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EPA APPROVAL OF NEW POWER PLANTS:

FAILURE TO ADDRESS GLOBAL WARMING POLLUTANTS

HEARING

BEFORE THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

NOVEMBER 8, 2007

Serial No. 110–78

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

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

TOM LANTOS, California

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

JIM JORDAN, Ohio

PHIL SCHILIRO, Chief of Staff

PHIL BARNETT, Staff Director

EARLEY GREEN, Chief Clerk

DAVID MARIN, Minority Staff Director

(III)

C O N T E N T S

Page

Hearing held on November 8, 2007 ........................................................................ 1

Statement of:

Curry, Ron, Secretary, New Mexico Environment Department; David

Doniger, policy director, Climate Center, Natural Resources Defense

Council; Daniel M. Kammen, director, Renewable and Appropriate Energy Laboratory, University of California Berkeley; and John Cline,

partner, Troutman Sanders LLP ................................................................. 84

Cline, John ................................................................................................. 170

Curry, Ron ................................................................................................. 84

Doniger, David ........................................................................................... 91

Kammen, Daniel M. .................................................................................. 154

Johnson, Stephen L., Administrator, Environmental Protection Agency .... 10

Letters, statements, etc., submitted for the record by:

Cline, John, partner, Troutman Sanders LLP, prepared statement of ........ 172

Curry, Ron, Secretary, New Mexico Environment Department, prepared

statement of ................................................................................................... 86

Davis, Hon. Tom, a Representative in Congress from the State of Virginia, prepared statement of ........................................................................ 9

Doniger, David, policy director, Climate Center, Natural Resources Defense Council, prepared statement of .......................................................... 94

Issa, Hon. Darrell E., a Representative in Congress from the State of

California, memo dated November 27, 2007 ............................................... 191

Johnson, Stephen L., Administrator, Environmental Protection Agency:

Letter dated March 11, 2008 .................................................................... 64

Prepared statement of ............................................................................... 12

Kammen, Daniel M., director, Renewable and Appropriate Energy Laboratory, University of California Berkeley, prepared statement of .......... 156

Watson, Hon. Diane E., a Representative in Congress from the State

of California, prepared statement of ........................................................... 42

Waxman, Chairman Henry A., a Representative in Congress from the

State of California:

Followup questions and responses ........................................................... 75

Prepared statement of ............................................................................... 3

(1)

EPA APPROVAL OF NEW POWER PLANTS:

FAILURE TO ADDRESS GLOBAL WARMING

POLLUTANTS

THURSDAY, NOVEMBER 8, 2007

HOUSE OF REPRESENTATIVES,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 10 a.m., in room 2154,

Rayburn House Office Building, Hon. Henry A. Waxman (chairman

of the committee) presiding.

Present: Representatives Waxman, Towns, Kucinich, Tierney,

Watson, Yarmuth, McCollum, Hodes, Sarbanes, Davis of Virginia,

Shays, Platts, Issa, and Sali.

Staff present: Karen Lightfoot, communications director and senior policy advisor; Greg Dotson, chief environmental counsel; Alexandra Teitz, senior environmental counsel; Erik Jones, counsel;

Earley Green, chief clerk; Teresa Coufal, deputy clerk; Caren

Auchman, press assistant; Zhongrui ‘‘JR’’ Deng, chief information

officer; Leneal Scott, information systems manager; Kerry Gutknecht and William Ragland, staff assistants; Larry Halloran, minority deputy staff director; Ellen Brown, minority legislative director and senior policy counsel; A. Brooke Bennett, minority counsel;

Howie Denis, minority senior professional staff member; Kristina

Husar, minority counsel; John Cuaderes and Larry Brady, minority

senior investigator and policy advisors; Patrick Lyden, minority

parliamentarian and member services coordinator; Brian McNicoll,

minority communications director; Benjamin Chance, minority

clerk; Ali Ahmad, minority deputy press secretary; and John Ohly,

minority staff assistant.

Chairman WAXMAN. The committee will please come to order.

Today’s hearing will examine carbon dioxide emissions from new

coal-fired power plants. Pending before the Environmental Protection Agency and State agencies are dozens of applications to build

new coal-fired power plants. These power plants are huge and they

are enormous sources of greenhouse gas emissions.

A single plant, the White Pine Plant proposed in Nevada, will

emit over a billion tons of CO2 over its lifetime. If approved without

carbon controls, this one plant will emit as much carbon dioxide as

all of the vehicles, factories and power plants in South Dakota.

Scientists say that we need to reduce CO2 emissions by 80 percent from today’s level to avoid catastrophic global warming. This

is a big challenge. It will require all sectors of our economy to become more efficient and cut their emissions. But these changes are

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absolutely necessary to prevent irreversible climate change. The

very last thing we should be doing is making the problem worse

by approving massive new sources of uncontrolled CO2 emissions.

But that is exactly what the Bush administration is doing. The

administration’s policy is the climate equivalent of pouring gasoline

on a fire. The approval of new power plants without carbon controls

is irresponsible, it is indefensible, and it is illegal.

Our lead witness today is EPA Administrator Stephen Johnson.

For most of his tenure, he has been able to avoid climate change

issues by saying the EPA lacks the legal authority to regulate CO2

emissions. This changed in April, when the Supreme Court ruled

that Administrator Johnson does have the authority to regulate

greenhouse gases under the Clean Air Act.

Two of the largest sources of greenhouse gases are motor vehicles

and power plants. To date, public attention has been focused primarily on EPA’s record on vehicles. It is not an encouraging record.

Administrator Johnson has yet to take any action to control CO2

emissions from cars and trucks, and he has been ignoring a request

by California to regulate these emissions for almost 2 years.

Today we are going to look at EPA’s policy on power plants. In

August, EPA took its first regulatory action since the Supreme

Court ruled. EPA granted a permit to a new coal-fired power plant,

the Desert Plant in Utah. EPA didn’t require any pollution controls

for greenhouse gases, and it didn’t consider other alternatives, such

as renewable energy sources. It is as if the Supreme Court never

ruled, and EPA never heard of global warming.

We will learn today that the potential consequences of this business as usual policy are enormous. The Desert Plant is a relatively

small one, but there are dozens of applications for much larger

power plants pending before EPA and State air pollution agencies.

If these plants are approved without carbon controls, they will emit

billions of tons of CO2 emissions.

Let me put these emissions into context. Eight northeastern

States have shown great leadership by adopting the first regional

program in the United States to cap and reduce greenhouse gas

emissions. But the approval of just one of the pending power plants

would wipe out all of the gains these States are trying to achieve.

These power plants can cost $1 billion to build. They last for 50 to

60 years, and we don’t have the technology yet to retrofit them

with carbon controls.

As a Nation, we will do irreversible damage to our climate

change efforts if we follow this short-sighted policy. Addressing the

threat of climate change poses many difficult and complex issues.

But permitting the construction of massive new sources of uncontrolled CO2 emissions should not be one of them.

While we struggle to develop the right policies for reducing our

emissions, we should not be making our problems worse by approving a new generation of unregulated coal-fired power plants.

Before we move on, I want to recognize Mr. Davis for his opening

statement.

[The prepared statement of Chairman Henry A. Waxman follows:]

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Mr. DAVIS OF VIRGINIA. Thank you, Mr. Chairman.

Climate change is a critical and complex issue that poses profound global challenges. Chairman Waxman and I share similar

views regarding the importance of mitigating the effects of carbon

dioxide buildup in the atmosphere and reducing production of

greenhouse gases. When I sat in his chair, our committee began

the thoughtful, constructive inquiries into climate change issues

that continue today.

But agreement on broad principles and goals doesn’t mean we

necessarily see eye to eye on every specific proposal to address climate change. Responsible policies will recognize that fragility and

inter-dependence of environmental and economic ecosystems balance emission mitigation steps against the net effect on energy production and take account of downstream consequences and longterm implications.

The premise of this hearing, that the EPA should use a recent

Supreme Court decision on regulation of mobile source carbon dioxide emissions as the basis for a broad new regulatory regime over

stationary sources fails to meet those standards of responsible climate change strategy. And the focus on an ongoing energy facility

permit decision inappropriately interjects Congress into judicial

proceedings. Once again, the committee has opted for advocacy

rather than oversight, choosing to litigate by show trial, rather

than examining the issue in depth.

The call to apply current Clean Air Act regulatory and permitting standards to stationary source CO2 emissions may be well-intentioned, but in my judgment, it is inapt. It would be a painfully

uncomfortable fit to subject a huge swath of the American economy, including many small businesses, for the first time, to Clean

Air rules and limitations designed to control well-understood pollutants, not a widely diffused, naturally occurring chemical compound.

Energy is the lifeblood of our economic vitality, and the onus of

meeting climate change goals should not fall disproportionately or

destructively on that group or any productive sector. Nor should

current environmental protection tools be subverted or distorted to

meet broader climate change objectives. If this hearing contributes

anything constructive to the climate change debate, I hope it will

begin to describe the sensible, workable and affordable restrictions

on carbon dioxide emissions and other greenhouse gases not found

in current law that Congress should move to enact.

Thank you.

[The prepared statement of Hon. Tom Davis follows:]

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Chairman WAXMAN. Thank you very much, Mr. Davis.

For our first witness today, we have Stephen Johnson. Mr. Johnson has served as Administrator of the Environmental Protection

Agency since May 2005. He has been working for the EPA in different capacities for the past 27 years.

Mr. Johnson, we want to welcome you to our hearing today. It

is a practice of this committee that all witnesses who testify do so

under oath, so if you wouldn’t mind standing and taking the oath.

[Witness sworn.]

Chairman WAXMAN. Let the record indicate you answered in the

affirmative.

We are pleased to have you. Your full statement will be made

part of the record. We would like to ask if you would limit your

statement, if you could, to around 5 minutes. We will have a clock

there to remind you. It will turn yellow, that will indicate a

minute, then when it is red, the 5-minutes have concluded.

STATEMENT OF STEPHEN L. JOHNSON, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY

Mr. JOHNSON. Good morning, Chairman Waxman and members

of the committee. I am pleased to be here today to update you on

EPA’s response to the Supreme Court decision on greenhouse gases

and to discuss our recent decision to issue a permit to the Desert

Power Electric Cooperative in Utah.

On August 30th, EPA’s regional office in Denver issued a final

prevention of significant deterioration permit to allow Desert Power

to add a 110 megawatt waste coal-fired boiler to its existing Bonanza Power Plant in northeastern Utah. Desert Power will used

the increased generation capacity to supply electricity to several

Utah municipalities. These include St. George, which the U.S. Census Bureau recently identified as the fastest-growing metropolitan

area in the country.

EPA issued the Desert permit only after a comprehensive analysis and review which took more than 3 years to complete. This review included research to identify and evaluate available emissions

control technology, discussions with Desert Power about applying

that technology and the consideration of public comment. The permit enables Desert Power to move forward in providing a reliable

and secure supply of electricity, while at the same time making use

of a previously untapped reserve of waste coal.

The final permit includes stringent emission limits for regulated

pollutants, such as particulate matter, nitrogen oxides and sulfur

dioxide. It does not, however, include emission limits for carbon dioxide, which we believe is the proper decision for this permit. While

the Supreme Court’s decision in Massachusetts v. EPA makes clear

that carbon dioxide and other greenhouse gases are pollutants

under the Clean Air Act, it also makes clear that the agency must

take certain steps and make certain findings before a pollutant becomes subject to regulation under the law. Those steps include

making a finding that a pollutant endangers public health or welfare, and developing the regulations themselves. The EPA plans to

address the issue of endangerment when we propose regulations on

greenhouse gas emissions for motor vehicles and fuels later this

year.

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EPA is firmly committed to addressing the long-term challenge

of global climate change. While we are directing substantial resources toward meeting President Bush’s aggressive goal of finalizing regulations on greenhouse gas emissions for motor vehicles and

fuels by the end of next year, we are also evaluating the potential

effects of the Supreme Court decision on a variety of Clean Air Act

programs, including stationary-source programs. We believe it is

critical that we develop an approach to addressing greenhouse

gases under the Clean Air Act as a whole, and not under individual

clean air programs or through individual permitting decisions.

EPA is conducting this effort in an orderly and thoughtful fashion, so our policies will both achieve genuine environmental results

and sustain the country’s economic health. Thank you, Mr. Chairman. I would be happy to take any questions you have.

[The prepared statement of Mr. Johnson follows:]

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Chairman WAXMAN. Thank you very much. You certainly came

within the 5-minute period, so I guess you are really expecting to

answer questions.

Mr. ISSA. Mr. Chairman.

Chairman WAXMAN. Yes.

Mr. ISSA. I would ask unanimous consent that our opening statements be admitted into the record, as we were not able to deliver

them.

Chairman WAXMAN. That is certainly reasonable. Without objection, all Members will have an opportunity to submit for the purposes of the record an opening statement. Without objection, that

will be the order.

Administrator Johnson, there are really two questions here. One

is whether global warming impacts of these massive new power

plants are a concern or not; and second, what authority do you

have to address these impacts? I would like to put the authority

question to the side and focus on what the real world impacts of

these plants will be if they are built without any controls on greenhouse gas emissions. The Desert Rock Plant pending in New Mexico will emit 12.7 million tons of CO2 per year. To put that in context, I earlier pointed out that eight States in the northeast have

come together, created a regional cap and trade program for CO2

emissions. It is called the Regional Greenhouse Gas Initiative,

RGGI. You are familiar with that program, aren’t you?

Mr. JOHNSON. Yes.

Chairman WAXMAN. OK. Now, a decision to permit the Desert

Rock Plant, without requiring CO2 controls, will negate the entire

annual reductions that will be achieved by the northeastern States

through this initiative. While these States are making sacrifices to

address the threat of global warming, you are making permit decisions that undo all the good they are accomplishing. The proposed

White Pine Plant pending in Nevada would have even greater

emissions: 20 million tons each year. And these types of plants are

massive capital investments that can cost $1 billion and they will

last 50 to 60 years. Over its lifetime, the White Pine Plant would

emit over a billion tons of CO2. That is a stunning amount.

Are you aware of this, Administrator Johnson?

Mr. JOHNSON. Mr. Chairman, I am aware the White Pine permit

is currently pending in the State of Nevada. I am also——

Chairman WAXMAN. Are you aware of the emissions that are

going to come from these power plants?

Mr. JOHNSON. I am aware that the permit is pending and that

there are a number of issues that the State will work its way

through with regard to that permit.

Chairman WAXMAN. OK. Let’s compare this impact to the effect

of the voluntary programs that you and President Bush repeatedly

promote. You have strongly advocated using voluntary programs,

such as EnergyStar, to reduce energy use and achieve greenhouse

gas reductions. You have said these programs are one of the highlights of the administration’s climate policy.

EPA’s major voluntary initiatives are EnergyStar, the methane

program, the green power partnerships, the combined heat and

power partnership, and the high GWP gas programs. Together, all

of these programs have avoided 1.3 billion tons of greenhouse gas

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emissions since President Bush took office. Yet the lifetime emissions of just two new power plants, Desert Rock and White Pine,

would more than wipe out the past decade of benefits from all of

these voluntary programs. Can you understand why members of

this committee would be so concerned about the impacts of your

failure to require CO2 reductions from these two new coal-fired

power plants?

Mr. JOHNSON. Mr. Chairman, we share your concern. In fact,

when we go back to April, as you mentioned in your opening remarks, indeed, the Supreme Court decision is historic, it is complex. We are working our way through and thoughtfully considering the impacts, first on mobile sources and then on stationary

sources. I am very proud of the fact that our voluntary or partnership programs are achieving real environmental results.

Chairman WAXMAN. But they will be wiped out. Those results

will be lost if these power plants are permitted without any requirements to reduce CO2 emissions. I think the problem is that

the administration has no reservoir of credibility left on this issue.

Global warming is an enormous threat to public health and the environment, yet virtually every action the administration has taken

has been designed, first of all, to sow seeds of doubt about the

science, oppose mandatory controls and undermine the activities of

States that are trying to deal with these issues. The President

withdrew from the Kyoto Protocol. He declared that carbon dioxide

is not a pollutant. His political advisors edited government scientific reports to instill uncertainty about scientific conclusions and

you still have not regulated CO2 emissions.

If you were serious about addressing climate change, you

wouldn’t allow these new power plants to be built with no CO2 controls. You would understand what an enormous threat these plants

are and require them to use state-of-the-art pollution controls like

coal gasification and carbon capture. What do you say to that?

Mr. JOHNSON. Mr. Chairman, as a Nation we have devoted $37

billion to investment in science, technology and even tax incentives.

That is more than any other country in the world. With regard to

EPA, in addition to our partnership programs, just a few weeks ago

I announced that we are drafting regulations to regulate, to set up

a regulatory framework for carbon sequestration storage, particularly the storage, as part of our underground control program,

which is a necessary step as we move forward with capture and

storage of carbon dioxide.

In addition, since the Supreme Court decision, we have announced that we are developing a proposed regulation to regulate

greenhouse gas emissions from mobile sources. That is the first

time in our Nation’s history, and I have committed to Members of

Congress and to the President that we will have that proposed regulation out for public notice and comment beginning by the end of

this year and to work toward a final rule by the end of next year.

Chairman WAXMAN. Well, I appreciate all of that.

Mr. JOHNSON. Which is a very aggressive pace, as you are well

aware.

Chairman WAXMAN. Well, but you don’t dispute my statistics of

what will happen if these two power plants have no CO2 emissions

restrictions.

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Mr. JOHNSON. Mr. Chairman, I have not personally looked at the

statistics on those two power plants. But I am certainly well aware,

and as I mentioned, that we are working very diligently to develop

an overall approach, overall strategy, for addressing greenhouse

gas emissions, given the Supreme Court decision under Massachusetts v. EPA, under the Clean Air Act. And that includes stationary

sources.

Chairman WAXMAN. My time has expired, but I would hope that

you, as the head of the EPA, would take a look at the amount of

emissions that would come from those power plants if you approve

them over a 50 or 60 year period. And if we can get these reductions, we ought to get them before we agree to have new sources

of such magnitude.

Mr. Davis.

Mr. DAVIS OF VIRGINIA. I will yield to Mr. Issa.

Mr. ISSA. Thank you, Mr. Chairman, thank you, Ranking Member Davis.

Administrator, I want to make sure we get one thing understood

in the record. If I read correctly the Massachusetts decision, not

only did it only apply to mobile, but really all it says is that you

have this authority to deal with a huge, naturally occurring, clearly

essential part of our air. Without carbon dioxide life on Earth

stops. So it is not an element that you can eliminate. It is an element that, if you have too much of it, might cause a very bad side

effect. If you have none of it, life ends. Is that correct?

Mr. JOHNSON. That is correct.

Mr. ISSA. OK. So what they have said is simply that you have

the authority, but of course you have the authority subject to sane,

properly worked out science, is that correct?

Mr. JOHNSON. When the Supreme Court made the decision, they

made the decision that said CO2 and other greenhouse gases are

pollutants as defined under the Clean Air Act. They did not make

the determination whether or not it was necessary to regulate

them. They merely called them, or I should say not merely, but

they defined them as pollutants, and then left the decision to me

as Administrator as to whether they should or should not be regulated under the Clean Air Act.

Mr. ISSA. So essentially, if we would ask the question about nitrogen, oxygen, any of the other elements on the entire table and

combinations of molecules, the answer would have been the same,

which is if it possibly could adversely affect air quality for life on

Earth, then you have authority to regulate it. That is really what

it said, very broad. It could be a pollutant, therefore you can regulate it.

Mr. JOHNSON. That is precisely my response to the chairman,

why the Supreme Court’s decision was not only historic, but complex. Not only in terms of mobile sources and what it means for

mobile sources, but also what it may mean for other parts of the

Clean Air Act.

Mr. ISSA. When Chairman Waxman sent you a letter on September 17th, quoting, and I won’t go into every one of these, but ‘‘Yet

despite the urgent need to act, your agency is ignoring the threat

of climate change in approving new coal-fired plants. This is both

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illegal under the Clean Air Act and an enormous missed opportunity.’’ Is that accurate, his assertion that it is illegal?

Mr. JOHNSON. No, sir. I would beg to differ with the chairman’s

characterization. In fact, our decision on Desert Bonanza PSD permit certainly follows what the law is of today. And certainly that

is my responsibility under the Clean Air Act. Certainly as a matter

of record, it goes through and discusses issues such as advanced

technology, such as IGCC, and other technologies. So I think that

I would not agree with that characterization.

Mr. ISSA. Administrator, have you had the opportunity to look at

the NRDC’s testimony for today?

Mr. JOHNSON. I have not.

Mr. ISSA. Well, then, would it surprise you that NRDC’s testimony states, for example, the Kansas decision to deny a permit because of carbon dioxide emissions highlights the lack of EPA leadership on this issue? Would that surprise you that they would

make an assertion that there was somehow a lack of leadership by

your administration?

Mr. JOHNSON. It would not surprise me, but I think it is important to look at the factual record on the Kansas Sunflower permit.

In fact, the decision to deny the Kansas Sunflower, or to approve

or deny was in fact, a decision to deny was made at the Kansas

State authority level. In fact, when you read the staff recommendations, and I do have a copy.

The Kansas Department of Health and Environment Bureau of

Air and Radiation and Air Permitting Section, ‘‘The Kansas Department of Health and Environment Bureau of Air and Radiation

recommends the issuance of an air quality construction permit to

Sunflower Electric Power Corporation for construction of two new

700 megawatt coal-fired steam generating units.’’

Mr. ISSA. Administrator, does it surprise you that the NRDC,

which sues you practically every day, I mean, that is a regular relationship you have with them, is that they sue you, is being featured here in testimony in spite of the Fifth Circuit when it said,

‘‘When a Congressional investigation focuses directly and substantially on the mental decision process of a commission,’’ like yourself, ‘‘in which a case is pending before it, Congress is no longer intervening in the agency’s legislative function, but rather in its judicial function.’’ Would it surprise you that in fact the combination

of litigants who sue you regularly and their testimony and your

testimony on this process and the Fifth Circuit’s fairly unusual

statement pushing back on what we are doing here today, does

that surprise you that is all coming together here today to interfere

with your legitimate execution during a time of pending decision?

Chairman WAXMAN. The gentleman’s time has expired, but

please answer the question.

Mr. JOHNSON. Thank you, Mr. Chairman.

My concern is that as Administrator of the EPA, I depend and

in fact enjoy a highly qualified, in fact, I think the world’s best, environmental protection staff. I depend upon them providing me

candid comments without the fear of having a chilling effect on

their ability to provide me candid advice, particularly when we are

in a pre-decisional time of trying to sort through what is the best

decision that I should make with regard to issues such as, what is

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the impact of the Supreme Court decision, Massachusetts v. EPA,

what that may or may not be on stationary sources.

So I am concerned, very concerned about the potential chilling effect of this proceeding as we are talking, and as I am trying to sort

through a very complex but a very significant issue.

Chairman WAXMAN. Thank you, Mr. Issa.

Mr. ISSA. Hopefully we will stand up and do the right thing.

Chairman WAXMAN. Mr. Johnson, you were asked to respond to

my quote that said it was illegal and a lost opportunity. You said

you didn’t think it was illegal. Do you see it as a lost opportunity?

Mr. JOHNSON. Mr. Chairman, what I tried to say is, certainly,

under the Clean Air Act, right as it stands now, it is not a regulated pollutant under the act. That is certainly the case. So as we

sort through what the impact of the Supreme Court decision with

mobile sources——

Chairman WAXMAN. That is a question of whether you have the

legal authority. But don’t you think it is a lost opportunity?

Mr. JOHNSON. Mr. Chairman, I have to obey——

Chairman WAXMAN. Just give me a yes or no.

Mr. JOHNSON. I have to obey what the law directs me to do at

this point and work through expeditiously, which we are, but also

responsibly to make sure that we are doing the right thing.

Chairman WAXMAN. OK, thank you.

Mr. Yarmuth.

Mr. YARMUTH. Thank you, Mr. Chairman.

Good morning, Mr. Johnson. Thank you for being here.

I am going to ask a couple of questions at the outset that may

sound a little picky, but I am an editor by background and I worry

about what words mean, particularly when, as I do, I have suspicions about the administration’s commitment to environmental

progress. On the second page of your statement, about midway

through the paragraph, you say, these strategies, referring to strategies of reducing greenhouse gas emissions, ‘‘must be environmentally effective.’’

What does environmentally effective mean? I understand environmentally beneficial and environmentally sensitive. I don’t understand effective.

Mr. JOHNSON. I would say that what we are trying to say is that

there is an effect in a positive way on the environment. Of course,

in many parts of our statutes, including the Clean Air Act, we are

directed to balance the costs and benefits. Of course, that becomes

part of the decision process. We are also required to, in parts of the

Clean Air Act, to consider available technology, in some cases, the

best available technology. So that becomes part of the equation for

determining whether we have an effective environmental outcome.

Mr. YARMUTH. An effective outcome. Then on page 6, in the second paragraph, the first full paragraph on that page you talk about

resulting policies would achieve genuine environmental results. I

hope you mean positive results.

Mr. JOHNSON. I certainly mean positive results.

Mr. YARMUTH. In Kentucky, we have a lot of not so positive environmental results from energy extraction. That is a very significant

concern of ours.

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I want to move to a discussion of the Desert case and also the

Supreme Court decision. As we have talked about, the court decision found that you do have the authority to regulate greenhouse

gases. You recently granted a permit to Desert, as we know, to

build the plant. You took the position that the law did not require

you to regulate CO2 emissions from these plants. I don’t agree with

that analysis, but for the purpose of my question, I want to focus

on something else, and that is whether you had the authority to

consider alternatives to the Desert Plant.

I want to read to you from Section 165(a)(2) of the Clean Air Act.

It says that you have to hold hearings to consider ‘‘the air quality

impact of such source, alternatives thereto, control technology requirements and other appropriate considerations.’’ Now, the Desert

Plan is not a very large facility. It would seem to me there is a fairly obvious alternative to that, of using maybe wind power or solar

power. But there is no evidence in the record that you ever considered, the agency ever considered those alternatives.

Why did the EPA refuse to consider the possibility of rejecting

this plant, the coal-fired plant, in favor of a wind or solar plant?

Mr. JOHNSON. There are several key points I would like to make

to respond to your question. The first one is that alternative analysis, which is what you are referring to, the Clean Air Act does not

require permitting authorities to independently study all potential

alternatives that are not raised during the public comment process.

In addition, as part of the BACT analysis, the best available control technology analysis, commenters did not provide any evidence

showing that the outcome of our BACT analysis would have resulted in a different choice of control technologies. Also, it is a longstanding policy that we would not use the BACT requirement as

a means to re-define the basic design or scope of a proposed project.

Then third, the technology that was raised, IGCC, which is the

Integrated Gasification Combined Cycle new technology, this alternative process not only represents a redefinition of the scope, but

beyond that, it wouldn’t work. It was technically infeasible because

of the fuel and the plant size.

Mr. YARMUTH. According to the section that I read to you, it says

that your agency is mandated to do, is required to consider the alternatives in the hearing, in the process. Did you not, do you disagree with that?

Mr. JOHNSON. There were public notices, several public notice

and comments, which are all part of the record. As I said, the

Clean Air Act does not require us to consider alternative analyses

unless it was raised during the public comment. IGCC was one of

the key areas that was raised during the public comment, and I

have commented on the feasibility of that.

Mr. YARMUTH. My time is up, Mr. Chairman, but it seems to me

that they certainly had the opportunity to pursue alternatives to

permitting this polluting plant. Because I think it shows an unwillingness to do what might be in the best interest of the environment. I yield back.

Chairman WAXMAN. Thank you, Mr. Yarmuth.

Mr. Davis.

Mr. DAVIS OF VIRGINIA. Thank you, Mr. Chairman.

30

Mr. Johnson, do you think that the CAA is well-designed to regulate carbon dioxide emissions?

Mr. JOHNSON. Sir, I am faced with the reality that it is the act

that I am to focus my attention on. Having said that, I think it is

very important in responding to your question, as we considered as

an administration the impact of the Supreme Court decision on mobile sources, it became very clear that a better approach than going

through regulation, which I have already commented that we are

going to be proposing a regulation, was a legislative fix. Certainly

that is why the President proposed and certainly is encouraging

Members of Congress to take up his Twenty in Ten plan, which

would not only help for energy security, but would also help our environment in particular, addressing greenhouse gas emissions.

Mr. DAVIS OF VIRGINIA. Or we could just take up part of the

plan, or we could just fix this legislatively, and it would be pretty

easy, wouldn’t it?

Mr. JOHNSON. Yes.

Mr. DAVIS OF VIRGINIA. How is CO2 unlike other air pollutants

that the EPA has effectively regulated under the Clean Air Act?

Mr. JOHNSON. It is, as we all keep using words, it is a global

greenhouse gas. That presents a challenge, and part of the complexity. Having said that, being part of, in many things of uniqueness, the other part, which really shares, all sources share in common, and that is, how do you address it. The common element in

addressing, whether it is mobile source or stationary source or

whatever the source might be, is what is the technology that is

available.

Of course, one of the things I am very proud as a Nation and

under the President’s leadership, we have been investing in technologies. Technologies like on the fuel side, cellulosic ethanol,

which helps us in energy security and has a much better environmental profile, particularly with regard to greenhouse gases. And

of course on stationary sources, carbon sequestration and storage

is going to be key to addressing greenhouse gas emissions, particularly for a number of stationary sources. We have been investing

a lot in trying to sort that out, and as I mentioned earlier——

Mr. DAVIS OF VIRGINIA. Higher miles per gallon, so higher CAFE

standards help, too, don’t they?

Mr. JOHNSON. And as part of the regulatory approach that we

are going to be proposing by the end of the year is a higher fuel

economy standard as well.

Mr. DAVIS OF VIRGINIA. Did you know that the Energy Bill

passed by the House did not have higher CAFE standards?

Mr. JOHNSON. Sir, we think, certainly to address greenhouse gas

emissions——

Mr. DAVIS OF VIRGINIA. That is one of the reasons I opposed it.

I don’t think you can be serious about this without raising that.

Mr. JOHNSON. That is correct.

Mr. DAVIS OF VIRGINIA. Let me just ask this. Are there different

challenges associated with regulating mobile sources of CO2 and

stationary sources of CO2?

Mr. JOHNSON. Again, I think that the challenges are very complex. Mobile sources, there is certainly a defined smaller universe

of mobile sources. There is a very wide range of potential stationVerDate 11-MAY-2000 12:49 Nov 06, 2008 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 C:\DOCS\44650.TXT KATIE PsN: KATIE
31

ary sources that we have to consider. As I mentioned, I think one

of the key, both differences, as well as similarities, is how do you

address it. It is going to be technology driven.

Mr. DAVIS OF VIRGINIA. In your testimony you highlight the need

to apply the law and the regulations that currently exist when

evaluating a permit application. I think part of the thrust of the

hearing is to give you the assumption you have more authority

than maybe you feel you do under the law, which is why you want

a statutory change as opposed to a broader interpretation of a judicial ruling.

Is part of your motivation behind that policy the desire not to be

sued for arbitrary and capricious actions?

Mr. JOHNSON. Sir, the first is, I have to abide by the law as it

is written today. That is certainly my first charge and responsibility. The second is recognizing that we are working diligently to understand what the impact of the Supreme Court decision and the

steps we are taking on mobile sources, what effect that may or may

not have on stationary sources.

Mr. DAVIS OF VIRGINIA. So if the law relates to, if the interpretation relates to one, but mobile and stationary may not be the same,

there is a different interpretation on that?

Mr. JOHNSON. That is a very important question. That is the

question we are asking ourselves.

Mr. DAVIS OF VIRGINIA. Also, aside from if you act arbitrarily and

capriciously, you can get sued for that. I understand the argument

here is let’s be bold and let’s move ahead, and you are saying,

make a statutory change that makes it easy for you. But second,

you want to create a sense of predictability and regulatory certainty, don’t you, so that the business community can make rational investment decisions. If you are constantly changing policies

without statutory authority, that is a hindrance. Is that a fair assumption?

Mr. JOHNSON. That is one of the key elements of the President’s

Twenty in Ten proposal, is that it provided certainty and also tends

to eliminate the lengthy, lengthy litigation that goes on. So of

course, when litigation happens, there is no environmental protection. That is why we would prefer to see, for mobile sources, the

President’s Twenty in Ten plan passed.

But in the meantime, we are developing regulations to pursue it

from a regulatory, administrative standpoint.

Mr. DAVIS OF VIRGINIA. Thank you.

Chairman WAXMAN. Thank you, Mr. Davis.

Mr. Hodes.

Mr. HODES. Thank you, Mr. Chairman.

Good morning, Mr. Johnson, how are you?

Mr. JOHNSON. Good morning. Good, thank you.

Mr. HODES. I live in New Hampshire, where the natural air flow

patterns that exist show that New Hampshire and much of the

northeast is really the tailpipe of the country. We are subject to the

air pollution of other industrialized portions of the country. So New

Hampshire has joined other New England States in taking aggressive action on climate change and CO2 emissions, far more aggressive action than the EPA seems to have been willing to do.

32

And we are feeling the effects in New Hampshire of climate

change. They are evident in the patterns of snowfall and our maple

syrup production. Our tourist industry depends on skiing. The effects in New Hampshire of global climate change are manifest. And

164 New Hampshire towns signed petitions, urging Congress, the

President to take immediate action on climate change.

The United Nations Intergovernmental Panel on Climate Change

[IPCC], won the Nobel Prize this year for its role in helping humanity understand the causes and effects of global climate change.

One of their conclusions is that climate change is likely to adversely affect the health of millions of people. It will result in increased deaths, disease and injury due to heat waves, floods,

storms, fires and droughts. Climate change will result in increased

malnutrition, increased diarrheal disease and increased cardio-respiratory disease, due to higher levels of smog.

And the IPCC is not alone in sounding the alarm about climate

change. The World Health Organization has also stated that climate changes poses serious health risks. They project that it now

causes over 150,000 deaths annually. Earlier this week, the American Public Health Association announced a new policy on climate

change. Their executive director stated, ‘‘Global climate change will

undoubtedly have a detrimental effect on human health and the

environment.’’

The White House, however, has tried to suppress discussions of

the public health effects of climate change. When the CDC director

testified before the Senate, her testimony was edited by the White

House to delete the statement that CDC ‘‘considers climate change

a serious public health concern.’’ And a White House spokesman

emphasized in the press that there could be health benefits from

climate change.

Now, we have heard in this committee plenty about the

politicization of science by this administration. You are now here

as the Administrator of the Environmental Protection Agency. And

I have a very simple question for you, to which I would like a yes

or no answer. Do you agree that climate change is a serious public

health concern?

Mr. JOHNSON. Sir, I believe that climate change is a serious concern. In the context of the Clean Air Act, the Clean Air Act defines

whether it causes or contributes to public welfare or public health.

So in the context of the Clean Air Act, we are currently evaluating

all of the science, and by the way, I am very proud of the EPA scientists who are part of and participated in the Intergovernmental

Panel on Climate Change. They are very capable and competent

scientists.

So we are, as I mentioned to the chairman, we are going to be

addressing the issue of endangerment, which then focuses on public

welfare or public health as part of our proposal to regulate carbon

dioxide for the first time in our Nation’s history from mobile

sources later this year.

Mr. HODES. That is a long way of not answering my question. I

am asking you, Mr. Johnson, to tell us today, here, right now, do

you consider climate change a serious public health concern? I

want to know what you think.

33

Mr. JOHNSON. I have said what I think, and I will be happy to

repeat it.

Mr. HODES. I don’t want you to repeat that answer.

Mr. JOHNSON. All right. That is what I think, sir.

Mr. HODES. So the answer is, you don’t know whether or not climate change is a serious public health concern?

Mr. JOHNSON. No, the answer is, in the context of the Clean Air

Act, I do not want to prejudge an issue that is before me called

endangerment, which I will be proposing to address later this year,

by the end of the year, so that there will be an opportunity for everyone to comment on whether it is or isn’t. We are working to address that issue, and it will be part of our notice and comment

process later this year.

Mr. HODES. I will just finish up, Mr. Chairman, by saying this.

Your refusal to answer the question which I have posed to you,

even understanding the context of what you say is coming in terms

of various evaluations you are performing, is stunning in the light

of the scientific consensus that climate change is a major public

health threat. And it is stunning that you, as the Administrator of

the Environmental Protection Agency, refuse to tell Congress

whether or not you consider this a serious public health concern.

Frankly, it is why many people who talk to me rename your agency

the Environmental Pollution Agency.

I have nothing further of this witness at this time.

Chairman WAXMAN. The gentleman’s time has expired.

Did you want to say something? Yes.

Mr. JOHNSON. Thank you. I think that is a very unfair characterization, sir. We as an agency and certainly as an EPA employee,

this year 27 years, we have consistently considered and achieved

environmental protection. Our Nation’s water is cleaner than it

was a decade ago, certainly 36 years ago, even a few years ago. The

same for our air and the same for our land. And I respectfully disagree with your characterization. I think that is very unfair and

unkind to the hard-working employees of EPA.

Mr. HODES. Sir, it is not my characterization. As I said to you,

it is what I hear from constituents and what I hear about the characterization. It is not mine, sir, at all. I know EPA people and I

have no truck with the work that many fine employees of the EPA

do. What I find stunning is your refusal to admit, concede or acknowledge that global climate change is a serious public health

concern.

Mr. JOHNSON. And I said I think it is very inappropriate of me

to prejudge and to make a comment on a regulation that I am

going to be proposing.

Chairman WAXMAN. He didn’t ask you about the regulation. He

asked you whether you thought that climate change was a public

health issue. Now, you are committed to reducing pollution in the

water. You are mandated by law to do it, but I assume you are

committed to it. You are committed to reducing pollution in the air.

That is what the Clean Air Act requires, and I assume you are

committed personally to trying to achieve those objectives.

You may or may not have legal authority to deal with climate

change, but do you think it is a problem? That is what he asked

you. It is not an insult to your employees.

34

Mr. JOHNSON. And I said to your comment, Mr. Chairman, and

as I said, I speak for the agency. I, Steve Johnson, am the Administrator of the agency. And when I speak, I speak on behalf of the

agency and as Administrator. I have said I cannot and will not prejudge what we are going to propose to address——

Chairman WAXMAN. He asked you, do you think it is a public

health problem?

Mr. JOHNSON. As I said, the consequences of his question are directly related to the issue of endangerment under the Clean Air

Act. That is why I said I am not going to prejudge until we have

an opportunity to propose.

Chairman WAXMAN. Then I think the question has been asked

and answered.

Ms. McCollum.

Ms. MCCOLLUM. Thank you, Mr. Chair.

Mr. Johnson, you said you were very proud of the work of your

scientists in the EPA. Did you strongly object and let people know

forcefully that you did not appreciate the fact that some of the

writings that the scientists had presented on global climate change

had been altered by the White House?

Mr. JOHNSON. Again, my experience as a 27 year veteran of the

agency is that there is an appropriate, and I think it is good government to have inter-agency review——

Ms. MCCOLLUM. So you answered the question, then, it is OK to

alter science, then?

Mr. JOHNSON. No, that is not what I said.

Ms. MCCOLLUM. Well, you said you were proud of the work that

your scientists did. You keep referring to the fact that you are

going to go with scientific information. Yet White House policy

drivers altered scientific documents, and I asked you if you objected

to it, yes or no.

Mr. JOHNSON. In my tenure as Administrator, I have not experienced that.

Ms. MCCOLLUM. Did you object to it, yes or no?

Mr. JOHNSON. I said, in my experience as EPA Administrator, I

have not experienced that. And that has certainly not been my experience of the past 27 years, either.

Ms. MCCOLLUM. So the White House did not interfere at all with

any of the testimony that has been put forward by Governmentpaid scientists, people who work in the pollution control agency,

people who work for the CDC, to your knowledge, the White House

never interferes?

Mr. JOHNSON. I can only speak to that of the EPA, and in my

experience it is not——

Ms. MCCOLLUM. And if you knew that was happening, if you

knew that was happening, would you speak up and speak out?

Mr. JOHNSON. Again, there is a line which I certainly support

and have supported through the years. I think it is appropriate for

testimony and key policy issues to go through inter-agency review.

Ms. MCCOLLUM. I hear what you are saying, you think it is appropriate for the White House to alter documents, then.

Mr. JOHNSON. Well, that is not the case.

Ms. MCCOLLUM. That is—well, that is what is going on here.

35

CO2 occurs naturally. That is a given. But when you have coal

plants and cars emitting more of it, then volume becomes a problem,a nd a lot of scientists think it is a public health problem. In

fact, President Bush has decided that we need to regulate car emissions. So if the Supreme Court says you need to be looking at doing

your job and regulating pollution, you are the pollution control

agency, the President wants to do something about car emissions,

we have California, Wyoming, Washington and the northern States

coming up with creative ideas. The States, after all, are the laboratory of which makes this country strong.

You feel that you are under no compulsion to regulate CO2?

Mr. JOHNSON. As I have said, we are in the process of proposing

to regulate greenhouse gas emissions, CO2 is one of those, from mobile sources. There are two ways to do it, fuel and through the

CAFE program. We are proposing that by the end of this year——

Ms. MCCOLLUM. Sir, if I could, when I as a person breathe CO2,

my lungs doesn’t say mobile source, stationary source, you are OK,

it is from a stationary source, it is a public health problem for me

to be involved in having pollutants around that are affecting climate change. It affects my public health, whether it comes from a

car or whether it comes from a power plant doesn’t change the fact

that it is a pollutant. Am I not correct with that? It is not any different if it comes from a car or a power plant, is it?

Mr. JOHNSON. One thing you need to be certainly aware of is the

health effects that have been identified by IPCC and others are

generally characterized as what you would call indirect health effects. In other words, the level of carbon dioxide for a human of

concern is a very high level where there is a——

Ms. MCCOLLUM. Mr. Johnson, my question wasn’t that——

Mr. JOHNSON [continuing]. Health consequence. So I just want to

make sure that you understand the science.

Ms. MCCOLLUM. I understand the science. And I understand that

it has been altered by this White House. My question is, if it is

CO2, does it make any difference to global climate change or to me

indirectly for my health whether it comes from a mobile source or

a stationary source? And if it doesn’t make any difference, then

why aren’t you regulating it? Because the President of the United

States thinks we need to regulate it at least at the mobile source

level. You are the pollution control agency.

Mr. JOHNSON. As I said, we are working through what the Supreme Court said. We have made a decision in the context of mobile sources that we are going to proceed with and propose regulations to propose. We are working through what that means for, as

well as what the science says, for stationary sources. So we are

working aggressively but deliberatively. As I said, as a 27 year veteran, not only a veteran, my background, I am a scientist by training.

Chairman WAXMAN. Thank you, Ms. McCollum.

Mr. Shays.

Mr. SHAYS. Thank you, Mr. Administrator. As I listen to this, I

feel we are all over the lot. Frankly, the administration bears the

burden of not waking up early to global warming, in my judgment,

and has basically said the marketplace is going to take care of a

lot of these problems. And I think it does, I think it does it too late.

36

But Congress is reprimanding you for not doing and enforcing

rules and regulations that I don’t think we have given you necessarily the power to do. Because Congress can’t even agree, we are

wrestling whether we are going to have 35 miles per gallon and 15

percent renewable by the year 2020. And it is questionable whether

that will pass the House and pass the Senate.

So what we can’t pass in law we want you to kind of deal with

administratively. I am struck by the fact that 100 of the Senators,

100 percent of the Senators, all 100 said, do not give us a Kyoto

Agreement that does not include India and China. And President

Clinton was not able to negotiate China and India into it. So he

never submitted it to the Senate, because there were only about

five Senators who would have voted for it.

I wish to God the President had submitted Kyoto without prejudice to the Senate, because it probably would have had at best 20

votes. Then we wouldn’t have so many Senators acting like they

would have supported it. At least we would have a more honest dialog.

I am struck by the fact that we want certain things to happen,

like global warming dealt with, but we don’t want nuclear power.

We want cleaner air, and my plants in Connecticut use coal, but

we don’t want liquified natural gas. So I am struck by the fact that

Europe is dealing with global warming and we give them credit,

but we don’t want to use the same mechanisms they are using to

deal with it.

So as I listen to this, I think people can throw stones at you and

get away with it, because frankly, the administration hasn’t been

the champion of dealing with global warming. And that I think is

regretful.

I am struck by the fact that the Massachusetts v. EPA said, ‘‘We

need not and do not reach the question whether on reprimand EPA

must make an endangered finding or whether policy concerns can

inform EPA’s actions in the event that it makes such a finding. We

hold only that EPA must ground its reasons for actions or inactions

in the statute.’’

Now, what I am hearing in this debate is that you are legally

bound to come to a decision about global warming and so on that

has to go through a process. Whether or not you feel that CO2 is

dangerous to one’s health has to go through a process. That is what

I am hearing you say. And you may and say it is.

Now, the one thing I am struck with though about CO2 is it is

not localized. Explain to me what that means. In other words, CO2

spreads out over, it doesn’t stay stationary. Tell me if that is a factor in what we are wrestling with. Tell me why some think CO2

is different than other pollutants.

Mr. JOHNSON. You have raised a number of very key points. The

first is, I think that certainly the issue of global climate change before Congress really helps illustrate the complexity and the difficulty of addressing it. Of course, again, I am very proud both of

the President’s leadership and the agency.

Mr. SHAYS. Give me the facts right now, rather than being proud

right now.

Mr. JOHNSON. We have spent more money than any other country in investing in science. We are going to be regulating——

37

Mr. SHAYS. Let me ask you this question. To the first point of

whether you are being responsive or not to the questions asked,

what I understand is, you have a court mandate to come back to

us. Is that true or not?

Mr. JOHNSON. The court mandate clearly lays out that it is a pollutant, then it is up to me as Administrator to determine the issue

of endangerment or what the next steps will be.

Mr. SHAYS. So, one, it is a pollutant, but then the question is

what kind?

Mr. JOHNSON. The next steps, it is up to us, and as the President

has announced, we are proceeding with regulation to regulate it

from mobile sources.

Mr. SHAYS. Why will it take, by the end of this year and the

next——

Mr. JOHNSON. We will be proposing.

Mr. SHAYS. Will then the question be answered that was asked

of you?

Mr. JOHNSON. Yes.

Mr. SHAYS. So there will be an answer and it will be an official

answer going through a process?

Mr. JOHNSON. That is correct.

Mr. SHAYS. OK. Tell me the other aspect of CO2. Mr. JOHNSON. CO2 is well mixed in the atmosphere, whereas,

other pollutants seem to be localized or can get into the atmosphere. CO2 is among the unique gases that it is well mixed in the

atmosphere. In fact, individual sources all contribute to what is effectively a global pool. That is one of the challenges that we face,

both in our science understanding but also in the challenge of how

are the best ways to address that. As I mentioned to your colleague, clearly technology is going to be the issue, whether it is mobile source or stationary source or other sources.

Mr. SHAYS. Thank you.

Chairman WAXMAN. Thank you, Mr. Shays.

Mr. Johnson, we are being summoned for a single vote on the

House floor. We are going to recess and then continue with you. I

know that Members will want a second round and we have some

Members who haven’t even had the first round.

Mr. DAVIS OF VIRGINIA. We have to go cancel each other on this

vote. [Laughter.]

[Recess.]

Chairman WAXMAN. The hearing will come back to order.

I am waiting for some of the Members who have not had their

opportunity for a first round, but rather than lose this opportunity

to question you, I will just take my second round.

Any objection? [Laughter.]

Oh, Mr. Sarbanes, you haven’t had a chance for the first round.

Do you want to ask questions now? You are welcome to.

Mr. SARBANES. Mr. Chairman, I have no objection. [Laughter.]

Chairman WAXMAN. Well, thank you very much.

Mr. Johnson, you have indicated that you are considering some

regulations on mobile sources based on the Supreme Court decision. Now, has your counsel instructed you not to look at the stationary sources, the power plants? Did he say that you don’t have

the authority to do that?

38

Mr. JOHNSON. That is a very important question. As part of our

deliberative process that we are evaluating, as I said, we are very

clear that we are going to be proposing to regulate CO2 and greenhouse gases from mobile sources. We are evaluating what the impact of the Supreme Court decision and obviously what we are proposing to do on mobile sources, what impact if any that will have

on stationary sources. So it is very much being considered as part

of the agency deliberative process.

Chairman WAXMAN. I wrote you a letter requesting you provide

the committee with documents relating to the Supreme Court decision. Some of the documents were given to us, others not. But we

learned from these documents that EPA has had multiple meetings

with the White House about regulating stationary sources of greenhouse gas emissions. Committee staff also reviewed four internal

EPA documents that describe what EPA is currently considering in

response to the Supreme Court case. Unfortunately, EPA has refused to provide these documents to the committee prior to today’s

hearing. Are you familiar with the EPA documents that EPA is

currently withholding from the committee?

Mr. JOHNSON. I am familiar with those, yes, sir.

Chairman WAXMAN. Administrator Johnson, ordinarily I understand the need to keep internal strategy documents confidential.

But these documents are incredibly cynical. They show that you

are considering issuing the weakest possible CO2 standards for

power plants at the last possible minute before this administration

is out of power. The motivation appears to be to preempt the ability

of your successor to take meaningful action. Unless the President

is prepared to assert executive privilege over these documents, I

believe they should be provided to the committee. If you have a secret plan to issue the weakest possible standards at the last possible moment, I think they should be exposed to the American people.

Is the President going to assert executive privilege over our document request?

Mr. JOHNSON. No, not at this time, Mr. Chairman. But let

me——

Chairman WAXMAN. Is there any reason why we should not get

these documents?

Mr. JOHNSON. Well, yes, and let me explain. I am currently evaluating, both being educated, but also evaluating what options may

or may not be available and what the impact of the Supreme Court

decision and the direction we are heading on mobile sources, on

stationary sources. So we are very much in a pre-decisional mode.

I have not made any decisions, and——

Chairman WAXMAN. Well, I am not asking——

Mr. JOHNSON [continuing]. What I am very concerned about is

the chilling effect that would occur within the agency if agency employees believed that their frank and candid comments were going

to be released before I made a decision while I am in the decisionmaking process, that is of grave concern. Mr. Chairman, we fully,

and I certainly fully respect your responsibilities as chairman of

the Oversight Committee. That is why I had my staff come up and

brief you.

39

But given the fact that we are pre-decisional, I have not made

any decisions, and this chilling effect it would have on my staff providing candid comments, and further, as the EPA response to your

letter noted, that the committee really hasn’t articulated why further access to these documents, which really don’t discuss the PSD

permitting issue with Desert Bonanza, which certainly is my understanding was the subject of this committee’s investigation, particularly in light of the significant accommodations, we didn’t think

that it would be appropriate to expose those documents at this

time.

Chairman WAXMAN. When you make accommodations for information for the Congress, you are not just doing us a favor. You are

doing what is required.

Mr. JOHNSON. No, and I fully support that, that is why we did

it.

Chairman WAXMAN. We are trying to do our job. And our job, unless you have a legal reason, I ordinarily expect these deliberative

documents. But unless you have a legal reason to withhold it, what

we seem to see is that EPA is in your deliberative process, not just

planning to address the issue in a way that I consider very weak,

but deliberating on how to make it weak so that you can bind your

successors. On that basis, I think we are entitled to those documents, and we are going to have to confront this issue. But I do

believe we are entitled to it. If my guess is right as to what is happening, I think it is even more imperative that the Congress of the

United States have access to them.

I want to recognize the gentlelady from California.

Ms. WATSON. Thank you so much, Mr. Chairman.

Administrator Johnson, this morning you testified primarily

about greenhouse gas emissions of stationary sources like power

plants. These sources are major contributors to climate change, but

they are only part of the problem. Mobile sources like cars and

trucks are also an enormous part of the problem.

I represent Los Angeles, CA. We are the largest State in the

Union, and on average, there are six cars per one. I was in the Senate for 20 years, and for the last 30 to 40 years, we have been

working to clean up our atmosphere. When I first went to Sacramento and was coming back to my district, it looked like we were

going through a valley of tar. It is very, very much cleaner than

it was 30 or 40 years ago.

In 2002, California took action to regulate greenhouse gas emissions of automobiles. And we developed a sensible plan to reduce

vehicle emissions and then requested from EPA the necessary

waivers in order to enforce our regulations in December 2005. A

dozen States have decided to also adopt California’s regulations. In

June, we learned that the Department of Transportation had organized an lobbying campaign to generate opposition to our rules.

So the committee, as a result, has been investigating this matter.

The Transportation Secretary’s Deputy Chief of Staff confirmed to

the committee that the Department of Transportation ‘‘is hoping to

solicit comments against California’s waiver.’’ A number of internal

DOT documents indicate that their lobbying campaign was coordinated with the White House and with EPA.

40

Some e-mails, and we have a copy of them, indicate that you

spoke with Transportation Secretary Peters about California’s

waivers. My question directly to you, under oath, did you discuss

the California waiver with Transportation Secretary Peters?

Mr. JOHNSON. As I testified before the Senate Environment and

Public Works Committee——

Ms. WATSON. Yes or no.

Mr. JOHNSON [continuing]. As part of our regular and routine

conversations——

Ms. WATSON. Yes or no.

Mr. JOHNSON [continuing]. I contacted Secretary Peters to give

her an update on the status of several actions before the agency.

One of the items I wanted to notify her of was of the comment period on the California——

Ms. WATSON. So the answer is yes.

Mr. JOHNSON [continuing]. Waiver request was closing, that I

had received requests for extension, which I was inclined to

deny——

Ms. WATSON. OK, you answered my question.

Chairman WAXMAN. The gentleman has answered the question,

Ms. Watson.

Ms. WATSON. Yes, I am going on to the next.

Did she tell you that she was going to lobby Governors and Members of Congress to oppose California’s request?

Mr. JOHNSON. I do not recall any specific discussion regarding

contacting congressional offices, including particularly whether to

solicit opinions on the California waiver.

Ms. WATSON. Did you discuss DOT’s lobbying plan with Secretary Peters or anyone else at DOT?

Mr. JOHNSON. I do recall asking Secretary Peters whether she

was aware of anyone else seeking an extension on the comment period. Of course, a day after that, I instructed my staff to deny the

request for an extension of the comment period.

Chairman WAXMAN. The gentleman does not seem to answer the

question. Did she tell you that she was going to lobby Governors

as well as Members of Congress? You answered Members of Congress.

Mr. JOHNSON. I don’t recall any discussion of lobbying——

Ms. WATSON. You don’t recall?

Mr. JOHNSON. Of lobbying.

Ms. WATSON. OK. Let me see if I can get through my questions,

because I see the lights. On May 23, 2007, DOT’s chief of staff sent

an e-mail that suggests you might have asked Secretary Peters to

initiate this lobbying campaign, and the e-mail states, Johnson

asked her to do this yesterday.

Now, Mr. Johnson, did you ask Secretary Peters to initiate the

lobbying campaign?

Mr. JOHNSON. I have answered the question of what I discussed

with her and asked of her. And I did not ask her to lobby.

Ms. WATSON. Another internal DOT e-mail indicates that the

White House staff discussed the California waiver and the DOT’s

lobbying effort with you. Did you discuss the lobbying effort with

anyone at the White House?

41

Mr. JOHNSON. I don’t recall having any discussion on that topic

with anyone in the White House.

Ms. WATSON. OK. Now, remember, Administrator Johnson, you

are under oath, can you promise us now that you will decide California’ request for a waiver purely upon the merits of the request

and not based on political factors?

Mr. JOHNSON. I can assure you that under the Clean Air Act, it

is the responsibility of me to make a decision, independent, based

upon the record. I intend to do so, and I have committed to the

Governor to have that decision made by the end of the year. As you

are probably well aware, this waiver request——

Ms. WATSON. As what is all aware?

Mr. JOHNSON. I was just going to say——

Ms. WATSON. As Republicans are all aware?

Mr. JOHNSON. No, as everyone is well aware, we have over

100,000 comments, literally thousands of pages of comments, of

technical and scientific comments, that we are expeditiously yet responsibility reviewing.

Ms. WATSON. My time is over. Let me just make this last statement, Mr. Chairman, if I may. My understanding that California

is filing suit today against you for failure to grant their waiver and

the administration’s approach to this matter has been completely

irresponsible and rather than working with the States to increase

environmental protection, the administration has waged a secret

effort to undermine it.

Thank you so much, Mr. Chairman.

[The prepared statement of Hon. Diane E. Watson follows:]

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43

44

45

Chairman WAXMAN. Thank you, Ms. Watson.

Mr. Johnson, in her May 31st e-mail to her chief of staff, Secretary Peters refers to ‘‘calls to the Governors on the issue I had

discussed with Administrator Johnson.’’ So she, in her e-mails, referred to a conversation with you to call the Governors. And on

June 6th, the Secretary’s executive assistant wrote, ‘‘Administrator

Johnson has just called and would like to speak with S1 this morning,’’ and Mr. Duvall, the Assistant Secretary, responded, ‘‘OK,

they think it may be about the California waiver.’’ Why would Secretary Peters say that she had discussed this with you about lobbying the Governors?

Mr. JOHNSON. Mr. Chairman, I can’t speculate on what e-mails

that either the Secretary or that occurred within the Department

of Transportation. As I have stated for the record and under oath,

I do recall asking Secretary Peters whether she was aware of anyone seeking an extension on the comment period. That was the

purpose of my phone call. Whether or not there was a need, was

she aware of anyone wanting to extend the comment period.

Chairman WAXMAN. Why would you make that phone call to the

Secretary?

Mr. ISSA. Point of order, Mr. Chairman.

Chairman WAXMAN. The chairman has the right. Why would you

make——

Mr. ISSA. Point of order, Mr. Chairman. The rules of the House

and the rules of this committee call for 5 minutes per side divided.

It does not have a separate——

Chairman WAXMAN. I understand the rule. But on behalf of the

Governor of our State and in the interest of our State, I want an

answer to this question. Why would you have made the call——

Mr. ISSA. Mr. Chairman, it is my State, too. I ask for regular

order.

Chairman WAXMAN. The gentleman has made a point. I am just

going to ask you to answer this one question. Why would you have

called the Secretary of Transportation about this issue at all?

Mr. JOHNSON. Because I know that she is very interested in

issues of transportation. This is an issue of whether she was aware

that there was anyone who was going to ask for an extension of

public comment period, and as I said to her, and certainly I would

ask that my statement, the comments made before the Senate

EPW be made part of the record here, is that I said I was inclined

to not approve, and a day later, that is what I did.

Chairman WAXMAN. OK, thanks.

Mr. JOHNSON. That is the extension of the comment period, to be

clear.

Chairman WAXMAN. Mr. Sali, I think it is your turn next.

Mr. SALI. Thank you, Mr. Chairman.

If we were going to deal with all of the sources of carbon emission, greenhouse gases, what would do us the most good? Where

could we make the most impact?

Mr. JOHNSON. Well, it is clear that one is, it is important that

as we reflect on the Supreme Court decision and the complexity of

the Supreme Court decision, as well as the complexity of technology and science, that we look at all of these issues. It is clear

that electric generating units are the major source of carbon dioxVerDate 11-MAY-2000 12:49 Nov 06, 2008 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 C:\DOCS\44650.TXT KATIE PsN: KATIE
46

ide in the United States. Second is transportation. Then third,

there are a variety of other sources.

Of course, before the agency, given the Supreme Court decision

in Massachusetts v. EPA, the focus is on mobile sources. So we are,

as I have already mentioned, going to be proposing regulating CO2,

greenhouse gases, from mobile sources by the end of this year. And

as we prepare that proposed regulation, we are also considering

what the impacts of the Supreme Court decision and our action on

mobile sources will have on these other, including stationary

sources. So we are very much on an internal, deliberative, thoughtful process. I have made no decisions. It is an important issue, it

is a complex issue and we are working diligently and expeditiously,

but responsibly.

Mr. SALI. In the State of Idaho, we had over 2 million acres of

forest land that burned up this year. My guess would be that would

be a significant source of carbon and other types of gases that

might contribute to global warming. You didn’t include that in your

list of sources, and I am wondering, is there any effort on the part

of the EPA to look outside of the sources that you have described

here?

By way of reference, I understand that the fires in the Yukon,

in Canada and Alaska in 2004, a pretty significant fire, emitted as

much carbon as all man-made sources in all of the continental

United States for the rest of the year, just that one fire. Has your

agency looked at any of that as a way to perhaps deal with the balance of where we should look to get the most bang for the buck?

Mr. JOHNSON. EPA does not regulate forests, and of course,

under the President’s Healthy Forests Initiative, a key feature of

that is to help to manage in a better way potential outcomes or adverse outcomes like forest fires.

With regard to the pollution that is emitted from forest fires,

that is something that through a variety of monitoring stations

that we have, or that the States have in place, or tribes have in

place, are often picked up, and we have to assess that as part of

whether, in fact, States or tribes are in compliance with the Clean

Air Act.

Mr. SALI. Well, isn’t it possible, though, that you are contributing

carbon or other types of emissions to stationary or mobile sources

that might be coming from forest fires?

Mr. JOHNSON. Certainly, combustion of product contributes to

greenhouse gas emissions.

Mr. SALI. How shall we, as a committee, dealing with oversight

of this, how should we proceed? Because we apparently want a

more comprehensive view than your agency is charged with. What

suggestions would you have for us?

Mr. JOHNSON. That is a great question. I don’t have any answer

off the top of my head, but certainly look forward to working with

you as you address the whole issue of global climate change. I did

also want to mention that we are one of the ones in the Federal

Government that actually maintains and does the accounting and

inventory of greenhouse gas emissions for reporting, not only to the

public, but as well as the U.N. framework for climate change. So

we can look and we have looked and will continue to look over the

47

years to see what the trends are, if we are aware of any influences,

like major forest fires.

Again, from a science perspective, it is often difficult to discern

in these local conditions of how they contribute to this global problem of greenhouse gas emissions. I look forward to working with

you.

Mr. SALI. Do I hear you committing that you are going to be looking at that as you go forward?

Mr. JOHNSON. I will be happy to work with you and our colleagues who have oversight responsibility, regulatory authority for

our forests in the Nation, not only the U.S. Department of Agriculture and the Department of Interior.

Mr. SALI. Thank you, Mr. Chairman.

Chairman WAXMAN. Thank you, Mr. Sali.

Mr. Kucinich.

Mr. KUCINICH. Thank you, Mr. Chairman.

Mr. Johnson, you called Secretary Peters at the Department of

Transportation to tell her about the closing of the comment period

with respect to the California waiver issue, is that not correct?

Mr. JOHNSON. It would be a better characterization that I have

regular and routine conversations with my Cabinet colleagues.

During one of those routine conversations, I mentioned that subject. There were other subjects that we talked about. But I——

Mr. KUCINICH. But you did call her to tell her about the closing

of comment period?

Mr. JOHNSON. As I said, there were other topics that I talked to

her about.

Mr. KUCINICH. What else did you talk to her about?

Mr. JOHNSON. On that particular day that I talked to her, I was

supposed to be testifying in 2 days. The head of NHTSA was supposed to testify with me. I talked to her and said that I was going

to be calling one of her senior people to ask if there were any

questions——

Mr. KUCINICH. So you talked about many things. Now, did you

call the Energy Secretary to tell the Energy Secretary that the

comment period was closing?

Mr. JOHNSON. Again, this was dealing with transportation issues,

and I did not talk to, I don’t recall talking to the Secretary. That

is my recollection.

Mr. KUCINICH. Did you talk to the Energy Secretary?

Mr. JOHNSON. I have routine conversations with——

Mr. KUCINICH. Did you talk to the Energy Secretary about the

closing of the comment period?

Mr. JOHNSON. To the best of my recollection, no.

Mr. KUCINICH. Did you talk to the Commerce Secretary about the

closing of the comment period?

Mr. JOHNSON. To the best of my recollection on this issue, no, but

again, I have routine conversations with Secretary Guitierrez as

well.

Mr. KUCINICH. Good enough. Did you talk to anybody in the Executive Office Building about the closing of the comment period?

Mr. JOHNSON. I don’t recall having a conversation with anybody

there.

48

Mr. KUCINICH. Did you talk with anybody in the coal industry

about the closing of the comment period?

Mr. JOHNSON. No, I did not.

Mr. KUCINICH. Did you meet with anybody in the coal industry

in terms of promulgating rules with respect to the decision that the

EPA made with respect to approval of new power plants?

Mr. JOHNSON. I personally did not.

Mr. KUCINICH. Did anybody on your staff talk to people in the

power industry?

Mr. JOHNSON. As part of a routine permitting process, staff in

our regions do meet with the permittee.

Mr. KUCINICH. Why did you call the Department of Transportation Secretary, since there seemed to be a close coincidence between the time that the closing period was coming up and the occasion of your call? At the time that the closing period was coming

up, did that have something to do with your initiating that call to

her?

Mr. JOHNSON. Again, I contacted Secretary Peters to give her an

update on the status of several actions before the agency. And one

of the items I wanted to notify her of was that the comment period

on the California waiver request was closing. While I had received

request for extension, I was inclined to deny these requests. And

I—excuse me?

Mr. KUCINICH. Did you tell your general counsel that you were

leaning toward not extending the comment period, but you wanted

people to know that you had the discretion to accept late-filed comments?

Mr. JOHNSON. That is under the Clean Air Act and under petition process acceptable procedure.

Mr. KUCINICH. And did your general counsel then communicate

that legislators and Governors should not despair if they can’t meet

the June 15th deadline?

Mr. JOHNSON. I don’t recall that conversation.

Mr. KUCINICH. I am really concerned we have a condition here

where we see the EPA defending a flawed legal interpretation of

the Clean Air Act all the way to the Supreme Court, delaying approving the waiver necessary for California to enforce its regulation

of greenhouse gases, granting permits to coal-fired plants without

even considering alternatives for reducing greenhouse gas emissions. Mr. Chairman, when I listen to this recitation, you are supposed to be the Environmental Protection Agency, Mr. Johnson. It

seems that under the Bush administration, the EPA is beginning

to be better described as Every Polluters Ally.

Thank you, Mr. Chairman.

Chairman WAXMAN. If the gentleman would yield to me, I find

this very hard to believe.

Mr. KUCINICH. I will yield remaining time to the Chair.

Chairman WAXMAN. I find this very hard to believe. You took the

time to call the Secretary of Transportation about a comment period, but you didn’t call the Secretary of Commerce and you didn’t

call the Secretary of Energy, who also have an interest in this rule.

Is that your testimony?

49

Mr. JOHNSON. As I have stated, to the best of my recollection, as

part of my regular and routine conversations, I contacted Secretary

Peters——

Chairman WAXMAN. Well, wait a second. Rather than read your

statement back to me, because obviously you have it there in writing, you are a busy man. Did you know at the time you called her

that she was engaged in a lobbying effort against the California

waiver?

Mr. JOHNSON. I did not know. To the best of my recollection, I

did not know.

Chairman WAXMAN. Well, I am glad you threw in the best of

recollection, ‘‘I did not know,’’ because you are afraid of maybe saying ‘‘I did not know’’ might be contradicted? I mean, you are under

oath, so it sounds like to me like——

Mr. JOHNSON. No, Mr. Chairman——

Chairman WAXMAN. Were you briefed by——

Mr. JOHNSON [continuing]. I have routine and——

Chairman WAXMAN. Excuse me, Mr. Johnson, I am in the middle

of a question.

Mr. JOHNSON. I am trying to answer your question, sir.

Chairman WAXMAN. Were you briefed by your lawyer how to say

things so that you wouldn’t be committing perjury?

Mr. JOHNSON. Mr. Chairman, I have regular and routine conversations with members of the Cabinet——

Chairman WAXMAN. But not the others. Only with the Secretary

of Transportation on this issue.

Mr. JOHNSON. I have routine and regular conversations with

members of the Cabinet. And I recall the conversation I had with

Secretary Peters. I testified before the Senate EPW. To the best of

my recollection, that testimony reflects my remembrance of the

conversation.

Chairman WAXMAN. We will incorporate that testimony by reference. But I want to ask you, did you know at the time you had

that conversation with her that the Department of Transportation,

which was losing jurisdiction over CAFE standards to EPA, did you

know that the Department of Transportation was unhappy about

it and was trying to lobby against California getting this waiver?

Mr. JOHNSON. Mr. Chairman, I stand by my statement that——

Chairman WAXMAN. Which is?

Mr. JOHNSON. Which is, I do recall asking Secretary Peters

whether she was aware of anyone else seeking an——

Chairman WAXMAN. No, no, you didn’t answer me. Did you know

what her view was and did you know she was lobbying against the

California waiver?

Mr. JOHNSON. As I said, this is the best of my recollection of the

conversation.

Chairman WAXMAN. Which is?

Mr. JOHNSON. Which I will be happy to read to you.

Chairman WAXMAN. No, I don’t want you to read to me a prepared statement. I asked you a simple question. Did you know at

the time you called her, to presumably say you have an extension,

do you know of anybody who wants an extension on time for filing

comments, did you know that she was lobbying against the California waiver and she did not want the California waiver?

50

Mr. JOHNSON. Mr. Chairman, there are many, many opinions on

the topics that are——

Chairman WAXMAN. Did you know what her views were at that

time and that she was involved in trying to undercut the California

waiver? Did you know, yes or no?

Mr. JOHNSON. Mr. Chairman, to the best of my recollection, the

statement reflects the conversation and what I remember of that

conversation.

Chairman WAXMAN. Did you have a conversation with her on any

other rule that you have had before the EPA?

Mr. JOHNSON. I have had other conversations with her on other

rules, yes.

Chairman WAXMAN. About extension of comment periods? Do you

call her regularly when you have a rule to ask her about extension

of comment periods?

Mr. JOHNSON. Again, I have routine and regular conversations

with her on a variety of topics.

Chairman WAXMAN. You are not answering the question, and I

guess there is a reason for your not answering the question. Because we did submit that there are multiple e-mails, in our letter

to you, that contain references to communications between EPA,

the Transportation Department and the White House. We have an

e-mail that says on May 25th, the Secretary’s executive assistant

e-mailed your chief of staff to say, ‘‘Spoke with Steve Johnson, the

EPA Administrator, before approving the Secretary’s calls to the

Governors.’’ And further, in a May 31st e-mail to her chief of staff,

Secretary Peters refers to ‘‘calls to the Governors on the issue I had

discussed with Administrator Johnson.’’ Do you think she was calling the Governors to see if they wanted more time to submit comments?

Mr. JOHNSON. Mr. Chairman, what Secretary Peters did or her

staff did in the e-mails I am not accountable for and I can’t speculate.

Chairman WAXMAN. Well, you are accountable for your answers.

Mr. JOHNSON. I can’t speculate on what they did or didn’t do.

Chairman WAXMAN. You are accountable for your answers here

under oath and you have refused to answer some of these questions

directly.

Mr. JOHNSON. Mr. Chairman, I have given you the best of my

recollection.

Chairman WAXMAN. On June 6th, the Secretary’s executive assistant wrote, ‘‘Administrator Johnson just called and would like to

speak with S1,’’ oh, S1 is Secretary Peters, ‘‘this morning.’’ So S1

means Secretary Peters. Administrator Johnson just called and

would like to speak with, we will say Secretary Peters, this morning. Mr. Duvall, the Assistant Secretary, responded, ‘‘OK, they

think it might be about the California wavier.’’ So within the Department of Transportation, they didn’t think you were calling

about extensions of time to file comments. They thought you were

calling about her campaign to stop the California waiver.

Did you ever discuss with Secretary Peters efforts to undermine

or efforts—no, did you ever discuss with Secretary Peters her views

about the California waiver?

Mr. JOHNSON. As I said, Mr. Chairman——

51

Chairman WAXMAN. On the substance.

Mr. JOHNSON [continuing]. I talked to her about the extension of

the comment period for the California waiver petition. That was

the nature and the extent of the conversation to the best of my

recollection.

Chairman WAXMAN. And therefore, you did not talk to her about

her desire to not see the California waiver granted?

Mr. JOHNSON. Again, under the Clean Air Act, it is the responsibility of me to make an independent decision on the California

waiver petition. I intend to do that, and I promised the Governor

that I would make that decision by the end of the year.

Chairman WAXMAN. Well, I just would repeat that it makes no

sense, a busy man like you, would take the time to call the Secretary of Transportation and ask her whether she knew of people

who wanted extensions of time to comment on the California waiver, I guess, unless you thought that she was going to have extension of times for people to comment against the California waiver.

Is that an accurate statement?

Mr. JOHNSON. No.

Chairman WAXMAN. You didn’t think that was why she would

have an interest in the extension of time? Why wouldn’t you think

the Secretary of Energy would have an interest in that issue?

Mr. JOHNSON. It is a transportation issue.

Chairman WAXMAN. Aha. Well, it is an energy issue. How about

the Secretary of Commerce? It certainly affects the commerce in

this country.

Mr. JOHNSON. Again, it is a transportation issue. And I have routine conversations, again——

Chairman WAXMAN. Yes.

Mr. JOHNSON [continuing]. With my Cabinet colleagues on a wide

range of issues. I think that is good government, for the Cabinet

members to talk with one another.

Chairman WAXMAN. Do you know where in the Clean Air Act it

says that this is a transportation issue and involves the Secretary

of Transportation? Or does it say that the California waiver is to

be approved or not approved by the Environmental Protection

Agency? And do you know whether any previous EPA Administrator ever called the Secretary of Transportation before they approved a California waiver? There have been many approved over

the years, as well as other States’ requests.

Mr. JOHNSON. Again, the responsibility, as you correctly point

out, for making a decision on the California waiver, rests with me

as Administrator of the Environmental Protection Agency.

Chairman WAXMAN. Do you feel it is important to get input from

the Department of Transportation on that issue?

Mr. JOHNSON. I think that it is important for me to make that

independent decision under the Clean Air Act. I also think that it

is important to have routine conversations with my Cabinet colleagues on a wide range of issues.

Chairman WAXMAN. I know you have said Cabinet colleagues on

a wide range of issues, but you only talk about one Cabinet colleague. The others you didn’t think had a view on this question.

Mr. JOHNSON. Again, this was not the only topic that we discussed that day.

52

Chairman WAXMAN. What else did you talk about?

Mr. JOHNSON. Again, to the best of my recollection, my statement, I did add one additional thing. Again, I recall talking to her

about the upcoming hearing that I was going to be sharing the witness stand with the head of NHTSA, and that I was going to be

calling. I wanted to tell her that I was going to be calling the head

of NHTSA to make sure that we were both prepared for the upcoming hearing.

Chairman WAXMAN. And had you coordinated that with the

White House, for the upcoming hearing?

Mr. JOHNSON. To the best of my recollection, I had not had a discussion with the White House, other than again, as part of a routine process for clearance of testimony.

Chairman WAXMAN. What was the upcoming hearing that you

were concerned about?

Mr. JOHNSON. At this point in time, I don’t recall what the hearing was.

Chairman WAXMAN. A congressional hearing?

Mr. JOHNSON. It was a congressional hearing, yes.

Chairman WAXMAN. I see. So what did it have to do with the

California waiver?

Mr. JOHNSON. I don’t recall at this moment what the specifics

were for the hearing. We can certainly go back as a matter of

record what the hearing and the specific topics were. But I wanted

to, as again, I think it is good government to have inter-agency coordination. That is what I have done for the past 27 years and I

think that is good government for the future.

Chairman WAXMAN. Did you want to make sure that you and the

NHTSA representative were on the same wavelength in terms of

your views?

Mr. JOHNSON. No. Again, I don’t recall the specifics of that particular hearing. But I wanted to ask if there were any questions

or if they had any questions of me.

Chairman WAXMAN. OK, so you called her about anybody she

knows that wants an extension of time to submit opinions on the

waiver, and you also talked to her about this upcoming hearing, so

that you and the NHTSA representative would be representing administration policy. Any other topics you remember?

Mr. JOHNSON. I don’t recall. I think there were, but I don’t recall

what they were.

Chairman WAXMAN. How many conversations have you had with

her on this subject? How many conversations have you had with

her that might have led people in her office to think that you were

talking to her about the subject of the California wavier?

Mr. JOHNSON. The vast majority of my conversations with her

have been on our development of the rulemaking for mobile

sources, particularly on that portion dealing with CAFE.

Chairman WAXMAN. I see. So were these conversations after the

Supreme Court decision?

Mr. JOHNSON. Yes.

Chairman WAXMAN. And if the Supreme Court had not made the

decision it had made, would you be talking to her about the California waiver?

53

Mr. JOHNSON. If the Supreme Court had not made the decision

it was a pollutant, then it wouldn’t be regulated under the Clean

Air Act, and then we wouldn’t be having that conversation.

Chairman WAXMAN. But California waiver wasn’t dependent on

the Supreme Court decision, was it? The California waiver is a

long-established practice under the Clean Air Act. California was

way ahead of EPA in establishing tighter standards. So we have

always said California may go on its own and has permission, has

to get a waiver to permit California to do that. That had nothing

to do with that Supreme Court decision, did it?

Mr. JOHNSON. Mr. Chairman, as we noted to California that the

Supreme Court would have, because if it was not a pollutant under

the Clean Air Act, then what authority would there be, or then how

would the Clean Air Act then apply to the waiver petition, which

is Section 209 of the Clean Air Act? So it was very relevant, and

that is why we told California that clearly, the decision that was

pending before the Supreme Court could have a dramatic effect on

whether or not, depending upon their outcome. And of course, once

the Supreme Court made the decision it was a pollutant, then I

acted very quickly to initiate the public, the actual statutory process of holding a hearing. The Governor asked me if I would hold

an additional hearing out in the State of California, which we did.

And as I have mentioned, we have approximately 100,000 comments.

Admittedly, many of those comments, or a few were repeat comments; nonetheless, we still need to consider those.

Chairman WAXMAN. How many conversations did you have with

Secretary Peters about the Supreme Court issue?

Mr. JOHNSON. I don’t recall, Mr. Chairman.

Chairman WAXMAN. More than one?

Mr. JOHNSON. Yes, definitely more than one.

Chairman WAXMAN. More than five?

Mr. JOHNSON. Likely, but I don’t recall.

Chairman WAXMAN. And why did you feel it was important to

talk to her about the Supreme Court issuance of a decision that

said you now can regulate?

Mr. JOHNSON. We were having multiple conversations, interagency conversations as we were looking at the impact of the Supreme Court decision.

Chairman WAXMAN. Do you recall her telling you in any of these

conversations that she thought it was not a good idea to give California the waiver?

Mr. JOHNSON. I don’t recall. As I said, there are many, many——

Chairman WAXMAN. Really, why wouldn’t she tell you if she is

telling all these Governors and Congressmen she doesn’t like the

California position and request? Why wouldn’t she tell you? It is

hard to believe she—maybe she did?

Mr. JOHNSON. Sir, there are many, many opinions on the California waiver, as well as other issues that are before the agency. It

is my responsibility to make a decision independently based

upon——

Chairman WAXMAN. I understand that, and I have every confidence—I hope—that you will do that. But I am asking whether

the Secretary of Transportation, since you were talking to her

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about the subject, ever said, ‘‘by the way, I don’t think you ought

to grant that California waiver?’’

Mr. JOHNSON. Again, the nature of our conversation was with regard to the comment period and the extension of the comment period.

Chairman WAXMAN. But that wasn’t the exclusive and only subject?

Mr. JOHNSON. No. Again, as I have said, there were other topics

that we talked about.

Chairman WAXMAN. And you had more than five conversations.

So you didn’t talk about the extension of the filing period on every

conversation, I assume.

Mr. JOHNSON. No.

Chairman WAXMAN. So what did you talk about in the other conversations?

Mr. JOHNSON. Well, as I said, generally one topic area that we

have had a lot of conversations, as I have had with the Secretary

of Agriculture, as I have had also with the Secretary of Energy,

under the context of, when the President made the decision that

we were going to be moved forward with taking the steps to regulate greenhouse gases from mobile sources, he issued an Executive

order. As part of that executive order, he directed us to make sure

that we were working together, including the Department of Transportation, the EPA, the Department of Agriculture, as well as the

Department of Energy. So we have had numerous conversations.

Chairman WAXMAN. OK. Well, Mr. Kucinich’s time has expired,

so I will now recognize Mr. Sarbanes.

Mr. SARBANES. Thank you, Mr. Chairman.

Administrator Johnson, obviously EPA has the ability to directly

influence a lot of things with respect to global warming and to take

the measures that everyone seems to be calling for, at least the

consensus that is emerging these days, to regulate those more effectively, greenhouse gas emissions and other emissions that are

harming the environment.

But you also have a lot of ability to influence what the States do

by setting a standard, by looking over their shoulder in appropriate

cases and making sure that you are modeling for them the kinds

of measures that ought to be taken. I think there is high concern

among some members of this committee that role isn’t being performed adequately either. You have some States that really are

taking a leadership role with respect to global warming and regulating these emissions. New Mexico is a good example of that in

terms of requiring new plants to have cleaner technology as part

of their operation.

But then you have other States that are really permitting these

huge new coal-fired power plants to come online that don’t have

any kind of controls over greenhouse gas emissions. It doesn’t appear that the EPA is urging States as it should be, taking a leadership role in urging States to require these pollution controls. I

guess that is not surprising, given that EPA is not acting in those

arenas where it has direct authority, why would we expect it to act

in those where it has the ability to influence or cajole or push

States to do the right thing?

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Let me give you a concrete example. The State of North Carolina

is considering a new coal-fired power plant which has been proposed by Duke Energy at Cliffside Facility, which is near the Great

Smoky Mountains National Park. This plant doesn’t use advanced

technology. As an aside, it is incredible to me that we are building

and bringing online new plants that don’t have this technology.

But in any event, first of all, are you aware of this proposal that

is out there?

Mr. JOHNSON. I am not aware of that specific proposal, no, I am

not.

Mr. SARBANES. OK. Because EPA did submit comments on the

permit application for this plant, as you would want them to do.

Unfortunately, it didn’t mention in those comments any of the potential effect on global warming that the absence of this kind of advanced technology would have. It didn’t ask the State to consider

requiring coal gasification to reduce greenhouse gas emissions and

looking at capturing and sequestering those emissions. You are not

aware of it, which is a surprise to me, but don’t you think that the

EPA should have been recommending these kinds of measures that

North Carolina take with respect to greenhouse gas emissions?

Mr. JOHNSON. Again, each permit needs to be evaluated on a

case by case basis and within the context of what the current law

is. As I have already mentioned, we are aggressively, yet responsibly, trying to sort through what the impact of the Supreme Court

decision is on mobile sources and what that means for stationary

sources. We are right now in a deliberative process. In the meantime, we will look at these on a case by case basis, based upon existing law.

Mr. SARBANES. Well, this is really the role of leadership. It is less

about where your authority is than about understanding the

science, taking a leadership role with respect to the kinds of technologies that ought to be deployed out there, and encouraging

States to do that kind of thing, rather than looking the other way

or becoming a sort of pushover for industry. It is in contrast, I will

tell you, with some of the other agencies that have weighed in. The

National Park Service has taken a very strong line with respect to

the particular plan I referenced. They provided comments that are

encouraging the State of North Carolina consider coal gasification

and asking for significant documentation on how emissions will be

reduced.

The National Park Service is doing that, but the Environmental

Protection Agency is not doing that. It seems to me that is a total

abdication of your role, and I know it is disappointing to many of

us, and I think ought to be an embarrassment to the agency. I

yield back my time.

Chairman WAXMAN. Thank you, Mr. Sarbanes.

Mr. Yarmuth, do you wish a second round? The gentleman is recognized.

Mr. YARMUTH. Thank you, Mr. Chairman.

I just have one question I would like to pursue regarding another

statement that you made in your prepared statement. You said

that EPA meets regularly with the Departments of Transportation,

Energy and Agriculture to ensure coordination of our work efforts.

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In addition, we have ensured major stakeholder group involvement

in the process from the very beginning.

I want some clarification as to what the agency considers major

stakeholders, how expansive is that list, and whether there is

transparency on that issue. I ask it in the context not necessarily

as a direct comment on anything EPA has done, but certainly with

respect to what we know the Vice President did and—some of what

we know the Vice President did with regard to development of energy policy back in the early years of the Bush administration. So

I would like you to discuss the issue of making sure that a comprehensive range of input is solicited and utilized by EPA.

Mr. JOHNSON. Yes, and that is very important. In fact, certainly

one of your next panel members from NRDC was recently part of

the, I think referred to as the green team in my office, as well as

I invited industry, as well as I invited State and local government.

I would be happy to provide those lists. We also make sure that

we are open and transparent. I think that it is important for me

as the decisionmaker to not only have an open and transparent

process, but also make sure that there are opportunities for hearing from different perspectives. That is something that I have

prided myself in in my 27 years and have continued that as Administrator.

Mr. YARMUTH. Good.

I have no other questions, Mr. Chairman.

Chairman WAXMAN. Would the gentleman yield to me?

Mr. YARMUTH. I would be happy to yield to my chairman.

Chairman WAXMAN. I thank the gentleman. Because I am trying

to think through this issue that I was questioning you about. So

you called Secretary Peters to ask if she knew some people who

wanted an extension for filing. Is that your testimony? Filing comments on the California waiver?

Mr. JOHNSON. As I said, Mr. Chairman, I have routine conversations with her. And among the topics that we talked about, to the

best of my recollection, was that and was she was aware of anyone

who wanted——

Chairman WAXMAN. And was she aware of anybody?

Mr. JOHNSON. She was not, off the top of her head, and she said

that she was going to check with her staff.

Chairman WAXMAN. And did you ever hear from her staff about

that?

Mr. JOHNSON. I think my staff heard from her staff, which indicated she was not aware of any. Again, I made the decision the

next day to not approve an extension of the public comment period.

Chairman WAXMAN. I see. So her staff informed you that they

knew of, informed your people that they knew of no one who wanted an extension, they had already filed their comments?

Mr. JOHNSON. That hadn’t already asked for an extension.

Chairman WAXMAN. Oh, there were——

Mr. JOHNSON. There were people that had asked for an extension, yes. But I was dis-inclined to approve it, in spite of the request.

Chairman WAXMAN. OK. Mr. Davis is here, and I want to see if

he wants to pursue some questions.

Mr. DAVIS OF VIRGINIA. I would be happy to.

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My understanding, the chairman read from a letter that he wrote

to Mr. Connaughton. I have the e-mail here from Sandy Snyder. Do

you know her?

Mr. JOHNSON. I don’t.

Mr. DAVIS OF VIRGINIA. To Tyler Duvall at OST and some others.

But it basically says, subject, the call from the EPA Administrator

Johnson, and it says: ‘‘Administrator Johnson just called and would

like to speak with S1,’’ who is Secretary Peters, ‘‘this morning regarding the climate change proposal they are working on with

NHTSA. S1 is on travel and will not be available until 2 o’clock,

and then we will work in a call with S1-EPA possibly 3:45.’’

Pretty innocent, isn’t it? I mean, I don’t understand anything

wrong out of that. Now, you are a career employee, aren’t you?

Mr. JOHNSON. I am career, I have had the pleasure and opportunity and honor of serving as a political appointee now heading

the agency.

Mr. DAVIS OF VIRGINIA. You weren’t active on the campaign or

anything, were you?

Mr. JOHNSON. I was not, no.

Mr. DAVIS OF VIRGINIA. Under the Hatch Act and everything

else, you would have been limited had you tried to be so?

Mr. JOHNSON. That is correct.

Mr. DAVIS OF VIRGINIA. And you have had a long and distinguished career in the civil service, I think at one point got, was it

the President’s Award? What was the highest award you got as a

civilian employee?

Mr. JOHNSON. Well, I have been honored to receive a number of

awards. I have received Vice President Gore’s hammer award for

streamlining regulations.

Mr. DAVIS OF VIRGINIA. Well, you get another hammer award

here this morning just standing up to some of the examination.

Mr. JOHNSON. I have also received the Presidential Distinguished

Service Award.

Mr. DAVIS OF VIRGINIA. From what I gleaned from here, my

friends on the other side would like you to interpret a court ruling

in a certain way without going through the usual legal and rulemaking changes, when we could change it very simply here with

a statute, couldn’t we?

Mr. JOHNSON. Yes, you could.

Mr. DAVIS OF VIRGINIA. And my party is, for better or for worse,

not in the majority, so we don’t have control over the agenda on

that. But if they wanted to change it, pass a law, send it up. If the

President wants to veto it, then we can have this debate. I may end

up supporting that law, if they were to put it forward.

But to ask you to willy-nilly interpret this thing without going

through the appropriate procedures seems to me to be a stretch. Do

you have any comment on that?

Mr. JOHNSON. I think it would be highly inappropriate, and I

would be, I am sure, up here before oversight committees saying

that I was not following the notice and comment rulemaking process and good public policy.

Mr. DAVIS OF VIRGINIA. My reading of the Massachusetts v. EPA

case is exactly that, that you need to go through an appropriate

process before you can make that.

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Now, based on your experience, how long does a typical rulemaking take?

Mr. JOHNSON. Typically, sir, it takes several years.

Mr. DAVIS OF VIRGINIA. Now, is the time line that you announced

today typical of EPA rulemakings?

Mr. JOHNSON. It is atypical, it is a very, very aggressive rulemaking schedule.

Mr. DAVIS OF VIRGINIA. So you are way ahead of schedule?

Mr. JOHNSON. That is correct.

Mr. DAVIS OF VIRGINIA. And yet passing a law, there is no standard procedure for passing a law here, but in the House majority

rules and you can move things out. The Senate is a completely different body altogether. But it would be much faster, it seems to me,

to pass a law than it would be to have you go through a rulemaking.

Mr. JOHNSON. Well, it can certainly be faster, but it certainly

provides certainty and certainly, if past is prologue, also eliminates

all the continuous litigation that seems to go on with any regulation that we issue.

Mr. DAVIS OF VIRGINIA. And unlike the congressional rulemaking

procedure, law making procedure, under your rulemaking, basically

anybody can make a comment, can’t they?

Mr. JOHNSON. That is correct. In fact, we encourage people to

comment.

Mr. DAVIS OF VIRGINIA. So you are open to everybody.

And right now, you hope to have that response by the end of

2008?

Mr. JOHNSON. We intend to propose our regulation by the end of

this year, and the President has asked that we have a final decision in place by the end of 2008 on mobile sources.

Mr. DAVIS OF VIRGINIA. In your written testimony, you mention

that EPA is moving forward with a rule to guide future efforts to

sequester carbon dioxide.

Mr. JOHNSON. Yes.

Mr. DAVIS OF VIRGINIA. Could you tell us a little more about the

state of the technology and how far we are from commercial viability, what are the infrastructure issues involved, like transporting

and storing the carbon dioxide?

Mr. JOHNSON. Currently, there are no commercial scale carbon

sequestration, certainly not cost-effective carbon sequestration storage, capture and storage that is available in the United States, or

for that matter, around the world. As a Nation and other parts of

the world, too, we are investing a lot of research dollars to help develop and perfect that.

Having said that, we recognize, certainly at EPA recognize that

is going to be a significant opportunity, that is sequestration and

storage. One of the issues that we need to make sure that we are

protecting the public health and environment is that storage.

Under our Clean Water and Safe Drinking Water Acts, we have

the responsibility under the Underground Injection Control Program to make sure that anything injected into the Earth, such as

carbon dioxide, such as greenhouse gases, is done in an environmentally and public health protective way.

Mr. DAVIS OF VIRGINIA. Are we even sure how to do that?

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Mr. JOHNSON. We have experience of using CO2, in fact, as a Nation have probably 30 years of experience of using it in oil recovery.

What we don’t have a lot of experience in is in the long-term storage. Of course, that is why we are writing regulation to make sure

that as we approach the long-term storage, after it is sequestered,

that we are able to do that in a way that is meeting our statute

of being environmentally protective.

Mr. DAVIS OF VIRGINIA. When do you believe that carbon sequestration will become a meaningful element of our efforts to mitigate

carbon emissions?

Mr. JOHNSON. It is difficult to predict. But some have suggested

that we are still some decade or more so away from having commercial grade. Again, it is a very important area, and it is one that

as a Nation we are investing in research to help identify these costeffective, both sequestration as well as storage techniques.

Mr. DAVIS OF VIRGINIA. OK, thank you.

Chairman WAXMAN. Thank you, Mr. Davis.

Mr. Tierney, for your first round.

Mr. TIERNEY. Thank you, Mr. Chairman.

Administrator Johnson, you testified earlier in your remarks, as

I understand it, in your written comments, that you have a legal

responsibility to continue to process permits for coal-fired power

plants. I think the implication of that is that you feel you have no

choice but to approve the permits without any consideration at all

of their major contributions to climate change. The problem is,

coming from Massachusetts, where we are involved in a regional

effort up there, with the approval of one of these plants, or a couple

of them, you can undo all the work that we have done through this

regional effort.

So since you raised the EPA’s legal responsibility, I want to ask

you some questions about that. Do you have a legal responsibility

under the Clean Air Act to protect the public health and environment?

Mr. JOHNSON. Yes, we do.

Mr. TIERNEY. Now, the Supreme Court made it clear that if the

EPA determines that greenhouse gases present a threat to the

public’s health or welfare the EPA is required to take action under

the Clean Air Act. So do you have a legal responsibility to address

global warming?

Mr. JOHNSON. The Supreme Court didn’t say required to. What

the Supreme Court did was define CO2 and other greenhouse gases

as pollutant. The issue of whether it should be subject to regulation

is precisely what we have been talking about, and in fact, the Supreme Court clearly indicated that analysis needs to be done by me

before the next steps are taken.

Mr. TIERNEY. All right, well, that was a point. Does the Clean

Air Act provide any statutory deadline about which time you have

to act on permit applications?

Mr. JOHNSON. There is no—I am not aware of any statutory

deadline, no.

Mr. TIERNEY. So you have the discretion under the Clean Air Act

to defer action on those permits for as many months as you may

want until EPA develops a plan for regulating carbon dioxide in

power plants?

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Mr. JOHNSON. There is a balance, and that is why we need to

look at these on a case by case basis. There is a balance of making

sure that they, one, meet the requirements of today under the

Clean Air Act; and second, as we develop a need, new energy

sources as a Nation, because of energy security, because of economic growth, that balance of making sure that we are achieving

our environmental protection responsibilities, at the same time

making sure that we as a Nation have the kind of energy——

Mr. TIERNEY. Well, you are responsible for environmental protection, not development.

Mr. JOHNSON. My responsibility is environmental protection

under the Clean Air Act.

Mr. TIERNEY. And if you have the ability to delay those permits

for a few months because you determine that you have a responsibility under the Clean Air Act to protect the public’s health and

welfare, you could do it?

Mr. JOHNSON. My responsibility, again, is to protect public health

and welfare under the Clean Air Act and what the law is as of

today. As I have previously commented to your colleagues, we are

very aggressively looking at it. Again, the Supreme Court decision

was very, very historic and complex.

Mr. TIERNEY. Let’s get back—my question is, sir, my question is,

you have the ability to not act right now, if you think this is harming the public’s health or welfare, or that there is a risk that is the

case, nothing in the Clean Air Act requires that you act before you

have those regulations in place, before you put something in place

to deal with the climate change issue and global warming?

Mr. JOHNSON. Again, we are currently evaluating that particular

issue as we speak.

Mr. TIERNEY. That is right. And as long as you are evaluating

it, you have no obligation, the Clean Air Act does not require that

you act under any of these permits. It is perfectly acceptable within

the law for you to say, I am going to wait until we get those regulations done, because this is an issue of public health and welfare.

Mr. JOHNSON. Again, as I have stated, we are going to be evaluating each of the permits as we do on a case by case basis, as they

come before the agency.

Mr. TIERNEY. What provision in the Clean Air Act requires you

to take action that sacrifices the public health and welfare and the

environment rather than use your discretionary authority to reduce

greenhouse gas emissions?

Mr. JOHNSON. Again, the decision and the issue before the agency, based upon the Supreme Court, is dealing with mobile sources.

And we have said what our mobile source decision is. Under the

Clean Air Act Title I, there are many sections of Title I, for example, Section 108, the National Ambient Air Quality Standards, Section 111, the New Source Performance Standard, as well as Section

112, the Hazardous Air Pollutant Section. The Clean Air Act is

very complex. We are evaluating what is the best approach dealing

for what the Supreme Court says——

Mr. TIERNEY. You say that over and over again. But sitting from

my perspective in Massachusetts, and part of that regional group

that is working up there, the public is watching your action. You

have already approved one plant, back in August 30th, to Desert

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Power for the construction of a 110 megawatt coal-fired power unit

in the Bonanza Power Plant in Uintah County, UT. That is relatively small, but it is still going to emit up to 90 million tons of

carbon dioxide over a 50 year lifetime.

I guess the question is, the Clean Air Act does not require that

you do things like that are sending us backward. You have the authority to delay until you get your regulations in place, you have

the obligation to protect the public’s health. I hear you giving the

same answer now four times, I think, on that. But I will give you

one last chance to succinctly tell us why you don’t just delay on

these permits until you get the regulations in place in order to protect the public health and welfare?

Mr. JOHNSON. Because, as I said, that I need to act within the

confines of the Clean Air Act and what the law is as of today——

Mr. TIERNEY. But sir, you already testified that you have no obligation to approve those permits within any particular timeframe.

Mr. JOHNSON. As I said, there is no time direction as part of the

Clean Air Act, but it is also my responsibility to make sure that

permits are processed in an appropriate time. Three years——

Mr. TIERNEY. Not if that affects adversely the public health and

welfare, you are making a balancing act here that is not working

in the public’s interest.

Mr. JOHNSON. Three years is not what most would say would be

an aggressive pace of evaluating a permit.

Mr. TIERNEY. Well, I think what most would say was that you

are making a balancing act here where the public’s health and welfare comes out on the short end of your considerations and that

there is nothing within the statute that requires you to act by any

particular timeframe and you are sacrificing the public health and

welfare by moving these permits before you get your regulations

done.

Mr. JOHNSON. Well——

Mr. TIERNEY. I yield back, Mr. Chairman.

Chairman WAXMAN. The gentleman’s time has expired. Mr.

Hodes, did you want a second round? The gentleman is recognized

for 5 minutes.

Mr. HODES. Thank you, Mr. Chairman.

Mr. Johnson, you would agree that it is proper for this committee

to exercise its oversight on whether or not your agency is acting

within the law and whether you are properly administering that

agency, would you not?

Mr. JOHNSON. I fully support the oversight responsibility, yes.

Mr. HODES. And you agree that as an administrator, you have

certain areas in which you exercise discretion?

Mr. JOHNSON. Yes, under the law.

Mr. HODES. And you would agree that consistency in your exercise of discretion is critical to proper administration of your agency,

would you not?

Mr. JOHNSON. That is always a question that I ask of consistency, just because something has been done a particular way for

years or—that is a question I ask myself.

Mr. HODES. You would agree that a double standard in the exercise of discretion would constitute arguably an abuse of discretion,

correct?

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Mr. JOHNSON. I am not sure where you are directing the comment.

Mr. HODES. Let me direct you to a specific case in point. Fifteen

months ago, the EPA proposed a permit for the Desert Rock Power

Plant, which is an enormous proposed plant in Shiprock, NM. The

public comment for the permit ended on November 13th. That was

before the Supreme Court ruled that EPA has the authority to regulate CO2 emissions. Now, recently, a number of citizens and environmental groups filed new comments on the proposed power plant,

based on the Supreme Court decision and asked EPA to consider

alternatives to the planned power plant.

Are you going to consider those comments when you make your

final decision on that permit?

Mr. JOHNSON. Sir, the decision, the PSD permit decision was

made by our Region 8. In granting the permit the status now is

that the Sierra Club has appealed the Desert PSD permit to our

environmental appeals board. Our environmental appeals board is

independent; they have the delegated authority to make the final

decision. However, at their discretion, they can refer——

Mr. HODES. Can I just stop you for a second? I am not talking

about Desert, I am talking about the Desert Rock Power Plant in

Shiprock, NM. And I understand, the question I am asking you is,

notwithstanding the end of the comment period on November 13th,

given that new comments have bene filed following the Supreme

Court decision, are you going to consider those comments when you

make your final decision on the Desert Rock Power Plant?

Mr. JOHNSON. I am sorry, I was getting it confused with the

Desert Bonanza. I am not familiar, personally familiar with the

specifics of that, so I would like to get back to you for the record.

Mr. HODES. So sitting here today, you have not made a decision

whether or not you will or will not accept comments which may

have been filed after the comment period?

Mr. JOHNSON. As I said, I am not familiar with that specific case,

so I would have to get back to you for the record.

Mr. HODES. Do you agree that you have discretion to accept latefiled comments?

Mr. JOHNSON. Again, I don’t know the specifics of this permit.

Mr. HODES. Sir, in general, do you agree that you have the discretion to accept late-filed comments?

Mr. JOHNSON. It depends upon what the issue is at hand. For example, once a public comment period is closed and a formal rulemaking that, it is my understanding that we don’t, because if we

open it for one individual, then we have to make that available for

everyone. It is a notice and comment issue that we would have to

address.

Mr. HODES. Let me bring this to your attention. And this reflects

in some sense on the conversation you were having earlier with

Chairman Waxman about internal e-mails from the Department of

Transportation about your pending decision on California’s new

motor vehicle standards. There, the Department of Transportation

was trying to line up State Governors and Members of Congress to

oppose the California request. Your general counsel stated that you

would accept late comments opposing California.

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Here is what one internal e-mail says: ‘‘EPA’s General Counsel’s

Office says the Administrator is leaning toward not extending the

comment period, but wants people to know that he has the discretion to accept late-filed comments.’’ Now, sir, if you have the discretion to accept late-filed comments opposing greenhouse gas controls, you should have discretion to accept late-filed comments supporting the controls for Desert Rock. Will you assure this committee that you will consider the late comments received on the Desert

Rock application just like you assured the Department of Transportation that you would consider late comments opposing California’s

standards?

Mr. JOHNSON. Again, for that I will have to get back to you for

the record. I think it is important to note that this was a petition

process, not a regulation process. And that in fact, California itself

submitted comments after the comment period.

Mr. HODES. Will you commit to reopen the comment period on

Desert Rock in light of the Supreme Court decision which you are

now reviewing and which, from the various answers you have given

to various questions, you apparently say has thrown your evaluation process into a state where you are not able to answer a lot of

questions because you are still evaluating? So will you commit to

reopening the comment period on this proposed power plant?

Mr. JOHNSON. Since I am not familiar with that specific power

plant, that is why I said I would get back to you for the record.

Chairman WAXMAN. We will await a response for the record, unless someone just handed you a response.

Mr. JOHNSON. And certainly, Mr. Chairman, I would be happy to

have my staff talk to your staff as well.

Chairman WAXMAN. OK, but we do want the answers for the

record.

[The information referred to follows:]

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Chairman WAXMAN. Mr. Shays.

Mr. SHAYS. Thank you.

I am wrestling with a few emotions here. One of them is that the

chairman has a record of 20 years of being more right than wrong

on issues dealing with the environment. The public is catching up

around the country to his position. It seems to me the administration is slowing adjusting its emphasis about a number of issues,

particularly related to global warming.

I am struck by Mr. Hodes, who I think was an attorney for the

State of New Hampshire, and knows that there are rules and regulations that you have to follow. I have listened to some of the questions when I have been here that, while they are not badgering

you, are basically, it seems to me, asking you to circumvent the

process that Congress establishes and you by law have to follow.

You are going to get sued by the industry or you are going to get

sued by the environmental community, but you are going to get

sued by one or the other or both because you didn’t follow the process the way it has to be followed. So I have some empathy for you

in this circumstance.

What I am interested in knowing is, is it illegal for the Department of Transportation to have an opinion about a waiver and is

it illegal for the Department to encourage people who may have an

opinion about it, whether they are Members of Congress or Governors, to weigh in? It would strike me that it may be illegal for

you to do that, since you are going to be having to make a decision

on this. But is it illegal for another department of Government to

do that?

Mr. JOHNSON. Sir, I wouldn’t want to comment on the legality of

what one can or can’t do.

Mr. SHAYS. Tell me why, because you don’t know the answer?

Mr. JOHNSON. Because I don’t know the answer. Again, what I

think is good, I think that it is important that our Government officials talk to one another. As I said, on all of our issues at EPA,

there are many, many opinions. Again, my responsibility as the Administrator and the decisionmaker under multiple statutes is to

make that final decision, independent, based upon the record. And

that is what I will do.

Mr. SHAYS. Then let me ask you this. Would it be inappropriate

or illegal, and tell me which it might be, for anyone within EPA

to tell Members of Congress or Governors to weigh in on this, not

to weigh in but to take a particular position on it? To weigh in, it

would strike me as being very appropriate to suggest to a Member

of Congress or—and I am not saying this is happening—or to the

Governor, to a Governor to weigh in on a particular side. Would

you agree that would be inappropriate for someone within your

own department to do that?

Mr. JOHNSON. Again, all of my staff needs to follow what the

rules are, and certainly those that are anti-lobbying. Certainly as

the head of the agency I feel free to be able to talk to you Members

of Congress——

Mr. SHAYS. I am really not talking about anti-lobbying. I am

really talking about the appropriateness of the agency, your agency, because you are an agency, not a department, correct?

Mr. JOHNSON. That is correct.

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Mr. SHAYS. Your agency, while you couldn’t comment on whether

it would be appropriate for the Department of Transportation to be

lobbying or arguing or encouraging people to contact EPA, would

it be inappropriate, one, I will give you the answer and then you

tell me if you agree. I don’t think it is inappropriate for EPA to encourage anyone to comment on the decisionmaking process as you

allow anyone to comment. But it would be inappropriate for people

at EPA to suggest what someone should say to EPA.

Mr. JOHNSON. I agree with that.

Mr. SHAYS. OK. Thank you. I yield back.

Chairman WAXMAN. Thank you, Mr. Shays.

Ms. Watson, did you want a second round? You don’t have to. We

have another panel, but you are entitled.

Ms. WATSON. Just very quickly, thank you, Mr. Chairman. I

want to hear from the other panel. But I have just called up from

California to get the bill, my staff is bringing it in to me. What I

am gathering from the conversation that we had prior is that there

was a bias against California’s request for a waiver. Would you say

that were true?

Mr. JOHNSON. There are many opinions. I am aware of the many

diverse opinions. My responsibility as Administrator and under the

Clean Air Act is to make an independent decision based upon the

record, based upon what the statutory requirements are. I will do

that, and I have committed to the Governor to do that by the end

of the year.

Ms. WATSON. All right. I did hear you say that you make your

decisions based case by case. California discussed and debated how

we could continue to improve our air quality. The bill went through

both Houses, went to our Governor, it was signed. We are implementing it. It looks like—or we are trying to—that it is a model

for other States. And other States have been inquiring to California

to see if this is something they could customize to their air quality

bills.

I am really highly concerned that there is a built-in bias against

California, against what we are trying to do. That is the reason

why we are filing, as we speak, a suit against EPA, because we are

gathering more and more evidence that there was conversation

about denying the waiver. I am highly concerned that you sit here

in Washington, DC, and you would disregard the will of our 120

person legislature and our Governor, and try to rule, and make a

decision against our waiver.

With that, thank you, Mr. Chairman. I look forward to hearing

from the other panel.

Mr. JOHNSON. Mr. Chairman, may I add a comment?

The statute under the Clean Air Act, Section 209, is very specific

as to the criteria on which I need to base——

Ms. WATSON. I am well aware, that is why I am giving you the

bill and the provisions. And we debated this in California, and

what I heard from you is that there is a bias against California’s

own decision——

Mr. JOHNSON. That is not correct.

Ms. WATSON. And that people have been talking about denying

the waiver.

Mr. JOHNSON. Again, there are many, many opinions——

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Ms. WATSON. We will go to court and adjudicate this. Thank you

very much, Mr. Chairman.

Mr. JOHNSON. Again, my responsibility is to make sure that I

evaluate what the record is——

Ms. WATSON. We will settle it in court, thank you.

Mr. JOHNSON [continuing]. Under Section 209 and I intend to do

that.

Chairman WAXMAN. Thank you, Ms. Watson.

Mr. Sarbanes, do you wish to ask further questions?

Mr. SARBANES. Very quickly. I am just curious where you believe

that you are on the spectrum of urgency with respect to the issue

of climate change and global warming and greenhouse gas emissions. I mean, you are trying to present the notion, I think, today,

that you are sort of hemmed in from being able to be as aggressive

as maybe you would like to be with respect to those issues.

But do you think you fall on the urgent end of the spectrum in

terms of the steps that we need to start taking with respect to global warming? Where you would put yourself on that?

Mr. JOHNSON. Well, I put myself that this is a serious concern

for the Nation. And I put myself in being in an urgency, yet at the

same time, we need to be deliberative. That is the balance. As I

said, we for the first time in our Nation’s history are going to be

regulating greenhouse gases, proposing to regulate greenhouse

gases from mobile sources. That includes fuel——

Mr. SARBANES. Well, that is the first time in U.S. history.

Mr. JOHNSON. We are for the first time in U.S. history going to

be proposing regulations to regulate greenhouse gas, carbon dioxide

in particular, storage, as part of our underground injection control

program. That is the first time in our Nation’s history.

Mr. SARBANES. And hallelujah, that you got to the party, you are

here. You can now regulate these things.

Mr. JOHNSON. So we are working our way through. This is a serious problem, but we are working our way through it, a very deliberate process, to make sure that we are, again, understanding what

the implications are of the Supreme Court decision. This is very,

very complex. The Clean Air Act is very, very complex.

We need to make sure, and I need to make sure that I am being

aggressive, yet I am being responsible in my decisionmaking.

Mr. SARBANES. I would just interrupt, before I run out of time,

but it would seem to me that if you are bringing a personal and

professional urgency to this issue that I think so many others are

bringing that you would regard having now arrived with the regulatory authority to be able to move on this issue as a huge opportunity to catch up for lost time, rather than to engage in this sort

of, this babble about deliberation, which in the meantime is allowing the industry to move forward in ways that are going to cost us

significantly over the long term.

You talk about a feeling of urgency, but every action that you

have taken with respect to the waiver request, fighting against the

regulation of these emissions as the case was coming on its way to

the Supreme Court, approving these permits when we have already, I think, established clearly that you are not required by law

to do it, all of these things belie the notion, in fact, you are bringing that kind of urgency.

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I would just suggest that you are way, way out of step with

where most of the science and the experts are with respect to this

issue. I hope that you get in step and that the agency gets in step

as quickly as you can.

Thank you, Mr. Chairman.

Mr. JOHNSON. Sir, I respectfully disagree. Once the Supreme

Court made the decision that it is a pollutant, then set about an

aggressive path to address the California petition, set about an aggressive path to regulate greenhouse gas emissions, to propose

them for mobile sources, set about the path of proposing a regulation for dealing with underground injection, in the meantime continuing to promote all the other programs, in the meantime sorting

through what all this means and what it should mean with regard

to stationary sources.

Chairman WAXMAN. Will the gentleman yield?

Mr. JOHNSON. This is a very aggressive path.

Mr. SARBANES. You have set about an aggressive path to push

these permits out the door, when there is no requirement that you

do that. That in and of itself it seems to me competes against the

idea that you are being aggressive on all these other fronts.

Thank you, Mr. Chairman.

Chairman WAXMAN. The gentleman’s time has expired.

Your aggressive path, what does that mean in terms of your decision on the California waiver? Is that going to be aggressively decided soon?

Mr. JOHNSON. By the end of the year was my commitment to the

Governor.

Chairman WAXMAN. Mr. Tierney.

Mr. TIERNEY. Thank you, Mr. Chairman.

Administrator Johnson, let’s turn to the question of whether you

are legally required to regulate carbon dioxide when you approve

new power plants. Let’s get back to that. If you look at your decision on the Desert Plant, and your reasoning appears to be one of

a bootstrap sort of argument, your position seems to be that you

are required to regulate on pollutants that the EPA has already

regulated on in some other context. And since the EPA has never

previously regulated CO2, you take the position that you are not required to regulate it now. Is that pretty much it?

Mr. JOHNSON. What the law says, and certainly it is not a regulated pollutant under the law at this time——

Mr. TIERNEY. Because it is not a regulated pollutant, you don’t

have to regulate it now until you get the regulation?

Mr. JOHNSON [continuing]. But the very issue that you are talking about is, we are in a very deliberative process to try and sort

through what this means.

Mr. TIERNEY. In April, you submitted what appears to be a very

non-controversial rule to the White House for pre-publication review. That is the rule that would allow auto makers to use CO2 as

an alternative to chemicals that harm the ozone layer in motor vehicle air conditioners. The rule imposes some restrictions on how

auto makers can use carbon dioxide, because apparently if they

leak into the passenger compartment at a high enough level, it will

hurt or kill people.

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As far as it appears here, no one opposes that rule. But it has

sat around at OMB and the White House now for 6 months, which

is about twice as long as the usual 90 day deadline period for usual

OMB review. Can you tell us why it is still being stalled over there

at the White House?

Mr. JOHNSON. I know that it is not a final rule and that it is currently being reviewed as part of an inter-agency process.

Mr. TIERNEY. Pre-publication review, usually that is a 90 day

process. It has been 6 months, twice that long. Can you tell me

why they are stalling on it?

Mr. JOHNSON. Again, I know that it is in the inter-agency process. Beyond that, I would be happy to get back to you for the

record.

Mr. TIERNEY. It is a non-controversial rule, apparently. But the

fact of the matter is, let’s see what it is here, if it were issued, sort

of undercuts your position that you had an unregulated carbon dioxide here, it would be regulated carbon dioxide, then you would

have to do something about the power plants, you would have to

consider regulating in the power plants.

So that seems to be the point here, and that is why I think we

are drawing attention to it right here. You are just in a situation,

you are like the person that ties themselves onto the train tracks

and then complains the train is coming. You say you can’t, but it

appears more and more like this administration just won’t. If you

did that regulation, if you didn’t put it around over there for twice

as long, 6 months instead of 90 days and you actually did something on that, you would then be in a position where you had to

do something on the power plants.

Mr. JOHNSON. Well, as I have said, and let me just repeat one

more time, we really are working very diligently in developing an

overall approach——

Mr. TIERNEY. You know something, Mr. Administrator Johnson?

No, you are not. All right? If you were working diligently, you

wouldn’t be allowing this thing to be stalled over at the White

House for 6 months and undercutting your argument that I really

can’t do anything. That non-controversial, fairly simple regulation

of CO2 would be done and then you would have a reason why you

had to do something on the power plants. But you are busy on your

review, which you have answered four or five times now, and apparently you are busy not getting this out of the White House OMB

office, anywhere near close to the usual time it takes. I think the

message that sends to the American public, certainly sends to me,

and I suspect my colleagues, is you are not looking for any avenue

to do it, you are looking for every avenue you can to not do it.

I yield back.

Chairman WAXMAN. Do you wish to respond?

Mr. JOHNSON. As I said, I would be happy to get back to him on

the record. I think that again illustrates the complexity that we are

dealing with. We have the Supreme Court decision, we are proposing regulations to regulate greenhouse gases for the first time from

mobile sources. We have the California petition, which is a separate section of the Clean Air Act. We have the question of the impact on other stationary sources. We have permits that are pending

before the agency. We have lawsuits, petitions before the agency.

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So there are many, many activities all addressing the issue of

greenhouse gases. We are working very deliberately to work

through all of these issues, but in a responsible way.

Chairman WAXMAN. Administrator Johnson, we appreciate your

being here, but let me just comment. I fear you may be encouraging the energy industry to quickly build dirty energy infrastructure

instead of sending a signal that it is time to take climate change

seriously and deploy advanced technology. So I am going to introduce legislation, based on what I have learned today, it is important that we prevent EPA from continuing to issue permits for uncontrolled power plants.

We also need to let every investor know that if they build a dirty

power plant today, they should not expect to be grandfathered into

a future climate change program. Investors need to understand

that projects that do not account for climate concerns will be at

risk of being a stranded investment. We should alert ratepayers to

the large future costs and rate increases they may face if their local

utility builds uncontrolled plants today.

Further, Administrator Johnson, I also will followup on the issue

of your communications with the Department of Transportation. I

am going to send you a request for all documents relating to communications with the Transportation Department and/or the White

House about the California waiver, and I expect you to cooperate

with this request and provide the documents without delay.

I thank you very much for your being here today. I thank you

for your participation in this hearing. We will look forward to getting the information from you.

[The information referred to follows:]

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Chairman WAXMAN. We are now being called to the House floor

for a series of a couple of votes. That should take no more than a

half hour and maybe less. I would like to request that all Members

come back here immediately after the second vote, and we will

hear from the second panel that is scheduled to testify. We stand

in recess.

[Recess.]

Chairman WAXMAN. The committee will come to order. We would

like our next group of witnesses to please take their positions. I

want to thank all of you for being here and for your patience. I

know that many of you traveled some distance to discuss these critical issues of greenhouse gas emissions from coal-fired power

plants.

We have with us Ron Curry. Mr. Curry has served as Secretary

of the New Mexico Environment Department since January 2003.

He previously served as the New Mexico Environment Department’s first Deputy Secretary, and from 1997 to 1998 as Santa Fe

city manager.

David Doniger is the policy director of the Natural Resources Defense Council’s Climate Center. He has previously served as Director of Climate Change Policy at the Environmental Protection

Agency and a counsel to the head of the EPA’s Clean Air Program.

Dr. Daniel M. Kammen is the founding director of the Renewable

and Appropriate Energy Laboratory at the University of California,

Berkeley where he also serves as a professor in the Energy and Resources Group, the Goldman School of Public Policy, and the Department of Nuclear Engineering. Dr. Kammen received his Ph.D.

in physics from Harvard University.

Mr. John R. Cline is a partner with Troutman Sanders, and is

a member of the firm’s environmental and natural resources practice group. Before joining the firm, he worked as a manager of environmental affairs for the Potomac Electric Power Co.

I am delighted that you are all here. It is the practice of this

committee that all witnesses testify under oath. So if you would

please rise, we will administer the oath to you.

[Witnesses sworn.]

Chairman WAXMAN. Let the record indicate that all the witnesses answered in the affirmative.

Your prepared statements will be in the record in full. What we

would like to ask you to do is to limit the oral presentation to 5

minutes. We have a clock, the light is green at the moment, but

I am going to set it. When there is 1 minute left, it will turn yellow, and then after that, it will turn red.

Mr. Curry, we will start with you. We are looking forward to

your testimony.

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STATEMENTS OF RON CURRY, SECRETARY, NEW MEXICO ENVIRONMENT DEPARTMENT; DAVID DONIGER, POLICY DIRECTOR, CLIMATE CENTER, NATURAL RESOURCES DEFENSE

COUNCIL; DANIEL M. KAMMEN, DIRECTOR, RENEWABLE

AND APPROPRIATE ENERGY LABORATORY, UNIVERSITY OF

CALIFORNIA BERKELEY; AND JOHN CLINE, PARTNER,

TROUTMAN SANDERS LLP

STATEMENT OF RON CURRY

Mr. CURRY. Thank you, Chairman Waxman and Representative

Davis and members of the committee, for inviting me to testify

here today. My name is Ron Curry, and I am Cabinet Secretary for

the New Mexico Environment Department under the administration of Governor Bill Richardson.

Global climate change is an extremely important issue to New

Mexico. New Mexico’s precious limited water supply will be threatened if temperatures increase and drought conditions continue. In

the desert southwest, we simply have no water to waste, and cannot wait to address climate change.

Under the leadership of the Governor, we have established some

of the toughest State greenhouse gas emissions reduction targets in

the Nation: 2000 levels by the year 2012; 10 percent below 2000

levels by 2020; and 75 percent below 2000 levels by 2050. Governor

Richardson also established the New Mexico Climate Change Advisory Group, which developed 69 greenhouse gas emission reduction

strategies. Out of those 69, 67 of them were passed unanimously.

Many of the advisory group’s recommendations focus on New

Mexico’s energy economy. New Mexico is a fossil energy State. We

are third in the Nation, third in the Nation for on-shore gas production and fifth in oil production. We export about half the electrical power generated in the State, which is mostly from coal-fired

plants.

Since two-thirds of the State’s greenhouse gas emissions come

from coal and our oil and gas industry, to effectively address climate change we must change and diversify our energy economy.

This is particularly important in New Mexico because the majority

of our State revenues come from the oil and gas industry.

Nationally, emissions for electricity production account for about

40 percent of all greenhouse emissions. The decisions you make

here today and in the future will focus on atmospheric concentrations for decades, because those plants will operate for about a half

a century and carbon dioxide emissions remain in the air for at

least a century.

When you consider the long-term effects of those plants, you

must think about the legacy of future generations. I am a fortunate

grandfather, having Julia and Aiden as my grandchildren. I look

to them as a reason to prevent global warming in the future.

New Mexico became the first State in the Nation in 2002 and

2003 to require an applicant for a coal-fired power plant to consider

integrated gasification combined cycle [IGCC], technology when determining the best available control technology. That is significant,

because many believe that not only does this technology result in

fewer criteria pollutant emissions and lower water consumption

than most conventional power plant technologies, but IGCC is also

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the most economical way to capture carbon from coal in the power

production process.

The EPA stated in a December 2005 letter that IGCC need not

be part of the BACT analysis for the conventional pulverized coalfired unit, because it would redefine the source. New Mexico could

not disagree more strongly.

Congress’ record is clear in that it intended to require the consideration of innovative fuel combustion techniques, like IGCC, and

BACT analysis. The Clean Air Act requires the assessment of collateral impacts, such as the effects of unregulated pollutants in the

BACT analysis.

The recent Supreme Court decision that carbon dioxide is a pollutant should provide EPA with the impetus to address carbon dioxide emissions from stationary and mobile sources. We have not

seen evidence of that yet. In New Mexico, we have established

greenhouse gases as a pollutant, and therefore we have the authority to regulate those emissions in the State. In New Mexico, we

have exercised that authority, just last month by adopting the Nation’s most comprehensive greenhouse gas emissions reporting

rules. Those rules require mandatory reporting of greenhouse gas

emissions from certain industrial sectors reporting in the year

2008.

Governor Richardson understands that we cannot stop global

warming by ourselves in New Mexico. We are only the cause of

about 1.2 percent of the national total. But we can do our part by

leading by example. I ask this group, this Congress, to help us do

exactly that. Attaching a cost to carbon emissions from new plants

will send the right message to industry and encourage the use of

carbon emissions controls in the near-term.

Mr. Chairman, thank you for letting us testify here today. On behalf of Governor Richardson, we continue to promote this effort, as

he says, by leading by a very strong example.

[The prepared statement of Mr. Curry follows:]

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Chairman WAXMAN. Thank you very much, Mr. Curry.

Mr. Doniger.

STATEMENT OF DAVID DONIGER

Mr. DONIGER. Thank you, Mr. Chairman and Mr. Issa.

I am David Doniger. I am policy director for the Climate Center

of the NRDC. NRDC is a national non-profit organization of scientists and lawyers and environmental specialists. We have been

around since 1970. We have 1.2 million members and supporters.

I would like to begin with an observation about the Supreme

Court case. There are actually two cases, Massachusetts v. EPA, decided by the Supreme Court, which concerns mobile sources directly. There was another case, New York v. EPA, which concerned

the same decision by EPA not to regulate power plant CO2 for the

same reasons given by the agency in deciding not to do that for

motor vehicles. So when the Supreme Court overruled EPA on

motor vehicles, the D.C. Circuit sent both cases back to the EPA

for new decisions on both motor vehicles and on power plants, pursuant to the Supreme Court rationale.

We have a schedule from EPA for dealing with motor vehicles.

We don’t have any schedule from EPA for dealing with power

plants. So that is the first observation.

The second point is there seems to be one point of agreement, we

think, between EPA and NRDC when it comes to CO2 and Clean

Air Act permitting. That is that once EPA issues regulations to establish controls for CO2 emissions for vehicles, or maybe for power

plants also, at that point it becomes an obligation to evaluate CO2

in the PSD permitting process. EPA concedes that. But that is a

couple of years off.

So what we are concerned about here is what happens in the

meantime with respect to maybe a couple of dozen power plants

that are in the permitting process now. It is clear that if they came

up in a year and a half, 2 years from now, there would have to be

an analysis of ‘‘best available control technology’’ for CO2. There is,

we believe, the requirement to do that now. And certainly the authority to do that now.

Why is it required? Because CO2 is already regulated under Section 821 of the Clean Air Act, which establishes monitoring regulations and reporting regulations for the CO2 emissions from existing

power plants. And those are requirements under the Acid Rain

title. They are part of the program for, the monitoring requirements are part of the program for curbing sulfur and NOx. But

they are regulations written under the Clean Air Act and adopted

into the Clean Air Act. So we think at this point, it is already the

case that CO2 is regulated under the Clean Air Act. And certainly,

it is subject to regulation under the Clean Air Act.

The act doesn’t say that the PSD permitting, the BACT analysis

is required only for regulated pollutants. It uses a broader phrase.

It is required for pollutants that are subject to regulation. We think

that this is a requirement now to be doing BACT analysis for CO2

for the power plants that are in the pipeline now and not let them

slip under the wire while waiting for a future decision about motor

vehicles coming maybe at the end of next year.

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The consequences of letting these power plants go through is that

you end up with new plants that have a 60 year lifetime and, as

the chairman has noted, up to a billion tons of lifetime emissions.

And they are let in under the wire for the last 58 or 59 years of

their life, they would be subject to no CO2 controls that could have

been imposed at the beginning and maybe it would have altered

the decision about what kind of a plant to build.

So there are other authorities in the PSD program, the requirement to consider alternative technologies and to consider the collateral impacts, environmental impacts of the decisions. All of these

would provide EPA the authority to hold these plants up or to require that they now go through a BACT analysis and an alternatives analysis for CO2-related technology.

My organization believes that we should not be building any

more coal plants of the conventional design without carbon capture

and storage. Preferably, we should be relying on efficiency and renewables. But we recognize that coal is a major part of the energy

picture for a long time, will be. And that any new coal plants that

are built should be built right now, starting now, with carbon capture and disposal. And that might lead companies to choose, as Mr.

Curry said, to go with coal gasification technology, as it is more

amenable to the capture and disposal.

By the way, we support the EPA in the recent decision to set up

rules to provide the ground rules for carbon capture and disposal

under the underground injection program. That is something we

asked for some time ago, and we are glad that they have agreed

to go down that track. We will watch closely what the requirements

are. But we agree that there is a need for rules to tell everybody,

the prospective builders of these plants, exactly what is required by

way of carbon capture and disposal and that will facilitate the

quick movement into that technology.

If we don’t do this, we will have, as I said, this legacy of new

plants, maybe a dozen new plants, slipped in under the wire that

don’t have the right technology, don’t have the right controls. And

it will raise the cost of the CO2 control program once Congress enacts it, more generally, because you have plants with old technology that are harder to control, and that will reflect itself in

higher costs on the companies and perhaps higher costs on the

ratepayers. This is why so many power company executives now

join us in supporting the call for new legislation, because they realize that the choice of what technology to invest in now is on the

line here. Smart decisions under a carbon regime will be different

than the decisions they would make without a carbon regime. They

want the certainty, they want to know. EPA has the ability right

now to clear that up for them by requiring that CO2 be accounted

for in the permitting of new power plants.

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So a responsible policy would include two specific steps for large

new power plants starting now. First, EPA should immediately require that any future PSD permits be issued only after a BACT

analysis and a determination of what is BACT. Second, even if

EPA didn’t do that, they should reach basically the same policy

outcome under their authority to consider alternatives and collateral environmental impacts under Section 165(a)(2).

I would be happy to answer your questions. Thanks.

[The prepared statement of Mr. Doniger follows:]

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Chairman WAXMAN. Thank you very much, Mr. Doniger.

Dr. Kammen.

STATEMENT OF DANIEL M. KAMMEN

Mr. KAMMEN. Thank you, Mr. Chairman. I do have some slides,

if we could bring those up.

Thank you for the chance to be here, Mr. Chairman and Mr.

Issa. I appreciate your taking on such an important topic today.

Global warming is a challenge that we all must face. The greenhouse gas emissions that we are putting into the atmosphere today

are in fact part of our future legacy. The current round of climate

change that we are already seeing is a result of emissions that we

have already made, and in fact, the emissions we are now making

today and will make in the future, are part of the legacy that we

leave to future generations.

Global warming has also been called the mother of all

externalities. For that reason, I concur with Mr. Curry in calling

for discussions and action on a price for carbon as soon as possible.

That will facilitate more of these actions than any other single

measure, because it will bring a price to the pollution we don’t

want, and we can use that as well to reward behaviors we do want,

such as income generation and paying for workers in factories and

plants.

As a scientist who was involved in the IPCC process, and as the

director of the Renewable Energy Laboratory, I will focus my comments today on the technologies that are available for us to deal

with this problem. And in fact, this is one of the areas where we

have significant good news. Instead of licensing new sources of

emissions that will be with us for decades, the good news is that

we have a range of technologies available today that can make a

significant impact.

In the next slide, I highlight just one of those, which are compact

fluorescent light bulbs that make an immediate impact. They reduce the need for power, the emissions, and they save ratepayers

on their bills effective immediately. In fact, there is a challenge in

California for families that install four to five bulbs, compact

fluorescents, if they do not see an immediate savings, to call into

our California Energy Commission to discuss that. Because you

will see an immediate rate savings. So Californians and people

across the country who invest in these will see an immediate decrease in their bills, which benefits people across the entire economic spectrum. In fact, our utilities are already giving out benefits and credits for the purchase of efficient appliances and other

technologies. In fact, Pacific Gas and Electric, PG&E, now has a

Climate Smart program that now actually rewards you and allows

you to zero your carbon emissions as well.

What is needed in the process is to bring these technologies

much more broadly to market and to establish a vision and a plan

for how to put this in place. If we can put the next slide up, please,

this highlights the dramatic difference, the almost 40 percent difference in electricity consumed among some of the most efficient

States, such as New York and California and the country as a

whole. The message here is that not only is a range of technologies

available today, dramatic enough to not just cause personal levels

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of savings, but to cause savings that have saved the States the

need to install entire new power plants, including some of the most

polluting coal-fired power plants, but also to close down current

plants, such as the Bay View Hunters Point Plant in the San Francisco area, and replace it not with new generation, but with a suite

of efficiency measures and a range of local generation of solar and

wind power that again have dramatically saved emissions in the

region.

If we can advance to slide one, the savings that we have seen in

these most efficient States, if applied nationwide, would actually

more than offset our entire import of fossil fuels from off of North

America. So it is far more than an individual measure. It saves

dramatic amounts of carbon emissions.

Next slide, please. We have also seen a dramatic increase in the

ability of renewable energy to provide significant amounts of power

supply. Wind power in particular, in some of the most efficient

wind plants, such as the San Pablo Plant in New Mexico, are producing electricity at 3 cents a kilowatt hour, a price far lower than

any of the fossil fuel plants we are discussing today. So renewable

energy options provide a way to do very low cost carbon-free generation, across a range of options.

In fact, in the next slide, I highlight a map of the United States

showing the States across the country, the 29 States and the District of Columbia that have all enacted significant calls for renewable energy, so-called renewable energy portfolio standards, that

range from 10 to 15 to almost 30 percent of their electricity needs

in the coming years to come from renewables. So it is far from an

isolated or a small-scale effort. In fact, those States have done this,

such as Colorado, they instituted one of these issues by popular

vote, and have seen their rates fall in the last months, not increase, but drop.

Next slide, please. There are job benefits by investing in new energy industries, both efficiency and in renewables. In fact, a study

that our lab recently completed concluded that there were three to

five times more jobs generated by a dollar investment in these

clean technologies than in the existing mix. It is a dramatic savings.

I will end with the last picture that shows that we in fact have

quite a road map already in place, with a range of options that

both save on energy and save money immediately, and a road map

toward the introduction of renewables as well as efficiency that

have been instituted on a national level or State by State, that can

dramatically reduce the need for these fossil fuel power plants. So

while we wait to act at the EPA level, we have a dramatic range

of opportunities available for us today.

Thank you very much for your time.

[The prepared statement of Mr. Kammen follows:]

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Chairman WAXMAN. Thank you very much, Dr. Kammen.

Mr. Cline.

STATEMENT OF JOHN CLINE

Mr. CLINE. Thank you, Chairman Waxman. My name is John

Cline. I am a partner at the law firm of Troutman Sanders. My

practice focuses almost exclusively on air quality issues, particularly under the Federal Clean Air Act.

Before I begin, let me state that I am not here advocating or representing any particular position of a company or industry. Nor am

I receiving any remuneration for this testimony. The views expressed today are my own.

Having said that, I would like to start out by stating that within

the confines of the Clean Air Act, I believe that EPA Region 8 correctly decided the question of whether to regulate CO2 emissions

with the Bonanza PSD permit. The PSD program applies to air pollutants subject to regulation under the act. However, Region 8 appropriately concluded that greenhouse gases are not at this time

subject to regulation under the act.

In Massachusetts v. EPA, the Supreme Court concluded that

greenhouse gases are Clean Air Act pollutants. The Court also held

that EPA must regulate greenhouse gases for motor vehicles, but

only if EPA first determines that greenhouse gas emissions may

reasonably be anticipated to endanger public health or welfare. So

until EPA actually makes that necessary endangerment finding,

and then requires some type of control limits or emission limits on

carbon dioxide, CO2 cannot be regulated under the PSD program.

Therefore, even after Massachusetts, it was necessary for Region 8

to decline to include CO2 conditions in the Bonanza permit.

We have heard that EPA has indicated it will soon commence a

rulemaking to determine whether it will make the endangerment

finding, and if so, the type of greenhouse gas regulations it will

adopt for motor vehicles. However, the committee must understand

that if EPA regulates mobile sources, this action has the potential

for enormous impacts on stationary sources. Indeed, these enormous impacts on stationary sources would exist today if CO2 were

determined to be a regulated air pollutant under the act. That determination would trigger PSD regulation of a huge number of

buildings and facilities.

Under the act, major sources are defined as the type of facility

that emits either 100 tons per year or 250 tons per year. Now, 100

tons or 250 tons may not be very much for a traditional air pollutant, but it really is a very small amount of CO2. CO2 emissions

from hundreds of thousands of buildings and facilities likely now

exceed this threshold, including apartment and office buildings, hotels, malls, large retail stores, warehouses, colleges, hospitals, as

well as product pipelines, food processing facilities, heated agricultural facilities, many, many more. These types of sources have

never gone through PSD permitting before because they emit so

very little of the traditional air pollutants. But they would now if

CO2 is deemed to be a regulated air pollutant at this point.

Now, PSD permitting is incredibly costly, time-consuming and

burdensome. But if CO2 were deemed to be a regulated air pollutant before EPA completes its expected rulemaking on greenhouse

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gas emissions from motor vehicles, the State permitting authorities

at EPA would become swamped with huge backlogs of PSD applications. An overwhelming and unprecedented roadblock to new investment would be created for a host of previously unregulated

buildings and facilities. Yet all of this economic pain would come

at very little environmental gain.

I understand EPA is likely to address the implications of PSD

regulation of greenhouse gases as part of its rulemaking process

under the remand of the Massachusetts case. EPA needs the time

to craft a greenhouse gas regulatory program that will lessen the

regulatory burdens on all these very small CO2 emitters. And the

public deserves the opportunity to comment on that regulatory approach.

On the other hand, if carbon dioxide is declared to be subject to

Clean Air Act regulation right now, then a multitude of new and

expanded buildings and facilities will be subject to the substantial

burden, expense and the delay of PSD permitting.

Thank you.

[The prepared statement of Mr. Cline follows:]

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Chairman WAXMAN. Thank you very much, Mr. Cline. I am going

to start off the questions.

Secretary Curry, I want to thank you and the State of New Mexico for making it a priority to address climate change and to reduce

greenhouse gas emissions in the State. Your State does produce a

lot of energy. If New Mexico can do it, then other States in the Nation can do it as well. I understand you wanted to make some comment about a correction on something you said earlier?

Mr. CURRY. Thank you, Mr. Chairman. That is correct. I feel so

passionately about what I was saying I left out ‘‘dis’’ as opposed to,

I said agreeing instead of disagreeing. So I mis-spoke, and I wanted to make it clear to the committee that New Mexico strongly disagrees with their statement regarding IGCC and BACT. Thank

you, Mr. Chairman.

Chairman WAXMAN. I understand from your written testimony

your concerns about the impact of the Desert Rock Power Plant,

which would have massive uncontrolled emissions of greenhouse

gases. Can you explain why just one facility like the proposed

Desert Rock Power Plant will greatly hamper your State’s ability

to meet greenhouse gas emission reduction goals that it has set?

Mr. CURRY. Mr. Chairman, the primary reason is that the proposed Desert Rock facility will emit approximately 12 million metric tons of CO2. It is directly in the area where we already have

existing two other coal-fired power plants. We think the facility has

not been properly studied. We think the facility’s market has not

been properly looked at.

Chairman WAXMAN. So you would not grant a permit to a plant

like this without addressing the greenhouse gas emissions?

Mr. CURRY. Mr. Chairman, if it was located anywhere other than

where it is being located, being proposed to be located in the State

of New Mexico, no, we would not.

Chairman WAXMAN. I would hope that as New Mexico’s environmental secretary that you would be hearing from EPA and they

would be reaching out to your State about this Desert Rock Power

Plant. Has Administrator Johnson contacted you or the Governor

to discuss this power plant?

Mr. CURRY. Mr. Chairman, he has not. We are frustrated even

more so by the fact that the administration of this power plant permitting process would come out of EPA Region 9, out of San Francisco. We operate in Region 6. The frustration that exists not only

is from the State to EPA but also, I feel that there is some frustration between EPA regions because of the lack of communication on

the particulars of this plant.

Chairman WAXMAN. OK, thank you.

Dr. Kammen, I want to talk to you about the jobs issue. Because

advocates for the White Pine Energy Station in Nevada and the

Desert Rock coal-fired power plant in New Mexico have argued

that what is important here are all the jobs that are going to be

provided. They are talking about 100 full-time jobs for the life of

the plant.

Can we provide jobs to people without polluting the environment

through uncontrolled coal-fired power plants?

Mr. KAMMEN. We can. In fact, most of the job benefit that has

been cited in these pro-coal plants are in the construction phase,

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which lasts a few years. The operations phase jobs are much lower,

and in fact, if you look at the jobs over the life of solar facilities,

wind facilities and the expansion of the energy efficiency industry,

all of which I demonstrate in my testimony were significant players, the job numbers are significantly higher for those low-carbon

technologies.

In fact, the average is three to five times more jobs per dollar invested or for megawatt provided by investments in the renewable

and efficiency side than in the fossil fuel side of the equation. So

it is good for local economies, in fact, too, to build their clean industries up at this time.

Chairman WAXMAN. A lot of people say these power plants are

going to be in areas without much population near them, and that

this job creation is a selling point to the local communities. What

would you say to the local communities if they were considering

these coal-fired power plants?

Mr. KAMMEN. In fact, the irony is that large coal-fired power

plants do not preferentially send their power locally. It gets put on

the grid overall. And we know how to transmit power long distances. So except for the very short construction phase of these facilities, the job benefits to communities will be much higher for ongoing local power provisions. So if you really want to help local

communities, you will not only build the jobs there, but you will

also reduce the pollution loads. Idaho, for example, has already

ruled against building new coal-fired power plants, not even because of the global warming issue, but because of the mercury poisoning. So there are multiple local benefits, in fact, in going toward

a lower carbon economy. The analysis in the States like Rhode Island, New York, California that have invested heavily in energy efficiency and renewables have found that those can be brought in

exceedingly cheaply, often at a net savings, meaning investing in

efficiency in particular has paid back with not only lower cost

power, but a whole range of other benefits that accrue to the local

community as well.

Chairman WAXMAN. Thank you. There is one last question I have

of Mr. Doniger. Mr. Cline suggested in his written testimony that

it would be catastrophic if CO2 is determined to be subject to regulation under the Clean Air Act. He said it would have an enormous

impact on the economy and it would not be favorable. How do you

respond to that, assuming you disagree with it?

Mr. DONIGER. Two points, Mr. Chairman. First, the Supreme

Court heard the same argument from the Government and from

the industries and decided, look, the law is the law, let’s follow it.

Those are make-weight arguments.

The second point I make is, we are talking about elephants here

and he is talking about mice. We are talking about the big power

plants, no party comment intended, large animals versus mice. We

are talking about very, very large power plants, and he is talking

about malls and small operations. Now, Mr. Cline indicated that

EPA is going to try to work out a solution in their rules to take

care of the mice. I am quite interested to see what that might be,

something we might be able to cooperate on. But it is not an excuse

for ignoring the elephants as we move forward now. The power

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plants that are being built now should be regulated for their CO2

emissions now.

Chairman WAXMAN. Thank you.

Mr. Issa.

Mr. ISSA. Thank you, Mr. Chairman.

Mr. Doniger, I am a little confused. I am going to try and get the

record straight. If EPA acts capriciously, in your opinion, you sue

them, right? You have a record, your organization has a record——

Mr. DONIGER. When they break the law and when they act arbitrarily, yes, we would.

Mr. ISSA. OK. Mr. Cline, Mr. Doniger has ben saying here, and

I just want to make sure we get it from a legal standpoint, saying

that in light of a Supreme Court case that says only for mobile, because that is all it said, and it said that it has the power to regulate it, he is saying you should not give permits to power plants

that are underway right now, which as I understand, there is a

legal mandate passed by this Congress, signed by a previous President, that said you have 1 year in which to allow or deny based

on current law.

Mr. Tierney earlier had the same sort of a thing for the EPA Administrator, in which he said they should postpone permits. Can

you set the record straight from a legal standpoint? Wouldn’t somebody, and let’s assume for a moment the people who have hundreds

of millions of dollars online and have bought the land and are in

the process, wouldn’t they have every right to sue if arbitrarily the

Administrator or anybody else decided just to not grant permits?

Mr. CLINE. Congressman, I certainly believe they would. I think

it is within Section 165 of the Clean Air Act, which addresses the

PSD permit requirements, and buried within there is a requirement that once a permit application is complete, the permitting authority has 12 months to either issue the permit or deny it. It cannot just sit on it and let it wait and wait and wait.

Mr. ISSA. So if we wanted to do it immediately, as Mr. Doniger

says, Congress offers a bill, the chairman probably has one ready

already, get it to the Senate to ratify, get the President to sign it

and you change the law, you can do it immediately. That would be

the legal way to do it without interfering with existing law, signed,

and existing rules that went through a whole process of scientific

review and then public hearing, isn’t that right?

Mr. CLINE. That is correct. The PSD regulations have been in effect for almost 30 years. I think all these power plants want to do

is play by the rules like everyone else and not have them changed

in midstream.

Mr. ISSA. Isn’t it your understanding that even if we did this,

even if the chairman offered a law, the Senate voted the same law,

the President signed it, and we stopped all new construction of all

new CO2 plants, wouldn’t we in fact simply be watching China with

its several new power plants, half a dozen plus a month and growing, producing these unregulated plants regardless, and by the

way, producing them to take the jobs that we are not able to do

without energy? Isn’t that true?

Mr. CLINE. Yes, sir, that is my understanding, although I must

admit, I am a lawyer, I don’t know necessarily about the economics.

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Mr. ISSA. Dr. Kammen, you said a couple of things and I am

going to take issue with them. One of them is the 100 jobs. The

100 jobs created by the power plants, isn’t it true that in fact 700

or 1,200 megawatts produces jobs? In other words, electricity produces jobs. If you are going to look at the value of jobs, you have

to include the electricity. And if you don’t produce the electricity,

I understand you might choose to produce it through other means.

But if you don’t produce the electricity, you in fact don’t produce

the jobs, for all practical purposes, that are produced by the electricity, not the ones produced by producing electricity. Fair enough?

Mr. KAMMEN. It is true that if your industrial activity requires

power, then you need a source for it.

Mr. ISSA. OK.

Mr. KAMMEN. Let me just finish——

Mr. ISSA. No, I got the answer to your question——

Mr. KAMMEN [continuing]. We have more jobs for the clean energy generation side, not just the efficiency, but by generating with

biofuels, solar or wind.

Mr. ISSA. I understand that there are a lot of ways to produce

electricity. I just want to make sure that we all understand we

don’t produce the electricity, you can’t save yourself completely into

wealth.

Mr. KAMMEN. Absolutely.

Mr. ISSA. There is no net paycheck if there is no paycheck.

Mr. KAMMEN. That is right. In fact, our report highlights that

the jobs come from all these areas.

Mr. ISSA. As my time expires, I have a bone to pick. I would like

you to prove for this committee or deliver how you came up with

3 cents a kilowatt hours. I was the chairman of the subcommittee

that went through this process. We were working on what it would

take to get to zero net carbon in the last Congress. We had testimony after testimony by, to be honest, pro-environment scientists

who said, look, here is the scale, it is $350 trillion today, with research and investment, here is how we get it down, here is how we

get to that goal as soon as possible at a certain price. Three cents

a kilowatt hour is such an absurd term for me to hear as a Californian, a major producer, that if you take away subsidy and you talk

about the actual cost of producing, my bill in California, the chairman’s bill in Los Angeles——

Mr. KAMMEN. Mine as well.

Mr. ISSA [continuing]. We all pay more than 3 cents a kilowatt

hour. So if 3 cents were an unsubsidized capability, wouldn’t we all

be buying that? And if not, tell me why we would be paying so

much more for others. Because to be honest, you just said to me

that it beats the price of coal——

Mr. KAMMEN. That is correct.

Mr. ISSA [continuing]. Which it doesn’t.

Mr. KAMMEN. I beg to differ.

Mr. ISSA. So would you please, what I am going to ask is, for the

record, so we can all look at the same handwriting, you show me

where it is 3 cents a kilowatt hour. Because I am going to go to

PG&E and SDG&E and all the other utilities. If your facts hold up,

you better believe I am going to be doing everything I can to stop

the NIMBYs from stopping the windmills from being put up. I realVerDate 11-MAY-2000 12:49 Nov 06, 2008 Jkt 000000 PO 00000 Frm 00193 Fmt 6633 Sfmt 6633 C:\DOCS\44650.TXT KATIE PsN: KATIE
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ly would appreciate that for the record, because that is too good a

figure for me to ever have seen, even though I am a strong supporter of wind energy.

Thank you. I yield back.

Mr. KAMMEN. Mr. Issa, I would be delighted. In fact, both in my

testimony I highlight the cost for wind power for some of the best

plants. The New Mexico Governor’s office has highlighted the cost

for that particular plant in the southwest part of the State. I will

submit additional data on some of the costs for the best wind

farms.

But you are right, the one aspect of the story, in that there is

a range of costs. We have wind farms that are performing at that

level and significantly higher. But the fact is that we have a number of wind farms designed in the last few years and operating

today which do provide power at that exceedingly low cost.

Mr. ISSA. I appreciate that.

[The information referred to follows:]

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Chairman WAXMAN. Mr. Doniger, do you want to respond?

Mr. DONIGER. Mr. Issa, I just wanted to clarify that the 1-year

deadline that you referred to applies to a permit application that

is complete. EPA would have the authority, and we think they have

the responsibility to say it is not complete, and the clock doesn’t

start to run until you have analyzed BACT for CO2, until you have

analyzed the alternative technologies for CO2. So there is not a

strict deadline.

Mr. ISSA. I appreciate that, but there is no regulation at this

time that has been produced for that. So if the shoe was on the

other foot and there was a regulation and they decided to shortcut

it because they considered it already in, you would sue. I don’t

think there is any question, the testimony is pretty clear, that if

the EPA acted in this manner, they would be acting capriciously,

they would be sued, and they would lose. We would end up paying

for the permit, for the building that wasn’t built.

Mr. DONIGER. I disagree with you, sir.

Chairman WAXMAN. All right, the gentleman’s time has expired.

Ms. Watson.

Ms. WATSON. Thank you so much, Mr. Chairman.

Let me address this to Secretary Curry. I want to commend New

Mexico and the other States that have taken the lead on addressing greenhouse gas emissions. You and others are taking steps that

benefit the country and the world. I was not here earlier to hear

your testimony, but in your written testimony you stated that the

Governor has established some of the toughest State greenhouse

gas emission reduction targets in the Nation. At the same time, I

know that New Mexico has historically been a fossil energy State.

So have the people of New Mexico supported the climate change

policies that you and the Governor have introduced?

Mr. CURRY. Mr. Chairman, Member Watson, I would say that

they have. We are moving forward on it. One of the things that

Governor Richardson did that I think is very important to the process in New Mexico was establishing a very broad stakeholder group

of people, the Climate Change Advisory Council, that came up with

69 recommendations for the Governor to implement reduction of

greenhouse gases within the State of New Mexico. It is significant

because this group worked very hard, it wasn’t a situation where

they sat around and held hands and sang Kumbayah, by any

means. It was hard fought discussions over a period of almost a

year.

Ms. WATSON. And who was in the group? What types?

Mr. CURRY. We had members from the dairy industry, we had

members from the oil and gas industry, we had members from the

car dealers association in New Mexico, we had members from the

environmental advocate groups in New Mexico, we had members

from State government, we had members from municipalities and

counties. So I think the group was as broad as you can possibly

imagine in New Mexico.

Sixty-seven of the 69 were passed unanimously. Since that time,

we have moved forward with assigning a cost to most of these

items and we have started to implement them, such as the Clean

Car Initiative that we will be moving forward on in a few weeks

to join California. Also, we have just recently established one of the

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first in the country as far as a CO2 registry for the industries in

New Mexico like oil and gas. So it is very important in New Mexico

that we make things happen. Governor Richardson, aside from everything else that we can talk about things here today is a gentleman who likes to make things happen and insists upon making

things happen. In the process, we have a good buy-in and a good

consensus to make this happen.

Are there people who disagree? Absolutely. But the benefit that

we are able to show through these stakeholder discussions and

stuff is going to lead the way.

Ms. WATSON. It speaks well for the people of New Mexico and it

seems like they understand that they can fight global warming

while growing their State’s economy. It seems to me also, being

from California, that the people are getting it, you are getting it,

but this administration is not. I don’t know if you were here for the

first panel, but I couldn’t believe what I was hearing from the Administrator of the EPA. In California, the largest State in the

Union, with the largest number of cars, we are trying to address

the environment in which we all live and breathe. And we get stymied here. They are studying whether or not emissions into the air

affect the plants on the ground and our personal health.

So I just want to commend you, I appreciate your statement. It

seems like you had a very broad base of people coming up with the

recommendations that you put in law. I hope that we are successful, because our bill is a product of the people of California.

Thank you so very much. Good luck.

Mr. CURRY. Thank you.

Chairman WAXMAN. Thank you, Ms. Watson.

Mr. Shays.

Mr. SHAYS. Thank you, Mr. Chairman.

I find myself in this wonderful position of wanting us to deal big

time with global warming, wanting India and China to be in that

mix, questioning the implications of the environmental movement,

because it says to me we are going to have to see nuclear power,

we are going to have to see greater use of gas. So liquified natural

gas sites on the coast. And also caring deeply about energy security, believing obviously that conservation is an absolute first, key,

easiest way, and alternative, renewable energy in the mix, but

long-term payoff, not real short-term payoff. That is kind of where

I come from.

But I am struck by the fact that the ends don’t justify the means.

And I am feeling like the environmental movement to which I like

to think I am a part is not able to get Congress to act, a very difficult Senate and a House that still hasn’t come to grips with this,

even within the Democratic party. So we are saying, OK, now we

have this hook with EPA and let’s use the Clean Air Act to deal

with global warming.

I am struck by the fact that my colleagues on the other side of

the aisle are really railing on the Administrator to express an opinion before he has gone through the process. I want to know if any

of you have a feeling, a similar feeling that we are kind of pushing

the envelope a bit and kind of potentially mis-using the intent of

the law, the Clean Air Act. I will start with you, Mr. Curry.

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Mr. CURRY. Mr. Chairman, Member Shays, my concern is that

listening to the Administrator this morning and working and seeing how EPA affects the State of New Mexico is that we feel, we

believe that the science has been proven.

Mr. SHAYS. I am not talking science, I am talking about law. It

seems to me that CO2 is a different kind of pollutant than any

other, that Congress should be directing the administration to deal

with it. That is what I am wrestling with. The fact that, I look at

the Massachusetts law, and admittedly, I have not read the whole

thing, but the excerpts I have, they are looking at mobile sources.

The implications of this are mind-boggling to me, what potentially

we could be demanding EPA to do. For instance, the Capitol, it

emits a tremendous amount of CO2. Would it be considered a major

polluter? And what are the implications of that?

Let me go to Mr. Doniger.

Mr. DONIGER. Mr. Shays, we too advocate and urge that Congress enact new legislation to deal with global warming. The Senate is making tangible progress now, and——

Mr. SHAYS. Who is? The Senate, you said?

Mr. DONIGER. The Senate. And there is tangible movement in the

House. We would love to see more and we would love to see it faster.

Mr. SHAYS. So do you think we are going to make better progress

through the Senate than the House?

Mr. DONIGER. I would encourage you to keep up with them.

Mr. SHAYS. That wasn’t a funny question, honest. Are we having

an easier time in the Senate than the House?

Mr. DONIGER. The Lieberman-Warner bill is moving through

committee, and that is what I am referring to.

Mr. SHAYS. OK, fair enough.

Mr. DONIGER. The point that I was going to make is that the

Clean Air Act, which was enacted in 1970, already gave the administration the power to respond to new pollution problems as they

are recognized. Now, for 5 years, the Bush administration took the

position that it had no powers in this matter, that the Clean Air

Act did not apply. That is what the Massachusetts case was about.

And the Supreme Court said, you are wrong, despite all the deference that the Government gets, you are just flat wrong, and it

is time to start implementing the law.

As I mentioned in my opening statement, there is another case

about power plants which was sent back at the same time. So the

power plant issue and the car issue are on the table at EPA.

Mr. SHAYS. Is there a difference between monitoring and regulating?

Mr. DONIGER. Not for the purposes of the Clean Air Act, no, not

for these purposes. The Clean Air Act did not say, subject to emission limitations. It said subject to regulation. And regulations include the monitoring regulations.

Mr. SHAYS. Let me ask Mr. Cline that same question.

Mr. CLINE. Well, sir, there are several definitions of regulation.

I know Black’s Law——

Mr. SHAYS. I want you to talk a little louder.

Mr. CLINE. The Black’s Law Dictionary defines regulation as the

process of controlling by rule or restriction. And it is in that vein

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which EPA has interpreted the meaning of subject to regulation for

the last 20 some years. Furthermore, if I may, I would question

whether or not Section 821 of the statute is really in the Clean Air

Act. If you look at the statute, it talks about specific provisions

which amend the Clean Air Act. There are other provisions with

Statute 101549 where there is no indication that is an amendment.

So it may be stretching the issue to say that this is subject to

regulation under the act, when this particular provision that Mr.

Doniger refers to is not under the act.

Mr. SHAYS. Do you mind if I ask another question?

Chairman WAXMAN. No, but let me just announce that we have

a vote, and we are going to come back, I want to thank all the witnesses. Then we have a markup in committee. So for those who are

looking for markup, that will follow the vote.

Mr. SHAYS. But we are not asking the witnesses to come back.

Chairman WAXMAN. After Mr. Shays has completed his questioning, you are free to go, and that will end the hearing.

Mr. SHAYS. Mr. Doniger, I felt like there was a tremendous

amount of effort to get the Administrator to say something that he

argues should be said when he makes the decision going through

a process. How did you view that again?

Mr. DONIGER. Well, look, it is an open secret that the Administrator will make an endangerment determination. The President

has said, go ahead and issue motor vehicle rules. And in order to

do that, you have to make an endangerment determination.

The President himself embraced the science, the IPCC, and he is,

although quibbled about this at great length in the past, finally

this September has sort of stopped quibbling about that and said,

we accept and we embrace the IPCC science. So I don’t think the

issue is going to be whether Mr. Johnson equivocates about

endangerment. I would be appalled if he did that.

The question is, what does he need to do about the big power

plants now. And the big power plant permit decisions don’t turn on

an endangerment determination. He can make the determination

now that they need to go through the ATC and that they need to

have their alternatives analyzed.

Mr. SHAYS. Doesn’t he have to make the endangerment finding

before?

Mr. DONIGER. No. Two answers.

Mr. SHAYS. OK, you say no.

Mr. DONIGER. Two points. As I said in my testimony, subject to

regulation, we believe that CO2 already is. But the alternatives, the

requirement to analyze alternatives and consider collateral environmental damages does not turn on subject to regulation. So there

is authority to do this now. A responsible administrator would do

this now.

Mr. SHAYS. But it can be disagreed. Mr. Cline, is it clear-cut, Mr.

Cline?

Mr. CLINE. I would respectfully submit that the collateral impacts analysis is not a vehicle to determine BACT for an un-regulated pollutant. It just simply does not work that way.

Mr. SHAYS. OK. All right. I guess I have passed the time, I have

a minute left to get to vote. This has been an interesting session

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and I know the chairman would thank you for being here. I guess

I call it closed. Thank you very much.

[Whereupon, at 2:38 p.m., the committee was adjourned.]

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