program to reduce sulfur dioxide (SO2) 
from utilities under the Acid Rain program specifically 
authorized by Title IV of the Clean Air Act. It subsequently 
developed a cap and trade program for nitrogen oxides (NOx) 
under the NOx SIP call using its authority under section 110 of 
the Act. More recently, the Agency promulgated the Clean Air 
Interstate Rule (CAIR) pursuant to its authority under section 
110, to further reduce NOx and SO2 from power plants. These 
programs have generally been upheld by the courts or not 
challenged.
    Whether or not EPA has the authority to develop a cap and 
trade program for greenhouse gases, however, may still be at 
issue. Experience with the NOxSIP call and CAIR 
suggest that a trading program under section 110 of the Act 
would likely survive judicial challenge. That would first 
require the listing and regulation of CO2 as a 
criteria pollutant, which as discussed above, makes little 
sense. Alternatively, EPA could use its authority under the 
NSPS provisions of section 111 of the Act to create a cap and 
trade program, as it did recently for mercury in the Clean Air 
Mercury Rule. However, the mercury rule, and specifically EPA's 
assertion of authority under section 111 to create a cap and 
trade program rather than unit-specific standards, is being 
challenged in the D.C. Circuit. Until that fundamental legal 
question is resolved, EPA's ability to craft an effective cap 
and trade program under existing law remains unclear.

                               conclusion

    While the Massachusetts v. EPA decision put to rest the 
question of whether greenhouse gases are ``air pollutants'' 
under the Clean Air Act, this in and of itself, will do little 
to address climate change in a meaningful way. The Clean Air 
Act's existing regulatory tools were simply not designed to 
address global pollution. Climate change is an international 
problem; it demands an international solution. It is a national 
policy issue; it demands a national policy solution.

    Senator Boxer. Thank you so very much.
    I am going to take 5 minutes, we are each going to take 5 
minutes and then we are going to go to the next panel.
    Thank you to the full panel. I want everyone to listen for 
the two Cs--complex and China. Just listen for the two Cs. That 
is the code word here for doing as little as possible.
    OK. Administrator Browner, in 1997, you were required by 
court order to set a new National Ambient Air Quality Standard 
within 6 months. The Agency rose to the challenge, set a 
standard for both particulate matter, PM, and ozone. By the 
way, particulate matter in my State is a huge problem. The way 
you handled it was ultimately upheld in the Supreme Court.
    Do you see any reason why the Agency couldn't rise to the 
challenge in this situation, set a national standard for 
greenhouse gases for motor vehicles within 6 months' time?
    Ms. Browner. I do not. I think that they can certainly act 
within 6 months. I would think they could act probably in a 
slightly shorter timeframe, but certainly within 6 months. 
There is not reason they cannot be done.
    Senator Boxer. Administrator Reilly, you helped write and 
pass the Clean Air Act amendments in 1990. Thank you for that. 
At that time, one of the key problems was acid rain. There were 
arguments made in those days that more study of acid rain was 
needed. The Congress took action with you. We never looked 
back, and we know we are having a good impact here. Can we 
afford to wait until every last question regarding global 
warming is settled? Or do we have more than enough information 
to act?
    Mr. Reilly. I think before we acted, we had the National 
Acid Precipitation study that had been strongly supported for 
some years. The Intergovernmental Panel on Climate Change has 
reported several times now, three times, I think. We have 11 
national academies of science that have supported this as well. 
We are ready to move, I think.
    Senator Boxer. Thank you. Administrator Browner, if we 
listen to Ms. Klee, who is very articulate, she is saying 
essentially that great things, good things are happening, good 
things are happening, we are reducing the amount that we 
expected to increase in terms of greenhouse gas emissions. 
Well, the Bush Administration has said, a voluntary intensity 
reduction goal of 18 percent by 2012. However, under their own 
intensity approach, actual emissions could rise by 12 percent 
or more, even if the voluntary goal is met.
    In your time as an administrator, do you recall trying to 
attack a major threat to public health through a voluntary goal 
that allowed the situation to become worse? Or did you look for 
real benefits and decreases in the pollutants?
    Ms. Browner. I agree that voluntary programs and 
partnerships can be an important part of how the Agency does 
its job. However, there will always be companies, there will 
always be sectors of the economy that will not join in those 
programs. So that is why we have a regulatory scheme. That is 
why Congress has given EPA the authority to set rules so that 
all companies who are contributing to a problem, all polluters 
who are part of the problem, can be held accountable and can be 
required to do their fair part.
    And I don't even say it is fair. If I am a company that 
decides to invest to meet a regulatory standard and make the 
kinds of capital investments that are required to meet that 
standard, I want to make sure that my competitor is similarly 
making those kinds of investments. I don't doubt we can do some 
good things, and we have done some good things in partnership. 
But when it comes to this issue of climate change, it will not 
be enough. We need a set of regulatory programs that everyone 
is held accountable to.
    Senator Boxer. Well, my question is a little bit different. 
My question is, even if everybody joined in, emissions could 
rise by 12 percent or more, even if the voluntary goal was met. 
So in other words, they are reducing the increase. I am just 
wondering if, when you were Administrator and you were faced 
with a public health question, you felt it would be progress to 
keep emissions rising rather than actually going down.
    Ms. Browner. Absolutely not. Slowing the amount of fine 
particles you put into the air, rather than dramatically 
reducing the amount of fine particles put into the air, this 
would have been two very different decisions. Slowing the 
progress or the increase would not have provided the public 
with the level of protection that they are entitled to under 
the Clean Air Act.
    Senator Boxer. Thank you.
    Administrator Reilly, since leaving EPA, you have served in 
many capacities, including on the boards of some major 
businesses. Recently, the U.S. Climate Action Partnership urged 
Congress to enact mandatory global warming limits which would 
reduce emissions significantly by 2050.
    Do you think that taking action on global warming is 
something that business should support?
    Mr. Reilly. One of the points, Madam Chairman, that the 
chairman of Dupont made in testimony before this Congress was 
that Dupont has been regulated under the Kyoto Protocol in all 
but two of the countries in which it operates. And it is doing 
fine. Conoco Phillips has recently joined U.S. Climate Action 
Partnership, first major U.S. oil company to do so, indicates 
support for mandatory regulation of carbon dioxide.
    I think these companies are to some extent out ahead of the 
rest of us. They have been looking at the need to promote more 
efficiency, they have been looking at higher fossil fuel costs, 
they are as sensitive themselves, because they have significant 
scientific resources to the overwhelming evidence of planetary 
impact of greenhouse gases, and they are proposing the policy 
give them a clear sense of the future and the playing field on 
which everyone will have to respond.
    Senator Boxer. Thank you very much.
    Senator Inhofe.
    Senator Inhofe. Thank you, Madam Chairman.
    Let me just mention, Mr. Reilly, since I am from Oklahoma, 
and that is Conoco Phillips, they did have a proviso that said, 
provided it would not be damaging to the economy, which I think 
is very significant.
    Ms. Browner, in 1997, you talked about in a speech before 
at Florida State University that based on years of rigorous 
science analysis to know that we must begin dealing with this 
problem, we have to start dealing with this problem now. Then 
just a few minutes ago, you talked about how you submitted a 
brief saying you had the authority to do it.
    Well, if you said we needed to do it now, and you had the 
authority to do it, why didn't you do it?
    Ms. Browner. We were working on it. If we had been given 
another 4 years, I am sure we would have done it. We were 
engaged in the scientific work that was going on, both in the 
United States and around the world. We were extremely active, 
as you are well aware, in preparing international agreements.
    Senator Inhofe. Very good. That answers the question.
    Let me ask you, Ms. Klee, you said something just a minute 
ago, and I have to ask you this question as a result of that. 
Does the decision, Massachusetts v. EPA decision, require the 
EPA to regulate greenhouse gas emissions from cars and trucks?
    Ms. Klee. No, Senator it does not. It does, however, 
require EPA to make an endangerment finding or provide a 
reasonable explanation as to why it cannot do so.
    Senator Inhofe. All right. And did the decision give the 
EPA the discretion to develop a reasonable and effective 
approach to addressing greenhouse gas emissions?
    Ms. Klee. Yes, absolutely. In fact, if EPA makes the 
endangerment finding, the majority opinion expressly noted that 
EPA retains wide latitude as to the manner, the timing, the 
content of the regulation, and in coordination with other 
Federal agencies. So EPA would have wide discretion at that 
point.
    Senator Inhofe. You have heard me talk about the costs of 
this. Does EPA have the authority under the Clean Air Act or 
other legal authority to raise revenues, like a carbon tax, to 
fund the development of the technologies that are necessary to 
reduce the emissions of carbon dioxide?
    Ms. Klee. No, EPA does not have that authority. As both 
former Administrators know, EPA also has very limited resources 
for the development of the new technologies that are necessary. 
That is really important, because the solution to climate 
change in the long term will depend on the development of clean 
coal technology, not just for the United States, which has an 
ample supply of coal and relies very heavily on the use of 
coal, but China's coal consumption will double.
    So they don't have the resources, they don't have the 
inclination that we have seen so far, to invest in those 
technologies. So if we don't develop those technologies and 
work with them to export those technologies, nothing we do in 
the United States will make any difference. So having that 
funding for technology is critical.
    Senator Inhofe. I think the key word there is they are not 
inclined, the inclination to do it. They are not inclined to do 
it. I have heard statement after statement, when we talked 
about how many coal-fired plants are coming out with every 3 
days or so, that they have no intention, in fact they actually 
have talked about, one of them said, if you think you have seen 
job flight before, you wait until we are the ones that have the 
energy.
    I would ask you, does EPA have the legal tools under the 
Clean Air Act to efficiently and effectively regulate 
greenhouse gas emissions?
    Ms. Klee. No, Senator, I really don't believe that the 
current regulatory tools are very effective. I mentioned the 
ambient air quality standards. There has been some discussion 
about setting New Source Performance Standards for stationary 
sources. But even there, I would note that there are 
significant shortcomings or challenges for the Agency, these 
New Source performance standards are sector specific, they are 
not economy-wide. They apply only to new sources unless EPA 
goes through a NOx sip-call process.
    And it doesn't clearly authorize EPA to undertake a cap and 
trade program, which I think most of the major bills that are 
currently pending would provide for. Certainly again referring 
back to the Cannon memo, that was the factor, I think, that was 
very influential in his thinking.
    Section 111 of the Clean Air Act, I believe, could give EPA 
the authority to develop a cap and trade program. But that 
issue is currently being challenged in the context of the 
mercury rule in the D.C. Circuit. So if the D.C. Circuit takes 
that tool away, you will be losing, or the Agency will be 
losing a very significant tool.
    Senator Inhofe. There is a tendency to try to say, this can 
be done, this can be done fast. Were you here when I read the 
list of provisions in the Clean Air Act and the Titles I, II, V 
and VI, some 17 sections that could be, could deal with this 
issue? Do you agree with his answer to that?
    Ms. Klee. Yes, absolutely. All of those could come into 
play.
    Senator Inhofe. All right. And last, Administrator Browner, 
there were a couple of years in the Clinton Administration, 
after the Kyoto was signed, how come you never sent it to the 
Senate for ratification?
    Ms. Browner. As the President himself said at the time, he 
recognized that this body was not prepared to ratify and that 
there were things that would need to be done, and that he would 
work to try and do those things. He did take the step of 
signing it, and we did obviously take the step of engaging in 
the international debate to try and secure an agreement, and we 
were successful in that regard.
    Senator Inhofe. Thank you.
    Senator Boxer. Thank you very much.
    Senator Lautenberg, the vote just started, so we will 
conclude with the two, and then we will vote. I will come back, 
I don't know who else will, for the last panel. Go ahead, 
Senator.
    Senator Lautenberg. Thanks, Madam Chairman, thank you all 
for being here and challenging, effectively, the fact that we 
can't get EPA off its protective cover that it creates to make 
these decisions, to really search beyond the ordinary and as 
our Chair said before, that we've got to stop hiding behind 
everybody else's contributions and get on this ourselves.
    Each of you had interesting periods of time when you served 
as administrators, and each of you, I think, contributed 
substantially to the general well-being of our society, and 
recognized problems that we were having with our environment.
    I look at it through the eyes of my grandchildren. This is 
kind of an interesting story around here, but I talk about my 
grandkids, the oldest of whom is 13, the youngest of whom is 3. 
It is what I want for them that propels so much of my activity 
here, anti-violence, better air quality, less war, peaceful 
Country, opportunity to get an education, all of those things. 
And if it is good for my grandchildren, it has to be good for 
everybody's grandchildren. That is the way I see things.
    I have visitors, I have families come in with autistic 
children, I have families that come in with diabetic children, 
I have families come in with asthmatic children. My oldest 
grandchild has a fairly severe asthmatic condition, and it 
really is a terrible thing to see him wheezing and sometimes 
choking, gasping for air. My daughter, when she takes him to 
play baseball or whatever, always looks for the nearest 
emergency clinic among the first things she does in the area, 
just in case he needs attention.
    So I have to tell you, it offends me to hear these excuses 
blamed about the complexity, as you said, Senator. There has 
been incredible misbehavior in these last few years, altered 
reports, redacted statements. We have them here. Word changes 
that say, will cause, may cause, silly things like that.
    So when we try to, and I think it is a short jump from the 
evidence at hand that endangers the environment, to go right to 
public health endangerment. At what point you say, oh, fish are 
dying and animals are dying, and coral is dying and this, but 
we don't see any direct effects on health. And I look at the 
Court document, the Supreme Court. And they say, you know, 
climate change is dangerous, it does not minimize 
Massachusetts' interest in the outcome of this legislation. 
This is what the Court said, and they continue, ``These rising 
seas have already begun to swallow Massachusetts' coastline.'' 
I think it was remarked about before.
    So Massachusetts is one of 50, and the land is being 
swallowed up and the ecology is changing, what does it take to 
say, I ask either, any one of you, all three of you, to go from 
there to say that this is an endangerment, a future 
endangerment of public health? Ms. Browner?
    Ms. Browner. I don't think it takes very much. If I might 
just quote from the Clean Air Act about what you have to look 
at or what findings you can make, welfare includes but is not 
limited to effects on soils, water, crops, vegetation, man-made 
materials, animal or other wildlife, disability, climate, 
damage to and deterioration of property, and the list goes on 
and on. They don't have to find all of those things are 
occurring. They can simply find that some of those things are 
occurring. And then you have an endangerment.
    Senator Lautenberg. Mr. Reilly.
    Mr. Reilly. I would be very surprised if they do not 
conclude it, if the Administrator does not conclude that 
endangerment is involved here. The box that they are in, 
particularly having conceded the significance of the science, 
not having disputed the science, that is to say, as the 
Administrator himself said today, that they concede the impact 
of greenhouse gases, humanly caused greenhouse gases on the 
environment, I think leads very directly to an endangerment 
decision.
    I would just say, during our administration, Bob Teter, who 
was the President's principal pollster, commented that 
something happened with respect to environmental views and 
values in the previous 15 to 20 years. He said they entered the 
core values of the American people. I think that is essentially 
what has happened in the last year to 3 years with respect to 
climate change.
    It seems to me the environment we are in, the larger 
environment, is one in which the endangerment is conceded by 
the vast portion of Americans, who want to see a more forward-
leaning policy with respect to climate change. I don't disagree 
with Ms. Klee about the complexity of addressing this problem, 
or the Administrator. Nor that the Clean Air Act is not the 
optimal instrument for solving the problem. But it is the 
instrument for solving the one problem that the Supreme Court 
has recognized. I don't see that there is a way around that.
    Senator Boxer. We have 5 minutes to go vote. Senator 
Cardin, we are going to have put your questions into the 
record. Will you answer those questions? Do you have a 10 
second answer?
    Ms. Browner. I just wanted to say, with the Supreme Court, 
Mick Jagger once said, you don't always get what you want, but 
sometimes you get what you need. Well, what EPA got in that 
Supreme Court decision is what they need, the opportunity to 
move forward. What we all want is for Congress to act, I 
suspect.
    Senator Cardin. Senator Boxer, my question, and I will put 
it into the record. First of all, I think the courts, the 
Judiciary is ahead of the Legislative and executive branches on 
the seriousness of global climate change. My question is, on 
the authority they have now, the determination that is made, 
what could they do? What were the options that you believe EPA 
could come up with to deal with greenhouse gases with the 
authority they have currently, assuming the determination is 
made?
    If I could have that answer for the record.
    Senator Boxer. Senator, we will. I want you to know that 
our staff here has done some research. They said right now they 
could just grant this waiver by summer, make the endangerment 
finding right away, move on clean coal. There are a whole host 
of things I think would be wonderful to hear from our, well, 
frankly our three witnesses, if our third one is interested in 
participating.
    Ms. Klee. I would be happy to.
    Senator Boxer. Tell us what you think we could do right 
now, it would be great.
    Since we now have 4 minutes, I just want to say, Ms. Klee, 
I know you have read the Supreme Court case. I am not a lawyer, 
but I am married to one and I'm the mom of one. But I have read 
this. The thing that is so beautiful about this decision is, it 
is so not complex. It is so clear. On the question of China, 
that everyone on the other side hides behind, they take on 
China head-on, in two paragraphs. I am going to make sure those 
go in the record right now.
    They say, forget about China, those are my words, but they 
basically say, they say that, judged by any standards, U.S. 
motor vehicle emissions make a meaningful contribution. They 
say that China and India are not dispositive to the case; a 
reduction in domestic emissions would slow the pace of global 
emissions increase, no matter what else happens.
    [The referenced material was not received at time of 
print.]
    Senator Boxer. So please, I mean, I hope your side can get 
some new arguments. Because China and complexity, we just 
really see through that.
    I want to thank all of you very much. I will be back for 
the final panel. You two were just great, you are continuing 
the bipartisan momentum for action.
    [Recess.]
    Senator Boxer. The Subcommittee will come to order and we 
will resume our hearing.
    Our final panel is Mr. David Doniger, Policy Director, 
Climate Center, at the NRDC; and Mr. Peter Glaser, Partner, 
Troutman Sanders LLP.
    Why don't we start with you, Mr. Doniger.

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

    Mr. Doniger. Thank you, Madam Chair, and thank you for 
having the fortitude to come back for this panel.
    I am David Doniger. I represent the Natural Resources 
Defense Council and its 1.2 million members and supporters in 
the Massachusetts case and in related global warming 
litigation. I want to salute the coalition of States, cities 
and environmental organizations which were engaged in the 
Massachusetts case and engaged in the other global warming 
cases. We couldn't have done it without everybody else's help 
and I salute them.
    We began this case during the coldest part of the little 
ice age in global warming policy in Washington. The President 
had broken his campaign pledge to control CO2, the 
Congress was inactive, the States weren't moving yet. This 
Administration tried to nail the door shut on the use of the 
Clean Air Act. We went to the last available place, the 
independent judiciary, to upheld the Nation's laws.
    Much has been said about the Massachusetts decision. I 
won't repeat it in summarizing my testimony. But it is clear 
that there are four immediate results. The first, Administrator 
Johnson has to decide afresh whether to set greenhouse gas 
emission standards for new motor vehicles. That has to start 
with a determination on the basis of the science only, the 
Supreme Court said, whether there is a contribution from those 
emissions to global warming. We don't see how he could reach 
anything other than a positive determination.
    The same thing is true with respect to power plants. There 
is another case pending in the D.C. Circuit which is bout the 
Administrator's refusal to regulate CO2 from new 
power plants under Section 111. And they gave as their sole 
basis the lack of authority. So that decision also will be 
reversed very soon by the D.C. Circuit, I predict, and the 
Administrator will have to make the endangerment decision for 
power plants as well.
    The third area which has received a lot of attention today 
is the waiver for California. I am pleased that the 
Administrator has signed the notice, undoubtedly prompted by 
the appearance here in front of you. So the hearing has had one 
enormous beneficial impact already. You set a relatively quick 
schedule for having the hearing and the comment period, and I 
applaud your efforts to hold him to account for a quick 
decision after that, as well as the court decision on the 
endangerment findings.
    My written testimony goes into some of the other kinds of 
litigation which the Supreme Court case will affect. Suffice it 
to say that it knocks the legs out from under most of the 
arguments the auto makers are making in a series of district 
court cases, one of which is on trial now in Vermont, 
challenging the California standards on preemption theories. We 
predict that those cases will be favorably resolved before 
long.
    There is a nuisance case pending in the Second Circuit, on 
a theory that stems right from the Georgia v. Tennessee Copper 
case that the Supreme Court relied on and cited with favor in 
its decision. So I think we have new life in that case, too.
    As others have said, there is now a two-track process, what 
EPA must do under existing law, and I think renewed more fuel 
under the kettle for congressional action created by this 
decision. So you have more and more companies, as has been 
noted, the forward-leaners who are embracing the need for 
legislation. Some of the backward-leaners may have concluded 
that it would be better to have Congress resolve these issues 
in the near term than leave these decisions for Stephen 
Johnson, or worse, the next Administrator.
    In the NRDC's view, global warming legislation needs to 
include a mandatory declining cap on multi-sector initiatives 
that start cutting emissions now and reduces from 80 percent by 
2050. There needs also to be performance standards for 
vehicles, fuels, power plants, buildings, appliances and other 
equipment, to quickly deploy today's emissions-cutting 
technology and promote the rapid development of tomorrow's.
    The third element of the legislation is targeted incentives 
drawn mainly from the value of emissions allowances to promote 
that technology to protect consumers and workers and 
communities, and help manage adaptation to the climate changes 
we can't avoid. There is still time, only a little time, to 
avoid the worst effects of global warming. NRDC looks forward 
to working with this Committee and all stakeholders to pass 
this legislation in this Congress.
    Thank you.
    [The prepared statement of Mr. Doniger follows:]

 Statement of David Doniger, Policy Director, Climate Center, Natural 
                       Resources Defense Counsel

    Madame Chairman, members of the Committee, thank you for 
the opportunity to testify today on Massachusetts v. EPA, the 
Supreme Court's decision upholding the Environmental Protection 
Agency's authority to regulate global warming pollution under 
the Clean Air Act. I am policy director and senior attorney for 
the Natural Resources Defense Council's Climate Center. I 
represent NRDC and its 1.2 million members and supporters in 
the Massachusetts case and in related global warming 
litigation. I work closely with the broad coalition of States, 
cities, and environmental organizations engaged in these cases. 
In the 1990's, I served as director of climate change policy in 
the EPA air office, under Carol Browner.
    We began this case during the coldest part of the Little 
Ice Age in global warming policy in Washington. The President 
had broken his campaign pledge to control carbon dioxide. The 
Congress was inactive. The States were not yet moving. Yet the 
science was growing ever clearer on the dangers of global 
warming, and the nation's Clean Air Act already empowered the 
government to react to that science. When the Bush 
Administration tried to nail this door permanently closed, our 
coalition of States, cities, and environmental organizations 
took the last step available, appealing to the independent 
third branch to uphold our nation's laws.
    The Supreme Court's April 2, decision in Massachusetts v. 
EPA repudiates the Bush administration's legal strategy for 
doing nothing on global warming. The nation's highest court set 
the White House straight: Carbon dioxide is an air pollutant. 
EPA has--and has always had--the power and responsibility to 
start cutting the pollution that is wreaking havoc with our 
climate. We need EPA to act now.
    The Court's decision has four immediate game-changing 
consequences:
    First, Administrator Johnson now must decide afresh whether 
to set greenhouse gas emission standards for new motor vehicles 
under Section 202 of the Clean Air Act. The Court clearly 
stated that this decision must be based on the science, and the 
science only:
    Under the clear terms of the Clean Air Act, EPA can avoid 
taking further action only if it determines that greenhouse 
gases do not contribute to climate change or if it provides 
some reasonable explanation as to why it cannot or will not 
exercise its discretion to determine whether they do.\1\
---------------------------------------------------------------------------
    \1\127S.Ct. 1438, 1462 (2007).
---------------------------------------------------------------------------
    The Court rejected all of the Administration's ``laundry 
list of reasons not to regulate''-preferences for voluntary 
action, concerns about piecemeal regulation, claimed 
interference with foreign policy. No, the Court said, the 
decision must be made on the science only: ``To the extent that 
this constrains agency discretion to pursue other priorities of 
the Administrator or the President, this is the congressional 
design.''\2\
---------------------------------------------------------------------------
    \2\Id.
---------------------------------------------------------------------------
    The Court was especially clear that ``while the President 
has broad authority in foreign affairs, that authority does not 
extend to the refusal to execute domestic laws.''\3\ The Court 
also observed that while economic considerations figure into 
the level and timing of standards under the Clean Air Act, they 
are not relevant to determining the need for such standards.\4\
---------------------------------------------------------------------------
    \3\Id. at 1462-63.
    \4\Id. at 1461.
---------------------------------------------------------------------------
    The Court found that ``EPA has not identified any 
congressional action that conflicts in any way with the 
regulation of greenhouse gases from new motor vehicles.''\5\ 
Specifically, the Court found no conflict with the Energy 
Policy and Conservation Act, under which the Corporate Average 
Fuel Economy (CAFE) standards are set: ``[T]hat DOT sets 
mileage standards in no way licenses EPA to shirk its 
environmental responsibilities. EPA has been charged with 
protecting the public's ``health'' and ``welfare,'' . . . a 
statutory obligation wholly independent of DOT's mandate to 
promote energy efficiency.''\6\
---------------------------------------------------------------------------
    \5\Id. at 1461.
    \6\Id. at 1462.
---------------------------------------------------------------------------
    Given the Administration's embrace of the Intergovernmental 
Panel on Climate Change (IPCC)--more than 90 percent certainty 
that anthropogenic emissions are causing global warming--it is 
difficult to imagine how Administrator Johnson could not now 
conclude that vehicular emissions of these pollutants are 
contributing to climate change. He must act, and now.
    Since the Supreme Court's decision, however, the 
Administration has made statements that give reason for concern 
about their intentions to comply with the Court's decision. On 
April 3d, while acknowledging that the Court's decision is 
``the new law of the land,'' President Bush himself went right 
back to the well of extraneous considerations that the Court 1 
day before had declared illegal: research, voluntary action, 
waiting for other countries to act.\7\ Administrator Johnson 
sounded the same notes at a press conference on April 10th. And 
Council on Environmental Quality Chairman James Connaughton 
declared the Court's decision ``somewhat moot'' and 
``inconsequential'' because ``the President is already 
committed to regulatory action''--by which he meant that the 
Administration had asked Congress for new laws on fuel economy 
and alternative fuels.\8\
---------------------------------------------------------------------------
    \7\http://www.whitehouse.gov.news.releases/2007/04/20070403.html.
    \8\Jeff Bernard (AP), ``Rulings Go Against Bush Administration,'' 
Casper Star-Tribune (Apr. 18, 2007)(attached).
---------------------------------------------------------------------------
    This Committee will no doubt hear about a long list of 
voluntary programs and initiatives. Some of EPA's programs, 
such as EnergySTAR labeling, have brought about real changes in 
the energy-consuming products we purchase. Other programs, such 
as the Asia-Pacific Partnership (on which I have testified 
before), are utterly ineffective efforts just to look busy.
    Altogether, these voluntary efforts have failed to stop the 
steady growth in U.S. emissions, which has continued during the 
Bush years at the same rate as in the prior decade--about 14 
percent per decade. The Administration cloaks its statistics in 
the deceptive metric of ``emissions intensity.'' Celebrating 
improvements in emissions intensity is like a dieter's claiming 
victory when he succeeds only in slowing his weight gain.
    This Committee has a special role and responsibility to 
hold Administrator Johnson's feet to the fire. Demand that Mr. 
Johnson give you a specific schedule for determining that 
vehicles' heat-trapping emissions are in fact contributing to 
global warming. Do not accept procedural dodges and delays. 
There is no more legal basis, and no more time, for these lame 
excuses.
    Second, and equally important, the Massachusetts decision 
removes the major obstacle to State initiatives, led by 
California, to cut global warming pollution from vehicles. 
California and 11 other States--Connecticut, Maine, Maryland, 
Massachusetts, New Jersey, New York, Oregon, Pennsylvania, 
Rhode Island, Vermont, and Washington--have adopted clean car 
standards to cut heat-trapping emissions by 30 percent by model 
year 2016. Arizona and New Mexico--and perhaps others--will 
soon join. Together, these States account for more than a third 
of the U.S. vehicle market. The Clean Air Act allows California 
to set its own air pollutant standards, provided only that it 
gets a routine waiver from EPA. California asked for the waiver 
nearly 16 months ago, but EPA has been dragging its feet.
    I welcome Administrator Johnson's recent commitment to 
Governor Schwarzenegger that he will now allow the waiver 
process to start, and that EPA will soon publish a notice 
scheduling the required hearing. But the Administrator has 
declined to give California any schedule for making the waiver 
decision itself. The standards apply starting in the 2009 model 
year, which is fast approaching. This Committee should demand a 
clear and near-term deadline from Administrator Johnson for his 
decision. It is time for the Administration to stop stalling 
and get out of California's way.
    Third, the Supreme Court's decision has implications for 
other pending global warming litigation. At the top of the list 
is a parallel case on power plants. A coalition of States and 
environmental organizations has challenged EPA's refusal to add 
a CO2 emission standard to the new source 
performance standards and emission guidelines for new and 
existing power plants under Section 111 of the Clean Air Act in 
a case called New York v. EPA.\9\ EPA's sole reason for 
refusing to regulate was the claim that it had no legal 
authority to control CO2--the very issue now settled 
by Massachusetts. The D.C. Circuit stayed that case pending the 
Supreme Court's decision, and now we intend to seek an 
immediate reversal of the EPA position.
---------------------------------------------------------------------------
    \9\No. 06-1322 (D.C. Cir.)
---------------------------------------------------------------------------
    So Administrator Johnson now will also have to decide 
whether CO2 emissions from power plants contribute 
to global warming. Again, based on the clear scientific 
evidence, we cannot see how he could reach any other 
conclusion. As with vehicles, Administrator Johnson must act on 
power plants, and now. We hope this Committee will press him 
for action here too.
    The Massachusetts decision will very helpfully affect other 
cases also. It knocks the legs out from under cases brought by 
the auto industry in California, Vermont, and Rhode Island, 
alleging that those States lack Clean Air Act authority to set 
clean car standards, and alleging conflict with the CAFE 
standards. Massachusetts also strengthens the States' position 
in Connecticut v. American Electric Power, a case pending in 
the Second Circuit Court of Appeals. In that case, eight 
States, New York City, and two land conservation trusts allege 
that the five electric power companies with the highest 
CO2 emissions are creating a public nuisance. Their 
theory stems directly from Georgia v. Tennessee Copper,\10\ the 
case relied on by the Supreme Court in Massachusetts to 
buttress States' standing and States' right to go to Federal 
court to abate pollution outside their borders.
---------------------------------------------------------------------------
    \10\206 U.S. 230 (1907)
---------------------------------------------------------------------------
    Fourth, and most important, the Supreme Court's decision 
has added new momentum to the legislative process. Even before 
April 2, the legislative kettle was nearing a boil. Since 
Hurricane Katrina, and since the November elections, public 
sentiment has shifted dramatically on global warming. 
Congress's new leaders and committee chairs have expressed the 
strong commitment to pass comprehensive global warming 
legislation. Many forward--looking business leaders have come 
forward to embrace the desirability--or at least the 
inevitability--of new legislation. Perhaps motivated by the 
prospect that this Administrator--or the next one--will use his 
Clean Air Act powers, even more industry leaders are coming to 
the table now to help hammer out new global warming 
legislation. As they say, ``If you're not at the table, you're 
on the menu.''
    NRDC supports placing every ounce of pressure you can on 
the Administration to faithfully execute the existing law of 
the land. The actions already within EPA's power would take a 
big bite out of global warming. At the same time, we also 
support enactment of new economy-wide legislation to 
comprehensively address global warming.
    In NRDC's view, solving global warming requires three 
things:

     A mandatory declining cap on national emissions that 
starts cutting emissions now and reduces them by 80 percent by 
2050.
     Performance standards--for vehicles, fuels, and power 
plants, as well as buildings, appliances, and other equipment--
to quickly deploy today's emission-cutting technology and 
promote rapid development of tomorrow's.
     Incentives--drawn mainly from the value of emissions 
allowances--to promote new technology, to protect consumers 
(especially low-income citizens), workers, and communities, and 
to help manage adaptation to climate impacts that we cannot 
avoid.

    There is still time--though only a little time--to avoid 
the worst effects of global warming. If the United States and 
other industrial countries commit to action on this scale, and 
if key developing countries also reduce their emissions growth 
and follow suit with similar reductions later in the century, 
then we can still keep greenhouse gas concentrations from 
exceeding 450 parts per million (CO2 equivalent) and 
maintain at least a 50/50 chance of avoiding warming of more 
than another 2 Fahrenheit. Exceeding this level, more and more 
scientists tell us, is extremely dangerous.
    NRDC looks forward to working with this Committee and with 
all stakeholders to pass this legislation in this Congress.

    Senator Boxer. Thank you so much, Mr. Doniger.
    Mr. Glaser.

   STATEMENT OF PETER GLASER, PARTNER, TROUTMAN SANDERS, LLP

    Mr. Glaser. Thank you, Madam Chair. My name is Peter 
Glaser. I am a partner in the Washington office of the Troutman 
Sanders law firm. I practice in the areas of environmental and 
energy law, and represented the Washington Legal Foundation in 
the filing of an amicus brief in the Massachusetts v. EPA case.
    I appreciate the opportunity to testify before the 
Committee this morning.
    Let me begin by stating that I am not here before the 
Committee representing or advocating the particular position of 
any particular company or industry in views that I am 
expressing today on my own. In addition, I am not here to 
recommend any particular course of action by this Committee or 
Congress, but simply to offer my views as a practicing attorney 
on issues pertaining to the potential regulation of greenhouse 
gases by EPA under the Clean Air Act.
    Under the Court's decision in Massachusetts v. EPA, EPA 
will be required to decide whether greenhouse gases emitted by 
new motor vehicles may reasonably be anticipated to endanger 
public health and welfare. Based on its analysis of the 
science, EPA's options are to make an endangerment finding, 
make a non-endangerment finding or decide that the science is 
insufficiently certain to decide either way.
    Although the Massachusetts case concerned potential 
regulation of greenhouse gas emissions from new motor vehicle 
sunder Title II of the Clean Air Act, the Court's ruling that 
greenhouse gases are air pollutants under the statute may have 
implications for other Clean Air Act regulatory programs. 
Indeed, the question of EPA regulation of greenhouse gas 
emissions from power plants under the Section 111 New Source 
Performance Standard program is likely to be before the Agency 
shortly. There may be requests for regulatory action as to 
other sources as well.
    However, whatever regulatory choices EPA may make, 
greenhouse gas regulation is likely to be, I am sorry to say, a 
highly complex undertaking. For instance, and without trying to 
be comprehensive, attempting to regulate greenhouse gas 
emissions from power plants and other large stationary sources 
under the Section 111 New Source Performance Standards is 
likely to involve--and here are some more adjectives--
difficulty, lengthy and controversial administrative hearings.
    In the first place, EPA's ability to use cap and trade as a 
regulatory mechanism under Section 111 is currently in 
litigation in the context of the Agency's power plant mercury 
regulations. In addition, whether or not cap and trade is 
authorized under Section 111, EPA would not be authorized under 
that section to create regulations based solely on a desire to 
reduce greenhouse gas emissions.
    Under Section 111, EPA can only require sources to move for 
what is called best demonstrated technology, or BDT. As 
interpreted by the D.C. Circuit, BDT means technology that is 
achievable in the real world. The standard may be set at a 
level that is technology forcing, but in the end, the 
technology EPA prescribes must be adequately demonstrated as 
being an available technology.
    This could be a difficult standard for EPA to apply in the 
near term as the basis for regulating power plants and other 
large sources. While there are many promising new technologies 
in development, neither the Department of Energy nor the 
Electric Power Research Institute expects technologies to be 
ready for widespread use in the industry until after 2020. This 
is the case not just for technologies that capture 
CO2 from the emissions stream; it is also true for 
very long-term reliable underground storage of the 
CO2 once captured.
    Thus, while industry appears more than capable of 
addressing the CO2 issue over the long term, 
questions arise as to whether the necessary technology can be 
adequately demonstrated as being available now. Moreover, 
according to the D.C. Circuit, the analysis EPA must undertake 
in setting BDT involves weighing ``cost, energy and 
environmental impacts in the broadest sense at the national and 
regional levels, and over time as opposed to simply at the 
plant level in the immediate present.'' The Court said that the 
analysis could be essentially the functional equivalent of an 
environmental impact statement.
    Obviously this type of broad consideration of potential 
greenhouse gas regulations by EPA will be no easy task, to say 
the least. A wide variety of evidence will be relevant and a 
very large number of parties are likely to be interested in 
wanting to be heard. So this will be a highly challenging 
undertaking at EPA and at best, an uncertain conclusion.
    Certainly, in my view, quick action cannot reasonably be 
expected. Thank you.
    [The prepared statement of Mr. Glaser follows:]

       Statement of Peter Glaser, Partner, Troutman Sanders, LLP

    My name is Peter Glaser. I am a partner in the Washington, 
D.C., office of Troutman Sanders LLP. I received a B.A. from 
Middlebury College in 1975 and a J.D. from the George 
Washington University National Law Center in 1980. I practice 
in the areas of environmental and energy law. I represented the 
Washington Legal Foundation in filing an amicus brief before 
the Supreme Court in the Massachusetts v. EPA litigation.
    Let me begin by stating that I am not here before the 
committee representing or advocating the position of any 
particular company or industry. I am not receiving remuneration 
from anyone for my testimony, and the views expressed in my 
testimony are my own and not necessarily those of any company 
or group that I currently represent or have represented.
    In addition, I am not here to recommend any particular 
course of action by this Committee or Congress. I have been 
asked to offer my views as a practicing attorney of issues 
pertaining to the potential regulation of greenhouse gases 
(GHGs) for global warming purposes by the U.S. Environmental 
Protection Agency (EPA) under the Clean Air Act (CAA).
    Under the Court's decision in Massachusetts v. EPA, EPA 
will be required to decide whether GHGs emitted by new motor 
vehicles may reasonably be anticipated to endanger public 
health or welfare. The Court did not require EPA to make an 
endangerment finding. It remanded the case to EPA for further 
consideration of the endangerment issue. Therefore, based on 
its analysis of the science, EPA's options are to make an 
endangerment finding, make a nonendangerment finding, or decide 
that the science is insufficiently certain to decide either 
way.
    Although the Massachusetts case concerned potential 
regulation of GHG emissions from new motor vehicles under Title 
II of the CAA, there is no doubt that the Court's ruling that 
GHGs are ``air pollutants'' under the statute may have 
implications for other CAA regulatory programs. Indeed, EPA was 
asked to set New Source Performance Standards for carbon 
dioxide (CO2) from fossil-fuel-fired electric generating units 
under Section 111 of the CAA. EPA declined that request last 
year, stating it had no authority to regulate GHGs for global 
warming purposes, and the matter was appealed to and is pending 
in the U.S. Court of Appeals for the D.C. Circuit. It can now 
be expected that the case will be remanded to EPA for further 
action in light of the Massachusetts v. EPA decision.
    Thus, it is likely that EPA will have two formal cases 
before it in the near term in which it will be examining 
potential GHG regulation. One of the cases will address motor 
vehicles under Title II, and the other will address electric 
generating units under Title I. In addition, it is possible 
that EPA on its own motion or in response to further petitions 
may consider potential GHG regulation for other sources.
    However, the character of any such regulation remains 
uncertain. Although the Court's decision clearly provides for 
EPA regulation under Title II if an endangerment finding is 
made, the decision does not say anything at all about what that 
regulation should be or when it should become effective. Those 
matters are left to EPA judgment confined by the specific CAA 
provisions under which EPA would invoke regulation. One of the 
arguments made by EPA and supporting parties in the 
Massachusetts litigation was that the CAA was not designed to 
address an issue such as global climate change. While the Court 
ruled that GHGs meet the CAA's definition of ``air pollutant,'' 
the fact remains that GHG regulation under the CAA is likely to 
be an uncomfortable fit.
    The most obvious example is the National Ambient Air 
Quality Standards (NAAQS) program, the program the Courts have 
termed the ``cornerstone'' of Title I of the CAA. One of the 
prerequisites for the establishment of air quality criteria and 
NAAQS in Sections 108 and 109 of the CAA is similar to the 
regulatory trigger language the court construed in 
Massachusetts.
    Yet it is hard to imagine how NAAQS regulation would work 
for a GHG. The establishment of a NAAQS triggers a process 
whereby attainment and nonattainment areas are designated, 
States are required to submit implementation plans to attain or 
maintain the NAAQS, and severe sanctions are mandated for non-
compliance. Yet, given the nature of globally-circulating GHGs, 
where a ton of GHG emitted in, for instance, Maryland has the 
same impact on GHG concentrations over Maryland as a ton 
emitted in China, there is nothing Maryland could do about 
attaining or maintaining a GHG NAAQS. Maryland could literally 
cease emitting any GHGs tomorrow and it would have no 
discernable impact on GHG concentrations over the State.
    Similarly, GHG emissions are not a pollutant transport 
issue, such as ozone, where groups of States can combine to 
reduce emissions for the purpose of regional attainment. Given 
the nature of the issue, not even the most draconian multi-
state emission reductions could ensure attainment or 
maintenance of a GHG NAAQS.
    I do not conclude that, if EPA makes an endangerment 
finding for motor vehicles under Title II, it has authority to 
establish a GHG NAAQS since the trigger language in Section 108 
is not identical to the Section 202 trigger language construed 
in Massachusetts. Nevertheless, given the similarities, it is 
not a stretch to imagine a petition alleging that EPA not only 
has authority to establish a NAAQS, it must establish a NAAQSs. 
That issue would be a difficult one for the agency and the 
courts to resolve.
    Perhaps a more likely initial battleground for EPA CAA 
regulation, assuming an endangerment finding is made, is the 
NSPS program under Section 111. Yet this program too is likely 
to create regulatory difficulties. A first issue might be 
whether Section 111 authorizes EPA to create a market-based cap 
and trade program, or whether EPA's authority is limited to 
imposing more inefficient command-and-control technology 
requirements on individual sources. In the Clean Air Mercury 
Rule, now being litigated before the U.S. Court of Appeals for 
the D.C. Circuit, EPA interpreted Section 111 as allowing it to 
implement a cap and trade program to control mercury emissions 
from coal- and oil-fired utility units. However, a group of 
environmental parties has filed a brief challenging EPA's 
authority to utilize a cap and trade program under Section 111, 
claiming that a cap and trade program does not meet the 
definition of a ``standard of performance'' under that section. 
Thus, the ability to utilize cap and trade under Section 111 
is, at least for the moment, uncertain. Section 111 creates 
additional regulatory difficulties for controlling GHG 
emissions. A ``standard of performance'' is defined under 
Section 111(a)(1) as ``a standard for emissions of air 
pollutants which reflects the degree of emission limitation 
achievable through the application of the best system of 
emission reduction which (taking into account the cost of 
achieving such reduction and any nonair quality health and 
environmental impact and energy requirements) the Administrator 
determines has been adequately demonstrated.'' This standard 
has come to be known as ``best demonstrated technology'' or 
BDT. As can be seen, under BDT, both the availability of 
technology and the cost of technology are factors the 
Administrator must consider in setting a standard of 
performance. It is true that the standard can be set to be 
``technology forcing.'' On the other hand, the standard cannot 
be based on results achieved short-term at a small-scale 
``pilot'' plant. EPA must show that the standard is 
``achievable'' in the real world, that para. 5 is, it ``must be 
'adequately demonstrated' that there will be 'available 
technology.''' Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 
375, 391 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974), 
quoting the statutory text. It is EPA's burden to make this 
demonstration; it cannot be passed off to industry. National 
Lime Ass'n v. EPA, 627 F.2d 416, 432 (D.C. Cir. 1980). These 
standards will be difficult to apply to the nation's coal-fired 
electric generation fleet. While I do not offer myself up as an 
expert on carbon control technologies, cost-effective 
technologies do not appear to exist today for controlling 
carbon emissions from coal-based electric generating plants on 
a large-scale basis. Certainly many promising technologies are 
in development, and both the Department of Energy and the 
Electric Power Research Institute expect these technologies 
will become cost-effective at some point after 2020. But for 
purposes of developing standards of performance for coal-based 
generation today, new source performance standards are likely 
to prove controversial. For instance, carbon-scrubbing at a 
pulverized coal plant may consume a very large percentage of 
that unit's total electric power.
    This is likely to be problematic given the requirement in 
determining standards of performance for considering the energy 
requirements of the control technology. Controlling emissions 
from coal-based generation through the NSPS program is also 
likely to prove difficult because of the need not only to 
capture carbon dioxide but to store it safely indefinitely. 
Again, the results of initial testing are promising and, in the 
not too distant future, sufficient testing is expected to be 
accomplished to demonstrate the ability to store large 
quantities of carbon dioxide underground over the long-term. In 
the meantime, however, given the lack of large-scale storage 
data, and the very difficult liability issues presented by 
underground storage, an attempt to establish a standard of 
performance for carbon capture and storage may be difficult to 
justify.
    Other possibilities for application of the NSPS program to 
control carbon emissions from the electric power sector might 
be requirements for the use of IGCC technology or even fuel 
switching to natural gas. Even under Section 111(h), there are 
significant legal issues as to whether such requirements would 
be valid. Section 111(h) provides that, if EPA determines that 
it not feasible to prescribe a standard of performance, EPA may 
prescribe ``a design, equipment, work practice, or operational 
standard, or combination thereof, which reflects the best 
technological system of continuous emission reductions which 
(taking into consideration the cost of achieving such emission 
reduction, and any non-air quality health and environmental 
impact and energy requirements) the Administrator determines 
has been adequately demonstrated.'' Use of this section to, for 
instance, set a standard for carbon emissions from a coal plant 
that would require switching to natural gas would be 
unprecedented. EPA has regulated sulfur dioxide and nitrogen 
oxide emissions from coal plants for many years, but has never 
determined that gas plant emissions should set the standard for 
emissions from coal such that coal would have to be replaced by 
gas. It is hard to imagine EPA attempting to utilize Section 
111 to, in essence, order that coal plants convert to gas 
technology. The economic impacts of such decisions could be 
staggering. The fact that new source performance standards must 
be technology- and cost-based creates further difficulties in 
utilizing Section 111 to implement a cap and trade program for 
GHG emissions, even assuming a cap and trade program represents 
a valid standard of performance. In CAMR, for instance, EPA was 
constrained in choosing the two-phase mercury caps by the 
Section 111 requirement that a standard of performance be 
achievable. EPA's methodology for calculating the cap thus 
involved essentially determining the mercury emission 
reductions achievable at individual units, summing those 
reductions up nationwide, and setting para. 7 the cap on that 
basis. A GHG cap would have to be set on the same basis, that 
is, based on a determination of what is achievable nationwide 
based on technology and cost considerations. EPA could not 
simply choose a cap based solely on its views of desirable 
emission reductions. Finally, the U.S. Court of Appeals for the 
D.C. Circuit, has stated that the Best Demonstrated Technology 
standard is a very broad standard indeed. According to the 
Court, ``[t]he language of section 111 . . . gives EPA 
authority . . . to weigh cost, energy, and environmental 
impacts in the broadest sense at the national and regional 
levels and over time as opposed to simply at the plant level in 
the immediate present.'' Sierra Club v. Costle, 657 F.2d 298, 
330 (D.C. Cir. 1981). The Court stated that ``'section 111 of 
the Clean Air Act, properly construed, requires the functional 
equivalent of a NEPA impact statement.''' Id. at 331, quoting 
Portland Cement, 486 F.2d at 384. Moreover, in 1980, in a case 
involving the limestone industry, the Court noted the 
``rigorous standard of review under section 111'' applied by 
reviewing courts. National Lime, 627 F.2d at 429. The Court 
stated that the ``sheer massiveness of impact of the urgent 
regulations,'' considered in that and other cases had 
``prompted the courts to require the agencies to develop a more 
complete record and a more clearly articulated review for 
arbitrariness and caprice'' than had been applied in previous 
cases. Id. at 451 n.126.
    If massiveness of regulatory impact was a concern in a 
limestone industry case, that concern would be magnified many 
times in promulgating GHG standards of performance. A plethora 
of issues would be relevant in setting GHG standards, with EPA 
weighing the cost, energy and, and environmental impacts of GHG 
regulation ``in the broadest sense at the national and regional 
levels and over time'' as if it were preparing an Environmental 
Impact Statement. A large number of parties would be interested 
given the overweening importance of the issues.
    Thus, an EPA rulemaking to establish NSPS for utility units 
would be highly complex, controversial and time-consuming. 
Quick results, to say the least, cannot reasonably be expected. 
In conclusion, back when the issue that ultimately led to the 
Massachusetts decision first began, then EPA General Counsel 
Jonathan Z. Cannon wrote an April 10, 1998 memorandum to then 
Administrator Carol M. Browner examining potential regulation 
of GHGs under various provisions of the CAA. He concluded that 
``[n]one of these provisions easily lends itself to market-
based national or regional emissions cap-and-trade programs.'' 
It is also true that attempting to utilize Section 111 to 
control the nation's GHG emissions, either through command or 
control or cap and trade, would be complicated and 
controversial. In the aftermath of the Massachusetts decision, 
EPA may undertake proceedings to determine whether a sound 
basis exists to make an ``endangerment'' finding and, if so, to 
then determine what kind of regulations it may intend to 
propose under which specific CAA program. But the ability of 
EPA to utilize the CAA to create an ambitious regulatory regime 
is likely to prove very difficult indeed.
                                ------                                

 Responses by Peter Glaser to Additional Questions from Senator Inhofe

    Question 1. Would it be your opinion that EPA could order 
fuel switching as a way to lower CO2 emissions? In 
other words, could EPA require utilities to switch from coal to 
gas or nuclear or renewables?
    Response. This question presupposes that EPA determines 
that greenhouses gases (GHGs)may reasonably be anticipated to 
endanger public health or welfare and that EPA further 
determines there is an appropriate regulatory mechanism, for 
instance the New Source Performance Standards (NSPS) program 
under Section 111 of the Clean Air Act, to regulate utility GHG 
emissions. If EPA made those determinations and decided to 
regulate utility GHG emissions under Section 111, it would be 
my opinion that EPA could not mandate fuel switching.Under 
Section 111, the EPA Administrator lists categories of 
stationary sources which, in his/her judgment, cause or 
contribute significantly to air pollution which may reasonably 
be anticipated to endanger public health or welfare. EPA has 
previously listed the category of electric utility steam 
generating units. EPA has established standards of performance 
for particulate matter, nitrogen oxide, sulfur dioxide, and 
mercury for this source category. EPA has never set these 
standards at a level that coal-fired generation could not meet 
and that would, in effect, require fuel-switching. Instead, EPA 
has either set different standards depending on the type of 
fuel burned or set a standard for all fuel types based on the 
ability of coal-fired units to meet the standard. I do not 
believe it would be within the contemplation of Section 111 to 
set standards that would essentially require a complete 
redesign of the facility, for instance, from a coal-fired 
facility to a gas- fired, nuclear or renewable 
facility.Moreover, even if one were to assume for the sake of 
argument that EPA could require fuel switching under Section 
111, EPA is unlikely reasonably to conclude that such a result 
is justified. As stated in my written comments to the 
Committee, Section 111 requires consideration of costs, and the 
cost of fuel switching is likely to be very high.

    Question 2. Mr. Glaser, Carol Browner stated in 1997 that 
despite scientific uncertainties,enough was known to take 
action against global warming. She also said she hadthe 
authority to act under the Clean Air Act. Given these two 
facts, can you think of any reason why she would have chosen 
not to regulate CO2?
    Response. I can't. Indeed, given those two statements, 
under the view of those whoadvocate quick EPA GHG regulation, 
Ms. Browner was in violation of the law by not regulating. As I 
understand the view of advocates of quick EPA GHG regulation, 
the Massachusetts decision mandates GHG regulation if EPA 
determines that GHGs may reasonably be anticipated to endanger 
public health or welfare. In this regard, in 2003, when the 
original regulatory petition that ultimately led to the 
Massachusetts decision was still pending before EPA, the 
attorneys general of Massachusetts, Connecticut and Maine tried 
to circumvent the regulatory process by seeking to compel EPA 
to regulate GHGs through judicial intervention. In 
Massachusetts et al. V. Horinko, No. 3:03-CV-984 (D. Conn. June 
4, 2003), these attorneys general sought an injunction 
compelling EPA to regulate on the theory that (1) EPA had 
authority to do so and (2) EPA (in their view) had already 
determined that GHGs endangered public health or welfare. The 
suit was voluntarily dismissed after EPA denied the rulemaking 
petition and various states and environmental interest groups 
sought review of that denial in the U.S. Court of Appeals and 
ultimately the Supreme Court. However, under the view of the 
law expressed in that lawsuit, if enough was known in 1997 to 
justify an endangerment finding, then EPA was required at that 
time to regulate.

    Question 3. I'm going to list provisions of the Act that 
are potentially relevant to CO2. For Title 1, there 
are Sections 108 & 109, 110, 111, 112, 129, 165, 172 & 173.For 
Title 2, there are Sections 202, 209, 211,213 and 231. And for 
Titles 5 & 6, there arc Sections 506, 612 and 615. Were you 
surprised how long the list of relevant provisions are? How 
long and how complicated would EPA proceedings likely be to 
promulgate CO2 regulations?
    Response. I'm not surprised because I have seen this list 
before. However, it does serve tounderscore how complicated a 
rulemaking proceeding could be. In terms of timing, I note that 
EPA recently announced that it would respond to the 
Massachusetts mandate by the end of next year. As EPA stated, 
that is a highly expeditious schedule. EPA, of course, cannot 
know at this time, whether it will issue substantive 
regulations, because it must first consider the endangerment 
issue and there arc other complicating issues as well.
    The Massachusetts remand will be directed to potential new 
motor vehicle regulation. Without intending to minimize the 
complexities of such potential regulation, any kind of economy-
wide GHG regulation would be many orders of magnitude more 
complex. For instance, just a potential NSPS regulation for 
coal-fired electric generation would be immensely difficult. As 
stated in my testimony, the U.S. Court of Appeals for the D.C. 
Circuit, stated that ``Nile language of section 111 . gives EPA 
authority. . .  to weigh cost, energy, and environmental 
impacts in the broadest sense at the national and regional 
levels and over time as opposed to simply at the plant level in 
the immediate present.'' Sierra Club v. Castle, 657 F.2d 298, 
330 (D.C. Cir. 1981). The Court stated that ``section 111 of 
the Clean Air Act, properly construed, requires the functional 
equivalent of a NEPA impact statement.'' Id. at 331, quoting 
Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 384 (D.C. 
Cir. 1973), cert. denied, 417 U.S. 921 (1974). The Sierra Club 
v. Costle case reviewed EPA's 1979 NSPS for utility unit sulfur 
dioxide emissions. As a review of that decision indicates, the 
process of setting those NSFS and the issues involved were 
highly complicated and controversial. Setting an NSPS for GHGs 
would likely be far more complicated and controversial.
    As a comparison, EPA's recent Clean Air Mercury Rule and 
Clean Air Interstate Rule each took about 16 months from the 
time the notice of proposed rulemaking was published in the 
Federal Register to the time the final rule was issued. The 
actual regulatory process, however, was much longer, because it 
took many months to develop the proposed rules, which in both 
cases consisted of extensive regulatory language and extensive 
regulatory preamble language explaining the proposal. In both 
cases, EPA granted petitions for reconsideration after the rule 
was finalized, entailing many more months of regulatory 
consideration. Thus, these two relatively targeted rulemaking 
affecting a single industry each took more than two years--and 
both arc now being litigated in court. Again, GHG regulation 
would be a far more complicated undertaking.

    Question 4. Could you comment further on the cost and 
technology factors that EPA wouldhave to consider if it 
proposed to adopt a new source performance standard under 
section 111, as well as the use of this provision to regulate 
carbon through a new source performance standard?
    Response. A ``standard of performance'' is defined under 
Section 111(a)(1) as ``a standard foremissions of air 
pollutants which reflects the degree of emission limitation 
achievable through the application of the best system of 
emission reduction which (taking into account the cost of 
achieving such reduction and any nonair quality health and 
environmental impact and energy requirements) the Administrator 
determines has been adequately demonstrated.'' This is commonly 
referred to as Best Demonstrated Technology, or BDT. As can be 
seen, under BDT, both the availability of technology and the 
cost of technology are factors the Administrator must consider 
in setting a standard of performance. While the standard can be 
set to be ``technology forcing,'' the standard cannot be based 
on results achieved short-term at a small-scale ``pilot'' 
plant. EPA must show that the standard is ``achievable'' in the 
real world, that is, it ``must be 'adequately demonstrated' 
that there will be 'available technology.'' Portland Cement Ass 
'n v. Ruckelshaus, 486 F.2d 375, 391 (D.C. Cir. 1973), cert. 
denied, 417 U.S. 921 (1974), quoting the statutory text. It is 
EPA's burden to make this demonstration; it cannot he passed 
off to industry. National Lime Ass'n v. EPA, 627 F.2d 416, 432 
(D.C. Cir. 1980). In the previous question, I addressed how 
broad this cost/technology analysis will be.
    As applied to carbon, there would be both cost and 
technology issues. With respect to coal-based electric 
generation, there do not appear to be cost-effective 
technologies available today for controlling carbon emissions 
on a large-scale basis. Many promising technologies are in 
development. However, both the Department of Energy and the 
Electric Power Research Institute expect these technologies 
will become cost-effective at some point after 2020. Thus, for 
purposes of developing standards of performance for coal-based 
generation today, new source performance standards are likely 
to prove controversial. For instance, carbon-scrubbing at a 
pulverized coal plant may consume a very large percentage of 
that unit's total electric power. This is likely to be 
problematic given the requirement in determining standards of 
performance for considering the energy requirements of the 
control technology.
    Controlling emissions from coal-based generation through 
the NSPS program is also likely to prove difficult because of 
the need not only to capture carbon dioxide but to store it 
safely indefinitely. Again, the results of initial testing are 
promising and, in the not too distant future, sufficient 
testing is expected to be accomplished to demonstrate the 
ability to store large quantities of carbon dioxide underground 
over the long-term. In the meantime, however, given the lack of 
large-scale storage data, and the very difficult liability 
issues presented by underground storage, an attempt to 
establish a standard of performance for carbon capture and 
storage may be difficult to justify.
    Question 5. Explain to me the consequences of a State 
failing to comply with ambient air quality standards.
    Response. Under Section 179 of the Clean Air Act, a State 
that does not submit an acceptablestate implementation plan 
containing measures that will lead to attainment of National 
ambient air quality standards is subject to the loss of federal 
highway funding. In addition, under Section 110(c)(1) of then 
Clean Air Act, EPA has authority to implement a federal 
implementation plan if the state does not submit a timely, 
acceptable SIP. In essence, such an action federalizes control 
over air quality administration in the affected state for the 
affected action.

    Senator Boxer. Sir, how do you know at best an uncertain 
conclusion? How do you make that determination? Certainly Mr. 
Johnson didn't say that. He said he was going at it, he took it 
seriously, he is going to start with the waiver, he is looking 
at all the approaches.
    How do you know there will be an uncertain conclusion?
    Mr. Glaser. All I am saying, Senator, is that given the 
broad variety of evidence----
    Senator Boxer. And how complex it is.
    Mr. Glaser. --that must be weighed, it is a very difficult 
question. First of all, we have a two part question.
    Senator Boxer. How do you know that at best, what will 
happen? How do you know that? Are you in discussions with them 
now as to what they can do about what the Clinton 
Administration and all their memos said they could do? We have 
laid it out here what they could already do today, without any 
complexity.
    Look, if you are standing waiting to cross the street and 
all of a sudden you look up, and you are on the edge of a 
sidewalk and a truck is coming at you full speed, you jump out 
of the way. You don't discuss, well, if I do it at a certain 
angle, it is complex, you don't wait to see what the other 
people who are in the way are doing. You jump out of the way.
    Now, we know this is coming at us. And we can sit here and 
legalize our way into no action. That is exactly what I sense 
from you, is that you are working at a pace here that, your 
opinion is that nothing good could come out of this. I just 
reject that.
    I guess I have two questions, I am going to give the gavel 
over to Senator Carper. I have two questions for you, Mr. 
Doniger, and thank you for your testimony. It was very 
encouraging. And thank you for your work.
    The Administration seems to think that we need to develop 
technology first and then require its use. That is what we 
heard from the former legal counsel and that is what we keep 
hearing over and over again, along with complexity, China, we 
don't have the technology.
    But won't regulation speed technological progress? Because 
if we have the legislation, or had the regulation, there will 
be certainty, there will be longevity. We won't have to have 
business communities saying, oh, my God, like certain tax 
breaks, will they only be here for 5 years. So wouldn't you 
agree, and I don't mean to put words in your mouth, but I just 
think, from what I heard you say, that if we sit around waiting 
for technology, that truck is going to hit us.
    Mr. Doniger. Madam Chairman, the beauty of the acid rain 
program and the CFC program is that by setting out clear 
targets, and quantitative reductions and deadlines, the signal 
was there. The investment was targeted by companies. They knew 
what they had to do. We got a lot of things done that had been 
near commercialization, that had been only on the drawing 
board, and some things that nobody had ever thought off.
    So you send those signals on global warming, the same thing 
will happen. You will liberate that American spirit and we will 
have a lot of successful cost reduction and innovation.
    But just under the Clean Air Act itself, EPA has the power 
to go beyond what it has already demonstrated. I quote one 
sentence from a case with a great name, Lignite Energy Council 
v. EPA. The court said with respect to Section 111 that it 
looks toward what may be fairly projected for the regulatory 
future, rather than the State-of-the-art at present.
    So even Administrator Johnson has the authority to look at 
carbon caps from storage technology at IGCC and look at the 
experience that has been had in the different industries where 
that has been applied, put it all together and say, power 
companies can do this within a certain timeframe in the future. 
And he can set a standard predicated on those improvements.
    Senator Boxer. Right. Right. Exactly.
    So in closing my remarks, and then as I say, I am handing 
the gavel over to Senator Carper, Mr. Glaser has I think put it 
forward very clearly from his perspective. I know he has 
represented a lot of power companies in his private business. 
But he is here as an individual. And basically, the message I 
get from him is, complex, very difficult, the best we can hope 
for is nothing.
    And I don't, I reject that on its face. Because let me tell 
you, Mr. Glaser, if you were in charge during the Clean Air 
Act, we would never have it, if you were sitting here. If you 
were in charge during the Safe Drinking Water Act, we wouldn't 
have it. If you were in charge during Superfund, we wouldn't 
have it. We wouldn't have the Endanger Species Act because it 
was all complex, difficult and the technologies, et cetera, 
weren't there.
    The fact is when there is a harm coming to society, we need 
to act without special interest motivation. Our motivation has 
to be the health and safety of the people. And of course, we 
consider all the other ramifications. We want to move on this 
in a wise fashion. But I just I just reject this negative 
thinking that you bring to the table here.
    I guess finally, I would say, Mr. Doniger, how does the 
scientific evidence available on global warming compare in 
amount and quality to the evidence EPA used in the past to make 
endangerment findings?
    Mr. Doniger. It is overwhelming. And as I think 
Administrators Browner and Reilly said, it is much more than 
they had for some of the key decisions they took in the past. 
It is much more than we knew about CFCs. It is more than we 
knew about lead. It is more than we knew about particles.
    It is beyond, you know, the EPA is allowed to act at an 
early stage. The handwriting is starting to show up on the wall 
but not everything is really written. We are way beyond that.
    So the evidence on global warming is, I hate to use this 
phrase, because it was so, it has gotten such a bad rap on 
another subject, but it is a slam-dunk.
    Senator Boxer. Yes, it has gotten a bad rap.
    So what I am going to do as I get ready for our next 
hearing, I want to say to my good staff and also the minority 
staff, what I want to do, I want to look at, because I think 
that question, I say to my staff, is a very important question. 
The evidence used in the past to make endangerment findings in 
a whole host of other areas was much less than the evidence we 
have now. I think that is important as this case moves forward 
in the courts, we are going to go back, et cetera, that, we are 
going to be on top of this and we are going to make the case, 
at least the people who care about this issue, are going to 
make the case. If you look at history as precedent, which we 
always are told we should do, especially in legal proceedings, 
the evidence is overwhelming.
    I just want to thank both of you. I am going to hand over 
the gavel to you, Senator. I don't think you actually need the 
gavel itself.
    Senator Carper. I am going to decline the gavel, Madam 
Chair. These guys look like they are probably ready for lunch, 
and I think our caucus is waiting for us to join them.
    So gentlemen, thank you for being here and for your 
responses today.
    Senator Boxer. Thank you, and we do stand adjourned. Thank 
you for your gracious patience.
    [Whereupon, at 1 p.m., the committee was adjourned.]
      

                               
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