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82–736PDF 2013

S. HRG. 110–1235 

OVERSIGHT OF EPA’S DECISION TO DENY THE 

CALIFORNIA WAIVER 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JANUARY 24, 2008 

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

( 

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

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

JOSEPH I. LIEBERMAN, Connecticut 

THOMAS R. CARPER, Delaware 

HILLARY RODHAM CLINTON, New York 

FRANK R. LAUTENBERG, New Jersey 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

AMY KLOBUCHAR, Minnesota 

SHELDON WHITEHOUSE, Rhode Island 

JAMES M. INHOFE, Oklahoma 

JOHN W. WARNER, Virginia 

GEORGE V. VOINOVICH, Ohio 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming1

LARRY E. CRAIG, Idaho 

LAMAR ALEXANDER, Tennessee 

CHRISTOPHER S. BOND, Missouri 

BETTINA POIRIER, Majority Staff Director and Chief Counsel 

ANDREW WHEELER, Minority Staff Director 

1Note: During the 110th Congress, Senator Craig Thomas, of Wyoming, 

passed away on June 4, 2007. Senator John Barrasso, of Wyoming, joined 

the committee on July 10, 2007. 
(III) 

C O N T E N T S 

Page 

JANUARY 24, 2008 

OPENING STATEMENTS 

Boxer, Hon. Barbara, U.S. Senator from the State of California ....................... 1 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma ................... 2 

Lieberman, Hon. Joseph, I., U.S. Senator from the State of Connecticut ......... 5 

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware ................. 7 

Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey .......... 8 

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

Sanders, Hon. Bernard, U.S. Senator from the State of Vermont ..................... 12 

Klobuchar, Hon. Amy, U.S. Senator from the State of Minnesota .................... 13 

Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode Island ........ 15 

WITNESSES 

Johnson, Stephen L., Administrator, U.S. Environmental Protection Agency ... 16 

Prepared statement .......................................................................................... 19 

Responses to additional questions from Senator Boxer ................................ 28 

Douglas, Hon. James, Governor, State of Vermont .............................................. 65 

Prepared statement .......................................................................................... 67 

O’Malley, Hon. Martin, Governor, State of Maryland .......................................... 71 

Prepared statement .......................................................................................... 73 

Responses to additional questions from Senator Inhofe ............................... 77 

Rendell, Hon. Edward G., Governor, Commonwealth of Pennsylvania .............. 77 

Prepared statement .......................................................................................... 80 

Cox, Hon. Mike, Attorney General, State of Michigan ......................................... 84 

Prepared statement .......................................................................................... 87 

Haaland, Doug, Director of Member Services, Assembly Republican Caucus, 

State of California ................................................................................................ 91 

Prepared statement .......................................................................................... 93 

Doniger, David, Policy Director, Climate Center, Natural Resources Defense 

Council .................................................................................................................. 110 

Prepared statement .......................................................................................... 113 

Letter to Senator Boxer dated, January 30, 2008 ......................................... 128 

Response to an additional question from Senator Inhofe ............................. 130 

Holmstead, Jeffrey R., Former Assistant Administrator for Air and Radiation, 

U.S. Environmental Protection Agency .............................................................. 131 

Prepared statement .......................................................................................... 134 

ADDITIONAL MATERIAL 

Statement, Corzine, Hon. Jon S., Governor, State of New Jersey ....................... 140 

Research Letter, On the Causal Link Between Carbon Dioxide and Air Pollution Mortality, Mark Z. Jacobson, Department of Civil and Environmental 

Engineering, Stanford University, Stanford, CA ............................................... 143 

Study, Stanford News Service, Study Links Carbon Dioxide Emissions to 

Increased Deaths .................................................................................................. 159 

(1) 

OVERSIGHT OF EPA’S DECISION TO DENY 

THE CALIFORNIA WAIVER 

THURSDAY, JANUARY 24, 2007 

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

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

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

Present: Senators Boxer, Inhofe, Lieberman, Carper, Lautenberg, 

Cardin, Sanders, Klobuchar and Whitehouse. 

STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM 

THE STATE OF CALIFORNIA 

Senator BOXER. Good morning, everyone. 

The Committee will come to order. Just before I start my timer 

here, I want to explain what we decided is to have opening statements limited to 4 minutes, and then 5 minute rounds of questions. 

We will go around as many times as people need. 

So I think everyone knows that the purpose of today’s hearing 

is to continue the Environment and Public Works Committee’s investigation into the decision, my own opinion, an unconscionable 

one, by the EPA Administrator to deny California and many other 

States, as a matter of fact, affecting more than half the population 

of the United States, the opportunity to cut global warming pollution from motor vehicles. 

In my many years in the House and in the Senate, and I am very 

pained to say this as Chair of this Committee, I have never seen 

such disregard and disrespect by an agency head for Congress and 

for the Committee with the responsibility for oversight of his agency. When it comes to global warming, I think most people agree 

that time is of the essence. Yet 2 years have gone by as EPA 

dragged out the process of reviewing California’s petition for a 

whatever to fight global warming. 

It isn’t just California that suffers, as I pointed out. Fourteen 

other States, and we are going to hear from three Governors today, 

Republican and two Democrats, have adopted California’s standards or are in the process of adopting them. Another four are moving toward adopting those standards. So those 19 States represent 

more than 152 million, 152 million Americans, a majority of our 

population. 

I would like to place into the record a letter to Administrator 

Johnson signed yesterday by Governors, Republicans and Democrats, of 14 States, expressing their disappointment in EPA’s un-
2 

precedented failure to abide by Federal law, ignoring the rights of 

the States and the will of millions of people. I would like to place 

in the record a statement by the speaker of the California Assembly. He calls on the EPA to reverse its decision for all the States 

involved and for the future of the planet. 

I would like to place into the record a statement from the Attorney General of California. He makes clear that it is crucial that 

EPA’s waiver decision be reversed. I would also like to place into 

the record a statement from the Governor of Connecticut, Jodi Rell. 

Governor Rell objects to EPA’s unprecedented decision to deny this 

waiver, blocking Connecticut from taking action. She strongly and 

unequivocally conveys her disappointment with the decision. 

[The referenced material was not received at time of print.] 

Senator BOXER. There remains much work to be done as we work 

to uncover the facts behind this decision. EPA has failed to fully 

respond to our request for information, which I will go into in the 

question time. I have never seen anything like it. We asked for the 

documents. First, we didn’t get them when they were promised. 

Then we were told that the EPA staff would have to look over the 

shoulders of our staff and our staff had to pull off pieces of tape 

off these documents to find out what Administrator Johnson was 

advised by his staff. 

Do we have that tape here? We are going to show you that. 

Imagine, and it took the staff 51⁄2 hours of time to transcribe 46 

pages. This failure to cooperate with the Oversight Committee is 

unacceptable and must be corrected. The mission of the EPA is to 

protect human health and the environment. The Administrator’s 

decision does neither. The people who pay the Administrator’s salary have a right to know how he came to a decision that is so far 

removed from the facts, the law, the science, the precedent, States’ 

rights and all the rest that goes with it. I will stop now and I will, 

when I get to the questions, I will explain to my colleagues what 

we have learned thus far. I will attempt in my questioning to get 

Mr. Johnson to give us more information that we have not been 

able to get. 

Senator Inhofe. 

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

THE STATE OF OKLAHOMA 

Senator INHOFE. With equal righteous indignation, Madam 

Chairman, I would like to clarify something. There have been a 

number of press reports that Administrator Johnson refused to appear at a hearing in California on January 10th. I believe, and 

would have to say that there was no formal hearing on January 

10th. Senator Boxer held a public briefing, it was not a hearing. 

From what I understand, that public briefing was basically a political event. In declining to participate, Administrator Johnson 

said he would appear at this Committee hearing, and I would point 

out that Administrator Johnson has never declined to participate 

nor send a representative to this Committee, either back when I 

was chairman or since you have been chairman. 

In fact, I would have to say I was surprised that Senator Boxer 

would invite a Bush Cabinet official to participate in a political 

event. To be honest, Mr. Johnson, if you had decided to show up 
3 

there, I would have been very critical of you. This political event 

set a very negative tone to the Committee’s handling of this issue. 

I am a very strong proponent of vigorous oversight to ensure that 

the Nation’s laws are carried out in a manner intended by Congress and to ensure the executive branch is faithfully discharging 

its mission. 

But today’s hearing is not that kind of hearing. Rather, it is more 

theater. There have been charges the Administration has been 

tardy with documents, but the EPA has been asked to collect and 

turn over large amounts of material, all of which needs to go 

through a normal process, be reviewed by numbers of staffers and 

by agency lawyers. The initial request gave only 2 weeks, bracketing the Christmas and New Year’s holidays, in which to respond. 

Where was the outrage and the rhetoric when the Clinton administration was repeatedly late in producing documents for this Committee? As I recall, the Clinton EPA was typically given far more 

time than the constraints placed on this EPA. 

When we focus on the substance of the debate, it seems clear to 

me that the waiver petitions should be denied. I encourage Administrator Johnson to formally make a final decision to do so. Over 

and over, it has been said that the EPA has never denied a waiver 

before. While that is untrue, and even Vermont concedes this in its 

litigation, it would be irrelevant even if it were true. In every instance, when California was granted a waiver in the past, it was 

to address ‘‘compelling and extraordinary conditions’’ in the State. 

That is the standard, as clearly spelled out in 209(b), which we will 

be talking about quite a bit during the course of this meeting, 

209(b) of the Clean Air Act. 

Now, tell me how California differs from other States when it 

comes to global warming? Carbon is a global issue, not a local one. 

In that regard, California is ordinary, not extraordinary. In fact, I 

think it is certainly relevant that California cannot show harm 

from global warming over the last two decades, because temperatures there have been declining, not increasing. We have a chart 

up here, and I want this chart entered into the record also, showing that the temperatures have been declining since 1985 in the 

State of California. 

[The referenced material was not received at time of print.] 

Senator INHOFE. California will not bear the burden of implementing it. That would be borne by other States. My own State of 

Oklahoma has 27,000 auto-related jobs. Of course, that is dwarfed 

by States like Michigan in comparison. In addition to Michigan, 

States represented on this Committee, such as Missouri, Ohio and 

Tennessee, have up to six times as many. The total job losses are 

144,000 auto job losses. 

The effect that California’s politicians are trying to achieve 

through this waiver provision is something they cannot achieve 

through Federal legislation, even tighter fuel economy standards 

than what the Congress passed in the Energy bill just last month. 

So I think that the Energy bill just passed means that Congress 

has already spoken to this issue. That law represents the will of 

Congress on fuel economy standards. If California legislators 

thought otherwise, they should have been more aggressive when 

this was discussed. 
4 

Mr. Administrator, I look forward to hearing your testimony. 

[The prepared statement of Senator Inhofe follows:] 

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

STATE OF OKLAHOMA

Madame Chairman, I would like to clarify something, there have been a number 

of press reports that Administrator Johnson refused to appear at a ‘‘hearing’’ in 

California on January 10th. There was no formal hearing on January 10th. Senator 

Boxer held a public briefing, not a hearing, and from what I understand, that public 

briefing was basically a political event. In declining to participate Administrator 

Johnson said he would appear at this Committee hearing. I would point out that 

Administrator Johnson has never declined to participate or send a representative 

to a Committee Hearing. 

In fact, I would have to say I was surprised that Senator Boxer would invite a 

Bush Cabinet official to participate in a political event, and to be honest Mr. Johnson, if you had agreed to attend a political event like that I would have been unhappy with you. 

This political event set a very negative tone for the Committee’s handling of this 

issue. I am a strong proponent of vigorous oversight to ensure that the nation’s laws 

are carried out in the manner intended by Congress, and to ensure the executive 

branch is faithfully discharging its mission. But today’s hearing is not that kind of 

hearing. Rather, it is theater. 

There have been charges the Administration has been tardy with documents, but 

EPA has been asked to collect and turn over large amounts of material, all of which 

needs to go through the normal process of review by agency lawyers. The initial request gave only 2 weeks bracketing the Christmas and New Year’s holidays in 

which to respond. Where was the outrage or the rhetoric when the Clinton administration was repeatedly late in producing documents for the Committee? as I recall, 

the Clinton EPA was typically given far more time than the constraints placed on 

this EPA. 

When we focus on the substance of the debate, it seems clear to me that the waiver petition should be denied, and I encourage Administrator Johnson to formally 

make a final decision to do so. 

Over and over it has been said that EPA has never denied a waiver before. While 

that is untrue—as even Vermont concedes in its litigation—it would be irrelevant 

even if it were true. 

In every instance when California was granted a waiver in the past, it was to address ‘‘compelling and extraordinary conditions’’ in the State. And that is the standard, as clearly spelled out in 209(b) of the Clean air Act. Tell me how California 

differs from other States when it comes to global warming? Carbon is a global issue, 

not a local one. In that regard, California is ordinary, not extraordinary. 

In fact, I think it is certainly relevant that California cannot show harm from 

global warming over the last two decades because temperatures there have been declining, not increasing, as this chart shows. 

California also will not bear the burden of implementing it. That would be born 

by other States. My own State of Oklahoma has 27,000 auto related jobs. Of course, 

that is dwarfed by states like Michigan. In comparison, in addition to Michigan, 

States represented on this Committee such as Missouri, Ohio and Tennessee have 

two six times as many. 

The fact is that California politicians are trying to achieve through this waiver 

provision something they cannot achieve through Federal legislation—even tighter 

fuel economy standards than what Congress passed in the Energy bill just last 

month. 

I think that the Energy bill just passed means that Congress has already spoken 

to this issue. That law represents the will of Congress on fuel economy standards. 

If California legislators thought otherwise, why did not one of them offer an amendment to address the issue? 

Mr. Administrator, I look forward to hearing your testimony. 

Thank you. 

Senator BOXER. Well, since Senator Inhofe went over about 30 

seconds, and I had 27 seconds left, I am going to use the remainder 

of my time before I turn to colleagues to respond. 

Let’s be clear. This is the first time a waiver has ever been denied outright 50 times. I asked the Administrator to please come, 

I asked him in friendship, to please come to California, to please 
5 

face the people who he had turned down and explain to them why. 

Governor Schwarzenegger sent a representative there, Attorney 

General was there. There were citizens there and colleagues. 

The fact is, Mr. Johnson refused to come, so I said, OK, you can’t 

come, could you send someone else? No, no one else. Could you 

send documents, if no person can come? No. There were no documents. In all the years I have been around, I have not seen a committee treated this way. Senator Inhofe says that he was treated 

this way or the Committee was by the Clinton administration. I 

can truly say that I don’t recall that. But if it was so, it was wrong 

then, and it is wrong now. 

As I say, I think it is important to put in the record that we 

asked him to come because we thought it would be a benefit to the 

people. Because the people need to understand why this happened. 

I said before I would show you the kind of, lack of cooperation 

we had. Colleagues, this is the tape, this is the tape that was put 

over, finally, the Administration had a way to use duct tape. This 

Administration, this is what they did to us. They put this white 

tape over the documents. Staff had to stand here, it is just unbelievable, and pull off, out of the sentences here. I mean, what a 

waste of our time. This isn’t national security. This isn’t classified 

information, colleagues. This is information the people deserve to 

have. This is not the way we should run the greatest government 

in the world. It does not befit us. 

So that is why I am worked up about it and think we have been 

treated in a very shabby way. I would call on Senator Lieberman. 

Senator, we have 4 minutes. 

STATEMENT OF HON. JOSEPH I. LIEBERMAN, U.S. SENATOR 

FROM THE STATE OF CONNECTICUT 

Senator LIEBERMAN. Thanks very much, Chairman Boxer. 

The greenhouse gas emissions standards that California, Connecticut and many other States have adopted cover nearly half the 

new vehicles sold annually in America. As a result, the requirements will markedly reduce the Nation’s greenhouse gas emissions, 

and consequently, while also reducing air pollution, dependence on 

foreign oil and consumers overall fuel costs. That is pretty good results from State leadership here. 

In my opinion, as we have discussed earlier, the Federal Government is not doing nearly enough to reduce America’s greenhouse 

gas emissions. If the Administration will not work for responsible 

Federal action in this regard, then I believe it should, at the very 

least, stay out of the road that many State governments are taking 

for real forward-looking action to protect our citizens from global 

warming. 

Madam Chairman, I know you love music and lyrics. I was just 

thinking as we were putting this together that perhaps Bob Dylan’s 

times they are rapidly changing. I am not going to sing, I want to 

reassure you. But his words as always are lyrical and poetic and 

relevant. The time are rapidly changing, you had a line about the 

road is rapidly changing. The one that comes to mind, please get 

out of the road, the new road, or the new one, he says, if you can’t 

lend a hand. 
6 

I think that is what w are saying here this morning, that the Administration has not stayed out of the road, out of the way of 

progress. It has in fact planted itself directly in the way that the 

States are taking, consistent with the whole Federal approach to 

Government. This is the classic American response to a problem: 

Federal Government, for various reasons, doesn’t take action. The 

States, as Justice Brandeis said, laboratories of democracy, initiate, 

they try, they see how it works and then ultimately would come to 

a national solution. 

So first I would say the California standards do not threaten us 

with a regulatory patchwork. I am going to deal with the rationales 

that Administrator Johnson offered in his December 19th letter, because I truly believe they don’t stand up to scrutiny. The first is 

that the California standards do not threaten us with a regulatory 

patchwork. Two standards, one applying to the half of the Country 

that chooses to adopt California’s standards, and one applying to 

the other half simply do not make a patchwork. 

Second, the California Air Resources Board’s analysis refutes the 

Administrator’s assertion that the recently strengthened Federal 

fuel economy standard subsumes the environmental benefits of the 

California emissions standard. Cars subject to the California standard would in fact emit less global warming pollution than cars subject only to the Federal fuel economy standard. 

Finally, the statement in the denial letter that the California 

standards are not needed to ‘‘meet compelling and extraordinary 

conditions’’ directly contradicts the opinion of the U.S. Supreme 

Court in the case of Massachusetts v. EPA, issued last April, that 

is to say, April 2007. In fact, EPA’s own statements, in my opinion, 

in that litigation. Thus Administrator Johnson, I say to you directly 

and respectfully that I believe your December 19th decision was 

wrong and I urge you to withdraw it and change course. 

Thank you, Madam Chair. 

[The prepared statement of Senator Lieberman follows:] 

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

STATE OF CONNECTICUT

Thank you, Chairman Boxer. 

The greenhouse gas emissions standards that California, Connecticut, and many 

other states have adopted cover nearly half of the new vehicles sold annually in this 

country. The requirements thus will markedly reduce this nation’s greenhouse gas 

emissions and, consequently, make a real contribution to averting catastrophic global warming, while also reducing air pollution, dependence on foreign oil, and consumers’ overall fuel costs. 

The Federal Government is not doing nearly enough to reduce this nation’s greenhouse gas emissions. If the administration lacks the presence of mind to take responsible Federal action, then I believe it should, at the very least, stay out of the 

way of the many State governments that are taking real, forward-looking action to 

protect their citizens from global warming. To paraphrase Bob Dylan, ‘‘Please get 

out of the new road if you can’t lend your hand.’’ 

Unfortunately, the administration has not stayed out of the way. Instead, it has 

planted itself directly in the way of progress. The rationales that Administrator 

Johnson offered in his December 19 letter for standing in the way do not themselves 

stand up to scrutiny. 

First, the California standards do not threaten us with a regulatory patchwork. 

Two standards—one applying to the half of the country that chooses to adopt California’s standards and one applying to the other half—do not make a patchwork. 

Second, the California Air Resources Board’s analysis refutes Administrator Johnson’s assertion that the recently strengthened Federal fuel economy standard subsumes the environmental benefits of the California emissions standard. Cars subject 
7 

to the California standard would emit less global warming pollution than cars subject only to the Federal fuel economy standard. 

Finally, the statement in the denial letter that the California standards are not 

needed to ‘‘meet compelling and extraordinary conditions’’ seems to contradict the 

Supreme Court’s April 2007 decision in the Massachusetts v. EPA case, and the 

agency’s own statements in that litigation. 

Thus, Administrator Johnson, I respectfully believe that your December 19 decision was wrong, and I urge you to change course. 

Thank you, Madame Chairman. 

Senator BOXER. Thank you, Senator Lieberman. 

Senator Carper. 

STATEMENT OF HON. THOMAS R. CARPER, U.S. SENATOR 

FROM THE STATE OF DELAWARE 

Senator CARPER. Thank, Madam Chair. Welcome, Mr. Johnson. 

I am proud of the work we did last year in raising CAFE standards. Many of us were involved. It was a lot of work. I personally 

worked a god deal of last year with the auto industry, with our colleagues, with the environmental community and a number of folks 

here, who like me have States that they represent that are home 

to automotive manufacturing. We forged a deal that is going to 

greatly increase vehicle efficiency over the next 10 years. We also 

greatly increased the renewable fuels standards. Between these 

two measures, we will reduce our reliance on foreign oil, help our 

auto industry, develop new vehicles and begin to reduce greenhouse gases from the transportation sector of our economy. 

That doesn’t mean, though, that the EPA’s work is finished. I 

think you know that. When the Supreme Court decided that EPA 

has the authority to regulate greenhouse gases in its Massachusetts 

v. EPA decision last year, the court said this: ‘‘But that DOT set 

mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the 

public’s health and welfare, a statutory obligation wholly independent of DOT’s mandate to promote energy efficiency. The two 

obligations may overlap, but there is no reason to think the two 

agencies cannot both administer their obligations and yet avoid inconsistency.’’ 

I am going to come back in our Q&A and we will talk about inconsistency, something that, and harmony, harmonization between 

your agency that you and I have discussed before. But having 

worked so hard to make CAFE increases a reality last year, and 

having two auto assembly plants in my own State struggling with 

the rest of the domestic industry here in this Country, I am concerned about having two inconsistencies and possibly conflicting 

standards for automobiles. I am concerned about a potential policy 

train wreck between EPA and NHTSA. I think it would be even 

harder for the U.S. Department of Transportation and the State of 

California to coordinate to avoid these inconsistencies. They are 

real issues. They need to be contemplated. 

However, what concerns me most is that it does not appear that 

EPA has tried to address these concerns, at least not yet. Instead, 

it appears that EPA may have seen it as a convenient excuse for 

inaction, even though the Supreme Court dismissed these excuses 

less than a year ago. 
8 

Madam Chairman, while this hearing is on whether EPA should 

have denied California’s request for a Clean Air Act waiver, I want 

to take just a moment to focus on the broader issue that resulted 

in California even needing to make this waiver request. That is the 

lack of Federal action to reduce greenhouse gases. The reason why 

we have this conflict is because States are stepping up and acting 

while the Federal Government continues to do too little. We should 

be less concerned with stopping States from acting and more concerned with establishing a nationwide greenhouse gas reduction 

program, something this Committee has worked on last year, for 

several years. 

States are merely filling a vacuum caused by the Federal Government’s inaction. If EPA would have acted to implement tailpipe 

emissions standards, California might not have been compelled to 

do so on its own. 

In addition to California, the Northeast and Mid-Atlantic States 

are getting ready to implement their regional greenhouse gas initiative next year. The western States are well on their way to implementing their own Western Climate Initiative. Pretty soon, we 

are going to have a majority of our Country implementing mandatory reductions in greenhouse gases. What are we going to do when 

that happens? How are we going to establish a single economy-wide 

trading system after all these States have already set up their 

own? 

I know many in Congress suggested that we need to preempt 

States from moving forward. I don’t know that we need to preempt 

States to avoid a patchwork quilt of regulations. What we need to 

do is to lead. What we need to do is to lead, and the States won’t 

have to do our job for us. 

Thank you, Madam Chair. 

Senator BOXER. Thank you very much, Senator. 

Senator Lautenberg. 

STATEMENT OF HON. FRANK R. LAUTENBERG, U.S. SENATOR 

FROM THE STATE OF NEW JERSEY 

Senator LAUTENBERG. Thank you very much, Madam Chairman. 

We are here once again, regrettably, to discuss EPA’s failure to 

act to protect the environment. For the first time, after more than 

50 approvals in its history, the EPA has denied California, New 

Jersey and other States a waiver to set emissions reductions on 

cars that are stronger than the Federal law. This standard simply 

would require new cars to emit 30 percent less greenhouse gases 

by the year 2016. The Governors that are here today, Governors 

Rendell, O’Malley and Douglas, as well as Governor Corzine’s, 

though not here, his statement that we will be introducing in the 

record, deserve credit for showing leadership when it comes to the 

environment by adopting the California standard. 

Madam Chairman, it is bad enough when the Federal Government fails to lead. But it is even worse when the Federal Government gets in the way of States that are trying to act in the interest 

of the public and in the absence of leadership from the EPA. Last 

year, EPA Administrator Johnson sat in that very seat and told 

this Committee, ‘‘The Administration has been taking steps to tack-
9 

le climate change. The denial of this waiver is taking a step in the 

wrong direction.’’ 

Now, as all of us know, greenhouse gas emissions are the cause 

of global warming, which is the most serious environmental threat 

we face, temperatures and sea levels are already rising. The Intergovernment Panel on Climate Change’s recent report showed that 

the earth is warming at an alarming rate. 

In 2006, the temperature in the United States was 2.2 percent, 

2.2 degrees warmer than the average temperature throughout the 

20th century. Despite compelling science, Administrator Johnson 

still denied this waiver. He argued that our cars do not need strong 

emissions standards at the State level, because of a recent increase 

in Federal fuel economy standards. To reach that decision, he overruled the advice of his own legal and scientific experts. They said 

the decision to deny the waiver was incorrect and would be overturned, they believed, in a court. The Administrator might have listened to his experts, because his decision, as I see it and most of 

my colleagues, is wrong. The California law, which 16 States are 

trying to adopt, goes further than the Federal law. If this waiver 

was granted, it would be the equivalent of taking 6.5 million cars 

off the road, according to one estimate. 

It is an injustice to our environment, it is an injustice to our families. It is an injustice to our children and to the future generations 

of Americans for EPA to block the way. California, New Jersey and 

other States are taking EPA to court to overturn this irresponsible 

decision. I support that action. We shouldn’t have to go that route. 

Chairman Boxer, myself, and other of our colleagues will soon introduce legislation to do the same thing. But while here, I hope the 

Administrator can explain to us why he chose to protect industry 

over protecting the environment for our children, grandchildren, future generations. 

Finally, Madam Chairman, and again I commend you for your 

resolve to examine this problem once again, I mentioned Governor 

Corzine did want to be here today, unable to join us. So I ask unanimous consent that his complete statement be included in the 

record of today’s hearing. 

Senator BOXER. Without objection. 

[The prepared statement of Governor Corzine follows on page 

140.] 

Senator LAUTENBERG. With that, I thank you. 

Senator BOXER. I thank you, sir. 

Senator Cardin. 

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

FROM THE STATE OF MARYLAND 

Senator CARDIN. Thank you, Madam Chair. 

Madam Chair, let me start off by expressing to Administrator 

Johnson my deep disappointment in the failure to allow the States 

to move forward with the waiver. I say that for many reasons. 

First, the scientific information is very clear. I would have hoped 

that this decision would have been made based upon the legal responsibility and the scientific information that you have available 

and your agency. 
10 

Second, this decision will affect the environment and health of 

the people of Maryland and this Country. So we have a responsibility to do what we can to make sure that we have the safest environment and health for the people of this Country. 

Third, I think the point that Senator Lieberman made is one that 

is very important to me. I served 20 years in State government, 8 

years as speaker of our State legislature. I believe very deeply in 

federalism and the importance of our States to be able to move forward on programs that can help us develop the types of national 

policies that are important for our Country. I think your decision 

today really is an affront to federalism. It is an affront to our 

States to be able to move forward to protect interests of their citizens, but also to provide a way in which we can develop the appropriate national policy. 

Then last, the traditional role of the Environmental Protection 

Agency is to be the leader in protecting our environment. I think 

this decision really questions the leadership interest in the EPA in 

carrying out that historic role. 

So for all those reasons, I am extremely disappointed that the 

California waiver was denied. As you know, Maryland is one of 

those States that has filed with California, our legislature has 

passed the California standards and the waiver will affect the people of Maryland. 

Madam Chair, I must tell you I do look forward to hearing from 

Governor Martin O’Malley, the Governor of my own State, and 

other witnesses. I also look forward to working with you, Madam 

Chair, as we press ahead with legislation that will require EPA to 

do what it should have done 2 years ago. I firmly support the responsibility of Federal agencies to take appropriate regulatory action without congressional interference. But when the Federal 

agencies ignore their own science, scientists and good information, 

I think it becomes necessary for us to take action. 

I want to talk just a moment about the impact it will have on 

Maryland. Maryland’s Clean Car program would have reduced carbon dioxide emissions by 7.7 million metric tons by 2025, according 

to an interim report recently issued by the Maryland Commission 

on Climate Change. EPA’s denial of this waiver will result in tons 

of additional greenhouse gases polluting this region. That is unacceptable to me and to the people of Maryland, and it should be unacceptable to the EPA. Cars that will meet the new greenhouse gas 

standards would also help to clear out our air of nitrogen oxides, 

a contributing factor to photochemical smog. I say that because we 

all work in this area. You know what happens when we have those 

code red days. The action by Maryland would have made it more 

likely we would have had less code red days, which not only is a 

lack of comfort for us, but also affect the health of the people of 

our own State. 

As already pointed out, the Energy Independence Security Act 

will establish higher fuel economy standards at 35 miles a gallon. 

That is good news. But the California waiver standards would complement that and go further, to allow us to make even additional 

accomplishments. 

So Madam Chair, I hope that this hearing will lead us in the direction where we can find a way to implement the California waiv-
11 

er to allow those States to be able to move forward. I hope we can 

do that in convincing Administrator Johnson and the Bush administration to change their policy on this. If not, I hope that we can 

enact legislation to require that action. 

[The prepared statement of Senator Cardin follows:] 

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

STATE OF MARYLAND

Madame Chairman: 

Thank you for holding this hearing today. 

Last year, this Committee held two hearings which focused on the California 

Waiver and EPA’s inaction in addition to a hearing on related Supreme Court cases. 

Today we meet to discuss the EPA’s regrettable decision to deny the State of California’s request for a Clean Air Act waiver—nearly 2 years after the waiver request 

was made. 

Today’s hearing serves as a first step in having Congress right this wrong. 

I look forward to hearing from Governor Martin O’Malley and the other witnesses. 

I also look forward to working with you, Madame Chairman, as we press ahead with 

legislation that will require EPA do what it should have done 2 years ago. 

I firmly support the responsibility of Federal Agencies to take appropriate regulatory actions without congressional interference. But when Federal agencies ignore 

their own scientists and legal experts, legislative intervention becomes necessary. 

Senator Boxer’s bill will overturn this wrong-headed decision. I am proud to be 

an original cosponsor. Today’s hearing will highlight the problems with EPA’s decision. It will also serve as the first installment of our legislative effort to force the 

Agency to do the right thing. 

At issue in this oversight hearing is not only the extraordinary amount of time 

the EPA took to formally start the regulatory process, but also the very process 

itself. Specifically, how the Bush administration and EPA Administrator Johnson ignored the recommendations of career scientists and lawyers within the EPA to reach 

their decision regarding the California waiver. 

During today’s hearing we will hear from a number of witnesses, including Governors from some of the states in support of this waiver. They will emphasize the 

importance this waiver has on their longer term plans to combat mobile source contributions to global warming while simultaneously protecting the health of their citizens and the integrity of the environment. I look forward to hearing this testimony. 

I wish to welcome Governor Martin O’Malley from my home State of Maryland. 

Over the last year, the Governor has brought extraordinary leadership to environmental issues by enacting forward-looking legislation. 

Governor O’Malley signed a number of environmental initiatives into law last 

year including the Maryland Clean Cars Act which calls for stronger emissions regulations for cars sold and registered in Maryland; he established the Maryland 

Green Building Council, which will advise the Governor and Maryland’s General Assembly on how they can best use green building technologies in future State construction projects. 

Additionally, Governor O’Malley brought Maryland into the Regional Greenhouse 

Gas Initiative with 10 neighboring states. RGGI is a cap-and-trade program to control carbon dioxide emissions from the electric generating sector. Furthermore, the 

Governor also signed an Executive Order that established a Climate Change Commission charged with developing an action plan to address climate change in Maryland and rising sea levels in the Chesapeake Bay. 

As part of his ‘‘Empower Maryland’’ program, Governor O’Malley has pledged to 

reduce the State’s per capita electricity consumption by 15 percent by 2015 through 

increases in energy efficiency and conservation in Maryland State buildings. In 

these ever more uncertain economic times, steps directed at reducing Maryland’s energy consumption through increased efficiencies and conservation, will not only 

cleanup our environment, but will also produce savings for taxpayers in the State. 

Because Maryland is the fourth most vulnerable State in the country for sea level 

rise due to global warming, it makes sense for the State to take the environmental 

threat of greenhouse gas emissions seriously and to serve as an example to other 

states of what must be done. Under Governor O’Malley’s leadership, Maryland has 

done just that. 

Maryland, like a number of other states, has already adopted legislation that 

would enable it to join with California in regulating greenhouse gas emissions from 

cars and trucks. 
12 

Maryland’s Clean Cars program would have reduced carbon dioxide emissions by 

7.7 million metric tons by 2025, according to an interim report recently issued by 

the Maryland Commission on Climate Change. 

EPA’s denial of this waiver will result in tons of additional greenhouse gases polluting the region. That’s unacceptable to me and to the citizens of my State and it 

certainly should be unacceptable to EPA. 

Cars that will meet the new greenhouse gas standards will also help to clear our 

air of nitrogen oxides—a contributor to photochemical smog. In my state, mobile 

sources are not only the leading cause of smog but are also one of the leading causes 

of greenhouse gas emissions. We have some of the worst smog in the Nation, and 

during ‘Code Red’ days, more than 70 percent of the pollution comes from cars and 

light trucks. 

I am pleased with the recently enacted Energy Independence and Security Act, 

which establishes a higher fuel economy standard of 35 miles per gallon nationwide. 

But the goals of a fuel economy standard and a vehicle global warming emissions 

limit are quite different. 

The Department of Transportation sets fuel economy standards to reduce oil use. 

The DOT is not an environmental agency. 

The Supreme Court decision in Massachusetts v. EPA, held that section 202 of the 

Clean Air Act authorizes the EPA to regulate emissions from new motor vehicles 

on the basis of their possible climate change impacts. Under the Clean Air Act, California has the right to set higher standards for pollution reduction from automobiles, and recent court cases clarify that states have the authority to regulate 

global warming pollution from mobile sources. 

EPA’s denial of California’s petition is wrong as a matter of policy, wrongly decided by a biased political process, and wrong for the health and safety of the generations who will follow us. It will not stand. 

Senator BOXER. Thank you, Senator. 

Senator Sanders. 

STATEMENT OF HON. BERNARD SANDERS, U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator SANDERS. Thank you very much, Madam Chair. Thank 

you for calling this important hearing. I want to thank the Governors who will be speaking in a few minutes, including the Governor of the State of Vermont, Jim Douglas. We appreciate his 

being here very much. 

I want to thank all of the States who are joining with California 

to say that it is absolutely imperative that we as a Nation go forward in tackling one of the great environmental crises that faces 

not only our Country but the entire world. Madam Chair, there 

was an article in the New York Times just yesterday, and this is 

how it began. The headline is, ‘‘U.S. Given Poor Marks on the Environment,’’ first paragraph, ‘‘A new international ranking of environmental performances puts the United States at the bottom of 

the group of eight industrialized nations and 39th among the 149 

countries on the list.’’ 

In Bali, where our representative went to speak to defend the position of the Bush administration, that representative was actually 

booed, booed. Unprecedented. All over the world, people are wondering what is going on in the United States of America in so many 

areas, but certainly in terms of the environment. Before this Committee, we have had some of the leading scientists in the world 

who have come forward and they have said, global warming is an 

extraordinary crisis, and if we do not begin to move aggressively 

to reverse global warming, this entire planet is in danger. Yet, we 

have an Administration, which I must say will go down in American history as the worst Administration in so many areas, certainly including environmental protection, this Administration has 
13 

taken the word ‘‘environment’’ out of Environmental Protection 

Agency. 

Now, if I am correct, and I am pretty sure that I am, it was only 

last year that this Administration actually admitted that global 

warming was a reality. All over the world, countries are trying to 

move forward to reverse greenhouse gas emissions, and we have an 

Administration that was reluctant to even acknowledge the reality 

of global warming. I want to applaud California, Vermont and all 

of those States who have decided to provide the leadership that 

should be coming from the Federal Government, but is not. As others have said, if you can’t go forward, at least get out of the way. 

In Vermont, we take the environment seriously. We are an outdoor State. We want to see our streams, our lakes kept clean. We 

want our kids to grow up in a world where there is not flooding, 

where there is not drought. So if you can’t do the right thing, at 

least get out of the way of those States, like California, Vermont 

and others, that do want to go forward. 

The law, in my view, could not be clearer. Under the Clean Air 

Act, California is given the explicit right to petition the EPA to implement tougher air pollution standards. Once California’s waiver 

is granted, other States can then implement the California standards. The State of California waited for an answer on its waiver 

request for 2 years, 2 years. Then in a political stunt, the EPA Administrator called a phone press conference with reporters to announce EPA’s decision to deny the waiver. No decision document to 

back up the denial, just a press release and a letter to the Governor of California. Unprecedented. 

So Madam Chair, thank you very much for calling this important 

hearing. I am glad to join you in your legislation that would immediately grant California’s request for a waiver. I know that this 

Committee will continue to look into exactly how this ill-conceived 

decision was made. 

Thank you, Madam Chair. 

Senator BOXER. Thank you very much. 

Senator Klobuchar. 

STATEMENT OF HON. AMY KLOBUCHAR, U.S. SENATOR FROM 

THE STATE OF MINNESOTA 

Senator KLOBUCHAR. Madam Chair, thank you for holding this 

hearing. Administrator Johnson, I appreciate your kind call after 

our bridge collapsed in Minnesota and your interest in the environmental impacts of that collapse. 

I was listening as my colleague, Senator Sanders, very eloquently 

talked about what is going on here. I also noted that he took you 

to Bali. I am going to take you to a less glamorous place, and that 

would be Ely, MN, where I was in the last few weeks, as I toured 

through 47 counties in my State. I did an event there with the Governor, who is a Republican Governor, and the explorer Will Steger. 

You have to understand that Ely, where my grandpa worked in 

iron ore mines and as a logger, has always been a place of huge 

environmental fights over the boundary waters canoe area, over 

the ATVs and snowmobilers. 

But what was interesting about this forum we had is that people 

came together to talk about climate change. There weren’t the 
14 

splits that you traditionally see. There was a Republican Governor, 

there was a Democratic Senator. There were the steel workers, 

there were the snowmobilers who all voiced their concern about the 

effects that climate change is having on our environment. 

In our State, this hasn’t been a partisan issue. We have been 

able to work with the Democratic legislature and a Republican 

Governor to come together and get one of the most aggressive renewable standards in the Country. That is why I am so disappointed that we are even here to have this hearing. Because I 

don’t think that we should have an agency that has to be pushed 

time and time again to get it right. 

As Senator Carper was mentioning, to think that this Court, the 

Supreme Court, which isn’t exactly a radically liberal court right 

now, had to say that the Clean Air Act authorizes the EPA to regulate greenhouse gas emissions, that you couldn’t have just come 

upon that yourself, we have talked about this before, and start 

working on this. I just believe that we shouldn’t need to have these 

kinds of oversight hearings. But unfortunately, we do. 

Administrator Johnson, your agency’s decision to deny California 

a waiver just defies logic to me. It is clearly a decision, I believe, 

that is based on politics and not on fact. It is a decision that my 

State, as well as 15 others, are now fighting. I question this inference that an increase in the CAFE standards clearly eliminates the 

need for the California waiver. I am on the Commerce Committee. 

We negotiated that agreement. I think there could be room, when 

you look at the fact that standards were not increased since I was 

in junior high and we finally got this done, I think one could argue 

there is room to do more. 

Administrator Johnson, I want to read what the United States 

District Court said last fall when it found that an increase in 

CAFE standards and the California waiver overlapped but do not 

conflict. The court said, ‘‘Regulation of greenhouse gases from new 

motor vehicles cannot clearly be categorized as either an area of 

traditional State regulation, such as medical negligence, or an area 

in which Federal control predominates, such as the national banks. 

From the beginning of Federal involvement in environmental pollution regulation, the area has been regarded as a cooperative StateFederal legislative effort.’’ 

We are having this hearing today because States’ efforts to reduce greenhouse gas emissions are being blocked by this Administration. Back in July, when our friend, Senator Nelson, testified before this Committee on this very issue, he talked about States 

wanting to control their own destiny. Well, at a time when the Federal Government has really been doing nothing in the area of climate change for years and years and years, it is finally changing. 

But we cannot simply step back and say, well, we are finally 

looking at this issue and are considering doing something about it. 

But States who have been working on this now and filling in this 

void for years are not allowed to act. We have 16 States that want 

to control their own destiny, 16 States that want to tackle the problem that the EPA and this Administration have been ignoring. 

So I thank you, Madam Chair, for holding this hearing, and look 

forward to working with my colleagues during this new session to 

address the issue that the Administration has failed to do. 
15 

Senator BOXER. Thank you, Senator. 

Senator Whitehouse. 

STATEMENT OF HON. SHELDON WHITEHOUSE, U.S. SENATOR 

FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Thank you, Madam Chair. I have a written opening statement that to save time I would like to ask be 

made a matter of record. 

Senator BOXER. Without objection, so ordered. 

Senator WHITEHOUSE. I would simply like to take my time this 

morning to say three things. First, the State of Rhode Island is one 

of the waiver States, so this is a matter of real and direct importance to me. Second, I am extremely glad that Chairman Boxer has 

held this hearing, because it strikes me that we have a pattern 

from EPA of, ignore the science, overlook the law, deliver the 

goods. That is a pattern that is very alarming and concerning. 

I would just like to follow up on what Senator Sanders and Senator Klobuchar said. It is astonishing what unanimity there is 

around this issue. Just the other day, Chairman Boxer held a hearing in which the head of the Association of State Directors of 

Health came before this Committee, sat where you are sitting and 

presented to us a very powerful statement on global warming and 

climate change. I asked her where is the minority view. She said 

there was no minority view, we are unanimous on this subject, the 

directors of health of the States, whether they are from Oklahoma 

or California or New Jersey, they are unanimous on the subject. 

So it remains astounding to me that at the Federal level of our 

Government, we for some reason seem unable to unwind ourselves 

from the axle here and make progress on an issue of such importance. So I think this is a very important hearing, and I really appreciate Chairman Boxer’s leadership in making it happen. Thank 

you. 

[The prepared statement of Senator Whitehouse follows:] 

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

STATE OF RHODE ISLAND

I first want to thank Chairman Barbara Boxer for her persistence on this critical 

issue. This Committee has held three hearings on the California waiver, and we 

have yet to receive straight answers or appropriate cooperation from the EPA. So 

here we are again. It is unfortunate, but it is absolutely necessary. Senator Boxer’s 

pursuit of the truth, and her efforts on behalf of the environment, should be applauded by us all. 

It has now been over 2 years since California first applied for a waiver under the 

Clean Air Act to set more stringent vehicle emissions standards for cars and trucks. 

14 states, including Rhode Island, have since joined California; four more are expected to do so. In all, these 19 states represent more than half the population of 

the United States. 

The Environmental Protection Agency received more than 98,000 public comments 

on California’s proposal. 99.9 percent of those, including those from Rhode Island 

Attorney General Patrick Lynch, supported a more stringent standard. 

The benefits of the California standard are unquestionable and powerful. According to an analysis by Environment Rhode Island, a very respected entity in my 

state’s environmental community, if every State that has requested a waiver receives one, we will see a cumulative global warming emission reduction of 392 million metric tons by 2020—the equivalent to taking 74 million of today’s cars off the 

road for an entire year. We would see gasoline consumption reduced by as much 

as 8.3 billion gallons per year in 2020—as much as is consumed by all the vehicles 

in Florida in a year. And in 2020, we would see up to $25.8 billion in annual savings 

at the pump. 
16 

So we should not be here today, because allowing California and Rhode Island and 

all these states to set tough vehicle emissions standards is one of the strongest and 

most common-sense steps we can take to begin to tackle the enormous challenge of 

global warming. 

But we are here, because once again, this administration has put blind ideology 

before science; once again, this administration has let politics govern policy; and 

once again, this administration has taken an action that will directly undermine our 

efforts to protect our environment and safeguard public health. 

We are here because even in the face of scientific and legal advice and overwhelming public support, the EPA has denied California’s waiver request. The purpose of today’s hearing is to ask why. 

The EPA has still not given the required legal justification for denying the waiver 

as required by law. Instead, Administrator Johnson has continued to give excuses 

and policy justifications outside the scope of the law he is required to follow. He has 

attempted to use the new fuel economy standards recently enacted by this Congress 

as a rationale for denying the California waiver. This is a travesty. While we all 

should be celebrating the first increase in CAFE ́ standards in over a decade, it has 

no bearing on the EPA’s statutory authority to consider the California emissions 

waiver under the Clean Air Act. 

We are here to learn more about the Administrator’s decision, but I fear we may 

already know the answers. I am deeply troubled by reports that the EPA Administrator ignored recommendations from Agency scientists and lawyers in denying the 

waiver—a persistent trend under the Bush administration that has been exacerbated during Administrator Johnson’s tenure at EPA. 

I would remind Mr. Johnson that the Clean Air Act does not leave regulatory decisions to the discretion of the administrator, nor to the dictates of the White House. 

That fact has been long forgotten, or ignored, by this administration. So has the administration’s obligation to be accountable to Congress and the American people. 

This Committee has requested from EPA all the documents bearing on the California waiver request. Thus far, the Administrator has failed to produce these documents. We need to see them to determine what factors were considered, or ignored, 

by EPA in denying the California request. 

If the EPA will not fulfill its obligation to give the California waiver request a 

thorough, fair, scientific review and make its decision based on the merits and the 

law, this Congress must. I am proud to cosponsor Chairman Boxer’s ‘‘Reducing Global Warming Pollution from Vehicles Act of 2008,’’ which will, in effect, approve the 

waiver request legislatively. 

It’s unfortunate that we have been forced to take this step. But until the Environmental Protection Agency begins again to live up to its name, I’m confident that this 

committee will do all we can to keep our environment clean and safe for generations. 

Senator BOXER. Thank you, Senator. 

Now we will start the process of 5 minutes each for questions. 

We will do—I am sorry? Who came in? Oh, yes, your statement. I 

am so ready to question you that I forgot that. 

[Laughter.] 

Senator BOXER. But yes, you have 5 minutes for your opening 

statement. Oh, and by the way, as we told you, because this is an 

oversight investigation where we will be doing fact-finding, we will 

be swearing in all of our witnesses. So if you wouldn’t mind please 

standing, raise your right hand, we will be swearing in all three 

panels, and take the following oath. 

[Witness sworn.] 

Senator BOXER. Thank you, sir, please proceed. 

STATEMENT OF HON. STEPHEN L. JOHNSON, ADMINISTRATOR, 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. JOHNSON. Good morning, Chairman Boxer, Senator Inhofe 

and members of the Committee. I appreciate the opportunity to discuss EPA’s response to California’s request for a waiver of preemption for its greenhouse gas motor vehicle emission standards. 
17 

Let me begin by saying that climate change and greenhouse 

gases are global problems. Just as President Bush recognized during September’s Major Economies Meeting, the leading countries in 

the world are at a deciding moment, when we must reduce greenhouse gas emissions instead of allowing the problem to grow. 

The President has committed the United States to take the lead 

in reducing greenhouse gas emissions by pursuing new, quantifiable actions. I congratulate the Congress and the President for 

doing just that. By enacting the Energy Independence and Security 

Act, the Nation will be taking a major step forward to reduce 

greenhouse gases and improve our energy security. 

In particular, I applaud Congress for answering the President’s 

call to increase the Nation’s fuel economy standards. The bi-partisan energy legislation reflects the need for a unified national solution rather than an approach taken by a patchwork of States to 

significantly address the global challenge of climate change. 

As I have previously testified, EPA’s consideration of the California waiver request has been rigorous. Consistent with the requirements of the Clean Air Act, we undertook an extensive public 

notice and comment process, and received an unprecedented response. Given the complexity of the request, we devoted the necessary resources to expeditiously review the comments, examine 

the technical and legal issues and present me with the full range 

of available options. 

During the briefing process, I encouraged my staff to take part 

in an open discussion of issues, and due to their value options and 

opinions, I was able to make a determination. As you know, the 

Clean Air Act requires the EPA Administrator to determine whether or not the criteria for a waiver have been met. It was only after 

a thorough review of the arguments and material that I announced 

my direction to staff to prepare a decision document for my signature. 

While many urged me to approve or deny the California waiver 

request, I am bound by the criteria in the Clean Air Act, not people’s opinions. My job is to make the right decision, not the easy 

decision. As I explained in my December 19, 2007 letter to Governor Schwarzenegger, EPA has considered and granted numerous 

previous waivers requested by the State of California. However, 

those waivers addressed air pollutants predominantly affecting 

local and regional air quality. I stated in my letter, in contrast, the 

current waiver request for greenhouse gases is far different. It presents numerous issues that are distinguishable from all prior waiver requests. 

I also noted that greenhouse gases are fundamentally global in 

nature, which contributes to the problem of global climate change, 

a problem that poses challenges for the entire Nation and indeed, 

the world. Unlike pollutants covered by other waives, greenhouse 

gas emissions harm the environment in California and elsewhere 

regardless of where the emissions occur. Therefore, this challenge 

is not exclusive or unique to California. So in light of the global nature of the problem, I therefore indicated that it is my view that 

California does not have a need for its own State standard to meet 

compelling and extraordinary conditions. 
18 

My response to the waiver request has been based upon the law, 

the facts and the information presented to me and on the exercise 

of my own judgment. I know some members of this Committee disagree. I am here to answer your questions today regarding this determination. 

Again, thank you for the opportunity to appear before the Committee today. Thank you, Madam Chair. 

[The prepared statement of Mr. Johnson follows:] 
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28 

RESPONSES BY STEPHEN L. JOHNSON TO ADDITIONAL QUESTIONS FROM SENATOR

BOXER

Question 1. Contacts with Executive offices.—In your testimony before the Senate 

Committee on Environment and Public Works (EPW) in July 2007 you said that you 

had ‘‘routine conversations’’ about the California waiver with individuals within or 

affiliated with the White House, the Executive Office of the President, the Vice 

President’s office, the Council on Environmental Quality, the Office of Management 

and Budget, and Cabinet members (collectively, the ‘‘Executive Office’’). 

(a) Please identify each individual within or affiliated with any of the Executive 

Offices listed above with whom you or your staff had any communications regarding 

the California waiver request, and describe the timeframes and substance of each 

of those communications. 

(b) For each person identified, describe as fully as possible, based on whatever 

recollection, information or circumstances may be available, your understanding of 

the views and/or position of such person with respect to whether or not it would be 

desirable for the California waiver request to be granted. 

Response. As I have testified previously, I do have routine conversations with various members of the Administration; I think that’s good government. And I want 

to respect the candor of those conversations by not sharing the details of attendees, 

timing, etc. But in any event, when and with whom I had discussions are irrelevant 

to the issue before us, which is my decision on the California waiver request. The 

Clean Air Act charges me with making the decision on the waiver, and that is exactly what I did. 

Question 2. Overriding Agency experts. You submitted written responses to questions from the EPW Committee after a hearing held on July 26, 2007, in which you 

said: ‘‘The Agency is performing a rigorous analysis in order to properly consider 

the legal and technical issues that we must address in making a decision under the 

Clean Air Act waiver criteria.’’ 

And you further said: ‘‘I can assure you that I am undertaking a fair and impartial assessment of the request.’’ 

EPW Committee staff recently reviewed a copy of EPA’s October 30, 2007, Administrator’s Briefing document, in which the results of the EPA Staff’s analysis of the 

waiver request was reported to you. That briefing document included numerous examples of the ‘‘compelling and extraordinary circumstances’’ faced by California as 

a result of global warming caused by greenhouse gas emissions. The document also 

indicated EPA would be sued by California and EPA would be ‘‘likely to lose’’ the 

suit. A second version read ‘‘EPA’s litigation risks are significantly higher than if 

a waiver is granted.’’ 

This advice was consistent with a detailed written analysis prepared by EPA’s 

staff, dated April 30, 2007, acknowledged by EPA’s General Counsel, which described Congress’s intent that California is to be accorded broad discretion in implementing its own separate motor vehicle standards under Section 209(b), and which 

reviewed in detail the legal authorities overwhelmingly supporting granting the 

waiver in this case. 

(a) Given this clear advice and the conclusion of EPA’s Staff, how do you explain 

the diversion of EPA resources and the expenditure of taxpayer funds litigating this 

unsupportable legal position? 

(b) Do you believe that you have unfettered discretion to make a decision that contradicts the standards in the Clean Air Act? If not, fully describe the constraints 

that the Clean Air Act places on your decisionmaking capacity in denying a request 

from California for a waiver under Section 209(b). 

Response. My obligation in acting on California’s waiver request is the same as 

in most other decisions before me—to reasonably exercise my discretion, both to interpret the law and to apply it to the evidence before me. That is what I have done 

with respect to California’s application for a waiver. The decision that was released 

on February 29, 2008 explains in detail both how I interpreted section 209 of the 

Clean Air Act and how I applied the constraints of its legal criteria to the evidence 

before me. I expect that various parties will seek judicial review of my decision, and 

EPA fully intends to defend this decision as a lawful and reasonable exercise of the 

discretion delegated to me under the Clean Air Act. 

Question 3a. Lack of decision document. Internal EPA planning documents prior 

to September 2007 refer repeatedly to a draft ‘‘decision document’’ that was to be 

prepared by EPA staff and presented to you as Administrator for your consideration. 

Was a draft decision document prepared in any form, including but not limited 

to interim and final drafts of any such document? If so, please identify the document 
29 

or documents with specificity and provide a separate and unredacted copy of any 

such documents to the EPW Committee not later than February 15, 2008. 

Response. In keeping with the regular process for responding to California waiver 

requests, staff in the Office of Transportation and Air Quality (OTAQ), Office of 

General Counsel (OGC), and Office of Atmospheric Programs (OAP) prepared preliminary drafts of various sections of a decision document for the greenhouse gas 

waiver request in November and December 2007. These incomplete drafts were intended to serve as the foundation for the final decision document, which I signed 

on February 29, 2008, and it was anticipated by staff that the early drafts of the 

decision document would be modified as necessary to reflect whatever decision I ultimately made. These drafts were circulated only among the staff working on this 

waiver request, and were not forwarded to my office or to the office of the Principal 

Deputy Assistant Administrator for Air and Radiation. Copies of these documents 

have previously been provided or otherwise made available to the Committee 

through our responses to the Committee’s December 20, 2007 letter requesting documents. 

Because these drafts were very preliminary, they do not reflect my final thinking 

on the issues presented by California’s waiver request. What is most important here 

is the final decision document issued on February 29, 2008, which reflects my final 

thinking on California’s waiver request. 

Question 3b. If no draft decision—document was prepared, identify who made the 

decision that no draft decision document would be prepared, and describe fully all 

communications—including submission of all records—regarding that decision. 

Response. Please see the above answer to 3(a). 

Question 4a. References to a ‘‘patchwork’’. In your letter to Governor 

Schwarzenegger of December 19, 2007, denying the waiver request, you said that 

your approach was better than what you called a ‘‘patchwork’’ of State laws. But 

the EPA Staff’s Administrator’s Briefing of October 30, 2007, acknowledges that 

there would be no patchwork. As has been true for more than three decades, under 

Section 209(b) there can only be two standards: (i) the Federal standard, and (ii) 

the California standard, which other states can adopt. 

Since two standards by definition cannot create a ‘‘patchwork,’’ please explain 

where this objection originated and what support was relied on for it. 

Response. I agree that there are only two sets of motor vehicle emission standards 

that can apply to vehicles sold in the United States: EPA’s standards and California’s standards, which other states may adopt if they meet the conditions specified 

in section 177 of the Clean Air Act. I expressed concern about a patchwork of states 

because, even though there are only two sets of vehicle standards, State adoption 

of California’s standards can still present vehicle manufacturers with varying circumstances that can make compliance with State requirements difficult. For example, states can and do adopt California standards at different times. In addition, 

compliance with California’s greenhouse gas standards is determined based on the 

averaged emission levels of the vehicles sold in the state, with vehicle manufacturers able to trade and bank excess emission reductions. To the extent other states 

adopt the California standards, vehicle manufacturers may be faced with compliance 

circumstances that vary from State to state, including different compliance schedules and fleet mixes. Because consumers occasionally buy vehicles across State lines, 

such variability between states also may confuse and affect consumers as well. 

You asked where the ‘‘patchwork’’ idea originated. With respect to the California 

GHG waiver proceeding, the idea of a ‘‘patchwork’’ was raised at the first waiver 

hearing held on May 22, 2007, in Arlington, Virginia. At that hearing, a representative of the Alliance of Automobile Manufacturers in his testimony stated ‘‘(t)he Alliance member companies are committed to improving energy security (and) fuel economy, but piecemeal regulations at the State level is (sic) not the answer.’’ Subsequently, the potential for a ‘‘patchwork’’ of State regulations was discussed in comments we received at the close of the comment period from the Association of International Automobile Manufacturers (AIAM) and the National Association of Automobile Dealers (NADA). For example, the letter from AIAM noted that the global 

nature of carbon dioxide emissions which ‘‘disperses evenly throughout the atmosphere, such that emissions of carbon dioxide in California have no greater impact 

in that State than elsewhere in the United States or indeed the world. . . . The 

regulations of greenhouse gas emissions therefore require a coordinated national approach rather than a patchwork of State approaches.’’ 

Question 4b. Please describe all analysis conducted by EPA Staff supporting your 

references to a ‘‘patchwork’’ and provide unredacted copies of such analysis to the 

Committee, including the date of their creation. If there is no such analysis, please 

so indicate. 
30 

Response. As noted above, representatives of the auto industry submitted comments regarding the potential ‘‘patchwork’’ of State vehicle regulations that would 

occur if EPA granted the California greenhouse gas waiver request. EPA reviewed 

this issue during its work on the waiver request. State adoption of California standards has the potential to raise issues of varying timetables and compliance circumstances for auto manufacturers. However, to date, these issues have largely 

been avoided by the way in which states adopt or implement California standards. 

Copies of relevant documents have previously been provided or otherwise made 

available to the Committee through our responses to the Committee’s December 20, 

2007 letter requesting documents. 

Question 5. Failure to apply the ‘‘in the aggregate’’ standard. In an e-mail dated 

June 12, 2007, an EPA lawyer with responsibility for the California waiver request 

discussed the changes to Section 209(b) of the Clean Air Act in the 1977 Amendments, which he explained: ‘‘tell us that we need to look at CARB’s standards ’in 

the aggregate’ ’’—i.e., taken as a whole, not limited to the greenhouse gas standards 

only—in EPA’s consideration of the waiver request. 

Please explain in your December 19 decision denying the California waiver request how you addressed the express language of the 1977 Amendments. 

Response. The decision that was issued on February 29, 2008 provides a full explanation of how I interpreted and applied the waiver criteria in Section 209 of the 

Clean Air Act. 

Question 6. References to ‘‘unique’’ and ‘‘exclusive’’. You have repeatedly sought 

to justify your denial of California’s waiver request by saying that the threats of 

global warming are not ‘‘unique’’ or ‘‘exclusive’’ to California. 

Please identify every instance in Section 209(b) of the Clean Air Act, the legislative history of Section 209(b), EPA regulations, case law , EPA guidance or past interpretations, in support of your view that whether the threats faced by California 

are ‘‘unique’’ or ‘‘exclusive’’ to California is a factor in deciding whether to grant a 

waiver. 

Response. The decision that was issued on February 29, 2008 provides a full explanation of how I interpreted and applied the waiver criteria in Section 209 of the 

Clean Air Act. As is typical in any waiver decision, it discusses in detail the legal 

basis for my decision, including an appropriate discussion of the text of section 209, 

its legislative history, and other relevant sources. 

Question 7. Specific ‘‘compelling and extraordinary conditions’’ faced by California. 

At the December 19, 2007 press conference where you announced that you were denying California’s request for a waiver, you claimed to have ‘‘found that [California] 

does not meet the compelling and extraordinary conditions’’ standard. 

But the Administrator’s Briefing package provided to your office by EPA Staff 

dated October 30 included 8 pages describing the conditions faced by California that 

the EPA Staff referred to as ‘‘compelling and extraordinary conditions.’’ 

a. The list below contains the conditions that your EPA Staff stated were ‘‘compelling and extraordinary.’’ 

flooding 

drought 

disease 

coastal impacts 

wildfires 

water supply 

ozone pollution 

agricultural production impacts 

threatened and endangered species habitat 

b. For each of the listed conditions above, please identify all analysis or other documentation associated with the compelling and extraordinary conditions and who 

advised the Administrator to ignore these conditions in the decision to deny the 

waiver. 

Response. Regarding the conditions listed above, all of the technical and scientific 

information EPA considered in addressing those conditions came from information 

submitted as part of, or in response to, the California waiver request, or from the 

2007 Fourth Assessment Report of the Intergovernmental Panel on Climate Change 

(IPCC). Much of the information concerning California is summarized in the 2006 

report by the California Energy Commission, Our Changing Climate: Assessing the 

Risks to California (CEC-500-2006-077). In addition, the information in the October 

30,2007 briefing describing some specific potential impacts of climate change on 

California was largely drawn from the 2002 report by the California Regional Assessment Group, The Potential Consequences of Climate Variability and Change for 
31 

California: The California Regional Assessment. The general science information as 

well as the IPCC findings about key impacts for North America, as identified in the 

October 30 briefing, came directly from the North America chapter of the IPCC 

Working Group II Volume of the Fourth Assessment Report. 

Contrary to the suggestion in the question, I did not ignore this or any other information—including, among other things, congressional intent and the global nature of climate change—relevant to deciding the waiver. The February 29, 2008 decision document on the waiver explains the rationale behind my consideration of the 

compelling and extraordinary criterion in detail. 

Question 8. Legal analysis underlying your decision to deny California’s waiver request (a) Please identify all legal analyses provided to you by EPA counsel, prior 

to December 19, 2007, supporting the conclusion that California does not meet compelling and extraordinary conditions. (b) For all such analyses, State the name of 

the lawyer(s) involved, the date that it was provided, and the form in which it was 

submitted. (c) Provide all such analyses in unredacted form. 

Response. Through our responses to the Committee’s December 20, 2007 letter requesting documents, the Agency has, at this time, provided copies or otherwise 

made available information responsive to this question. As explained previously, the 

Agency does have a confidentiality interest in documents reflecting privileged attorney-client and attorney work product information. Despite this interest, these documents have been made available to the Committee, and we are willing to continue 

to make documents available to the Committee as needed. 

Question 9. Reliance on CAFE standards. In your letter to Governor 

Schwarzenegger of December 19, 2007, announcing your decision to deny the waiver 

request, you stated: ‘‘I firmly believe that, just as the problem extends far beyond 

the borders of California, so too must the solution’’. You then went on to characterize Congress’ passage of the Energy Independence and Security Act, which includes increased vehicle fuel economy standards, as ‘‘national standards to address 

greenhouse gases’’ from cars. You said that you ‘‘strongly support this national approach to this national challenge . . .’’ in your letter, in support of your decision 

to deny the California waiver. 

In your written testimony submitted in connection with the hearing before the 

EPW Committee on January 24, 2008, you further stated: ‘‘I believe that it is preferable, as a matter of policy, to have uniform national standards to address fuel 

economy issues across the entire fleet of domestic and foreign manufactured vehicles 

sold in the United States.’’ 

a. The Supreme Court made clear that CAFE standards are separate from EPA 

greenhouse gas requirements for vehicles. Your reliance on the Energy Independence and Security Act as an explanation for denial of the waiver at the time you 

announced the decision is inconsistent with that Supreme Court ruling. What will 

you do to comply with the Supreme Court’s decision in Massachusetts v. EPA? 

Response. I have concluded that the best approach for moving forward on our response to the Supreme Court’s decision in Massachusetts v. EPA is to issue an 

ANPR that will present and request comment on the best available science relevant 

to making an endangerment finding and the implications of this finding for regulation of both mobile and stationary sources. This approach gives the appropriate care 

and attention that these complex issues demand. It will also allow EPA to use the 

work we have already done. The ANPR will be issued later this Spring and will be 

followed by a public comment period. The Agency will then consider how best to respond to the Supreme Court decision and its implications under the Clean Air Act. 

As we go forward, I will keep the Committee apprised of EPA’s response to the 

Supreme Court’s opinion in Massachusetts v. EPA and the new energy law approved 

by Congress. 

Senator BOXER. Thank you. 

Administrator, you realize that this isn’t just about California. 

You do understand that there are many other States impacted, is 

that correct? Do you understand that? 

Mr. JOHNSON. Madam Chairman, I understand under the law my 

responsibility is to evaluate the California—— 

Senator BOXER. No, no, I wasn’t asking—— 

Mr. JOHNSON [continuing].—under section 209—— 

Senator BOXER. I understand. 

Mr. JOHNSON [continuing].—which is specific to the State of California. 
32 

Senator BOXER. No, no, I was asking you, do you realize that 

there are many other States, a lot of them represented here, that 

are following California’s lead, so that this decision just doesn’t impact one State? Do you understand that, is what I am asking? 

Mr. JOHNSON. I do understand that, Madam Chairman—— 

Senator BOXER. OK, good. 

Mr. JOHNSON [continuing].—and I also understand that the criteria in the law have me focus—— 

Senator BOXER. Sir, I am just asking because when you speak, 

you don’t indicate to the people, to the American people that in essence, this decision involves really, at this point, and it could be 

more, more than half the people of America. So you have come 

down against a majority of the people with this decision. 

Now, the mission of the EPA, according to your own Web site, 

is to protect human health and the environment. I think it is important to reiterate that. That is your mission, that is your goal. 

That is your trust. So many of us believe, with this decision, you 

are going against your own agency’s mission and you are fulfilling 

the mission of some special interests. Now, that is a tough charge, 

and that is what I think. 

Now, let’s talk about a process, since I think you are walking 

away from mission, let’s talk about a process that you promised 

this Committee in your nomination hearing. You said to this Committee that your guiding principle as Administrator would be, and 

I put this in quotes, ‘‘to ensure that the agency’s decisions are 

based on the best available scientific information and to pursue as 

open and transparent a decisionmaking process as possible.’’ This 

is you, ‘‘pursue as open and transparent a decisionmaking process 

as possible.’’ 

So I want to show the American people through this, the wonders of technology here, what you sent us, what you consider to be 

an open and transparent policy. This is what we got, when we got 

the documents from you. This is what we got. We got a piece of 

paper that said, if we grant blank compelling and extraordinary 

conditions blank if we deny blank. 

So when I say it is an insult to this Committee, I am not being 

political, I am being sincere. 

Now, if I told you as a friend, I want to write you a letter, I am 

going to give you some advice in the letter, and then I sent you a 

letter that just said, if we grant, it just makes no sense. Is this 

your notion of an open and transparent way to make decisions? 

Mr. JOHNSON. Madam Chairman, I think it is interesting that 

you point this out and I am glad that you did, because in fact the 

practice of the agency, certainly over my 27 years, is that when the 

agency is in litigation, as has been acknowledged, that we protect, 

and in fact protect attorney-client privileged documents, so that we 

can defend ourselves in the court system. 

Senator BOXER. OK. But you are aware—— 

Mr. JOHNSON. In fact, as was pointed out with the tape example 

earlier, I decided to waive my privilege and allow you and your 

staff to actually see the documents and see the information. 

Senator BOXER. All right. 

Mr. JOHNSON. So again, from my perspective, I believe in open 

and transparent process. Your staff obviously spent a lot of time 
33 

looking at the information. I followed the law. This was a tough decision. I understand you disagree. 

Senator BOXER. OK, wait, wait, I just—— 

Mr. JOHNSON. I made the decision. 

Senator BOXER. I am not talking about the decision. I am talking 

about you sending us blank documents and then, you are so magnanimous that you used all that tape that I showed you before to 

cover over what was in there and then saying how you waived your 

privilege. You have no privilege vis-a-vis the Congress. Our counsel 

and your counsel have discussed this. You cannot assert privilege 

vis-a-vis the Congress. To make it so hard for us to get these documents is really extraordinary. They are not classified, they are not 

confidential. What we had to do to get some information, and by 

the way, this is just the beginning of information. 

Now, I want to talk about one of your main reasons for denying 

the waiver and show you what your staff said. Because we copied 

it down and we are going to share that information with the American people. You said that there was no, you called Governor 

Schwarzenegger to inform him that ‘‘I,’’ meaning you, ‘‘I have found 

that his State does not meet the compelling and extraordinary conditions needed to grant a waiver of Federal preemption for motor 

vehicle greenhouse gas emissions.’’ 

Now, I want to share with you what your staff told you on that 

Power Point. If you could just hold up that blank chart that said 

compelling and extraordinary circumstances. When we peeled off 

the tape, this is what was written there. So let’s keep holding that 

up. 

‘‘California continues to have,’’ this is from your staff, excerpts, 

‘‘California continues to have compelling and extraordinary conditions in general, geography, climatic, human and motor vehicle 

populations. Many such conditions are vulnerable to climate 

change conditions as confirmed by several recent EPA decisions.’’ 

I am just going to, because of my time, continue to quote from this 

document. Wildfires are increasing, wildfires, and this is interesting, because Senator Klobuchar pointed this out at the last 

hearing, ‘‘Wildfires generate particulates that can exacerbate 

health impacts from increased smog projected from higher temperatures. California has the greatest variety of ecosystems in the 

United States and the most threatened and endangered species in 

the continental U.S. California exhibits the greatest climatic variation in the U.S.’’ It goes on to talk about the coastal communities 

and the habitat impacts and over-allocated water resources and 

aging infrastructure, and again, insect outbursts and ozone conditions. 

I mean, this is what your staff told you. Then you come out and 

say, it doesn’t meet the test for compelling interest. So my time 

is—I have gone over my time, I apologize, by a minute. But I Just 

have to say, sir, that when you look at what was underneath the 

taped-over documents, you find that your staff was very clear. You 

are walking the American taxpayers into a lawsuit that you are 

going to lose, and we will all be the worse for it. We are spending 

money we don’t have, we are spending money we shouldn’t have. 

All the States are upset, and this was a devastating decision. 

Senator Inhofe. 
34 

Senator INHOFE. Thank you, Madam Chairman. 

A lot of comments were made, and obviously I don’t have time 

to respond to them, in terms of what happened in Bali and all that. 

I will do that for the record, because some of these statements were 

not accurate. 

Administrator Johnson, as you are aware, the EPA documents 

that are confidential and litigation sensitive were released after 

their review. My question I would ask, and I am going to ask a 

bunch of questions for real short answers, because I am kind of 

alone over here, do you think this is going to have any kind of a 

chilling effect on sharing of documents to oversight committees, 

maybe not just this oversight committee, but other oversight committees? 

Mr. JOHNSON. Yes, sir, I do. In fact, I am disappointed because 

I asked Madam Chairman not to release, given the fact that we are 

being sued and that the agency, the Government needs to be able 

to defend itself. 

Senator INHOFE. Again, to clarify something that was said a 

minute ago, was this a staff decision or your decision to make, and 

was denying the waiver an option that was always presented to 

you? 

Mr. JOHNSON. The responsibility for making the decision for California rests with me and solely with me. I appreciate and value the 

staff’s input. Clearly, as you can see from the documents, I had a 

wide range of options, legally defensible options that were presented to me. I made the decision, it was my decision, it was the 

right decision, and I certainly stand by that decision. 

Senator INHOFE. Very good. 

Are the greenhouses gases different from other pollutants in the 

context of your decision? 

Mr. JOHNSON. Yes, they are. Certainly as a number of the Senators also acknowledged and pointed out, as I have, is that they are 

global in nature. Therein lies the problem. It is not unique, it is 

not exclusive to California. 

Senator INHOFE. It has been said, and I think we know the answer to this, but it has to get into the record, does the Clean Air 

Act require the Administrator to grant every waiver petition submitted by the State of California? 

Mr. JOHNSON. No, sir, the Clean Air Act does not require me to 

rubber-stamp waiver petitions. 

Senator INHOFE. There has been some criticism of your consulting and talking to the White House or talking to the Department of Justice. You have been at the EPA for a long time. You 

have heard me say many times before, and I am on record saying 

that we are very fortunate. This is, I believe the first time, certainly in my service for 22 years, that we have had an Administrator who knows the job, who has been all the way through the 

ranks. I appreciate that and I think it is an honor, really, to have 

someone who is that knowledgeable. 

So I appreciate you. 

Mr. JOHNSON. Thank you. 

Senator INHOFE. But since you have been there for a long time, 

are you the first Administrator to consult with the White House or 

the Justice Department? 
35 

Mr. JOHNSON. To me, in my experience, throughout the Administrations that I have had the pleasure to serve with and under, it 

is good government to have that inter-administration conversation. 

As I testified even at the last hearing, I have routine conversations 

with members of the Administration. I think that is good government. I have done that and will continue to do that. 

Senator INHOFE. You were there during the Clinton administration. 

Mr. JOHNSON. Yes, sir. 

Senator INHOFE. Administrator Brown consulted with the White 

House, with the Justice Department? 

Mr. JOHNSON. Yes. 

Senator INHOFE. You are sure of that? 

Mr. JOHNSON. Yes. 

Senator INHOFE. OK. You are aware of a study that was filed on 

the waiver docket by Sierra Research, NERA and Air Improvement 

Resources. They are three highly respected air modeling or economics consulting firms. They conclude that the California standards, 

if adopted, would result in decades of worse air quality for Californians in terms of most criteria pollutants and air toxics. What do 

you think about that? 

Mr. JOHNSON. Senator, there is certainly a wide range of opinions and studies that were in the docket for this waiver petition. 

Senator INHOFE. I think, if I understand their reasoning, it 

would result in a longer life for older vehicles, because people 

would be unable to come up and they would be exempt. So it would 

have the effect, in their opinion, of increasing, not decreasing the 

pollutants. 

Mr. JOHNSON. Certainly that is an area of concern that was duly 

noted. Again, as I deliberated on the data, the facts, all the testimony from the public hearings, I came to the conclusion that of the 

criteria that I am required to evaluate, it was the second criteria, 

that the State does not have compelling, extraordinary conditions. 

So that is the basis of my decision. 

Senator INHOFE. So that was taken into consideration. Is this 

waiver request different because it took place in the climate change 

context and the global nature of climate change, does not make 

California’s situation ‘‘compelling and extraordinary conditions’’ 

within the State as required under the Clean Air Act? 

Mr. JOHNSON. As you correctly point out, this is the first waiver 

of its type, the first time that the agency or in fact the Nation has 

been faced with a waiver focusing on global climate change. Again, 

in my opinion, based upon the facts presented to me, I concluded 

that California doesn’t meet the criteria, or at least one of the criteria, which is what I am required to evaluate as Administrator. 

Senator INHOFE. Is a national solution the best way to address 

climate change? 

Mr. JOHNSON. I believe so. 

Senator INHOFE. Madam Chairman, since I will be leaving at 

12:15, that is all the questions I have for right now. 

But I believe that you are very courageous to be here today. I appreciate the fact hat you didn’t do this in a way that would not be 

appropriate out in California. Thank you. 

Thank you, Madam Chair. 
36 

Senator BOXER. Very good. Thank you so much, Senator Inhofe. 

Senator Lieberman. 

Senator LIEBERMAN. Thanks, Madam Chair. 

Mr. Johnson, good morning again. I want to ask you to pick up 

on the last exchange you had with Senator Inhofe about your preference for a national standard here for vehicle emissions, greenhouse gas emissions. You have indicated that in your testimony 

and said it again. Of course, I agree that there should be a national 

standard. There should be a congressional and Federal action with 

regard to climate change. 

But I want to focus in, last year, last April after the Supreme 

Court decision in the Massachusetts case, the President, as I recall, 

accepted for the Administration a responsibility and set a goal to 

issue national transportation emission standards. If I recall correctly at that time or shortly thereafter you indicated that you had 

the personal goal for the agency, for EPA, of issuing those standards by the end of 2007. Obviously we are now in January 2008. 

I wanted to ask you whether you still intend to issue national 

motor vehicle emission standards and if so, by what date do you 

hope to do so? 

Mr. JOHNSON. Yes, sir, we are continuing to work on both fuel 

standards as well as vehicle standards. Clearly, the new Energy 

Independence and Security Act provides, in fact, some specific direction on both of those issues. At the same time, that doesn’t relieve us of, or relieve me or the agency of its responsibilities under 

the Clean Air Act and under Massachusetts v. EPA. What we are doing is working our way through what, obviously, 

what the legislation directors us to do and then how all those 

pieces come together with regard to the transportation piece. So 

that is all being worked on. I do not have at this point a date that 

my staff has projected as to when these pieces will be. I am certainly aware of the dates that are embodied in the legislation for 

us to meet, and certainly it is our intent to meet those dates that 

are in the legislation. 

Senator LIEBERMAN. Well, obviously the sooner the better, for 

issuing those. I appreciate your answer, because I believe that the 

order of the Court and the Administration’s response to it, to issue 

national motor vehicle emission standards, stands quite separate 

from the requirements of the recent legislation, particularly with 

regard to CAFE. Although both have an effect on emissions, CAFE, 

fuel efficiency, is something quite different from what is coming out 

of the tailpipe. 

So I appreciate your answer, I am glad you are working on it. 

I hope you will come to a conclusion soon. 

Similarly, in your testimony that further court action on the 

waiver should wait until a notice has been posted in the Federal 

Register, I wanted to ask you, since EPA has already taken a fair 

amount of time in issuing its response to this request, and given 

that you have clearly collected and processed a lot of information 

to make your decision, when do you expect the Federal Register notice to appear in this matter? 

Mr. JOHNSON. My staff have advised me that they expect to complete the documentation, the Federal Register, by the end of February. So that is what our target is. 
37 

Senator LIEBERMAN. OK, I appreciate the answer to that, too. 

Finally, you suggest in your letter and in your testimony that the 

current and future impacts of climate change do not constitute 

‘‘compelling and extraordinary circumstances for California.’’ I 

wanted to ask you a little differently than Chairman Boxer did, in 

light of the recent reports by the IPCC and others, Intergovernmental Panel on Climate Change and others, I wanted to ask you, 

on what scientific grounds did you conclude that the threats to 

California were not compelling or extraordinary? 

Mr. JOHNSON. Our final decision document, which we just talked 

about, will fully explain both the science, the technical and legal 

rationale for my decision. Certainly, the letter to Governor 

Schwarzenegger outlined the fundamental issue where I believe, 

and certainly in my judgment, California did not meet the waiver 

criteria of compelling and extraordinary. 

Again, as we have discussed, it is not unique. It is not an exclusive issue to California. Certainly, IPCC and a number of other 

studies are very important studies. Certainly we considered, and I 

considered the results of those in making my determination. 

Senator LIEBERMAN. Thank you, my time is up. Thanks, Chairman Boxer. 

Senator BOXER. Thank you, Senator. 

Senator Carper. 

Senator CARPER. Thanks, Madam Chairman. Again, Mr. Johnson, thank you for joining us and for your testimony and responses. 

I want to return to the CAFE legislation that a number of us 

worked on, and sent to the President for his signature and he 

signed on the day that you were there, as was I. The legislation, 

during the crafting of the legislation, the auto industry raised a 

whole lot of concerns. We sought to address those as best we could 

while still ensuring that we required of them over the next 12 

years to raise fuel efficiency standards to 35 miles per gallon overall. 

Among the concerns, the lingering concerns they had, at the end 

of the negotiation we came up with a compromise. The President 

said he would sign it. There was a concern still expressed by the 

auto industry that there was an inconsistency, a potential inconsistency, and they called it a potential train wreck, between EPA 

and NHTSA with respect to the path forward for raising fuel efficiency standards. 

It would just help for me to clarify, there was actually an attempt on the Floor when we did the bill, a colloquy between Senator Levin and Senators Feinstein and Inouye, where Senator 

Levin sought to try to make sure that going forward, if there is a 

lack of consistency between what NHTSA, National Highway Traffic Safety Administration, is endeavoring to do to raise fuel efficiency standards, if there is an inconsistency with what they are 

doing and what EPA is attempting to do that somehow NHTSA 

would not be delayed in their efforts. 

If I were the President, something I have no interest in doing, 

although Senator Lieberman tells me that 16 of our colleagues 

have run for President, if I were President, what I would do to try 

to harmonize the two agencies is say, look, we are going to get to 
38 

35 miles per gallon, we are going to do it by 2020. EPA, NHTSA, 

you have to work together to make this happen. 

So I think that lack of consistency, that potential lack of harmony can be addressed. It gets a little harder when we have States 

out there that are working toward addressing their own concerns. 

That is what we have here with California, and as Senator Boxer 

says, with a number of others. Just talk to us a little bit about how 

we can make sure we get to 35 miles per gallon and we do so in 

a way that does not competitively disadvantage our auto industry. 

We need for them to be successful. They have expressed these 

grave concerns about lack of harmony going forward. 

Your thoughts on that? 

Mr. JOHNSON. Again, I would say congratulations to all of you 

sitting up there for passing the legislation. As we all know, it has 

been 30 years, and as I think Senator Klobuchar said, I am not 

sure what grade level you were in at the time. 

Senator KLOBUCHAR. That would be seventh grade. 

[Laughter.] 

Mr. JOHNSON. But it is a significant accomplishment for the Nation. Everyone is to be congratulated. 

Two points that I would like to make, Senator. The first is that 

as you correctly point out, as I was deliberating on the California 

waiver decision, at the same time, you in Congress were debating 

whether in fact to pass the Energy Independence and Security Act. 

In fact, certainly as certain of the colloquy indicate, whether in fact 

section 209, specifically focusing on the waiver, was going to be 

amended. I didn’t know what you were going to do or not going to 

do. Certainly, obviously when it was sent to the President, it became clear what the position was. In fact, section 209 was not 

changed. 

So I had to make and I have to make a decision based upon what 

the law is and what the law of the land is of the day. Certainly 

that is what I did. 

With regard to now our charge, is to develop regulations to implement what Congress has passed, that is what we are working 

on right now. Certainly within the agency, and certainly the Department of Transportation has a significant lead, and as the law 

requires, we are to coordinate, or they are to coordinate with us. 

So that is what we are going to be focusing on doing, is making 

sure that we as a Nation achieve that 35 miles per gallon. 

There is a range of technologies, a range of technologies that—— 

Senator CARPER. I am going to ask you to stop there, and thank 

you very much. 

You and I have discussed from time to time my letter to you of 

May 10, 2007, where I called on EPA, if we are going to pass greenhouse gas legislation at the Federal level, there are three things 

that EPA could be doing to help expedite that process. One of my 

suggestions dealt with EPA developing a mandatory inventory and 

registry of major greenhouse gas sources in the United States, I 

think someone that one of my colleagues has had some interest in, 

too. 

A second dealt with developing health and safety standards for 

geological sequestration of CO2. A third was that EPA should de-
39 

velop standards and practices on how best to estimate, measure 

and verify emission offsets. Real quickly, how are we doing there? 

Mr. JOHNSON. No. 1, since the requirement is now part of our 

Omnibus bill and we are working on the schedule, and we intend 

to meet that for establishing the mandatory requirements, obviously we are aware that a number of States have mandatory requirements in place. So our staff are, if you will, picking the brains 

of our State colleagues as we move forward. So we are on track to 

do that. 

Second, with regard to the underground injection and long-term 

storage, as you and I have discussed, we are now in the process of 

drafting a regulation which we should see this summer. Then 

third, with regard to the AG issue, we are working with the Department of Agriculture to see how we might be able to address 

that issue as well. 

We are making good progress and you will see the results soon. 

Senator CARPER. Thanks. Madam Chairman, if I could just say 

in closing, thank you for being generous with me. 

We are here today in part because the Federal Government 

hasn’t done its job. Sometimes we flail ourselves in the Congress 

and say that it is our fault. It is not entirely our fault. This is a 

shared responsibility. I remember in October 2000 when a Governor from Texas was running for President and gave a speech in 

Saginaw, Michigan, and said, we need to address sulfur dioxide 

emissions, carbon dioxide emissions, NOx and mercury, from 

sources, power plants. We have sought to do that, we have not had 

the kind of support from this Administration that we need. I think 

it is regrettable and I just wish, I will say for the record, I wish 

then-Governor Bush had kept his Presidential pledge that he made 

7 years ago. 

Last thing, Madam Chairman, we have been looking for an opinion from EPA on revised ozone National Ambient Air Quality 

Standards. I know you are under a lot of pressure to not do anything, to not change anything at all. I urge you, there is a number 

between .07 parts per million and .08 parts per million that I think 

we can find. I hope that in a week or two that you will find that. 

Thank you. 

Senator BOXER. Thank you, Senator. 

Senator Lautenberg. 

Senator LAUTENBERG. Thanks, Madam Chairman. 

Mr. Johnson, do you believe that global warming is a serious 

problem for human health? 

Mr. JOHNSON. I believe that global warming is a serious problem 

and that it is one, as I mentioned in my testimony. 

Senator LAUTENBERG. So you are not sure about whether it is 

dangerous for human health? 

Mr. JOHNSON. Well, it certainly—— 

Senator LAUTENBERG. I mean, to leave the last part of the sentence—— 

Mr. JOHNSON. You are driving to an issue that one of the 

issues—— 

Senator LAUTENBERG. Let me be the driver, please. 

Mr. JOHNSON. OK, Senator. One of the issues that is facing me 

and certainly the agency is the issue of endangerment under the 
40 

Clean Air Act. That there are two areas that endangerment can be 

fond of the Clean Air Act, one is human health—— 

Senator LAUTENBERG. I am asking your belief, please, I don’t 

want to be rude, but I am not going to lose the use of my time for 

a complicated discussion when the question is fairly simple. Is global warming dangerous to human health? 

Mr. JOHNSON. The agency has not made a determination on the 

issue of endangerment, which is the driver or both. 

Senator LAUTENBERG. Well, you have had opinions from your 

staff, professional staff, that disagreed with your decision. What I 

would ask you, if there was no Federal law that gave you the route 

to follow, what would your—would your conscience have said anything about what ought to be done here with this waiver? 

Mr. JOHNSON. My conscience is directed by what the law says 

and what the data—— 

Senator LAUTENBERG. So what is absent here? 

Mr. JOHNSON. Well, again, it is interesting to speculate, but I 

have to follow, and certainly I have taken an oath of office to do 

what the law says and—— 

Senator LAUTENBERG. Yes, well, listen, you could leave the job if 

your conscience was so severe. 

Mr. JOHNSON. This is true. 

Senator LAUTENBERG. But your conscience is clear. Do you think 

global warming might have been a hoax that was perpetrated, or 

is it a serious problem? 

Mr. JOHNSON. As I stated in my testimony, I believe it is a serious problem. 

Senator LAUTENBERG. A serious problem, but it is not a serious 

health problem. Well, here is a scientist from Stanford who writes 

the report for Geophysical Research Letters. His name is Jacobson, 

research has particular implication for California, study finds that 

effects of CO2 warming are the most significant where pollution is 

already severe. Given that California is home to 6 of the 10 U.S. 

cities with the worst air quality, the State is likely to bear an increasingly disproportionate burden of death if no new restrictions 

are placed on carbon dioxide emissions. 

But you haven’t found anything that would confirm or challenge 

that statement? 

Mr. JOHNSON. Again, I am aware of that. As I recall, it was not 

part of the record that was before me in making the decision. But 

I certainly have now been made aware of that particular study. 

Senator LAUTENBERG. The fact that—do you believe that greenhouse gases contribute to global warming? 

Mr. JOHNSON. Yes, I do. 

Senator LAUTENBERG. You do. So—but what you say is that the 

problem is national and that different area changes that might reduce those greenhouse gases has no value in terms of your view, 

and that is strictly dictated by law? You are not volunteering any 

opinion here? 

Mr. JOHNSON. Again, obviously, and certainly people have heard, 

I believe environmental responsibility is everyone’s responsibility 

and we can each make a difference. In the context of California—— 

Senator LAUTENBERG. Well, this is—— 
41 

Mr. JOHNSON. In the context of the California waiver decision, I 

am directed by law to evaluate three criteria—— 

Senator LAUTENBERG. So if you were free to make a decision 

based on your conscience and the health of the community, I am 

going to interpret what you are not saying and say that, well, you 

wouldn’t, that wouldn’t dictate any other action than that which 

you have taken. 

Mr. JOHNSON. That is an unfair characterization. I would beg to 

differ with you, Senator. Again—— 

Senator LAUTENBERG. Well, we—— 

Mr. JOHNSON [continuing]. I am confronted with the law in section 209 of the Clean Air Act. I evaluated all the data, I made a 

decision. It is the right decision. 

Senator LAUTENBERG. But you have not gone to the President 

and said, Mr. President, here is an opinion from my staff, learned 

staff, professionals who think that we should grant this and say, 

Mr. President, we could make a modest change here and go ahead 

and do it? 

Mr. JOHNSON. First of all, any conversations that I have with the 

President are between the President and myself. But I can assure 

you that I was not directed—— 

Senator LAUTENBERG. That leaves us out? 

Mr. JOHNSON [continuing]. I was not directed by anyone, I was 

not directed by anyone to make the decision. This was solely my 

decision based upon the law, based upon the facts that were presented to me. It was my decision. 

Senator LAUTENBERG. Yes, but you—and you are satisfied with 

that decision, based on your professional experience? 

Mr. JOHNSON. Not only satisfied, I am confident and comfortable. 

Senator LAUTENBERG. If there was a major fire in California that 

was fouling the air of States to the east, would you say that it is, 

don’t touch that fire, that we, the Federal Government, will come 

in, put out the fire? Or should the State jump to the fact that there 

is an imminent danger, serious danger to health and property? I 

take it that your view would be, well, it is not specifically allowed 

by law for them to do it, so they are going to have to wait until 

the Federal firefighters come in? 

Mr. JOHNSON. Interesting speculation, sir, and again, I have to 

deal with the California waiver as the law is written, and I have 

done that and I made the decision. 

Senator LAUTENBERG. Madam Chairman, just a request to enter 

the Stanford study into the record. 

Senator BOXER. Absolutely, we will do that, without objection. 

[The referenced information follows on page 159.] 

Senator BOXER. Senator Cardin. 

Senator CARDIN. Thank you very much, Madam Chair. 

Mr. Johnson, I have listened to your testimony and I have read 

your statement in which you point out very clearly that you asked 

for both technical information and personal viewpoints relevant to 

the condition of the waiver request. In some of the questions that 

we have been asking, we are trying to figure out how you balanced 

the information that was made available to you to make a decision. 

One could interpret personal viewpoints to be advice to you that if 

you don’t grant the waiver, you are in for a tough hearing at the 
42 

EPW Committee, or if you do grant the waiver, you might have a 

tough day in the White House. One could intimate that is somewhat the political considerations as well as the technical information. 

So I want to concentrate first, if I might, on the personal viewpoints that you had to consider in making this judgment. We are 

talking about a standard of compelling and extraordinary conditions. I am not exactly clear as to what personal viewpoints were 

taken into consideration in your reaching this decision to deny the 

California waiver. 

Mr. JOHNSON. First of all, I am obligated and I believe it is good 

government to consider and in fact I am directed to consider notice 

and comment, comments from the public hearings. Obviously there 

are opinions, I have certainly heard from members of this Committee, including yourself, sir, on this. I listened to all of those, and 

then I needed to make an independent decision. The independent 

decision looks at the facts, for me, looks at what the science says, 

what does the law direct me to do. 

Senator CARDIN. But if you had to balance it—— 

Mr. JOHNSON. Ultimately it is a judgment decision by me. 

Senator CARDIN. I understand that. 

Mr. JOHNSON. I made the judgment decision, and as I said, I feel 

it is the right decision. 

Senator CARDIN. You have indicated that. I am trying to get the 

balance between technical information and reaching the decision 

that there was not a compelling, extraordinary condition versus 

personal viewpoints. How much was it based upon technical information, how much was it based upon personal viewpoints? 

Mr. JOHNSON. Again, I examined the law, I examined what the 

science says. As we have clearly talked about today, it is a global 

problem requiring a global solution, at least at a minimum, a national solution. 

I also listened to what people’s opinions were, both from members of this Committee as well as other Members of Congress, including within the Administration. But again, ultimately it was a 

judgment call on my part. I made that judgment decision and I 

stand by that decision. 

Senator CARDIN. Then, since—I guess we are all going to have 

to see later as we get some more of the information from you, as 

it comes out, as this process moves forward, exactly how you based 

this on the information that was made or presented to you. It 

seems to me that it may very well have been a significant amount 

of personal viewpoints in reaching this conclusion, more so than 

technical information. So I welcome your assessment on the technical information. 

What I have seen from my own State, and I understand this 

waiver was involving California, smog is an issue very much that 

the people of California are aware of, as well as the people in 

Maryland are aware of the issue of smog. They know a lot of that 

smog comes from the emissions from our automobiles and light 

trucks, 70 percent I believe it is. They know very much that the 

California standards would have significantly reduced the contributing factors to smog. 
43 

Same thing is true in Maryland. We know that reducing smog 

will be good for the health of our children and our elderly and for 

all. We know the health-related issues here. 

So on the technical information that you used to make this judgment, can you share with us the type of information that you used, 

so that you reached the conclusion that you feel very comfortable 

about, that California should not be allowed to significantly reduce 

the contributing factors to smog in their community? 

Mr. JOHNSON. Senator, first, let me say several things. The smog, 

and I think you are referring probably to ozone, and that I intend 

to meet a court-ordered deadline of March 12th for evaluation of 

the ozone standard. I think Senator Carper was asking that question. I intend to meet that. 

One of the issues that is part of the petition is, what is the connection between ozone and climate change. While I certainly recognize there is a connection, I also, based upon the science, did not 

believe that the greenhouse gas emissions and global climate 

change issue for which California was seeking a waiver met that 

standard. So that particular issue will be part of the full explanation that I was referring to in the decision document by the end 

of February. 

Senator CARDIN. Thank you, Madam Chair. I am still not clear, 

though, about the technical information. Perhaps we will follow 

this up with some written questions. Thank you. 

Senator BOXER. We will have a second round, which will be limited to 4 minutes. I will be much tougher on myself and everybody 

else on that. Then we will have our Governors. 

Senator Sanders. 

Senator SANDERS. Thank you, Madam Chair. 

Administrator Johnson, the Intergovernmental Panel on Climate 

Change has told us, as you know, that global warming is a huge 

crisis facing our planet, and that very bold action is needed in the 

United States and throughout the world, if in fact we are going to 

cut greenhouse gas emissions and reverse global warming. As I 

mentioned earlier, however, a new international ranking of environmental performance puts the United States at the bottom of the 

group of eight industrialized nations, and way behind many other 

countries in moving forward in environmental issues. 

Now, if I am correct, and I believe I am, it was only last year 

that the Bush administration actually admitted that global warming was a reality. So my questions to you are, No. 1, yes or no 

would be fine, do you believe that global warming is a major crisis 

facing our planet? 

Mr. JOHNSON. Senator, one, as I said, I believe that it is a serious problem. 

Senator SANDERS. Is it a major crisis? 

Mr. JOHNSON. I don’t know what you mean by major crisis. 

Senator SANDERS. Well, the usual definition of the term major 

crisis would be fine. 

[Laughter.] 

Senator SANDERS. In other words, I ask these questions, not just 

to put you on the spot, but to provide some background as to how 

you reached your decision. If in fact as I believe is the case, the 

Bush administration does not see this as a very serious problem, 
44 

it is quite understandable why you would reject California’s waiver. 

I am not hearing you acknowledge that you believe that global 

warming is in fact a major crisis. 

Mr. JOHNSON. I said that global warming is a serious issue facing 

our Nation, facing our globe. 

Senator SANDERS. OK. 

Mr. JOHNSON. I also said that under the law, under section 

209—— 

Senator SANDERS. That is not what I am asking. 

Mr. JOHNSON [continuing]. To judge. But that is what I—— 

Senator SANDERS. All right, let me ask you another question. Do 

you agree with almost all of the scientific community that global 

warming is created by human activity? Is it man-made? 

Mr. JOHNSON. It is my understanding what the scientific community says is that there are both human activity as well as naturally 

occurring, but that the current levels and projected levels are due 

largely to human activity. That is my understanding. 

Senator SANDERS. As I understand it, the IPCC has said that the 

current situation is 90 percent likely caused by human activity. Do 

you agree with that? 

Mr. JOHNSON. I agree with the IPCC, yes. 

Senator SANDERS. Statement on that? OK. Do you agree that 

bold action is needed to reverse global warming? 

Mr. JOHNSON. I believe that action needs to be taken to reverse 

global warming, both here in the United States and around the 

world. 

Senator SANDERS. Bold action is the word I used. 

Mr. JOHNSON. As I said, action. 

Senator SANDERS. Action, OK. If in fact bold, or if in fact action 

is taken, why do you think it took 6 years before the Bush administration acknowledged the reality of global warming? 

Mr. JOHNSON. I would like to correct, to the best of my recollection, what I recall the President acknowledging as far back as 

2001, that it was a problem. Certainly, I would be happy to, for the 

record, to make sure that that is clarified. 

Senator SANDERS. But you will agree that the Bush administration was far behind virtually every other industrialized country in 

acknowledging the problem and moving to deal with the problem? 

Mr. JOHNSON. No, I wouldn’t. 

Senator SANDERS. You wouldn’t? 

Mr. JOHNSON. I would not agree with that. I would not agree 

with that, because as a Nation, we have since 2001 been investing 

now over $37 billion in addressing this issue. 

Senator SANDERS. I hear that you do not agree with that, and 

that is fine. 

Now, in terms of serious health problems, what we hear from the 

leading scientists of the world, that if we do not address global 

warming we are going to see an increase in dangerous flooding, we 

are going to see drought, we are going to see an increased danger, 

which we are already seeing, of forest fires. We are going to see 

hunger because of the loss of farm land. We are going to see wars 

being fought over limited resources. We are going to see an increase in such insect-caused diseases as malaria. That sounds to 

me like we may be facing some serious health problems. 
45 

Do you disagree with that assertion? 

Mr. JOHNSON. Well, again, as I was trying to say to Senator 

Cardin, that under the Clean Air Act, there are specific definitions, 

and certainly interpretation of the definitions under the law focusing on endangerment. 

Senator SANDERS. I am not asking—excuse me, we don’t have 

much time. Just as a human being, just as a human being, do you 

happen to think that flooding, the impact of flooding, the impact 

of drought, the impact of forest fires, hunger, wars, malaria and 

other insect-borne diseases, do you think that that constitutes serious health problems? 

Mr. JOHNSON. As Administrator, I consider myself to be a human 

being, but I also, sir, agree that those are serious issues that require—and that is why I believe there is a compelling need to address them. 

Senator SANDERS. Well. I think frankly your response tells us 

why the entire world is wondering what is happening in the United 

States on this issue. Thank you very much. 

Senator BOXER. Thank you, Senator Sanders. 

Senator Klobuchar. 

Senator KLOBUCHAR. Administrator Johnson, I was listening to 

what Senator Sanders was asking, and some of the other questions 

about this finding that you have to make to meet the standards. 

It is the EPA v. Massachusetts case, so you have to show there is 

a dangerous standard. Could you describe it for me again, what it 

is? 

Mr. JOHNSON. When the Supreme Court made its decision in 

April of last year that CO2 is a pollutant, they in essence left me 

with a three-part decision. The three-part decision was, if you find 

that there is endangerment to public health or the environment, 

then you must regulate. If you find that there isn’t endangerment 

to public health or the environment, then you don’t regulate. Or if 

there are—again, my words—other conditions or other things that 

you may not be aware of. 

So we are as an agency, and certainly as an Administration, 

working through a deliberate process to evaluate that very important issue. 

Senator KLOBUCHAR. OK. I have a really good idea for you to 

speed it up. Julie Gerberding testified before this Committee and 

I assume you think she is a trusted person, and with the Centers 

for Disease—— 

Mr. JOHNSON. A great colleague. 

Senator KLOBUCHAR. The Centers for Disease Control, you trust 

them, I would hope? 

Mr. JOHNSON. Yes. 

Senator KLOBUCHAR. You remember what happened when she 

testified, and it turned out that some of her testimony was redacted and it was a big brouhaha, which you haven’t been in, luckily. But in her testimony that was redacted, she actually said a lot 

of things that you could use tomorrow to say that it is a public 

health risk. Because I have it here, she talked about how the 

United States is expected to see an increase in the severity, duration and frequency of extreme heat waves from climate change. 

This, coupled with an aging population, increases the likelihood of 
46 

higher mortality, as the elderly are more vulnerable to dying from 

exposure to excessive heat. That would seem to me to be a public 

health risk. 

Mr. JOHNSON. Again, those are the important parts of our consideration to determine, again, under the Clean Air Act, we are 

charged with evaluating whether there is endangerment, and 

whether that endangerment, and again—— 

Senator KLOBUCHAR. OK, but what I am saying is you have one 

agency of your Administration, in addition to that, talking about 

how some of the infectious diseases that can develop, talking about 

the air quality causing permanent lung damage, aggravating 

chronic lung diseases; vector-borne and zoonotic diseases, such as 

plague, lyme disease, West Nile virus, malaria, dengue fever, have 

been shown to have a distinct seasonal pattern. You have all of 

these things right in another agency that is telling you that this 

could create a public health risk. 

So I think this is what drives people in my State, when I started 

out talking about Ely, MN, crazy that you have one agency of the 

Government saying, oh, here it can be a public health risk, but 

then you are not able to use this report and say, this is a compelling reason, our own Government has found that there is a public 

health risk. That is my question. 

Mr. JOHNSON. One is, I have not said whether we are or are not 

using it. Certainly as an agency, we need to look at the entirety 

of the science and make a determination. Again, the threshold 

question that is posed by the Supreme Court is whether there is 

endangerment. 

For whatever reason there may be, endangerment is certainly 

important scientifically and certainly, what steps to take to mitigate. But certainly under the Clean Air Act, triggering action and 

next steps is whether there is or is not endangerment. 

Senator KLOBUCHAR. I just think you have your endangerment in 

this report. You have seen the wildfires in California that this report also predicted would happen. In fact, it was redacted while 

these wildfires were going on. 

One other thing and then I will go into the next round here. I 

know that as one of the rationales for denying the waiver, you 

talked about how it could create a patchwork system as opposed to 

one Federal standard. But correct me if I am wrong, but the way 

the law works, if the California standard comes in, this would be 

the choice. There would be the California standard or there would 

be the Federal standard. 

Mr. JOHNSON. Thank you for mentioning that, because I tried to 

make it clear in the letter to Governor Schwarzenegger that the 

bases of my decision were on the three criteria under section 209 

and compelling and extraordinary was the issue that the criteria, 

that was not met. I pointed out in the letter that that certainly 

isn’t a context of what is the policy of both what is happening as 

a Nation, and that is the policy, again my words, policy context. 

But that was not the decision criteria. The decision criteria are 

very clear in section 209 on whether or not—— 

Senator KLOBUCHAR. That is fine. When I come back, I will talk 

about it. But you have said before that this could create a confusing patchwork of State rules. 
47 

Mr. JOHNSON. Again, that is not one of the criteria for the decision. 

Senator KLOBUCHAR. But you did say it. 

Mr. JOHNSON. But I certainly said that the—— 

Senator KLOBUCHAR. What I am trying to point out, to get the 

record straight, because this is a very useful political argument for 

people to use, it is not really true, because the way the law works, 

you will have the California standard or you will have the Federal 

standard. So you will have two standards that States could pick 

from. 

Mr. JOHNSON. Perhaps a better description would be checkerboard. 

Senator KLOBUCHAR. So it is not a patchwork—— 

Mr. JOHNSON. Perhaps a checkerboard. 

Senator KLOBUCHAR. Well, it is like one checkerboard with one 

red and one black. Not a patchwork. 

Mr. JOHNSON. A patchwork of States. 

Senator KLOBUCHAR. OK. I just wanted to make clear to the 

Country here that you said it would be a patchwork. It is not really. It is just two choices, one that you can use different ways to get 

to, which we will get into in the second round, and then this Federal standard that was a first step, a baby step, that we have taken 

as we have noted since I was in seventh grade. Thank you. 

Senator BOXER. Senator, thank you for making that point. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Madam Chair. 

Director, I would like to ask you some questions about the process by which this decision came to you. The first one is, did you 

direct the process, the internal administrative procedure by which 

this decision was brought to you and presented to you? 

Mr. JOHNSON. The process that the agency followed is the routine 

agency process for dealing with waivers, which include receipt, notice and comment, hearing. In fact, the Governor asked for additional hearing, which we did. Staff collected all of that, reviewed 

all of that information and gave me a series of briefings. That is 

all, certainly in my experience, a routine agency process. 

Senator WHITEHOUSE. Did the staff briefings include staff recommendations? 

Mr. JOHNSON. Yes. 

Senator WHITEHOUSE. How were those staff recommendations 

presented to you? 

Mr. JOHNSON. First of all, the staff presented me with a range 

of options. Then that range of options, all legally defensible, and 

within that there were certainly pros and cons for each of those. 

Certainly the staff had their opinions, which I certainly appreciate. 

I listened to those, I listened to comments by Members of Congress, 

the notice and comment. Certainly people within the Administration had their view. But it ultimately came to me in making a decision and a judgment call on my part, and I made that decision. 

Senator WHITEHOUSE. How was it presented to you by the staff? 

What aspect of it? Office by office, who was involved? 

Mr. JOHNSON. The typical process is that those offices across the 

agency who are involved in helping to draft and understand both 

the science and the legal part, as well as the policy, as well as what 
48 

the Clean Air Act said, those would typically be the offices involved 

in providing counsel and advice. 

Senator WHITEHOUSE. They were in this case? 

Mr. JOHNSON. Yes, I recall they were, yes. 

Senator WHITEHOUSE. Is it customary when decisions are 

brought to the director of the Environmental Protection Agency for 

the staff to endeavor to consolidate a recommendation and work 

out their disagreements, if there are in fact disagreements, before 

they come to the director? 

Mr. JOHNSON. Again, what my experience has been certainly as 

Administrator is the staff identifies what are the available options 

that are legally defensible, and within the confines of the law. That 

certainly identify what the pros and cons are for each of those. 

They understand and certainly I understand that the decision ends 

up being my decision. 

So again, we had a fulsome process. I certainly fully understand 

the issues. We were talking about litigation and litigation risk. 

Certainly in my experience in the agency, every decision, and every 

option on virtually every issue that I have confronted, there is litigation risk. Of course, that is again, ultimately my decision. I made 

the decision. I believe it was the right decision. I appreciate the 

great work of our staff. 

Senator WHITEHOUSE. So as I understand it, there are three elements ultimately to the process by which you made your decision. 

One was an options analysis that the staff presented you with the 

pros and cons of the various, of the options that you had before 

you. The second was a recommendation that the staff made to you 

as to what your decision should be. The third was your decision, 

the ultimate decision for the agency. Is that correct? 

Mr. JOHNSON. I would add an earlier step, because part of the 

briefing process for me was, here is what the law says, here is 

what the past practice has been, past practices have been under 

section 209 of the Clean Air Act. So there was a, we call it a 

foundational briefing to set the stage for the decisionmaking. 

Senator WHITEHOUSE. With respect to the recommendation phase 

of the process, is it customary for you as the Administrator to seek 

to have the different elements of your organization that are involved in one of these decisions in preparing a matter for your decision to try to come up with a consolidated recommendation to bring 

to your attention among the staff? 

Mr. JOHNSON. What is typical for me, at least certainly in my experience, is that as the staff briefs the options, then I frequently 

ask each of them if they would like to share what their opinion 

was. They can certainly pass. Certainly I also have those discussions with my policy advisors inside the agency. 

Senator WHITEHOUSE. Is that different from the portion of the 

administrative decisionmaking process we talked about earlier, 

where they make a recommendation to you? I assume you are sort 

of asking them to do that. 

Mr. JOHNSON. Not necessarily. Not necessarily. 

Senator WHITEHOUSE. Is that what you mean when you say you 

get a staff recommendation, is it you just, in the course of the options analysis may or may not ask them for their opinions? 
49 

Mr. JOHNSON. No. Often, in some cases, there is a consolidated 

recommendation. In other cases, it is a range of options for me to 

consider. 

Senator WHITEHOUSE. Who decides whether the staff is going to 

present you a consolidated recommendation or a range of options? 

Mr. JOHNSON. Typically I leave that up to the head of the office 

that is working on the particular issue at hand. Again, certainly as 

Administrator, I like to see the full range of options that are legally 

defensible. 

Senator WHITEHOUSE. Why wouldn’t you as Administrator want 

in every case not only to see the full range of options but also to 

force your staff, just as a matter of practice, to try to work together 

and make a consolidated recommendation for you? Wouldn’t that 

be what you would try every time? 

Mr. JOHNSON. Well, again, I like to hear the opinions and all of 

the options. But under the law, it is not a popularity decision, it 

is not a vote. It is ultimately my judgment and my decision. I appreciate the great work our staff did. 

Senator WHITEHOUSE. I will continue this later, if I may. Thank 

you, Madam Chairman. 

Senator BOXER. Thank you, yes. We are now going to do 4 

minute rounds. I just think, for the head of the Environmental Protection Agency to refuse to say that global warming is a threat to 

human health is at best embarrassing for the United States of 

America, and at worst, dangerous. Dangerous. 

I am going to put into the record, without objection, the IPCC report on public health impacts embraced by yourself, you said you 

agreed with them, and Dr. Julie Gerberding, who heads the Bush 

administration CDC. Among other things, increased malnutrition, 

consequent disorders involved child growth and development. Increase of the number of people suffering from death, disease, injury 

from heat waves, storms, fires and droughts, et cetera. We will put 

that in the record. 

[The referenced material was not received at time of print.] 

Senator BOXER. Next, you have stated, and your spokesperson 

was just, I think the word he used was disappointed or horrified, 

I can’t remember the word, that we actually told the American people what were in these documents. I think it is important to place 

in the record the analysis by CRS dated May 1, 2007. The Committee may determine on a case-by-case basis whether to accept a 

claim of privilege. They talk about it, it is an established, well-established by congressional practice that acceptance of a claim of attorney-client privilege is up to the Committee. 

So, I don’t know why your spokesman is horrified that I want to 

make these documents public. 

Now, when can we expect the rest of the documents, Mr. Johnson? 

Mr. JOHNSON. First of all, Senator, I had asked that you respect 

the privilege because we are now in litigation with your own State. 

Senator BOXER. Well, I understand, but we went through that. 

Mr. JOHNSON. Certainly—— 

Senator BOXER. I am asking you a question, sir. Sir? My responsibility is to the people of my State and this Country. Your salary 

is paid by those people. The people, the good people who made the 
50 

recommendations, who by the way told you in unequivocal terms 

to grant the waiver—we have the information and we are going to 

put that into the record, without objection. They said there is almost certainly to be a lawsuit by California. EPA is likely to use 

the suit. That is what it says. 

So I am asking you a question, I would appreciate it if you would 

just answer the question. When can this Committee expect the rest 

of the documents? 

Mr. JOHNSON. I believe my staff have committed, as they are 

going through the process, I believe it is February 15th. 

Senator BOXER. Will those documents include, as we were told 

they would, e-mails between you and your staff and the White 

House and the executive branch, or the White House, the Vice 

President’s office? 

Mr. JOHNSON. I know that we are processing them. The nature 

and the extent of, I would have to get back to you for the record. 

Senator BOXER. They told us that those were in the documents 

that we are anticipating. So as far as you know, we will get all of 

the information by February, you said 15th, is that right? 

Mr. JOHNSON. That is my understanding. That is correct. 

Senator BOXER. OK. I am trying to avoid subpoenas and all the 

rest of it. 

Now, you said you were briefed on the law. I place in the record 

the excerpts from legislative history of the California waiver provision. Here is what it says, Mr. Johnson. The Committee amendment requires the Administrator of EPA to grant a waiver for the 

entire set of California standards unless he finds that California 

acted arbitrarily or capriciously, nor is he to substitute his judgment for that of the State. So I will ask unanimous consent to 

place that in the record. 

[The referenced material was not received at time of print.] 

Senator BOXER. So let me just say, because my time is winding 

down, we will press for these documents. We hope you won’t send 

them over with tape. We hope you won’t stand over the shoulders 

of these good people here who work hard, where they have to now 

transcribe everything. This Committee has determined, and I know 

there may be minority views, but the majority has determined that 

these documents are important for the people of this Country to 

see. 

Therefore, we hope that you will not send them over with all of 

this tape. It is ridiculous. It is a waste of time and it hurts the 

American people. I just hope you will consider that. 

Senator Inhofe. 

Senator INHOFE. Thank you, Madam Chairman. Due to the fact 

that we are having another round and I will not be here for the 

third round, and I see that Mr. Holmstead is in the audience now, 

get out your pencil, because I would like to have you address this 

question, even though I won’t be here to ask it. What is the logic 

of allowing only California to regulate a non-local but instead global pollutant? Do you advocate the repeal of section 209(b) of the 

Clean Air Act? Doesn’t the very essence of the rationale for giving 

California a special prerogative to regulate mean that California 

must be unique, otherwise why not give every State the same 

right? If giving every State the same right to regulate a global pol-
51 

lutant would make no sense, why shouldn’t California equally be 

prohibited from having its own standard? 

Now, that is what I would like to have you address. I have many 

more I am going to have for the record, because it looks like I won’t 

be here for even the second panel. 

But let me just real quickly ask you a question I was going to 

ask you in the first round, Mr. Administrator. In order to obtain 

a waiver, California needs to show that its standards are consistent 

with Federal standards. Now, is that correct, there is a consistency 

requirement that is in the statutes? 

Mr. JOHNSON. Yes, sir. There are three criteria: arbitrary and capricious, compelling and extraordinary, and then other, which are 

consistent with, in essence, the section of the law. 

Senator INHOFE. Well, then I would ask, how can California meet 

the consistency requirement of the statute, because there are no 

Federal greenhouse gas standards? 

I feel compelled to make a couple of comments about some of the 

statements that have been made by other members of this panel. 

Because by not doing so, someone might think that perhaps we 

agree with them. There isn’t time to do this, but when you talk 

about whether or not the anthropogenic are the major cause or a 

90 percent or whatever percentage you want to attach to it, this is 

something that is not settled. The science is not settled. We have 

gone over this over and over again. 

I have actually used specific names of people who were very famous, very authentic scientists, leaders like Claude Allegre in 

France. Claude Allegre was a socialist, he was one of the top scientists who was on the other side of this issue, I say to my friends, 

10 years ago. Now he has clearly, he said the science just flat isn’t 

there. David Bellamy in U.K. is in the same position. He was one 

who felt very strongly 10 years ago, he was marching the aisles 

with Vice President Gore. Nir Shariv in Israel was another one 

that was that way. 

Then we noticed that there are several who showed up in the 

conference in Indonesia, in Bali, that took a different position. I 

was the only skunk at the picnic at the event that took place in 

Italy, Milan, Italy a few years ago. But this time, several scientists 

showed up and wanted to be heard and were not very well received. 

Then we have the 400 scientists that we released the names of 

these scientists, all of whom take issue with the fact that there is 

a consensus. They have all questioned that there is consensus. 

So it is not settled. Yet those who realize that the other side is 

now being heard and that more and more scientists are coming out 

and questioning it, I see a sense of panic in those who keep wanting to say louder and louder, the consensus is there. 

You were asked the question, Mr. Administrator, if you agreed 

with the IPCC. I don’t agree with your answer, because I don’t 

agree with them. But you said you do. Do you agree with their assessment that they cut the sea level rise expectations in half recently, which is only one twentieth of what the Gore sea level rises 

are? Do you agree with the IPCC in that case? 

Mr. JOHNSON. That is my understanding. I would agree. 
52 

Senator INHOFE. Did you agree with the IPCC when they came 

out and they said the greenhouse gas emissions by livestock exceeds that of the entire transportation segment? 

Mr. JOHNSON. I don’t recall that particular fact. 

Senator INHOFE. All right, I will give that to you, I will submit 

for the record. 

[The referenced material was not received at time of print.] 

Senator INHOFE. Thank you, Madam Chairman. 

Senator BOXER. Thank you. 

Senator Carper, let’s try to keep to the 4 minutes, because we 

have three Governors waiting. 

Senator CARPER. No problem. 

Mr. Administrator, I want to come back to my question relating 

to my letter of May 10, 2007 to you, where I raised the three questions. I appreciate your earlier response to my question. I just want 

to go back to the first one, you may recall my suggestion urging 

EPA to develop a mandatory inventory registry, if you will, of 

major greenhouse gas sources in the United States. I seem to recall 

in the Omnibus Appropriations bill that we passed a month or two 

ago, I think there is a time line that is called for. Do you recall 

what that is, and can you just again bring us up to speed as to 

where EPA is in regard to that time? 

Mr. JOHNSON. Yes. The appropriations language directed EPA to 

develop and publish a draft rule not later than 9 months after the 

date of enactment, and a final rule not later than 18 months after 

the date of enactment. 

Senator CARPER. My question of you was, are you all off and running on that? 

Mr. JOHNSON. Yes, we are. 

Senator CARPER. OK. Do you expect to meet both time lines? 

Mr. JOHNSON. Our intent is to meet those, yes, sir. 

Senator CARPER. If you can beat them, that would be just great, 

right? 

The other thing, a couple of my colleagues have alluded to the 

Supreme Court’s determination that EPA must make an 

endangerment finding, and explicitly determine whether greenhouse gases cause or contribute to climate change. Just clarify for 

us, if you would, what is the status, please, of EPA’s proceedings 

to respond to the court’s remand? Are you in a position to provide 

me or any of my colleagues with the documents that your staff has 

developed to inform this decision? 

Mr. JOHNSON. At this point, sir, we are working to develop our 

full package, as I mentioned. That is our customary practice and 

it is certainly my intent to follow that is that as we proposed draft 

regulations, which obviously we will need to do for both vehicles as 

well as fuels, that endangerment would be part of that, our finding 

of endangerment as part of notice and comment. 

So my intent is we are following that practice. My staff has been 

evaluating the current legislation and at this point I don’t have a 

date to say when that would be done. But we are working on it. 

I trust that we will be able to shortly advise you. 

Senator CARPER. Are you in a position to provide us with the documents that your staff has developed in conjunction, to help inform 

you in this decision? 
53 

Mr. JOHNSON. Well, again, we are in the internal deliberative 

process of trying to work through that. But certainly, after we have 

made that, I have made that decision, I would be happy to share 

that with you. 

Senator CARPER. Thank you. The last thing, we spent a fair 

amount of time last year under the leadership of Chairman Boxer, 

with a lot of good work by Senators Warner and Lieberman and 

others of our staff to try to put together an economy-wide CO2 bill. 

I don’t know that any of us have asked you today your views on 

that legislation. 

Mr. JOHNSON. Well, we always look forward to working with 

Congress to address this important and believe real issue of global 

climate change. We are in the process of finishing up an analysis 

of the Senator Warner-Lieberman, I am not sure who else, I apologize, that were all part of that. I believe that is going to be by— 

I will have to get back to you for the record, but I know that our 

analysis that, we are coming to closure on doing that analysis, 

which certainly at EPA and certainly I hope will inform the debate. 

Senator CARPER. My hope is that it will be a supportive analysis 

and a timely one as well. Our leader says, Madam Chairman, he 

hoped to bring our legislation to the floor by maybe early June. So 

your analysis and hopefully your support would be most appreciated. Thank you. 

Senator BOXER. Actually maybe sooner than that. 

Senator Lautenberg, 4 minutes, please. 

Senator LAUTENBERG. Yes, we will try to move things along. 

Mr. Johnson, it took nearly 2 years to review this waiver decision. But on the same day that President Bush signed the new 

CAFE bill into law, you were able to make a decision. During that 

time, were you giving any guidance to the review of the decision? 

You said you didn’t have direct contact with President Bush, if I 

understand you correctly. 

Mr. JOHNSON. On that point, I have routine conversations with 

the President and other members of the Administration. But putting that aside, let me try to walk through some of the big time 

lines. 

Senator LAUTENBERG. Sure, walk, please. 

Mr. JOHNSON. After California submitted the waiver petition, it 

wasn’t until the Supreme Court ruled, and it certainly was the 

agency’s position that it was not a pollutant. Therefore, the waiver 

was not applicable. Once the Supreme Court made the decision in 

April that it was a pollutant, then as I recall, it was within 2 

weeks, I began the process which begins with a Federal Register 

notice, then follows with hearings. So that process was going, and 

I had a series of briefings by my staff. Once the public comment 

period closed, and recognizing that additional comments came 

in—— 

Senator LAUTENBERG. It appears that you were waiting to do 

anything until that decision was handed down to kind of give you 

the, if I might say, the protection to go ahead and ignore—— 

Mr. JOHNSON. Senator, Madam Chairman, may I clarify that? 

Senator BOXER. It is up to Senator Lautenberg, he controls the 

time here. 

Senator LAUTENBERG. Yes, please. 
54 

Mr. JOHNSON. As I was going through my deliberative process, 

which as I said were the briefings and all the rest, I was also fully 

aware that Members of Congress were debating whether in fact the 

Clean Air Act would be changed or not. So I didn’t know whether 

it was or wasn’t. Ultimately it was not changed. So I was prepared 

to make my decision. 

The timing of the decision is one that I think is worth noting. 

Because I had planned a more orderly process of rolling out my decision by the end of the year—— 

Senator LAUTENBERG. I think you have covered it. My last question is the Washington Post reported that technical and legal staffs 

cautioned Johnson, their language, against blocking California’s 

tailpipe standards. The sources said that and recommended that he 

either grant the waiver or authorize it for a 3-year period before 

reassessing it. 

Now, if that is so, what compelled you to go against the advice 

of the lawyers and scientists at EPA? Do you think they were giving you faulty information? 

Mr. JOHNSON. No. Again, a great team of people, the lawyers and 

scientists and policy staff. They presented me with a wide range of 

options. Those options ranged from approval to denial. I listened to 

them carefully, I weighed the information and I made an independent judgment. I concluded that California does not meet the 

standard under section 209. 

Senator LAUTENBERG. It is too bad, Mr. Johnson, that with all 

that staff and all the information you had that you didn’t somehow 

or other comport with the answer you gave me before that there 

is a problem that ought to be faced with the global warming and 

the California problem. 

Senator BOXER. Thank you. 

Senator Cardin. 

Senator CARDIN. Thank you, Madam Chair. 

Let me just make an observation. It is interesting that it took almost 2 years and you use as one of the reasons that you needed 

or waited for a court decision because you disagreed with the application to start off with, and then the courts ruled that California 

was correct to be able to at least submit the waiver, then you go 

through a lengthy process. I guess my question to you is, have you 

learned anything from this? Can we expect that the normal practice of the Environmental Protection Agency will be this protracted 

in order for a State to get some guidance on a waiver? To me it 

is just unacceptable, 2 years, to have to wait. 

I remember when we had a hearing before this Committee in 

2007, and I asked you a question on timing, and tried to pin you 

down to July being the deadline for getting the answer to California. At that time, no one challenged that date as being unreasonable and yet, of course, it came and went. 

So I guess my question to you is that I hope we have learned 

from this experience is unacceptable, and it took too long in this 

case. You can justify it on the courts or on the process or this and 

that, the volume of information you received. But I will just tell 

you, I don’t think it is acceptable for a State to have to wait this 

long. Now of course is not the end, because there is going to be litigation. There is going to be more that is going to have to come out. 
55 

To me, we can do things better. I hope that we have learned 

something from this process. 

Madam Chair, I will be willing to take my answer in written 

form in order to save the time. I will yield back the balance of my 

time. 

Senator BOXER. Thank you, Senator. 

Senator Sanders. 

Senator SANDERS. Thank you, Madam Chair. 

Mr. Administrator, my understanding is that a technical document, especially of the magnitude of the California waiver situation, would usually be prepared and made ready for distribution 

before a decision of this magnitude is announced, so that the legal 

basis for a decision can be defended and can be well-understood. 

Was it just a coincidence, therefore, that you announced your decision regarding the California waiver at a press event at 6:30 p.m. 

on December 19th on the evening that President Bush signed the 

Energy bill. It seems like a strange time to be making that announcement. 

Mr. JOHNSON. I would be pleased to explain. Again, the way the 

agency process works is briefings, then ultimately I make a decision, I turn to the staff, direct them to write the decision document. 

I turned to the staff, directed them to—— 

Senator SANDERS. Was it a coincidence that you happened to 

make a decision at 6:30 p.m., right after the President signed the 

Energy bill? Seems to be rather strange time. 

Mr. JOHNSON. Let me explain why. That later afternoon, and I 

don’t recall what time, but my press office started receiving phone 

calls from major newspapers, saying that papers had been leaked, 

and that at least in their view, that it was mis-representing what 

actually was true. They came to me and I made a judgment call 

that, rather than having inaccurate information, that I would announce the decision. 

So while that was not my preferred course, I had a more orderly 

course of action that I had planned to take of announcement, I felt 

compelled that the American people were owed what was the truth. 

Senator SANDERS. So it was just a coincidence that all that happened to occur on the same day as the President signed the Energy 

bill? 

Mr. JOHNSON. Well, again—— 

Senator SANDERS. Was it a coincidence? 

Mr. JOHNSON [continuing].—I wasn’t the person who leaked the 

information and—— 

Senator SANDERS. No, no, no, please—— 

Mr. JOHNSON [continuing].—and caused the flurry of phone calls. 

Senator SANDERS. Sir, please, I am asking you a question. The 

average American would find it rather strange that the head of a 

major agency at 6:30 p.m. on the evening that the President signs 

an energy bill, and you are under oath, would make this announcement in a press release rather than in a substantive legal argument on such an important issue. 

Mr. JOHNSON. Again, I acknowledge that this situation was 

unique. It was unique in that I submitted—— 

Senator SANDERS. You are saying it was a coincidence? 
56 

Mr. JOHNSON. What I said was it is a unique situation. I explained what the situation is. I would be happy to, in greater detail 

for the record, if you would like. Again, my commitment to the Governor, members of this Committee, was that I would make a decision by the end of the year. As I have already testified, while I was 

deliberating—— 

Senator SANDERS. Mr. Johnson, could you understand that the 

American people might be somewhat dubious about your explanation that just on that particular evening at a press conference, 

on such a lengthy issue, with the Governor of California and the 

American people, it seems to me, are entitled to a lengthy, technical, legal argument as to why that waiver is rejected, 6:30 p.m. 

press release on the same day the President signs the Energy bill? 

Mr. JOHNSON. Again, I would be happy to, for the record, explain 

the circumstances that have happened. I said at the roll-out or the 

release my decision was unique. But given the circumstances I felt 

it was the best—— 

Senator SANDERS. The circumstances had nothing to do with the 

fact that the President was signing the Energy bill on that day? 

Mr. JOHNSON. As I said, I have already described the circumstances. We will be happy to—— 

Senator SANDERS. But you didn’t answer my question. Did your 

release that day have nothing to do with the fact that a few hours 

before the President signed the Energy bill, nothing to do with it? 

Mr. JOHNSON. As I said—— 

Senator SANDERS. You didn’t say, sir. You keep saying, as you 

said, you didn’t say. I am asking you a simple question: was it related, was it not? 

Mr. JOHNSON. Well, as I tried to say, that I was aware that Congress was debating the issue whether to change the Clean Air Act. 

I wasn’t sure whether Congress would or would not—— 

Senator SANDERS. Madam Chair—— 

Mr. JOHNSON [continuing].—doubtful that the President would 

sign or would not sign. 

Senator SANDERS. You were doubtful whether the President 

would sign or would not sign? Everybody in America knew that he 

would sign it. You were the head of the EPA, you were doubtful? 

Mr. JOHNSON. I wanted to have the advantage of making sure 

the President had indeed signed the legislation. 

Senator SANDERS. Thank you. 

Senator BOXER. Thank you, Senator. 

Senator Klobuchar. 

Senator KLOBUCHAR. Thank you. 

So then just to finish up what Senator Sanders was saying, so 

this wasn’t a pure coincidence that this happened? 

Mr. JOHNSON. As I said, the factor that caused me to issue it on 

that day and that time was that there was mis-information that 

was being communicated, and that we had multiple phone calls 

from many press sources, and that I felt an obligation to correct 

that. As I said, I had already announced to my staff and directed 

them to begin preparing the technical documents. I knew that I 

wanted to meet and honor my commitment to the Governor and to 

members of this Committee and certainly Congress by the end of 

the year. The mechanism of doing that was a letter announcing 
57 

what my intent was, so that I could honor those. The timing of it 

was, again, driven by the fact that mis-information was getting out 

there. Again, it was not my ideal roll-out plan at all. 

Senator KLOBUCHAR. So this is the first waiver that has ever 

been denied under this Act? 

Mr. JOHNSON. I also consider it the first waiver decision and 

unique given the greenhouse gases. But you are correct. 

Senator KLOBUCHAR. There have been like 50 granted? 

Mr. JOHNSON. Yes. Whether it is 50 or 100, this is the first one, 

and a major one, which again, I did not believe met the criteria 

under section 209. 

Senator KLOBUCHAR. Right. I was thinking back to what we had 

talked about earlier with the checkerboard of the patchwork, which 

you have now said you have sort of backed off from, that it is not 

really a patchwork, instead of a checkerboard, it is two checkers, 

it is a choice of one standard or another. One of the things that 

I wanted to make clear here, so people understand, that the California standards don’t mandate that the greenhouse gas reductions 

come from fuel efficiency alone, is that correct? 

Mr. JOHNSON. My recollection is that it also includes air conditioners as well, for example. 

Senator KLOBUCHAR. So a combination of improved technologies, 

tailpipe emissions of greenhouse gases, use of alternative fuels, 

credits for air conditioner improvements, credits carried from another year or fleet, and credit trading among manufacturers? That 

is what I understand those are all involved. 

Mr. JOHNSON. One of the important features that Congress just 

passed was in fact giving the Department of Transportation the authority under law to be able to trade between trucks and cars. Certainly California already has that authority, and certainly we think 

that is a good thing. 

Senator KLOBUCHAR. So looking back, because you keep talking 

about the 209(b) and the three ways that you could deny the waiver request, as you were looking at this, would be if California’s determination was arbitrary and capricious, and that is not the reason you did it, right? 

Mr. JOHNSON. Again, that was not the principal reason why. 

Senator KLOBUCHAR. The other one, there is one that says it is 

inconsistent with other Clean Air Act requirements, and that 

wasn’t the reason? 

Mr. JOHNSON. Again, the reason I stated was the second one. 

Senator KLOBUCHAR. That California does not need such State 

standards to meet compelling and extraordinary conditions. So I 

am thinking of this, this happened, like these wildfires, and your 

own Centers for Disease Control, the Administration saying that 

wildfires in West Coast States could happen. I am thinking about 

your own agency’s report, which said, I believe, that the temperature has increased in the world one degree since the industrial age, 

and then they project something like three to eight degrees in the 

next century. Is that correct? 

Mr. JOHNSON. I don’t recall those specific statistics, but I will 

take your word for it. 

Senator KLOBUCHAR. Let me just tell you, Lake Superior, because these guys always talk about oceans all the time, Lake Supe-
58 

rior, lowest level in 80 years. Why is that? Because al the ice is 

evaporating. So the level is going lower, and the barges can’t come 

in, so they are using more and more barges. The snowmobilers are 

talking about a huge change in their lifestyles and in their recreation and in the sale of snowmobiles because of less snow. The resort owners have seen a 30 percent reduction. 

One point, and this is in Minnesota, but they have these things 

in California, too, at what point do we see extraordinary conditions 

occurring that would meet the standard? 

Mr. JOHNSON. Again, as you are pointing out, it is not an issue 

that is exclusive to California. It is not unique to California. It is 

a global problem, it is a national problem. 

Senator KLOBUCHAR. But if California can show that they meet 

the standard of extraordinary, just like Minnesota does with Lake 

Superior, why wouldn’t they meet the standard? 

Mr. JOHNSON. Again, in my judgment, given the fact that it is 

a global problem and one facing, as you are saying, Minnesota and 

many other States, it is not exclusive. There is not a compelling 

need for that State standard. That is the basis of my decision. 

Senator KLOBUCHAR. Well, we disagree. Thank you. 

Senator BOXER. Senator Whitehouse. 

Senator WHITEHOUSE. Administrator, you just used the phrase 

‘‘in my judgment’’ as the basis for your decision. The legislative history of this California waiver provision specifically says, nor is he 

to substitute his judgment for that of the State. Did you evaluate 

that piece of legislative history in this in any way, and if so, how 

can you come before this body and say that the basis for this is 

your judgment, when that has been something that was effectively 

legislatively disabled in order to facilitate a free and open process 

administratively? 

Mr. JOHNSON. It is very simple, sir. The law, and I will quote, 

says ‘‘Authorization shall be granted if the Administrator finds 

that,’’ and then it lists the three criteria. So that is not a—— 

Senator WHITEHOUSE. But an Administrator—— 

Mr. JOHNSON. It is not a rubber stamp. 

Senator WHITEHOUSE. OK. 

Mr. JOHNSON. It is a judgment that I have to evaluate the data. 

I have to evaluate all the issues that we have been talking about 

as to whether in fact one or more, and it just takes one of the criteria not being met. 

So in my mind, when this is directing me to evaluate and make 

a judgment as to, that is the judgment that I am referring to. 

Senator WHITEHOUSE. Well, the process that led to this, let me 

go back to that discussion we were having. You said that it is typical in your agency for there to be essentially four steps through 

this process. One, a process of briefing; second, an options analysis 

with all the options reviewed and evaluated by your staff; third, a 

consolidated recommendation from your staff as to the decision 

that they recommend that you make; and finally, your decision, 

correct? 

Mr. JOHNSON. Again, there are a lot of important sub-steps in 

that, such as here is the basis—— 

Senator WHITEHOUSE. Was anything that I said wrong? 
59 

Mr. JOHNSON. No, no. Let me just add to that. There are very 

important steps—— 

Senator WHITEHOUSE. I would like to get to some questions, so 

I don’t want you to slow-walk me through this by going into the 

minutiae of administrative procedure, if you don’t mind. Is it correct that those are the four major elements that lead to your decision? 

Mr. JOHNSON. You missed another element, and that is summarizing and evaluating the notice and comments that came in. 

Senator WHITEHOUSE. OK, understood. Was there a consolidated 

recommendation made by your staff on this waiver question? 

Mr. JOHNSON. As I recall, there was a series of—— 

Senator WHITEHOUSE. It is a yes or no question. 

Mr. JOHNSON. I don’t recall that there was a consolidated recommendation on the briefing papers. 

Senator WHITEHOUSE. Why, if it is typical in your agency for 

there to be a consolidated recommendation made by the staff, was 

there not a consolidated recommendation made by the staff on this 

particular question? 

Mr. JOHNSON. I thought I just answered the question by saying 

that I receive a wide range of briefings and option selections. Sometimes—— 

Senator WHITEHOUSE. That is a different thing. That is the options analysis you talked about. 

Mr. JOHNSON. Sometimes there is a consolidated recommendation, sometimes there is not. 

Senator WHITEHOUSE. So it is not typical? You are telling me two 

things. You are saying that—you just agreed with me, and by the 

way, you are under oath, you just agreed with me that one of the 

key steps here was the consolidated recommendation by the staff. 

You just agreed with me that it was typical, that that was the 

standard process. Now you are saying, maybe sometimes, maybe 

not. You can’t have it both ways. What is the process for your agency, which is a big agency and runs with procedures? 

Mr. JOHNSON. Let me correct the record, so that it is clear. It begins with a notice and comment process. Then the staff—— 

Senator WHITEHOUSE. Focus on the consolidated recommendation 

piece. 

Mr. JOHNSON. Again, there sometimes are consolidated recommendations, and those consolidated recommendations are in the 

form of here are the five options that we believe are legally defensible. Sometimes those consolidated recommendations are, here is 

our recommendation. 

Senator WHITEHOUSE. What is the difference? 

Mr. JOHNSON. Sometimes it is a range, sometimes it is one. 

Senator WHITEHOUSE. Yes, but who decides that they are going 

to give you just the options analysis versus a consolidated staff recommendation? 

Mr. JOHNSON. Again, I leave it up to the head of the particular 

office that is evaluating the particular petition or regulation or 

whatever. 

Senator WHITEHOUSE. Isn’t it just a matter of basic administrative discipline with a multi-division agency like yours to force them 
60 

to the exercise of trying to get to a consolidated agency recommendation before you are asked to make a decision? 

Mr. JOHNSON. Again, my point is, the consolidated agency recommendation might include one option or it might include three 

options, it might include five options. 

Senator WHITEHOUSE. So the options analysis and the consolidated recommendation are the same thing now? We have just been 

through how they are separate steps. Now you are saying that they 

are the same thing? 

Mr. JOHNSON. I would be happy to be very clear for the record, 

because it is clear that you seem, from my perspective, to be confused on the steps. So I would be happy to for the record—— 

Senator WHITEHOUSE. I think it would be important to clarify 

very specifically what the typical steps are for your agency in presenting a matter to you for decision—typically—and compare that 

to how that was done in this case. Because what I am hearing is 

that there typically is a consolidated recommendation that comes 

from the staff, which makes sense. That is the way administrative 

agencies should ordinarily operate. It is in fact, to some degree, an 

administrator’s responsibility to try to force his staff to come to a 

consolidated recommendation. 

That would seem to be the logical way to proceed. You have said 

that you didn’t do that in this case. Given how peculiar the ultimate decision is, it raises the suggestion that there has been a manipulation of the agency process in this case, in order to allow you 

to make a decision that is neither supported by the facts nor by the 

law nor by your own staff’s recommendation. It is a serious matter. 

So I hope you will give me a real answer to it and not just lots of 

gobbledygook about administrative law, which I am pretty familiar 

with. I have a specific question, and I think I have made it pretty 

clear, and I would like to make that for the record, so I don’t take 

any further time. 

[The information was not supplied at time of print.] 

Senator BOXER. Thank you. 

Senators, I am just going to close this out by putting some things 

in the record and just completing the record, and then Governors, 

we are coming to you. 

You mentioned when Senator Whitehouse was saying, these are 

the four criteria, so there is one more, the public comments, the 

views. Do you know what percentage of those views that came in 

supported granting the California waiver? 

Mr. JOHNSON. I don’t know the percentage, but I also know that 

this is not a popularity contest. 

Senator BOXER. I didn’t ask you whether it was or wasn’t. You 

said it was a criteria, sir. If it is a criteria, you corrected Senator 

Whitehouse, he didn’t say it was a criteria, you said it was a consideration. 

Mr. JOHNSON. I said it was a consideration of public comments. 

Senator BOXER. Fine, and I asked you knew how those comments 

came out. Were they in favor of the waiver, were they against it? 

Mr. JOHNSON. There was a wide range of comments. 

Senator BOXER. No—wide range. 

Mr. JOHNSON. A hundred thousand commenters, probably 200 or 

so approximately substantive issues that were raised. It was clear 
61 

that out of the 100,000 there were quite a few that some might 

characterize as a letter-writing campaign or a card campaign. 

Nonetheless, it is a sense of—— 

Senator BOXER. So your assessment is it was a mixed view? 

Mr. JOHNSON. Clearly, that there was a, again, about 100,000, 

many—— 

Senator BOXER. I am asking, did you think it was a mixed view? 

Mr. JOHNSON [continuing]. Were to support it. But as I said—— 

Senator BOXER. Some supported, some opposed? 

Mr. JOHNSON [continuing]. It is not a popularity contest. It is—— 

Senator BOXER. I didn’t ask you that. I asked you were the comments in favor of granting the waiver or against. I know it is not 

a popularity contest. That is not my question. You answered and 

said there were mixed views, some in favor, some opposed. I would 

place into the record the California complaint. In their analysis, 

they said 99 percent support the regulation of California. 

So I am going to place that into the record. I am sure when you 

get to court, you can argue that. But I want to put that in the 

record. 

[The referenced material was not supplied at time of print.] 

Senator BOXER. I am next putting in the record the Supreme 

Court’s decision, which completely, completely undermined the 

EPA and this Administration’s view on regulating greenhouse 

gases. Just so you will hear this, I think it is important to read just 

a sentence. ‘‘That the DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has 

been charged with protecting public health and welfare.’’ You were 

lectured by the Supreme Court. 

[The referenced material was not supplied at time of print.] 

Senator BOXER. Now, I want to get to Senator Sanders’ questioning. Why did you announce this on the date that the President 

signed the Energy bill? Your answer was, well, there is no connection, no connection at all. I heard from my staff there were leaks 

going on and I wanted to set the record straight. That is what you 

said. Is that right? Am I giving a fair recitation of what you said? 

Mr. JOHNSON. Yes. 

Senator BOXER. Well, Administrator Johnson, I want to remind 

you that you are under oath, and I want to read to you your press 

release, your press statement. Then if you want to change your answer to this Committee, please feel free to do so. This is what you 

said at the press conference. ‘‘Thanks, Jennifer, and good evening, 

and thank you all for joining me. Early today, President Bush 

signed the Energy Independence and Security Act of 2007, improving fuel economy and helping reduce U.S. dependence on oil. This 

bill delivers energy security benefits and brings a much-needed national approach, national approach, to addressing this national 

challenge, improving the environment for all Americans. I believe 

this is a better approach than if individual States acted alone.’’ 

Mr. Johnson, you based your entire statement on the fact that 

the President signed that. Do you still stand by your answer to 

Senator Sanders that it was just a coincidence? 

Mr. JOHNSON. I stand by my statement and I stand by this. 

Again, I made my decision for the California waiver under section 
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209 of the Clean Air Act. I found that California does not meet the 

compelling and extraordinary conditions. 

I also noted in the letter, that certainly is in the policy context, 

that Congress, and again, congratulated all of you for passing legislation. That was true the day the President signed it, and it is true 

today. 

Senator BOXER. Well, Mr. Johnson, let me just say, just really, 

as a human being to a human being, and I am going to ask Senator 

Sanders, I am going to give him 3 minutes, because to me, to me, 

when you say to him it had nothing to do with it, and in essence, 

and I will put this in the record without objection, your entire rationale was based on this. That is why Senator Klobuchar corrected 

you, in this statement you said a patchwork. She showed, there is 

no patchwork, there is two standards, the minimum Federal standard and the California standard. States are free to choose from one 

of those. 

So if I just might say, we are not going to open it up to all colleagues. I just believe on this point, Senator Sanders should, if 

he—— 

Senator CARPER. Madam Chair, I would like to have a minute 

just to may illuminate the perspective if I could. 

Senator BOXER. Well, if you could after Senator Sanders, and 

then we are going to the Governors, because this is to do with his 

question. I feel he has the right to followup on this. 

Senator SANDERS. Mr. Administrator, I would very much appreciate for all of our goods if you could rephrase your answer to me. 

For your good as well, because you are under oath. To be very honest with you, the first that I have seen the press release is Senator 

Boxer making it public. 

There is concern about the politicization of many aspects of the 

Bush administration, including the EPA. I asked you if in fact it 

was just a coincidence that at 6:30 in the evening, when President 

Bush signed the Energy bill, that you in a press release released 

such an important statement as your refusal to grant the California waiver. You said there were other reasons, that leaks had 

been taking place and you wanted to respond to what you believed 

to be inaccurate information. Senator Boxer just made public what 

we should have known earlier, is your statement, which begins 

with stating that ‘‘President Bush signed the Energy Independence 

and Security Act of 2007, improving fuel economy,’’ this evening he 

did, ‘‘and helping reduce U.S. dependence on oil. This bill delivers 

energy security benefits,’’ et cetera, et cetera. 

The beginning of your statement in terms of why you rejected the 

California waiver has everything to do with the President signing 

the Energy bill. How can you come here and tell us that it was just 

a coincidence? 

Mr. JOHNSON. As I have tried to explain, that there were two 

events happening in a parallel path. One, I was deliberating on 

section 209 and the waiver petition, and the parallel path you all 

were debating whether to change the Clean Air Act, including that 

section. When it became clear that you were not going to change, 

therefore would not impact the decision that was before me, and 

in fact you did not change section 209—— 

Senator SANDERS. Let me ask you this—— 
63 

Mr. JOHNSON [continuing]. Then I was clear that I was able to 

make my decision on the Clean Air Act, section 209. 

Senator SANDERS. You just told us that the reason you made the 

decision at 6:30 on that particular evening is you wanted to set the 

record straight, that there was misleading information. Why didn’t 

you begin your statement by saying, look, this is just a coincidence, 

President signed the bill, but I want to make it clear, this misleading information, and that is why I am making my statement 

at 6:30 in the evening. Instead, what you do is you congratulate the 

Congress and the President for passing the Energy bill. That is 

your justification for rejecting the California waiver. 

Mr. JOHNSON. I certainly appreciate your advice on—— 

Senator SANDERS. No advice, that is what you said here. 

Mr. JOHNSON [continuing]. What I said. Again, it is factually correct that in fact Congress had passed, it is a good thing. I stand 

by that statement then, I stand by it now. As I point out, what I 

said was, if you will read the rest of the statement, ‘‘In light of the 

global nature of the climate change, earlier this evening I called 

Governor Schwarzenegger to inform him that I have found that his 

State does not meet the compelling and extraordinary conditions 

needed to grant a waiver of Federal preemption.’’ 

Senator SANDERS. That is exactly right. But that is in the middle 

of this paragraph. You begin your statement by recognizing the 

passage and the signing, is that correct, of the Energy bill. Is that 

correct? 

Mr. JOHNSON. Again—— 

Senator SANDERS. Did Senator Boxer read the statement that 

you made? Let’s be clear. Did she? 

Mr. JOHNSON. Yes, you have the document before you. 

Senator SANDERS. I have it right before me. Just wanted to make 

sure. 

Senator Boxer, thank you very much. 

Senator BOXER. Thank you. 

Now, Senator Carper, rather than open up a lot of time, I know 

that the point is made that there were leaks. I don’t deny that 

there were leaks. I don’t deny that. I don’t question your veracity 

on the point. But I just want to underscore this, it has nothing to 

do with that. I don’t deny your veracity on that point. 

What I do, what gravely concerns me, is that when you read the 

statement, the rationale for the denial, Mr. Johnson, is the bill that 

was signed. That is the issue. Not your veracity that there was— 

I don’t doubt it. We have leaks every day and I understand that. 

But your statement should have said, I would have preferred to 

wait, but I am moving forward. So we don’t deny your veracity on 

the fact that there were leaks. But what we are concerned about 

is when you say it had nothing to do with the Energy bill signing 

and then the whole basis for this denial. Which leads me to just 

one other question about dates. We are looking forward to receiving 

the documents on February 15th. When will you have the decision 

document ready for everyone to read? 

Mr. JOHNSON. As I have said to Senator Carper, my staff have 

advised me that by the end of February. Madam Chairman, we forgot, if we could have my letter to Governor Schwarzenegger put 

into the record, that would be appreciated. 
64 

Senator BOXER. Absolutely, we will place that in the record, yes. 

[The referenced material was not supplied at time of print.] 

Mr. JOHNSON. Then also, concerning your question regarding the 

documents, I commit to provide you those documents as quickly as 

possible, according to the guidelines that our staff have discussed. 

These commitments and deadlines are best described in the January 18th letter, which I would also ask be placed into the record. 

Senator BOXER. So will we get the documents by February 15th, 

was what you said before. 

Mr. JOHNSON. Again, quoting from the letter, we expect to provide any responses—— 

Senator BOXER. So you are backing off from giving us the documents on February 15th? 

Mr. JOHNSON. I am quoting and commit to what our staff have 

agreed to. 

Senator BOXER. Sir, sir, help me here. Will we get the rest of the 

documents by February 15th? 

Mr. JOHNSON. I said we expect to, if I had finished the statement, we expect to complete our response and provide the documents by February 15th. 

Senator BOXER. Thank you. When will we have the decision document? Because all you have issued is this press release. When are 

you going to have the document? 

Mr. JOHNSON. I said, I expect by the end of February. 

Senator BOXER. So the end of February, you will have the decision document. OK. 

We are going to call up our Governors. Thank you, Administrator 

Johnson. 

Mr. JOHNSON. Thank you, Madam Chairman. 

Senator BOXER. Also the rest of our panel. 

We have Hon. Martin O’Malley, the Governor of Maryland; Hon. 

Jim Douglas, Governor of Vermont; Hon. Edward Rendell, Governor of Pennsylvania; Hon. Mike Cox, Attorney General of Michigan; and Doug Haaland, who is not elected, but the minority here 

wanted to hear from him. He is the Director of Member Services 

of the Assembly Republican Caucus of the State of California. 

So if we could proceed. I want to say to our Governors, we didn’t 

expect that this would go on as long as it did. But it just shows 

you the intense feelings here on this. We really look forward to 

hearing from you. 

I would ask the Governors, do you have any preference in order, 

or should we just go down the panel? Is there anyone that needs 

to go first because of timeframe? 

Very good. Douglas, O’Malley and Rendell, then we will go to 

Hon. Mike Cox and to Doug Haaland. I am going to ask if you 

would stand and we are going to swear you in, as we swore in our 

previous witness. 

[Witnesses sworn.] 

Senator BOXER. Thank you so much, gentlemen. Why don’t you 

start, Governor Douglas? 
65 

STATEMENT OF HON. JAMES DOUGLAS, GOVERNOR, STATE 

OF VERMONT 

Governor DOUGLAS. Thank you very much, Madam Chairman, 

Senators, members of this Environment and Public Works Committee. I appreciate the opportunity to appear today on behalf of 

the great State of Vermont. 

As the first State to adopt California’s motor vehicle greenhouse 

gas emission standards and to successfully defend these standards 

against legal challenges by the automobile industry in Federal 

court, Vermont is a leader among the 12 States that have adopted 

these standards and the 8 other States that have committed to 

adopting them. Vermont first adopted California’s low emission vehicle standards in 1996, because its program placed more stringent 

standards on vehicle emissions than EPA’s program. Vermont has 

updated its standards every time California’s have been amended. 

In November 2005, Vermont became the first State to once again 

exercise its right under section 177 of the Clean Air Act to sign 

onto California’s amendments. Vermont adopted California’s standards as part of a comprehensive State greenhouse gas reduction 

plan that addresses our contribution to global warming. Climate 

change poses risks to the State’s public health, welfare and economy. 

In Vermont, climate change could produce a shorter ski season, 

allow incursion of warmer climate tree species, which would replace the current mix of hardwoods that produce our spectacular 

fall foliage, and result in a dramatic change in the quality and 

quantity of maple sap. Ours is a rural State, and Vermonters have 

traditionally worked the land for their livelihood. Tourism, farming, logging and maple sugaring are major economic drivers. Global 

warming could threaten our way of life. We have an obligation to 

do all we can to protect our environment for future generations. 

Vermonters are proud that we have the smallest carbon footprint 

per capita in the United States. We are a ‘‘net sink’’ State: we absorb more carbon than we emit. Admittedly, Vermont’s adoption of 

California’s standards alone will not solve the global warming problem. But it is a significant step in the right direction that Vermont 

and other States must be permitted to take. 

In Massachusetts v. EPA, the U.S. Supreme Court endorsed the 

view that partial solutions to the problem of global warming are 

valid, and recognized that motor vehicles are significant contributors to greenhouse gas concentrations. This is particularly true in 

Vermont, where the transportation sector accounts for approximately 45 percent of greenhouse gas emissions. 

Under the Clean Air Act, both EPA and California are authorized to establish motor vehicle emission standards, provided that 

California receives a waiver of preemption from EPA. Congress 

adopted this two-car strategy for regulating motor vehicle pollution 

in 1967. In the 1977 Clean Air Act amendments, Congress authorized Vermont and other States to adopt California’s standards. 

This is a State right that we embrace, and that must be safeguarded. EPA’s recent waiver denial infringes on this important 

right, because without a waiver, the greenhouse gas emissions 

standards adopted by Vermont are not enforceable. 
66 

Two years after California submitted its 2005 waiver request to 

EPA, the agency issued a letter denying it. The primary reason for 

denying the waiver was EPA’s belief that the national approach set 

forth in the Energy Independence and Security Act signed into law 

on the same date, as you have noted, as EPA’s letter, was preferable to California standards. EPA’s stated reason is legally irrelevant under the statutory criteria for denying a waiver set forth in 

section 209 of the Clean Air Act. 

Moreover, the agency’s assertion that the establishment of 35 

miles per gallon fuel economy standard by 2020 required by the 

Energy Independence and Security Act is more aggressive than 

California’s standards is factually incorrect. To the contrary, California’s standards go into effect earlier and result in deeper reductions. In 2016, 4 years before vehicles are required to meet the Federal fuel economy standard, California standards are expected to 

reduce greenhouse gas emissions in Vermont and the 11 States 

that have already adopted them by 79 percent more than the Federal approach. 

Finally, EPA’s letter denying the waiver states that in light of 

the global nature of climate change, California does not have a 

need to meet compelling and extraordinary conditions. This conclusion ignores legislative intent and more than two decades of EPA 

precedent establishing that the term ‘‘compelling and extraordinary 

conditions’’ does not mean conditions that are unique to California. 

If California’s emission standards could only address air pollution 

problems that are unique to that State, a State’s right to adopt 

high but achievable standards for the reduction of greenhouse gas 

emissions under the Clean Air Act would be meaningless. 

For these reasons, Vermont has joined with 15 other States in 

California’s appeal challenging EPA’s waiver denial as both legally 

and factually unsound. 

So these are the reasons why Vermont adopted California’s 

greenhouse gas emission standards, and the reasons why EPA’s 

waiver denial encroaches on the rights of Vermont and other States 

to do our part to assume a leadership role in averting the impacts 

from global climate change. Global warming is a complicated problem. It won’t be solved by any one action. Coordinated State efforts 

to reduce emissions from the transportation sector should be applauded, and the statutory provisions authorizing these State actions must be upheld. 

Again, I thank you on behalf of the great State of Vermont to be 

here at the hearing today. 

[The prepared statement of Governor Douglas follows:] 
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Senator BOXER. Thank you so much, Governor, and all Governors, for your patience. 

Governor O’Malley, we are very happy that you are here. 

STATEMENT OF HON. MARTIN O’MALLEY, GOVERNOR, STATE 

OF MARYLAND 

Governor O’Malley. Thank you, Madam Chair. It is good to see 

you again, and it is good to be with the Committee. To you, Madam 

Chair and to the distinguished members of the Committee, it is my 

distinct honor and privilege to testify before you today on this 

shameful denial by EPA of the State of California’s request for a 

waiver under the Clean Air Act, and to require more stringent 

automobile emissions standards, something that every reasonable 

person wants to see our Country doing more of, rather than doing 

less of. 

I would also like to give special thanks to my Senator, Senator 

Ben Cardin, for his relentless and unfailing leadership on this 

issue and so many issues related to our environment, the health of 

the Chesapeake Bay. As you know, Madam Chair, he was speaker 

of the house of delegates of the great State of Maryland, and he 

understands just how committed our State is to the cause of reducing global warming and protecting our environment, so that we can 

pass it on in a healthier condition to our children. So thank you, 

Senator Cardin. 

While we are here today to discuss the denial of a specific waiver 

request made by the State of California under the Clean Air Act, 

this is really about a much larger issue. This is about whether or 

not we are willing to make choices and create policies that promote 

sustainability, enhance our quality of life and protect the natural 

environment that we will leave to our kids and to our grandchildren. 

The EPA’s grant of the waiver would have allowed Maryland, 

California and 15 other States to have imposed stricter automobile 

emissions standards on what amounts to 45 percent of the Nation’s 

registered automobiles. By denying the latest waiver request, the 

EPA has halted progress on this long battle to save our environment, even though 15 other States in the Union had mustered together the political will as a people to make greater progress. Personally as an American, as well as a Marylander, I find that 

shameful. 

Because of this decision, a request long known to be legitimate 

under Federal law, suddenly, miraculously, overnight or in the 

darkness of night, on the eve of Christmas at 6:30 p.m. suddenly 

lacks merit. The longstanding agreement that States should have 

the freedom to do more if they should so choose than the Federal 

Government to protect the environment is now being abrogated. It 

is being abrogated without any scientific justification and without 

any legal rationale. 

In the efforts of my State and 19 others to combat sea level rise 

and ozone pollution, now we are being told by the EPA, not worth 

pursuing. We recognize the need for uniformity and predictability 

in environmental regulation. The EPA’s grant of the waiver would 

not undermine that need. There has not been a patchwork of 

standards, there have been two standards; one that more and more 
72 

States were trying to adopt, which was the more rigorous California standards. Why is that? Because of the scientific evidence 

that climate change is actually happening much more rapidly than 

anyone would have anticipated, even 10 years ago. 

There are two standards: one that actually moves to address climate change; and the other that would have us stand still. The 

EPA has granted the waiver so many times in the past, and its denial is what is injecting unpredictability into our policies and our 

laws when it comes to America’s will to step up and do our part 

to reduce the effect of climate change. 

I find this decision, with all due respect to the Secretary, shameful, outrageous and irresponsible. It amounts, in essence, to the 

EPA saying to the States, how dare you make greater progress 

against climate change than what we are willing to make here in 

the Federal Government. It has no policy reason, there is no scientific reason, there is no health reason. It is one thing for the Federal Government to fail to step up under this Administration to 

confront climate change. It is quite another for this Administration 

to tell States that we are not free to step up and take greater action against climate change. 

I have submitted testimony, I do believe, Madam Chair, and I 

will, knowing that we have been over some of these things and not 

wanting to be repetitive, and knowing that we have other people 

on the panel to hear from, I will simply wrap up by saying that 

we must move forward to address this challenge. Really, this challenge epitomizes and underscores the real crisis, I think, in our 

Country, whether or not we still have that future preference, 

whether we still believe enough that we can make a difference in 

the world we live for our kids if we are willing to take action now. 

That is what 15 States, including Maryland, were trying to do until 

the Federal Government, from this absolutely indefensible decision, 

told us to back off, and that we are not allowed to make progress 

on the environment any more. 

I hope that the Committee will do everything in their power to 

reverse this shameful decision. Thank you. 

[The prepared statement of Governor O’Malley follows:] 
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RESPONSES BY GOVERNOR MARTIN O’MALLEY TO ADDITIONAL QUESTIONS FROM

SENATOR INHOFE

Question 1. If your view is that any emissions program California adopts must 

be granted a waiver by Environmental Protection Agency (EPA), why did Congress 

craft a three-part test in section 209(b), instead of just granting California a simple 

power to set its own emissions standards of any kind? 

Response. My view is that California should be granted the waiver based on the 

scientific and technological merits of the request and that the basis for the waiver 

is consistent with the conditions established in Section 209(b). 

Question 2. What is the logic of allowing only California to regulate non-local, but 

instead global pollutant? (a) Do you advocate the repeal of Section 209(b) of the 

Clean Air Act? (b) Doesn’t the very essence of the rationale for giving California a 

special prerogative to regulate mean that California must be unique? Otherwise, 

why not give every State that same right? (c) And if giving every State the same 

right to regulate a global pollutant would make no sense, why shouldn’t California 

equally be prohibited from having its own standard? 

Response. Your question is really directed to the application of CAA §§1A 

209(b)(1) (B)- whether California needs separate standards to meet compelling and 

extraordinary conditions. In carving out an exception for more stringent California 

motor vehicle emission standards Congress recognized California’s unique and severe air pollution problems and its early leadership in the development of effective 

air pollution control programs. EPA has consistently interpreted this factor as requiring a determination of whether California needs a separate motor vehicle emission control program to meet its compelling and extraordinary air pollution problems, not whether any particular standard is necessary to meet its needs. In acting 

on previous waiver requests EPA has consistently determined that California’s separate motor vehicle emission control program is necessary to address its air pollution 

problems, without regard to whether a particular emission standard is required by 

compelling and extraordinary conditions. Moreover even were that not the case the 

projected adverse impacts to the health and welfare of California citizens from global warming are numerous, serious well-documented and beyond dispute. It is further beyond dispute that motor vehicle emissions are a significant contributing factor to global warming. California’s action in establishing motor vehicle greenhouse 

gas emission standards is clearly needed to reduce greenhouse gas emissions that 

contribute to rising temperatures and sea levels that will have devastating impacts 

on that state’s coastline and water supply. 

I have not advocated for the repeal of CAA §§ 209(b). Nor do I advocate for the 

right of each State to establish its own separate motor vehicle emission standards. 

The existing Framework has allowed other states with air pollution problems similar in nature or Degree to those experienced by California to piggyback on the California standards. This structure has produced technological innovation and significant environmental benefits, while avoiding a patchwork of different State standards. 

Question 3. Doesn’t the detailing of three specific criteria, anyone of which could 

justify a waiver denial, indicate that Congress did not intend for the EPA to rubber 

stamp all waiver applications? It is one thing for the EPA to be deferential to California, but deference is not abdication, correct? 

Response. I have not advocated rubber-stamping all waiver applications. Rather, 

it is my view that the waiver should be granted based on its technical and scientific 

merit. 

Senator BOXER. Thank you so much, Governor. 

Governor Rendell. 

STATEMENT OF HON. EDWARD G. RENDELL, GOVERNOR, 

COMMONWEALTH OF PENNSYLVANIA 

Governor Rendell. Good afternoon, Madam Chairman. 

Let me begin by thank you for your leadership not only on this 

issue, but on so many different environmental causes. Let me also 

begin by saying I agree with everything that Governor Douglas 

said and Governor O’Malley said, so I will try to just give you a 

snapshot into the problems that this action presents for the State 

of Pennsylvania. 
78 

In 2006, we began the rulemaking process so that Pennsylvania 

could adopt the California standards. I think the Committee should 

know that in the history of the Commonwealth of Pennsylvania, we 

received a record-breaking number of comments, there is a public 

comment period during our rulemaking process, a record number 

of public comments in support of adopting the California standards. 

Those standards went into effect in Pennsylvania starting with the 

2008 model year that of course begins in September 2007. 

We also want to register our complaint about the delay in this 

decision by the EPA, as California has done. In Pennsylvania, by 

2025, when there is a full fleet turnover, the California Low Emissions Vehicle II program will reduce, and this is Pennsylvania only, 

the emission levels of volatile organic compounds by approximately 

5,000 tons per year, and it will cut nitrogen oxide emissions by over 

3,500 tons per year. Additionally, implementing the program will 

also reduce six toxic pollutants from 5 to 11 percent, including a 

7 to 15 percent cut in benzene, which as most of you know, is a 

known carcinogen. 

Realizing that these pollution reductions come from our transportation sector is very valuable for us, because it means that we can 

impose less strict regulations on our industrial employers and utilities. For Pennsylvania, which is still a very big manufacturing 

State, that is of crucial importance to us. 

It has been estimated that Pennsylvania contributes about 1 percent of the world’s greenhouse gases. With approximately 25 percent of that total coming from transportation, the expected 30 percent reduction in climate-changing greenhouse gas emissions from 

passenger cars and light duty trucks under this regulation is vitally important to us, and exceeds, far exceeds what Pennsylvania 

can expect to realize under the fuel efficiency requirements set 

forth in the recently enacted Energy Independence and Security 

Act. 

To use corporate average fuel economy or CAFE provisions as a 

grounds to say that the California approach is not needed is simply 

false, and the Pennsylvania experience bears witness to that. In a 

comparison by CARB, if Pennsylvania could cut greenhouse gases 

from automobiles using the California regulation as opposed to the 

Federal standard, it would prevent an additional 2.2 million metric 

tons per year of climate-changing gases from reaching the atmosphere by 2016 and 6.6 million metric tons per year by 2020. 

Additionally, I want to note that it will also save Pennsylvania 

drivers gasoline costs. It has been estimated that because of the efficiency that comes from the implementation of the California 

standards, the average Pennsylvania driver will save somewhere 

between $6 and $12 a month in gasoline costs. 

So it is clear to me that these regulations are crucial for the wellbeing of the State of Pennsylvania. Back in November 2007, at my 

direction, the Pennsylvania Department of Environmental Protection, led by Katie McGinty, intervened in two lawsuits, one in district court and one in the court of appeals, for unreasonable delay 

of EPA’s decision on the California waiver request. Since December 

19th, Pennsylvania has joined with 14 other States to intervene in 

California’s petition to the Ninth Circuit Court of Appeals for review. 
79 

It is clear from the testimony and from the conversations you 

had with the Administrator and from what Governor Douglas and 

Governor O’Malley have said that the assertions by the Administrator as to why the California standards shouldn’t be applied just 

don’t make sense. As Governor O’Malley said, it isn’t a patchwork, 

it is two separate and distinct standards, and we can live easily 

and the car companies and everyone else can adapt to two separate 

and distinct standards. As Governor O’Malley said, 45 percent of 

the vehicles in the United States would be covered by one standard, 55 percent by the other. That is pretty easy. 

Second, this talk about CAFE standards eliminating the need for 

this, not only is Governor O’Malley correct that, obviously, before 

2016, we could be getting all the environmental benefits by the 

California standards, but even after that, these standards have a 

much greater effect on keeping pollutants from going into the environment than do the CAFE standards. 

That is not to say that the CAFE standards were not a step in 

the right direction. We applaud the Congress and the Bush administration for doing that. 

But we should do more. This is a real battle for the survival of 

this planet. Every sensible person understands that. We should 

take every reasonable step that we can. The California standards 

are reasonable, they make sense, they are more effective, and we 

should keep them. 

[The prepared statement of Governor Rendell follows:] 
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Senator BOXER. Thank you so much, Governor. 

Now, for a different perspective, Hon. Mike Cox, the Attorney 

General of Michigan. Welcome, sir. 

STATEMENT OF HON. MIKE COX, ATTORNEY GENERAL, STATE 

OF MICHIGAN 

Mr. COX. Thank you, Madam Chair. Thank you, members of the 

Committee, for hearing me today. 

I am Mike Cox, Attorney General for the State of Michigan. I 

will start off by saying, unlike Governor Rendell, I will not be 

agreeing with the people to the right of me, for this simple reason: 

the proposed waiver would for the first time allow California to 

regulate gas emissions from automobiles to address the purpose of 

global warming. 

I am here representing the State of Michigan and the State of 

Michigan’s interests and I believe the interests of many States in 

advocating a comprehensive national solution, as opposed to a one 

State or multi-State solution to the global problem of greenhouse 

gas emissions and global climate change. 

As Michigan’s Attorney General, I have been a strong proponent 

of State sovereignty and State rights. I have never hesitated from 

protecting the State of Michigan’s right to preserve its environment 

when necessary and appropriate. As one who sees genius in our 

Federal system of governance, I believe issues that are not fundamentally national in scope and don’t require a national solution 

should be delegated and handled by the level of government most 

able to accomplish the mission of serving the people: the States. 

Conversely, for problems that impact more than one State, regional if possible, but more likely national solutions and standards 

are needed. I appreciate California’s unique history of air quality 

problems and the special status that California was given under 

the Clean Air Act, especially by section 209(b). Because it was an 

early leader in addressing pollution from auto emissions. It is also 

clear that the waiver grew out of California’s early regulatory expertise and the special problems that California and its cities had 

with smog. 

However, it is also clear as a legal matter that Congress never 

intended the exception of the Clean Air Act’s otherwise broad-field 

preemption to allow California to issue separate State standards 

for pollutants that affect every State and every other country without meeting the requirements of section 209(b) that California, and 

I will use the terms that are in the statute ‘‘needs’’ the requested 

regulation to ‘‘meet’’ the ‘‘compelling and extraordinary conditions’’ 

in California. 

Against a backdrop of Constitutional principles concerning the 

supremacy of Federal law, the doctrine of federalism, it is especially implausible to attribute an intent to Congress in the Clean 

Air Act to allow California to issue separate State standards addressing global climate change. The objective of California’s current 

waiver request is to address global climate change. The problem as 

I see it is that global climate change is not solely a California problem, nor is it solely a national problem. It is by definition and 

vernacular a global problem. 
85 

Global climate change is a national and international issue 

which cannot be solved by individual States, nor can it be addressed by focusing on a single sector, automobiles. By doing that, 

you pit State against State. A single sector, automobiles, that by 

conservative estimates produce less than 7 percent of the worldwide emissions. 

Greenhouse emissions come from numerous sources besides automobile emissions, including power plants, manufacturing facilities, 

aircraft, commercial vehicles, and naturally occurring emissions in 

the environment and in the use of agriculture. All these sources are 

global in nature. Article 6 of the United States Constitution and 

common sense dictate that any effective global climate change regulatory scheme is necessarily a national policy that addresses or 

should address all the sources of U.S. emissions in the larger context of international emissions. Allowing California and the other 

States that adopt its regulations to impose what becomes a de facto 

national standard contravenes principles of federalism and undermines the possibility for our Nation to speak and act with one voice 

in addressing this global problem. 

California’s proposed regulation will not be effective in controlling national and international emissions, because it only addresses 

a very small part of the total national worldwide emissions. Further, the proposed California waiver fails to engage in any meaningful analysis of the cost of such regulation. While I recognize the 

problems of our sister State, California, I must point out that the 

solution is not without a cost to the Nation, and particularly Michigan. This a tenuous time for the Nation’s economy. 

So I would urge all concerned to move cautiously, especially with 

respect to an industry that contributes a significant proportion 

every year to our Nation’s gross domestic product. Automotive job 

losses for the Nation would be felt more acutely, of course, in 

Michigan, and over the past 6 years, our unemployment rate has 

grown from 3.8 percent in 2001 to 7.6 percent in 2007, some 50 

percent above the national rate. Data from those in the best position to judge and the most conservative estimates from the Nation’s 

auto companies indicate that the net job loss at a minimum, depending on how you factor, would range from 60,000 to 100,000 

jobs. 

Now, Congress recently debated, and by that I mean this Senate 

as well, the issue of global climate change. 

Senator BOXER. If you could complete. Thank you. 

Mr. COX. Sure. When it passed the EISA, which raised mileage 

standards to 35 miles per gallon by 2020. In that case, representatives from all across the Country, not one State or a couple of 

States, debated the bill and decided to impose new CAFE standards, which took into account all the issues related to greenhouse 

gas emissions, as well as energy conservation. 

Senator BOXER. Mr. Cox, you have gone over more than a 

minute. 

Mr. COX. Have I gone longer than Governor Rendell? 

Senator BOXER. Absolutely. 

Mr. COX. I appreciate that. 

Senator Boxer. [Remarks off microphone.] 

Mr. COX. Excuse me, I am sorry. 
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Senator BOXER. That is all right. 

Mr. COX. While the ink is barely dry on the new Energy Independence and Security Act of 2007, California’s waiver request 

would de facto amend it, promulgating a new regulation that necessarily depends on changing corporate average fuel economy 

standards. Congress is the national policymaking body in our system of Government. Instead of criticizing EPA’s decision, this body 

should make the national policy choices it is authorized and entrusted to do. The benefit of one national standard based upon the 

broad-based agreement of all the States through the use of our constitutionally empowered democratic branches of government would 

result in more uniform compliance and acceptance by all. 

Thank you. 

[The prepared statement of Mr. Cox follows:] 
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Senator BOXER. Thanks. 

Now, Mr. Haaland. A Minnesota name. I wanted to make it clear 

that our Governor and our Attorney General have submitted statements for the record, as well as the legislature, the majority. The 

views we are about to hear now are very important. They are the 

minority views of the Republicans in the Assembly, and we welcome you and we look forward to your testimony, sir. 

STATEMENT OF DOUG HAALAND, DIRECTOR OF MEMBER 

SERVICES, ASSEMBLY REPUBLICAN CAUCUS, STATE 

OF CALIFORNIA 

Mr. HAALAND. Thank you very much, Madam Chairman, members. 

I appreciate the opportunity to comment on the EPA’s decision 

to deny California’s waiver request. I am glad that I was preceded 

in the record by such august bodies as the Governor’s office and the 

speaker’s office. 

As a Californian, I am proud of the work that has been done to 

clean our air in preceding decades. As a child, I too remember traveling over the Tejons with my mom and dad into the L.A. Basin 

to visit relatives, and discovering air that my father referred to as 

so thick you could cut it with a knife. That pride is now tempered 

as an adult, in that California’s waiver request is a radical change 

in direction from the efforts of preceding decades. It is understandable, but it is radically different. 

I would like to take this opportunity to thank EPA Administrator 

Johnson for denying California’s request, because I believe his decision is a reasoned response to a process that has spun out of control in California. The reasons for this statement are twofold in nature. One is based on policy issues, the second is the legislative and 

regulatory process. 

On a policy basis, the regulations developed by CARB represent 

an extraordinary expansion of regulatory authority that no State 

has previously undertaken. As reflected by previous testimony, this 

is the first of its kind waiver. Following the broad statutory mandate contained in AB 1493 by Ms. Pavley in 2002, CARB has proceeded to develop and impose an unreasonable mandate requiring 

the regulated community subject to these regulations to account for 

upstream emissions associated with the production of fuel used by 

the vehicle. 

That policy as embodied in a scheme proposed by CARB would 

be an attempt to codify what is known as life-cycle costs. The policy 

implications of this effort are patently unfair, especially when you 

consider in the light of the regulatory scheme that is being produced as a result of AB 32, which hasn’t been discussed here, in 

light of California’s second decision to go forward with an overall 

State strategy to control greenhouse gases. This unjust intensification of regulatory authority is, as I said, unprecedented and has 

not been attempted in previous efforts. 

Finally, on a policy basis, the Clean Air Act prohibits the granting of a waiver if the State does not meet, as you have heard before, compelling and extraordinary conditions. The argument that 

California must set a standard for 14 States to follow as an attempt to impact climate change emissions does not rise to the level 
92 

of a compelling and extraordinary condition. As you have heard, climate change is global. It is something that will require a coordinated global response. Fifteen States imposing technologically 

questionable regulations will in the end have a statistically insignificant impact on the global problem. 

When you consider, as I mentioned, the statistical impact of 

these regulations, in light of the fact that during the same time 

these regulations are proposed to go into effect, the country of 

China will produce over 500 coal-fired generating plants in its nation, and the impact in California, as has been produced in previous studies, shows that 25 percent of our carbon particulate matter arrives from China. 

As a result, when you examine the Administrator’s declination of 

the waiver, it is not hard to determine that California has, as I 

pointed out, become the bank shot around Washington’s perceived 

inability to take action. The State has an environmentally friendly 

majority in the legislature, where their agenda requires only a majority vote. With current and previous Governors willing to sign 

onto green agendas and produce what are called ground-breaking 

green initiatives, the waiver request that is the subject of this 

hearing is, I believe, the best example of this bank shot. 

As I indicated, I appreciate the Administrator stopping an out of 

control regulatory process. Were this process to go unchecked, it 

could badly divide the regulatory approach that has served our Nation so well. Certainly it will lead to standards, even though there 

be two. Other States will have the requirement to either choose between one which improves the ability of large and small States to 

offer consumer choice, decrease the cost of goods produced and 

place significant impediments to continued economic growth. As you have heard previously, in light of the current $14 billion 

deficit in California, I don’t believe that we have the luxury of continuing to create regulatory schemes that ignore economic realities 

of diminished inventories, reduced product sales or the elimination 

of markets for the products produced within the State. 

Thank you again, Madam Chairman, for this opportunity. I look 

forward to questions. 

[The prepared statement of Mr. Haaland follows:] 
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Senator BOXER. Thank you, sir. 

I am going to use my time to respond to what you said and also 

put something in the record and then turn to my colleagues. So if 

you could start the clock. 

I want to say to the Governors how much it means to us up here, 

those of us who are here and a lot of others in the Senate, that you 

are doing what you are doing in the States. Your voices are necessary. You are the ones that have stepped up to the plate, along 

with a lot of local officials, mayors, et cetera. We urge you on. 

As you know, we are grappling here, we are getting legislation 

through. I had to smile when Mr. Haaland said only a majority. 

When I was growing up, majority rules, you know. Now suddenly 

we need super-majorities to do everything around here. That creates some stumbling blocks for us. 

Having said that, it is because of the work you are doing and the 

fact that you are vocal about it. I want to ask you to please continue to be vocal about it. The bipartisan nature of what we see 

here with the three of you, and of course this extends to my Governor, the Governor of Florida, it goes on, is so important for the 

American people to see. 

So please continue what you are doing, because you put the wind 

at our back just a little bit as we reach for those 60 votes that is 

not going to be easy to get. But we are going to push for it, let the 

American people see who is with us, who is not with us and they 

will decide at the end of the day when we have elections where majorities do matter, if you get 50.1, you win. 

So this is what we need you to do. Please continue to be strong 

in teaming up with my State. We need your voices. 

I just want to again underscore the fact that there will be no 

patchwork quilt. We have said it over and over again, two standards, and that has been the history of the Clean Air Act. The Supreme Court came down very hard against the EPA when they said 

well, EPA said, well, this is a different pollutant, this is greenhouse 

gases, this is different. The Court said, read the Clean Air Act. It 

explicitly says that climate change, pollution is part of the Clean 

Air Act. So clearly, we need to move forward. 

We also hear that this national standard is so great it is going 

to take care of the problem. The Court said, don’t stand behind 

that DOT CAFE standard. That is not what EPA’s job is. I will put 

in the record the fact that the California Air Resources Board did 

an analysis in all 19 States that are going to go for this standard 

and say that that standard will reduce CO2 emissions 85 percent 

more than the new Federal CAFE standard. 

So stick with it. You are onto this, you understand this. We want 

to do better. We should all do better, including the national government. But if we don’t, you need to move. 

Now, what I want to place in the record is a letter I just received. 

Because I find it very touching, very moving, and I will make it 

available. It is a letter from the working people at the EPA. As 

EPA union officers, this is a letter to Administrator Johnson, we 

just got it today. 

We write to express our deep dismay and concern over the damage of EPA’s reputation following your December 19th decision to 

deny the California waiver request on vehicle greenhouse gas emis-
98 

sions. It says that it has cast the agency in a negative light, and 

it goes on to praise the Administrator and say how excited they 

were when he was nominated. They go through what he said at his 

nomination hearing, and they said, we couldn’t have asked for a 

more hopeful lead in your administrator-ship. 

Then they go on to say, in light of your Administration’s repeated 

proclamations in support of the principles that he elucidated at his 

confirmation hearing, we are at a loss to understand your decision 

on the California waiver request. The appearance is that you have 

disregarded the very principles you proclaimed in your confirmation testimony and our agency’s principles of scientific integrity. 

Given these circumstances, there is a broad and dark shadow 

over the integrity of any future agency decisions under your leadership. If your actions cause EPA to lose credibility, how does this 

make us the stronger EPA you claim to support? How can we attract the best and the brightest to work at our agency if our credibility for making science-based policy decisions is in doubt? 

The impact on employee morale can be devastating and may take 

years to recover. Your December 19th decision and its impact on 

EPA is reminiscent of the widespread chaos under Administrator 

Gorsuch, which resulted in many dedicated EPA employees quitting out of disgust and frustration. We call on you as EPA Administrator not to let this happen again. 

It is signed by Steve Shapiro, Bill Evans, Dwight Welch and William Herzey. 

[The referenced material was not received at time of print.] 

Senator BOXER. The point is, and why I think this is key, and 

also Jeffrey Bradco and Wendell Smith, I have a message to the 

people who wrote this letter and they represent thousands of employees. Don’t leave. Don’t leave, because brighter days are coming. 

We appreciate the work you do, even though the work you do has 

been disregarded in this case. 

So please keep the morale up, because you’ve got a lot of friends 

over here who care. So we will put that in the record, and now I 

will call on Senator Lautenberg. 

Senator LAUTENBERG. Thanks very much, Madam Chairman. I 

greet the Governors, particularly our neighbor, Governor Rendell, 

with whom we have lots of commerce, lots of contact. Governor, 

thank you for lots of leadership as well. I don’t know our other colleagues as well. 

But as I listened to this, I listen with a degree of disbelief. Because when I hear that this will, and I feel terrible about Michigan, 

unemployment, we all have to care about those things, otherwise 

we wouldn’t be the wonderful country that we are. But the fact of 

the matter is that change has to take place. Because mistakes were 

being made over a lot of years. We see other automobile companies, 

foreign-owned, foreign-led countries taking over the leadership position in sales in our Country. It is heartbreaking to me that an 

industry invented in our Country, the industry itself, not necessarily the automobile, and we have to get on with solving these 

problems. 

Our gentleman from California, the fact that you are in dispute 

with the leadership here, a policy matter, apparently suggests that 

you don’t think conditions are so bad in California. You offer the 
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argument that we have to look at China. But we are not saying 

that, OK, China, you are a larger country by virtue of numbers of 

people, and you ought to be telling us how to conduct our environmental policies here in this Country. That is the same thing that 

says to me, in a different way, well, OK, we ought to listen to the 

Federal Government here in Washington about how we conduct 

ourselves in California and other States across the Country. 

This is a problem that can be solved in part locally. To turn our 

backs on the opportunity to solve it I think is dereliction of duty. 

I have to tell you that. One of the things I know Governor Rendell, 

he has worked with Governor Corzine from my State, been willing 

to take bold steps to provide leadership in the face of EPA’s inaction. Their excuses, in my view, were pure bureaucracy. That is 

what they sounded like. 

Well, yes, we have a law that we have to obey. Does the condition impose hardship on health and well-being? Well, we have to 

obey the law as it is. At what point do you say, look, we are firemen, and we have to put out this fire. 

One of the things, Governor Rendell, I know that you have done 

in Pennsylvania, in addition to increasing the fuel efficiency of vehicles, we should be examining ways to get some of these cars off 

the road altogether and provide options, like improved passenger 

rail and transit service. What happened with that recently improved line from Philadelphia to Harrisburg? 

Governor Rendell. Very instructive of how people will take mass 

transit if you improve it. We combined with Amtrak and both the 

State, and Amtrak put money in. We cut the time of that line from 

2 hours to 90 minutes. Ridership has come up from 899,000 to over 

1.2 million in less than 2 years. 

If I could, Senator, I don’t mean to interrupt your remarks, but 

I think what we do in government all ties together. In 2009, this 

Congress will be asked to look at, I guess, the reauthorization of 

SAFETEA–LU or the progeny of ISTEA. If we don’t, in this battle 

to reduce greenhouse gases, if we don’t make a dramatically increased commitment to mass transit, to passenger rail and to rail 

freight in this Country, then we can talk about all these standards 

we want, and we are not doing our job. 

I am very proud that in Pennsylvania in June, 4 or 5 weeks before the bridge collapsed in Minnesota, we added a billion dollars 

annually to our transportation budget. Almost half of that went for 

mass transit, the highest investment ever in the State of Pennsylvania for mass transit. 

Again, that transportation bill will have more to do about our environment than anything we are talking about now. What we are 

talking about now is obviously keenly important. But the best way 

to reduce transportation gases is to get cars off the road. 

Senator LAUTENBERG. It is also good to get you to work on time, 

it is also good to reduce our dependence on foreign oil. It also 

brings so many benefits. 

Governor Rendell. Eliminate road rage. 

[Laughter.] 

Senator LAUTENBERG. Well, if the traffic is bad, you don’t have 

a lot of room to rage. But it does increase the blood pressure across 

the Country. 
100 

I would say that if we think that by not undertaking the costs 

per conversion now is going to get cheaper in the future, it is not 

going to happen. I thank all of you and I understand, Mr. Attorney 

General, that you have a particular dilemma in Michigan. 

Mr. COX. May I address that, Senator? 

Senator LAUTENBERG. I am sorry? 

Mr. COX. May I address that? 

Senator LAUTENBERG. That you have a particular dilemma? 

Mr. COX. Yes. 

Senator LAUTENBERG. Well, I thought that was an acceptable 

statement. 

Mr. COX. No, no, I appreciate that, and I don’t think what I am 

saying is woe is me because we are Michigan and we are the automobile capital of the world. Part of my point is, with all due respect 

to the good Governor here, part of his argument in his statement 

is, it is good that you are doing what you are doing with auto emissions, because you won’t hurt my industries in Pennsylvania and 

you won’t impact the largest contributor to global emissions, the 

electricity industry or coal or steel or things like that. Which I understand completely. If I were Governor Rendell, I would say yes, 

let’s regulate automotive emissions, greenhouse gases, let’s dump it 

all on them and then you—— 

Senator LAUTENBERG. I will let you stand face to face with Governor Rendell, and when you look up at his face, he has a rather 

imposing—— 

Governor Rendell. The general would be right, if we hadn’t taken 

steps to deal with coal-fired plants. We adopted higher mercury 

content regulations, it was a battle royale in the Pennsylvania legislature, but we got them through. 

So General, we want to take care of emissions wherever they 

come from. The auto industry is always telling us that if they make 

changes, it is going to cost them more money. Remember when airbags, the auto industry said, oh, my gosh, it is going to raise the 

price of cars, nobody is going to buy American cars. Now car companies fight to say how many side airbags they have. Isn’t there 

one that has nine airbags in the car? They fight because people 

want them so much. 

The auto industry tried to tell us, in Pennsylvania, tried to tell 

us that adopting the California standards would raise the price of 

an automobile sold in Pennsylvania by somewhere between $1,000 

and $2,000. Well, what is the trouble? We have New York, New 

Jersey, Pennsylvania all around each other. We don’t buy enough 

cars that they could produce en masse the type of requirements 

that are necessary? It is baloney. It is what the auto industry has 

been telling us for years and years and years. 

Senator BOXER. I am going to ask Senator Lautenberg to complete his thoughts. But I just inept to say, I don’t want to get into 

an argument about what Governor is doing what to what industry. 

This is about the California waiver. I think we should stick to it 

if we possibly can. 

Senator Lautenberg, I will give you an extra minute to complete 

your thought. 
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Senator LAUTENBERG. Just 1 minute. Ford announced today they 

are terminating 54,000 jobs. This has little to do with the imposition of a standard. It is what exists—— 

Mr. COX. On the contrary, Senator, you are absolutely wrong. 

Senator LAUTENBERG. OK, then the papers are wrong, and the 

news is wrong. 

Mr. COX. They are not terminating, they are offering buy-outs, 

not all those—— 

Senator LAUTENBERG. OK. That means the end of your job. 

Mr. COX. But to think that more regulation of the domestic automobile companies doesn’t decrease their worldwide—— 

Senator LAUTENBERG. That is not my mission. 

Mr. COX [continuing].—structure is absolutely wrong. 

Senator LAUTENBERG. You shouldn’t accuse me of that. My mission is ten grandchildren that I have and the grandchildren of everybody in this Country who are faced with a plague on our being 

if we don’t do something about this. Yes, job loss is a terrible thing, 

and we have to invest in our economy. Finally we are going to do 

something about it. 

But to say that the main reason for having these laws is to either 

punish an industry, help an industry, it is to make life better for 

our children and future generations. Thank you very much. 

Senator BOXER. If I could just say what the rules are, we have 

a lot of strong personalities here, each of us. So here are the rules. 

When a Senator has the time, the Senator will address the question to somebody. That is the way we are going to continue. 

Yes, Senator Cardin. 

Senator CARDIN. Thank you very much, Madam Chair. 

Governor Rendell, first, let me thank you for your comments on 

mass transit and on dealing generally with the problems of global 

climate change. As you know, the Lieberman-Warner bill that this 

Committee reported out dealt comprehensively with the problems 

of carbon and greenhouse gas emissions. So we are concerned about 

all areas. 

But I couldn’t agree with you more on mass transit. In that legislation that is moving forward, with the Chairman’s help, we were 

able to get a sizable amount of new resources that will be used for 

mass transit dedicated for that purpose. Because we understand 

that is part of the solution. So we very much agree with the point 

that you made, in dealing with the global climate change issue, we 

have to deal more aggressively with alternative means of transportation. That is part of our strategy and we are going to continue 

to make that part of our strategy. 

Let me thank the three Governors particularly for being here. 

This is an issue in which I applaud the leadership, your leadership 

on this issue for the people of Vermont, Pennsylvania and Maryland. Governor O’Malley, thank God you didn’t have to come to the 

EPA and ask for approval when you passed the Maryland Clean 

Cars Act. You were able to do that. Or when you established the 

Maryland Green Buildings Council or joined the Regional Greenhouse Gas Initiative, or issued your executive order for Global Climate Change Commission, or your Empowered Maryland, where 

you set as a goal for our people to reduce the per capita electricity 

consumption by 15 percent by 2015. 
102 

This is the type of leadership that Governor O’Malley has 

brought to the people of Maryland. We have mentioned over and 

over again federalism. We want you to give us ways in which we 

as a Nation can develop the right policies. I am disappointed we 

haven’t been more aggressive on global climate change in this environment here in Washington. I would like to get more done. 

But we at least have the States that are moving forward in this 

area, and I thank you for that. Madam Chairman took us to Greenland, where we could see first-hand what was happening. But as 

Governor O’Malley knows, we could have taken you to Smith Island, which is not very far from here, and shown you the direct effect of global climate change. 

So my question to Governor O’Malley is, the sense of urgency 

here, Mr. Johnson sort of says, well, there is no compelling reason 

to allow the States to move forward. Maryland is the fourth most 

vulnerable State to sea level change in the Nation. So I would just 

like to get your reaction as to how urgent it is for the people of 

Maryland that we move forward on this type of legislation. 

Governor O’Malley. Senator, thank you. It is very, very urgent, 

you can sense that everywhere in our State. If you look at the 

threat from sea level rise, I have heard fourth most vulnerable, I 

have heard third most vulnerable. There are insurance companies 

now who refuse to insure properties in parts of Maryland because 

of the threat of the sea level rise. 

You look at the Chesapeake Bay. If we had fully implemented, 

if we had the California standard, we would see a 30 percent, we 

would be able to reduce greenhouse gas emissions from cars and 

trucks by 30 percent; airborne nitrogen emission from cars and 

trucks deposited into our Chesapeake Bay would be reduced by 9 

percent by the year 2025. We have seen the reports from the EPA 

telling us that the Chesapeake Bay is not on its way to recovery, 

but instead, all of these unchecked human behaviors, including our 

refusal to embrace these higher and better standards, the people 

of Maryland do not understand why, if the technology is there and 

why, if the ability for us to do these things is there, why on earth 

would we not do this before the Chesapeake Bay is irreparably 

damaged. 

I also beg your indulgence to correct something I inadvertently 

said, Madam Chair, earlier in my testimony, when I criticized this 

decision as having no justification by policy or science or reason or 

law. I inadvertently said that was the Secretary’s decision. Of 

course, I should have said the Director’s, the Administrator’s decision, and I meant no offense to secretarial staff or any of the other 

dedicated people at EPA. 

Senator CARDIN. Let me also point out, we have talked about sea 

level change. But the Chesapeake is warming, we know that, and 

that is causing a major impact with the sea grasses. Madam Chair, 

while we were waiting for this panel, I had a chance to talk with 

Governor O’Malley, with Senator Mikulski, talking about one of the 

problems we have of oysters in the Bay. We are losing our sea 

grasses in the Bay because of climate change. 

So I just applaud Governor O’Malley and the Governors that are 

here. This is an urgent issue, to deal with global climate change. 

It is affecting the quality of the life of people in my State and the 
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Nation. I just think, we thank the Governors that we have the 

leadership in our State governments to move us forward on this 

issue. We are going to catch up to you. We are going to do it. 

Thank you. 

Senator BOXER. Thank you so much. 

Just before I go to Senator Sanders, I wanted to recognize that 

Ken Connolly is here. Will you just go like that, Ken? Ken was the 

chief of staff to the great former Senator Jim Jeffords here at this 

Committee. It was Senator Jeffords who wrote a very far-reaching 

bill on global warming that then was picked up by Senator Sanders 

that I was proud to co-sponsor. I am just thrilled to see you out 

here. 

With that, Senator Sanders. 

Senator SANDERS. Thank you, Senator Boxer. 

I think one point that hasn’t been made as strongly as it might 

is the very strong tri-partisan agreement that the EPA decision rejecting the California waiver was wrong. I mean, all over this 

Country and here, we have Republican Governors, Democratic Governors, Independents. I think the vast majority of the American 

people want us to be aggressive in addressing the crisis of global 

warming. 

Madam Chair, the State of Vermont is well-known for its sense 

of environmental responsibility. We take the issue very seriously. 

I am very pleased that the Governor is here representing that 

view. That position is also shared by Senator Leahy, Congressman 

Welch, our entire delegation, and I am sure the vast majority of the 

people of Vermont. 

I want to ask Governor Douglas, if I might, just two questions. 

You have heard during the course of discussion this morning and 

now afternoon that there are some people who say, hey, why 

should the State of Vermont and the other States, why should California go off on its own? Why don’t we work with just one policy 

coming here from the Federal Government? What is the problem 

with that? 

The second point, Governor Douglas, I would like you to speak 

to, we have heard today, as we have often on this Committee in 

the past, about economic dislocation if we move forward aggressively in terms of cutting greenhouse gas emissions. I know that 

you, the University of Vermont, many of us, have talked about the 

incredible job-creating potential if we are aggressive about energy 

efficiency, solar energy, mass transportation, wind turbines and so 

forth and so on. 

So my first question is, why not let the State of Vermont wait? 

We have a Federal Government here, just wait patiently for the 

Federal Government to do what has to be done about global warming. 

Governor Douglas. Well, Senator, thank you for your acknowledgement of the great commitment and the environmental value 

and ethic that we have in the Green Mountain State. As you noted, 

we take it very seriously indeed. That is why we are such a leader 

in terms of the least emissions, the most emission-free energy portfolio, the cleanest air in the Northeast according to the EPA. We 

have provided tremendous environmental leadership in so many 

ways. 
104 

I think I would answer the question about States versus Federal 

action by looking at the congressional decision beginning in 1967 

to establish the two-car standard, to acknowledge that California 

prior to that time had been a leader in auto emissions regulation, 

and to allow that State to continue that leadership by granting it 

an exemption, and then allowing other States, through the Clean 

Air Act, to sign onto the California standards and have the twocar standard that we are talking about today. 

Second, I would note the recent litigation that has affirmed the 

legitimacy of that dual standard, that choice of standards, and addressing the alleged inconsistency with the CAFE standards. The 

Federal District Court in Vermont, after a 16-day trial with thousands of pages of testimony, handed the State a very clear, decisive 

victory. It is on appeal now to the Second Circuit. 

Senator SANDERS. But why didn’t we patiently wait? 

Governor DOUGLAS. I think it is the ethic that we both talked 

about. My colleagues and I are from, in I guess broader terms, the 

same area of the Country. We are part of a nine-State effort called 

RGGI, the Regional Greenhouse Gas Initiative. The New England 

Governors and Eastern Canadian premiers have adopted some very 

aggressive standards for the 11-jurisdiction region. 

Now, the premier and environment minister of Quebec have expressed an interest in adopting the California standards for their 

province, and other provincial leaders are starting to embrace them 

as well. 

Senator SANDERS. I can see you are not going to go further in 

that area, so I will ask you the other question. What about the jobcreating potential of an aggressive approach to reducing greenhouse gas emissions? Do you see potential there? 

Governor DOUGLAS. Oh, absolutely. I really believe that we can 

become what our Lieutenant Governor has deemed the Green Valley, a sort of silicon valley for environmental engineering, sustainable technology companies. We have a lot of research underway 

now at the University of Vermont, at some private companies, 

some other institutions in Vermont. We are beginning to see an industry develop in hazardous waste cleanup, alternative energy design and installation, air quality monitoring. A lot of different environmental jobs that are quite well-paid and require a high level of 

skill. 

So the partnership that we have in Vermont between our institutions of higher learning and the business sector, I think, is very 

positive. It is growing and I think can play a tremendous role. 

China was mentioned earlier, and the relevance, in response to 

your question is that we had a mission a few months ago of business, education and government leaders from Vermont to go to 

China to talk about using the expertise that we are developing in 

our State to help them solve some of their environmental problems. 

I was the only American on the stage when the environmental 

exposition was opened in Beijing last June. I think it is because 

Vermont, maybe because of my winning personality, but I think it 

is because the State of Vermont is recognized as such tremendous 

leader, literally around the world, in its environmental stewardship. 
105 

So we do take this seriously, and you certainly have throughout 

your career, for which we are all grateful. I hope that we can, if 

not adopt a more aggressive approach on a Federal level, allow the 

States to continue our leadership individually or regionally, working with our partners, so we can advance this important agenda. 

Senator SANDERS. Thank you very much. 

Senator BOXER. Thank you, Senator. 

Senator Klobuchar, and then just so you can be thinking, because 

I know some of our witnesses at this side are lonely, we are going 

to give everybody 30 to 45 seconds to give us your final thoughts 

before we go to our last panel. 

Go ahead. 

Senator KLOBUCHAR. Thank you. I keep wanting to ask, Madam 

Chair, Governor Douglas, I keep thinking I want to ask him what 

it is like to have Bernie Sanders as his Senator, and what is his 

best story and then remind him he is under oath, but I only have 

5 minutes. 

[Laughter.] 

Senator KLOBUCHAR. I wanted to extend on what Senator Sanders was asking, and the other Governors, to the other Governors. 

I just note that I always use this example of what Justice Brandeis 

would say, that the States are to be the laboratories of democracy, 

and that how one courageous State can move forward. Our State 

has done this, we have Eastern States here, but I will tell you, 

Minnesota, California, all over this Country. 

But I don’t think he ever meant that there should be inaction by 

the Federal Government, which has, I think in part, contributed to 

our sitting here in this hearing room today. I just wonder, first, 

Governor Rendell, if you could expand. You talked about the economic piece of this and the costs, increasing the gas mileage standard how much, I always used to use an example, can save an average family of four between $500 and $1,000 a year, where you see 

that shaking out in your State, such a large State. 

Then also, the economic opportunities. In our State, we have so 

many wind turbines now, they have opened a bed and breakfast in 

Pipestone, Minnesota. The package is you stay overnight and you 

look at a wind turbine in the morning. So you are welcome to come 

for a weekend. 

Governor Rendell. 

Governor RENDELL. Let me say that you are right about the 

States being the laboratories in so many things. But in the development of alternative and renewable energy, which I think will be to 

the worldwide economy what biotech and information technology 

have been in the last quarter of a century, I think renewables will 

be to the next quarter of the century. We are seeing tremendous 

activity in each one of our States, all over the Country and in the 

State of Michigan, where Governor Granholm does recognize that 

as Governor Romney said and as Senator McCain said in their recent primary, that Michigan has to continue to look for new, better 

ways of building cars, new types of cars and also new types of economy for a diverse economy. We are all doing that. 

I am trying to persuade my legislature right now to do a billion 

dollar bond issue, most of which, some of which is for conservation 
106 

and some of which is for incentivizing the growth of alternative and 

renewable industry. 

One wind energy company came to Pennsylvania after we adopted advanced energy portfolio standards, which I would hope the 

Congress would do for the Nation some day. But right after that, 

Gemasa, the second largest wind energy company in the world, 

came to Pennsylvania, created 1,000 jobs, including 700 traditional 

manufacturing jobs in two locations. Because those huge blades 

have to be manufactured. 

So the great thing about alternatives and renewables is there is 

some traditional manufacturing as well as high-tech. So I think the 

sky is the limit for our economy. I want America very deeply to be 

the leader in developing all of these technologies, because that is 

where the jobs are going to be, the jobs of the future. 

Senator KLOBUCHAR. Then we were talking about the Attorney 

General being a little lonely down there. I have one, I was listening 

to your legal argument here, and I was thinking about the fact, I 

had asked the Administrator this. They have allowed for 50 waivers before this. Certainly not all of the reasons for the waivers, let’s 

look at the catalytic converter, smog and other things. So they get 

permission, they get a wavier and then other States do the same 

thing. So that is not unique to California, the problem. They just 

showed a compelling reason to get a solution and a waiver, and 

then other States followed. 

So what I am trying to get at here is, you clearly seem to be indicating that California couldn’t do anything about getting a waiver 

to work on climate change, because it wasn’t unique to California. 

It doesn’t make any sense to me, when you look at the past for why 

these waivers were granted. 

Mr. COX. Well, Senator, I think if you look at the actual language 

of 209(b)—— 

Senator BOXER. Sir, is your mic on? 

Mr. COX. It is. Senator, I think if we look at the actual language 

of 209(b), it requires for a waiver that there be a compelling and 

extraordinary circumstance for California. Unfortunately, the problem with greenhouse gases is that they are worldwide. They are 

not extraordinary to just California. 

Senator KLOBUCHAR. But smog is worldwide, too. They have had 

smog problems in Baltimore, they have had smog problems in 

Houston and these other waivers were granted. 

Mr. COX. Senator, if I could finish. As you pointed out, we both 

share Lake Superior. There are falling lake levels in Lake Superior, which you attribute to greenhouses gases. If we say that is the 

case, it is not extraordinary to California. In fact, it is a common 

problem throughout the United States. It is a common problem 

throughout the world, because in fact we know most of the emissions are produced by the rest of the world. We produce the most 

individually as a Country, but most of the emissions are produced 

by the rest of the world and greenhouse gases, it doesn’t matter 

where it is emitted, unlike smog particulate in a particular metropolitan area, the heat that is held in is a worldwide—— 

Senator KLOBUCHAR. Could I just let Governor O’Malley have the 

last word and respond to that? 
107 

Governor O’MALLEY. Senator, I was listening to the argument before. The notion that because it is a worldwide problem and because we are all going down because we are not addressing the 

problem quickly enough, therefore we shouldn’t address it all until 

the rest of the world figures it out, is, I find, a very strange argument and one that runs counter to most of the 200 year history of 

this Nation. 

We believe in the dignity of every individual. We believe as 

Americans that we have a role and a very important and revolutionary role, to advance the cause of mankind on this planet. There 

is no more important cause for us to advance than the science and 

the technology which we have in greater abundance than other 

countries do, and muster together again that political will to put 

behind it and to lead this effort, not to follow behind. What if we 

said on human rights, we are going to wait until China signs onboard, because human rights violations are a global problem, and 

we can’t do anything about it until everybody else gets on board 

first. 

I find it ludicrous and I find it very, very deeply disturbing that 

we would even be having that sort of conversation when faced with 

the overwhelming scientific evidence that there are things that we 

can do about it and it needs to be done now before this climate 

change becomes irreversible. 

Senator KLOBUCHAR. Thank you. 

Senator BOXER. Thank you. 

So now we are going to go down, starting from Mr. Haaland, and 

hear your last words of wisdom to this Committee. We will give you 

45 seconds, and you can take up to that much. 

Mr. Haaland. 

Mr. HAALAND. Thank you, Madam Chair. If I can, addressing 

both Governor O’Malley and Senator Lautenberg’s reason for inclusion of China, the Governor’s example of not taking action on 

human rights because China doesn’t, the Senate actually voted in 

1997 on a 95 to 0 basis to not act on Kyoto until it included developing nations. So inasmuch as China was excluded from Kyoto, I 

believe that the rationale for it stands. 

Also, Justice Brandeis was listed as an author of the phrase relative to States and experiments. If you look to California, our experiments in hybrid technology, in other areas, attempting to go 

down the path that these regulations address, hasn’t been very successful. We had a zero emissions vehicle percentage of the fleet program and spent tens of millions of dollars installing equipment 

around the State buildings. There are very few electric vehicles 

plugged in. The hydrogen highway hasn’t happened because of the 

intense infrastructure investment. 

We have an E85, the Governor went out and purchased over 

2,500, I believe is the figure, E85 vehicles. Unfortunately, there are 

only three E85 stations across the State. Those vehicles have ended 

up adding to the carbon content of the State’s air because they are 

not properly thought out. That is the point. Think through before 

we act. 

Senator BOXER. Thank you. 

Attorney General. 

Mr. COX. Thank you, Senator. 
108 

I would start with this little inconvenience called the United 

States Constitution, which Article 6 says, has this concept of Federal supremacy, that problems that are inherently Federal in nature, national in nature, international in nature, should be dealt 

with by the executive branch and the Senate. The treaty-making 

power of Kyoto, all that rests and puts this problem at your doorstep and you haven’t addressed it. 

When I hear about 17 States should be able to do this or that, 

or there is bipartisan agreement, there are 33 other States, both 

Democrat and Republican, who don’t agree with that view. In fact, 

Senator Boxer’s counterpart in the House, who helped draft every 

major piece of air legislation, that would be Congressman Dingle, 

over the past 55 years disagrees with much of what has been said 

here to the right of me. 

Finally, I agree with Governor O’Malley, it is about political will. 

But the political will appropriately under our system of government 

should be exercised right here on Capitol Hill. 

Senator BOXER. Governor Rendell. 

Governor RENDELL. Just two quick thoughts. 

No. 1, it does make a difference in Pennsylvania. Even though 

this is a worldwide problem, by adopting these standards, we can 

keep a significant number of toxins and gases from going into the 

air in Pennsylvania. That is demonstrated, it is clear. So it does 

make a difference to each and every one of our 17 States, regardless of the fact that I agree it is a worldwide problem. 

No. 2, just to thank all of you for your leadership. I hope we get 

this done now. But we have to keep the pressure on and I am really looking forward to the transportation reauthorization, because I 

think it provides us with a unique opportunity to do something 

that will last for generation after generation. 

Senator BOXER. Governor Douglas. 

Governor DOUGLAS. Madam Chairman, thank you again for your 

time and attention on this important topic. I appreciate the leadership Senator Sanders has shown for our State. We will keep doing 

what we can to advance this important matter. 

Very quickly, I would suggest that legally, this is the wrong decision by the Environmental Protection Agency. Federal district 

courts on both sides of our Country have held very clearly that 

States have the right under the law to exercise this option. Second, 

individual States have enjoyed rights under our Federal system to 

advance agenda items that they feel strongly about, that they feel 

are important to their citizenry. This is an important area in which 

State leadership ought to be respected. 

Finally, as we have said, nothing could be more important to the 

future of the quality of life of all the people we represent than the 

air that we breathe and the economic base of our States that is so 

important based on our traditions. 

Senator BOXER. OK. Last but certainly not least, Hon. Martin 

O’Malley, Governor of Maryland. 

Governor O’MALLEY. Madam Chair, thank you very much. It has 

been a great honor to be with all of you today and I thank you for 

your leadership and for seeing the importance of this. This has also 

been an extraordinary opportunity for me to express views and to 
109 

be referred during the course of this panel as being on the right. 

That is the first time that has ever happened to me. 

[Laughter.] 

Governor O’MALLEY. We are going to continue to stand together 

and we are going to go to court and get this overruled as States. 

I trust that there will be another day when we will be able to regulate further greenhouse gas emissions here in the Federal level. 

The Supreme Court has said that we have the power to do it, that 

our Federal Government has the power to do it. In fact, they have 

rebuked the Federal Government for not doing more in the past. 

I trust we will get this overturned, and I thank you so very, very 

much for your commitment to the future of our environment and 

our children’s future. 

Senator BOXER. Thank you. 

Let me close out this panel by saying a couple of words. First, 

Governor Rendell, I would like to invite you to be part of a future 

hearing we are going to be having, because I know you stood with 

my Governor and I think it was Mayor Bloomberg, President—no, 

Mayor Bloomberg—and called for a major infrastructure initiative. 

That was music to my ears, because I agree with everything that 

has been said here from the standpoint of cleaning up the air, from 

the standpoint of creation of jobs and easing some of the job losses. 

I think it is essential that we do that. 

So I hope you would respond favorably and I promise you, you 

will be on the first panel, so you won’t have to sit around. 

[Laughter.] 

Senator BOXER. Not everything we do is as contentious as this. 

I also want to say to my friend, Mr. Haaland, welcome, all the 

way from California. I just want to say that you are right, that 11 

years ago, we voted to say, let’s not do anything until China acts. 

We don’t feel that way any more. We have had votes since where 

a very strong majority, by the way, when the Senate was Republican, we had like 54 votes to say, we need to move forward. 

So you are absolutely right to point that out. But we have 

changed dramatically, given the information we have received. 

Finally, to my friend on the left, Hon. Mike Cox, let me just say 

a few things. Please know that as I say this it is with great respect. 

Because you are the top law enforcement, legal beagle in your 

State. You are the top lawyer. I think it is important that you look 

at what the Supreme Court said about greenhouse gas emissions. 

They lectured this Administration. They said that climate change 

emissions were included in the Clean Air Act. 

So this is nothing extraordinary. This is yet another waiver for 

yet another pollutant specifically mentioned in the Clean Air Act. 

I just want you to read both the Clean Air Act again and the 

Court’s decision. 

Also, to say to you that at the end of the day, if we do work together, I agree with Governor Rendell. He says this is an economic 

opportunity the likes of which we have never seen. If Bernie Sanders had the chance and he gets going, you are just ready to go out 

there and pass every law, because the Silicon Valley people, and 

I represent them, I am proud to represent them, have told me, pass 

some strong national legislation and let the States continue to do 

what they do. We are going to see investments that will make the 
110 

investments that occurred in the communications revolution just be 

dwarfed. 

So there is so much excitement here. I say to my friends in 

Michigan, and let me say since I mentioned Senator Sanders, he 

worked so hard to get a big piece of this Lieberman-Warner bill direct relief and help to the workers in the automobile industry and 

work with them in crafting this. We shouldn’t approach this with 

fear or trepidation. We should step up to the plate. That is what 

America does. 

I think these Governors are doing it, and all I say to my friends 

on the other side, if you really step away from fear and embrace 

hope and the American can-do spirit, I think we are going to lead 

the world going out in future years. If we shrink and we fight and 

we get nothing done, somebody else is going to grab that ground, 

and it won’t be America. 

But I just want to say to all of you, you have been terrific. You 

have been honest with us, you have been informative, and we 

thank you so very much. Thank you very much. 

I say now to my third panel, oh, my God, you are still here. We 

started at 10, it is 10 to 2. We have two of you. If you are still 

around, David Doniger, Policy Director, NRDC; Jeffrey Holmstead, 

Former Assistant Administrator for Air and Radiation, U.S. Environmental Protection Agency. 

If I could ask our Governors and all their throngs of supporters 

and friends to exit so we can hear from Mr. Holmstead and Mr. 

Doniger. 

Gentlemen, we thank you so very much for your patience. I am 

going to ask our colleagues to tiptoe out of the room so we can get 

started, because this is a very important panel. A lot of excitement 

in the Committee today. 

So you have heard this, I assume, from the beginning. I know 

that you know we are swearing in all our witnesses. If you 

wouldn’t mind standing up. 

[Witnesses sworn.] 

Senator BOXER. Thank you so much. 

Mr. Doniger, why don’t you start. 

STATEMENT OF DAVID DONIGER, POLICY DIRECTOR, 

CLIMATE CENTER, NATURAL RESOURCES DEFENSE COUNCIL 

Mr. DONIGER. Thank you very much, Chairman Boxer. It is a 

pleasure to be here, and I appreciate your long-suffering sitting in 

the Chair today. 

I learned some extraordinary things here. I would like to submit 

my testimony for the record and just reflect on a couple of things 

I heard. One of the most interesting things I heard was that Administrator Johnson virtually admits that he and presumably others in the Administration were waiting to see if Congress would 

change the Clean Air Act, so that they wouldn’t have to make this 

decision. 

We know that in the last month or so, when the Energy bill was 

coming together, Members of the Congress who negotiated this bill 

considered some language which would have limited EPA at the 

Federal level and California from going farther than the new CAFE 

standards. The congressional negotiators closed on the Energy bill, 
111 

rejecting that language and including instead language that did the 

opposite, section 3 of the final law. It provides that nothing in the 

law, the new Energy bill, affects any pre-existing law, including, 

and it especially calls out, environmental laws. 

I note also that the Energy bill doesn’t provide for a 35-mile per 

gallon standard. It provides for a standard of at least 35 miles per 

gallon in 2020. So it sets a floor in fuel economy terms and it 

leaves the Clean Air Act intact. 

What I learned is that Administrator Johnson was watching to 

see how that would come out. In fact, we know they weren’t just 

watching. The White House sent two veto threats regarding the 

Energy bill to the Congress and included in both of those threats 

that it would be vetoed unless this language subordinating the 

Clean Air Act to the CAFE law was included. Congress declined to 

include it, stuck with the savings clause, and the President, who 

got some concessions in other areas of the Energy bill, concluded 

that he would accept the Energy bill with the savings clause, with 

the Clean Air Act protected, not subordinated, and he signed that 

law. 

It now sounds as though Mr. Johnson was sitting around waiting 

to see if Congress would provide him an excuse for not allowing 

California to go forward. It seems as though, having concluded that 

Congress wouldn’t provide that excuse, they went back to try to 

rack through the Clean Air Act and find some excuse. 

I don’t find the compelling and extraordinary conditions that the 

Administrator is making the slightest bit compelling. He is saying 

that he may wish that the Clean Air Act said that California had 

to have compelling and extraordinary local conditions. But it 

doesn’t say that. It says compelling and extraordinary conditions. 

The EPA has interpreted this over the years, Mr. Ruckelshaus, 

who served under two Presidents, interpreted this language as not 

requiring a unique problem for California. In fact, it wouldn’t make 

any sense to require a unique problem and then provide that other 

States can adopt what California adopts. 

So this is an extraordinarily flimsy argument. The records which 

you have been able to get from the Administrator show that the 

staff advised him exactly how flimsy and weak that argument was. 

It is going to be necessary, presumably, to test this out in court. 

But I am very confident that the State and Environmental Coalition, which has tackled this latest EPA refusal to deal with global 

warming, is going to win again. We won in the Supreme Court, as 

you all have mentioned. We have prevailed in two court cases that 

the Governors have mentioned, in Vermont and California. 

We prevailed in the legislative battle over whether the Clean Air 

Act would be subordinated or preserved. The Administrator is just 

violating the law. It is maybe not unexpected, given who he works 

for. But it is disheartening, nonetheless. 

The other thing I learned, and I will just close with this, is that, 

I believe it was Senator Sanders who summarized Mr. Johnson’s 

testimony as saying that he had not talked to the President about 

this matter, and Mr. Johnson felt compelled to point out that he 

does have routine conversations with the President. I infer from 

that exchange that they did talk about the waiver, otherwise there 

would have been no need to say anything to distinguish what Sen-
112 

ator Sanders had said. So they did talk about this. It does seem 

that your investigation has a lot of value to ferret out just exactly 

who ordered Mr. Johnson to make this decision. 

When he says he made this decision independently, I find that 

extremely hard to believe. Thank you. 

[The prepared statement of Mr. Doniger follows:] 
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RESPONSE BY DAVID DONIGER TO AN ADDITIONAL QUESTION FROM SENATOR INHOFE

Question. What is the logic of allowing only California to regulate a non-local, but 

instead global pollutant? Do you advocate the repeal of Section 209(a) of the Clean 

Air Act? Doesn’t the very essence of the rationale for giving California a special prerogative to regulate mean that California must be unique? Otherwise, why not give 

every State that same right? And if giving every State the same right to regulate 

a global pollutant would make no sense, why shouldn’t California equally be prohibited from having its own standard? 

Response. In 1967 and 1977, Congress deliberately created a two-car system of 

air pollution standards with authority to set vehicle emission standards vested in 

both the Federal EPA and in California. Congress determined in 1967 that it was 

worth preserving the benefits of California’s historical role in setting emission 

standards even as the Federal Government assumed a more prominent role. 

So while Congress in Section 209(a) preempted other states from setting emission 

standards, it preserved the role of California, subject only to the waiver requirement 

in Section 209(b). In short, while Congress agreed that the auto industry should not 

be subject to 50 separate State standards, Congress determined that allowing two 

standards the Federal one and California’s was a workable arrangement that assured the Nation the benefit of continued technological leadership from California 

while limiting the exposure of the auto industry to just two standards. California 

serves as the pioneer, setting standards that break ground in advance of Federal 

standards. From the start Congress anticipated that California’s standards would 

be ‘‘more stringent than, or applicable to emissions or substances not covered by, 

the national standards.’’ H.R. Rep. No. 90–728 (1967), reprinted in 1967 

U.S.C.C.A.N. 1938, 1958. Time and again, Congress and EPA have adopted the technologies proved up by California into subsequent Federal standards applying nationwide. Indeed, other nations have followed California’s pioneering example, such that 

technologies pioneered in California are now standard equipment on cars made 

throughout much of the world. 

In 1977 Congress reiterated the value of California’s role as a technological pioneer, stating its intent ‘‘to ratify and strengthen the California waiver provision and 

affirm the underlying intent of that provision, i.e., to afford California the broadest 

possible discretion in selecting the best means to protect the health of its citizens 

and the public welfare.’’ H.R. Rep. No. 95–294, at 301–02 (1977). Congress also 

chose to adopt Section 177, which authorizes other states to adopt California’s emission standards, as long as they do so identically. The point of so doing was to enable 

other states that share California’s pollution problems to adopt the same remedies. 

On the basis of these enactments, in a 1984 waiver decision, Administrator William Ruckelshaus specifically held that California need not have a unique problem 

nor even the most severe version of a problem that it shares with other states. As 

he stated: ‘‘[T]here is no indication in the language of section 209 or the legislative 

history that California’s pollution problem must be the worst in the country, for a 

waiver to be granted.’’ 49 Fed. Reg. 18877, at 18891, May 3, 1984. If California had 

to have a unique problem, there would be no point in providing other states the authority to adopt California’s standards. 

In Massachusetts v. EPA, the Supreme Court rejected EPA’s argument that Federal regulation of motor vehicle emissions would make no difference to a global 

problem. The Court stated: ‘‘Agencies, like legislatures, do not generally resolve 

massive problems in one fell regulatory swoop. . . . They instead whittle away at 

them over time, refining their preferred approach as circumstances change and as 

they develop a more-nuanced understanding of how best to proceed.’’ 127 S. Ct. 

1438, 1457 (2007). The same holds for California’s actions. Especially when joined 

by 17 other states—12 that have fully adopted California’s standards and five others 

that are in the process of so doing—California’s standards will make a tangible reduction in U.S. and global levels of greenhouse gases. In fact, as California has 

found, its standards will reduce these emissions by more than twice the amount of 

the new Federal CAFE standards. 

In sum, NRDC sees no need for statutory change in Section 209. All we seek is 

EPA’s faithful adherence to the law, which requires granting the waiver. 

Senator BOXER. Thank you. 

Welcome, Mr. Holmstead. You and I did a little debate on this 

issue on television, remember that? So it is nice to see you in person as well. 
131 

STATEMENT OF JEFFREY R. HOLMSTEAD, FORMER ASSISTANT 

ADMINISTRATOR FOR AIR AND RADIATION, U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. HOLMSTEAD. Thank you. Thank you for having the patience 

and thanks to everyone who stuck around this long. I remember a 

long time ago when more people stuck around when I used to testify. 

Senator BOXER. Ah, yes. 

Mr. HOLMSTEAD. Thank you for your patience. 

Senator BOXER. It is a little easier on you now. 

Mr. HOLMSTEAD. It is nice to be here with my friend, David 

Doniger. He has pointed out a number of things, although few of 

them really have much to do with the legal issue that is in front 

of us. 

Just for the record, let me say, my name is Jeff Holmstead, and 

I am now a partner in the law firm of Bracewell and Giuliani. But 

I am not here appearing on behalf of my law firm or any clients. 

I am here in my personal capacity as someone who spent a lot of 

time over the last 20 years working on Clean Air Act and climate 

change issues. As everyone here is well aware, late last year Administrator Johnson announced his intention to deny California’s 

request for a waiver. I know that you, and we have heard from others who are unhappy with this decision, but I think as a legal matter, it is the right decision. I believe that it is also right as a policy 

matter. 

Now, again, I think one of the Governors mentioned that this 

issue really goes back almost 40 years ago, when Congress first 

began to deal with air pollution issues. It decided, and some people 

may not be happy with this, but it did decide that there would generally be one set of uniform national emission standards for motor 

vehicles. That is the way the law has worked since 1967, and a few 

years later, that responsibility for setting those standards was 

given to the Environmental Protection Agency when it was first 

created. 

As you also know, there is this important exception that applies 

only to California. So it is kind of irrelevant, at least as a legal 

matter, that 17 other States or 40 other States. As a legal matter, 

the question here has to do with California. Then back in 1967, 

Congress explicitly recognized that California faced compelling and 

extraordinary conditions with respect to air quality because of its 

location, its geography, its weather patterns and because the vast 

majority of the air pollution that caused its dirty air came from vehicles driven on California roads. So Congress allowed, under certain circumstances, for EPA to waive this Federal preemption. 

Importantly, however, and as a legal matter it is important to 

note what the words actually say. It says in very strong terms, ‘‘No 

such waiver shall be granted if the Administrator finds,’’ and 

again, this is the Administrator, ‘‘No such waiver shall be granted 

if the Administrator finds that California does not need such standards to meet compelling and extraordinary conditions.’’ 

Historically, there has been very little debate about what is 

meant by the phrase compelling and extraordinary conditions. It 

was undisputed except for, I think, one important instance that Mr. 

Doniger is well aware of. But it was generally undisputed that 
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California faced very serious air quality problems, the air in many 

of its major cities was unhealthy to breathe, and that most of the 

State’s pollution, really quite different from virtually everybody 

else, most of the State’s pollution came from vehicles being driven 

on California roads. Thus, there was very little question as to 

whether the State needed its own more stringent standards to meet 

compelling and extraordinary conditions. 

Now, as we have heard this morning, or I guess now this afternoon, California seeks a waiver to deal with a very different type 

of problem, global climate change. As you have also heard, this is 

truly a global issue, a ton of CO2 emitted in New York or New 

Dehli has precisely the same impact on California as a ton of the 

same gas emitted in Los Angeles or Sacramento. The State is seeking a waiver not to provide healthier air for its residents to 

breathe, but to make what it admits is a minimal difference in 

global emissions of greenhouse gases. 

There is no denying that climate change is an enormously important issue. But based on the history and the structure of the Clean 

Air Act, it is also clear that compelling and extraordinary does not 

mean enormously important. It means that there must be something different about California relative to other States, something 

extraordinary that would justify differential treatment for California. 

In support of its waiver request, California lists a number of potential impacts that the State may face because of climate change, 

including impacts on tourism, public health, water resources and 

the like. Obviously these impacts are potentially very serious. But 

many other States face some or all of them. Nowhere does California really attempt to demonstrate in any meaningful way that 

the negative impacts it would face from climate change are extraordinary as compared to other States in the Union. 

Simply as a constitutional matter, it would be problematic if 

Congress were to favor one State over all the others unless there 

is a good reason for doing so, unless there is something different 

about that State to justify its special status. The special status of 

California only makes sense if section 209(b) is read to allow the 

State to address conditions that are compelling and extraordinary 

compared to other States. 

Senator BOXER. I am going to ask you to finish up right now. 

Mr. HOLMSTEAD. Oh, I didn’t think I had gone my 5 minutes yet. 

If I have, I apologize. 

Senator BOXER. Time flies. 

Mr. HOLMSTEAD. I even timed myself last night. 

But the situation here really is quite different, and I am afraid 

that Governor Rendell and Senator Cardin maybe don’t understand 

exactly what the waiver is. Because there is nothing about the 

waiver decision that actually creates healthier air to breathe. It 

doesn’t result in—— 

Senator BOXER. Well, that is so incorrect on its face I will put 

the documentation into the record. 

Mr. HOLMSTEAD. I would be—— 

Senator BOXER. The studies on ozone are overwhelming. 

Mr. HOLMSTEAD. No, no, the studies—— 
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Senator BOXER. We have those and we will put them in the 

record. 

Mr. HOLMSTEAD. The studies that are in the record, actually—— 

Senator BOXER. We will put studies into the record just to refute 

what you just said, sir. 

[The referenced material follows on page 143.] 

Senator BOXER. Now, do you want to just complete, because you 

have gone over. 

Mr. HOLMSTEAD. Yes, thank you. Emissions of traditional air pollutants that contribute to ozone and other problems are not affected by the waiver decision. I think as you undoubtedly can 

guess, this will go to court. I think this is a case in which EPA will 

be upheld, because it really doesn’t have anything to do with Massachusetts v. EPA. [The prepared statement of Mr. Holmstead follows:] 
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Senator BOXER. Well, Mr. Holmstead, your testimony is so unbelievable to me. Now, I know you don’t represent your firm, although it says Bracewell and Giuliani on your statement. We 

shouldn’t have done that. But the fact is, the firm does represent 

the biggest polluters. 

But let me just say this. You are the one who made the argument that the Clean Air Act didn’t cover greenhouse gas emissions. 

Not only was your theory struck down, but you were lectured by 

the Supreme Court, and again, we will put that in the record. They 

found, contrary to the opinion of EPA counsel, the Clean Air Act 

does not authorize EPA to issue mandatory regulations to address 

global change. They said in fact that was totally wrong. 

Now, your assertions then were wrong, you predicted EPA would 

win, you were wrong. You now say EPA is going to win this. 

Now, I have to tell you, I have great respect for your credentials, 

but your legal opinion doesn’t square with the legal opinion given 

to Mr. Johnson by the EPA lawyers who pick apart your comment 

that there is no compelling or extraordinary circumstances. Again, 

I will put this in the record again, this is the lawyer speaking. 

California continues—— 

Mr. HOLMSTEAD. This is the opinion of EPA lawyers? With all 

due respect, I don’t think that is correct. 

Senator BOXER. These are the lawyers. These are the lawyers. 

Excuse me, sir. These are the documents. We will show them to 

you. I can’t give them to you. We will show them to you. 

Mr. HOLMSTEAD. I am aware this is apparently from a briefing. 

That wouldn’t be considered—— 

Senator BOXER. It’s not apparently a briefing. It is the recommendations. EPA has asserted attorney-client privilege over it. 

So don’t tell me it is not an opinion of the attorney. So let’s not 

argue over how many angels dance on the head of a pin. I will finish. 

California continues to have compelling and extraordinary conditions, in general, geography, climatic, human and motor vehicle 

populations. Many such conditions are vulnerable to climate 

change conditions, as confirmed by several recent EPA decisions. 

Wildfires, they go through it chapter and verse. 

So EPA’s lawyers in the documents we have, to which Mr. Johnson is asserting executive privilege, dispute you completely. You 

were wrong before, and you don’t seem to have any feeling of humility about it. You were so strong, you predicted how the Supreme 

Court would go. Not only did the Supreme Court rule against you 

in saying that greenhouse gas emissions were included in the 

Clean Air Act, they lectured the EPA. I have never seen anything 

like it. They lectured the EPA. 

Now, I read the Clean Air Act, and it is plain English. By the 

way, you are a lawyer, I happen to in general love lawyers. My 

husband is a lawyer, my son is a lawyer, my father was a lawyer. 

But I have to say, if you just read English, you can see that the 

Clean Air Act said in plain English, greenhouse gases, they used 

the word climate change emissions are covered. 

So you are standing on quicksand when you say that the lawsuit 

will be overturned. 
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Your other point about, oh, this doesn’t really involve other 

States, and I get your point, it does involve other States. That is 

why other States are suing along with California and why you 

heard three Governors from other States speak eloquently on the 

point. So I don’t think it serves us well. 

Mr. HOLMSTEAD. Senator, my position was it would be illegal for 

Steve Johnson to consider how many other States had said they 

wanted to follow California’s lead. That is not the way the law 

works. That was my point. 

Senator BOXER. Well, it is illegal for Steve Johnson to substitute 

his judgment for what California is asking. All you have to do is 

read the legislative history. I would just say, sir, having been called 

out once by the Supreme Court, you come before us with all this 

certainty. I just want to say with all due respect to you, you really 

ought to take another look at what you are saying. 

For example, you said something that is totally inaccurate. You 

said that this different standard is minimal, it is going to make a 

minimal difference, when the facts are out and the studies are out, 

85 percent more than the new Federal CAFE standards. 

Mr. HOLMSTEAD. Senator, those are California’s words. 

Senator BOXER. No, no, no, it is not California’s words. It is a 

study. 

Mr. HOLMSTEAD. That is what California has said repeatedly. 

They have acknowledged a minimal directional difference. 

Senator BOXER. Do you not respect Governor Schwarzenegger? 

Mr. HOLMSTEAD. I certainly do, enormously. 

Senator BOXER. Do you not respect Attorney General Brown? Do 

you not respect the people of California who want this to happen? 

Sir, all I can say is that your conclusions that the waiver should 

be denied and that the Administrator is standing on strong ground 

is simply belied by the EPA’s lawyers and everything else. 

I am going to close and ask David Doniger, do you think that 

California and the other States have a strong case in front of the 

Court? 

Mr. DONIGER. Yes, Senator, I do. I think two quick comments. 

Mr. Holmstead has a track record that goes beyond the Supreme 

Court case. There are somewhere between 6 and 10 decisions that 

have been overturned on pure legal grounds from his tenure. 

So—— 

Senator BOXER. Would you make that available for the record? 

Mr. DONIGER. Sure, we can make a list of those available. 

Senator BOXER. Thank you very much. 

Mr. DONIGER. The second point is, this is all going to come down 

to, what does compelling and extraordinary mean. It doesn’t mean 

unique. That has already been determined by the Administrator. It 

wouldn’t make any sense for it to mean unique, because Congress 

has provided the other States can adopt the same standards. 

So to the extent that Mr. Holmstead is pinning all his hopes on 

compelling and extraordinary, meaning something that is affecting 

California only, it is not going to prevail. 

The last thing I would note just for the record is, I think Mr. 

Holmstead misquoted the current statute. It says, the Administrator shall grant the waiver unless he finds, unless he determines. 
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Mr. HOLMSTEAD. No, I was reading right from the statute, Dave. 

We can double check that. 

Mr. DONIGER. We can double check that. 

Presumptions run very heavily in favor of California. That is 

what the D.C. Circuit has said. 

Senator BOXER. That is what the EPA’s lawyers have said in the 

documents, that we had to painstakingly transcribe because the 

EPA is hiding behind some Nixon-era decision on executive privilege, not recognizing that Mr. Johnson is not the President of the 

United States, he is an Administrator, and not recognizing that 

these documents are not classified, they have nothing to do with 

national security. 

So I think this is an outrageous decision. They are trying to run 

the clock, that is what this Administration is all about, and the 

people who were part of it before, run the clock, take 2 years with 

a bogus argument that you get lectured at wasn’t even right, that 

the Clean Air Act doesn’t include greenhouse gas emissions, run 

the clock, run the clock, 2 years. Then at 6 o’clock, late at night, 

say, oh, well, we just passed the Energy bill, this is unnecessary, 

and then run the clock on these lawsuits. The American people 

have to pay to go to court, they pay for the lawyers, they pay for 

the time, they pay for the time of our Governor, of the other Governors. It is all on the clock, and it is all about beat the clock. 

What they are trying to do is nothing, nothing helpful in terms 

of reduction of greenhouse gas emissions. Thank God the States are 

moving forward. Thank God for that, the mayors are moving forward. Thank God the American people do not share the views that 

are expressed here by those who are associated with this Administration. 

I am going to close by saying today I am introducing a bill that 

would grant the California waiver. My co-sponsors so far are Feinstein, Lieberman, Lautenberg, Cardin, Whitehouse, Sanders, Clinton, Leahy, Kerry, Obama, Dodd and Mikulski. We will continue to 

get more co-sponsors as the days and weeks progress. 

But the fact is, this Administrator, I hope he will consider the 

views of the members of this Committee, the views of the Governors, the views of the people and instead of waiting to be told by 

a court or to be overruled by Congress, do the right thing. Grant 

the waiver, let the States protect the health and safety of the 

American people and this planet. 

We will stand adjourned. 

[Whereupon, at 2:15 p.m., the committee was adjourned.] 

Additional material submitted for record follows.] 

STATEMENT OF HON. JON S. CORZINE, GOVERNOR, STATE OF NEW JERSEY

Thank you for this opportunity to testify on the Environmental Protection Agency 

Administrator’s denial of California’s waiver to allow states to reduce greenhouse 

gas emissions from motor vehicles, and its significance to New Jersey. This decision 

is unacceptable and will negatively impact New Jersey’s efforts to combat global climate change. Denying the waiver will have a profound effect on the health of New 

Jersey’s citizens and our attempts to protect our natural resources and our economy. 

There is no mistaking the threats of global warming and the health hazards 

caused by ozone air pollution in our densely populated coastal state. However, the 

Administrator’s denial of the waiver, ignores the threats of global warming. In response to the environmental and economic threats of climate change, states like 

California and New Jersey have worked to reduce their impacts of greenhouse gas 
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emissions. But Administrator Johnson’s decision has denied New Jersey and the 

other states a key resource in our efforts to address climate change. 

Recently, I signed an Executive Order that seeks by 2020 to reduce greenhouse 

gas emissions to 1990 levels, or by approximately 20 percent, and calls for a total 

80 percent reduction below 2006 levels by 2050. The goals in the executive order 

were then incorporated into the ‘‘New Jersey Global Warming Response Act’’, which 

was signed into law in July, 2007. These policies and goals are among the most aggressive climate control programs in the country. 

However, these goals cannot be met, unless the State is permitted to implement 

the California program, to decrease the emissions of motor vehicles. In 2004 the 

transportation sector accounted for 36 percent of New Jersey’s total carbon dioxide 

emissions. Improving motor vehicle fuel efficiency and setting greenhouse gas emissions standards represent the greatest opportunity for significant energy savings in 

the transportation sector. 

The California greenhouse gas standards for motor vehicles are a key component 

in meeting those goals. The California greenhouse gas standards for motor vehicles 

must move forward so that not only California, but the 13 other states, including 

New Jersey, that have adopted the standards will be able to move forward in addressing the problem of global warming. 

The authority to implement this California Low Emissions Vehicle Program, has 

been confirmed by numerous court decisions that have upheld challenges to the 

California emissions standard and clarified the legalities for California to adopt 

such standards. In fact, in April, the United States Supreme Court ruled that greenhouse gas emissions from motor vehicles are pollutants that can be regulated under 

the Clean Air Act. This ruling and the Clean Air Act give states like California and 

New Jersey the jurisdiction to design a clean car program. 

In the Administrator’s denial of the waiver, he cited concerns about creating a 

confusing patchwork of different State emissions standards. However, there are only 

two standards ? the California standard and the Federal standard. While these two 

standards are similar, they serve different purposes. The new energy bill will regulate fuel economy standards, but the California standard focuses primarily on regulating greenhouse gas emissions, which are the cause of global climate change. Instead, the only patchwork created would be the geographic distribution of the two 

programs. 

Administrator Johnson also cites the Energy Bill and its CAFE standards as a 

substitute for California’s greenhouse gas standards. However, the two programs 

are not equivalent. The California Air Resources Board has analyzed the two programs and found the California program will have nearly double the emission reductions relative to the new energy law. The goals of the Energy Bill are to reduce energy consumption which is laudable, but it is not sufficient to protect the environment from the impacts of greenhouse gas emissions. 

We should not kid ourselves. The reason we are having this debate today, is because states are looking for ways to combat global climate change. New Jersey’s situation is compelling as we will be adversely impacted by climate change. Global 

warming is the most urgent environmental issue we face. It is having a serious impact on New Jersey’s public health, environment and economy in several ways. 

First, the effects of global climate change could be devastating to New Jersey’s 

natural resources. New Jersey has 130 miles of highly populated coastline, as well 

as thousands of acres of coastal salt marshes and tidal flats, coastal wetlands, and 

tidal freshwater wetlands. These areas are highly vulnerable to the predicted sea 

level rise from global warming. Rising seas would inundate many acres of New Jersey’s remaining coastal salt marshes and tidal flats that provide flood protection, 

water quality benefits, and habitat for native species. Sea level rise would alter 

flooding and salinity of the State’s coastal wetlands, which are among the largest, 

most productive, and most diverse in the mid-Atlantic region, with substantial adverse impacts on wildlife and fisheries. 

Second, sea level rise could cause chronic flooding within this century, and sections of the State’s highly developed coastline could be submerged by this flooding. 

Third, higher temperatures and increased frequency of heat waves due to global 

warming also may increase the number of heat-related deaths and the incidence of 

heat-related illnesses. Climate change models project a significant increase in the 

number of days above 90 degrees Fahrenheit in New Jersey, which will increase 

heat stress, particularly for vulnerable urban populations such as the elderly and 

urban poor. In addition, an increase in temperature also means an increase in air 

pollutants in a State already has high air pollution. For example, in the summer 

of 2002, New Jersey had the highest number of ozone violations per monitoring station in the Nation. Ground level ozone concentrations throughout the entire State 
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of New Jersey exceed current national health-based standards. Higher temperatures 

will tend to increase these health violations. 

In summary, the Administrator’s decision to prohibit the states’ ability to effectively reduce greenhouse gas emissions from motor vehicles is unacceptable. This 

decision will have a profoundly adverse effect on New Jersey and must be reversed. 

This is a non-partisan, state’s rights issue, and I call upon the Administrator to 

fully explain his rational for his decision. 
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