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By Margaret Kriz, National Journal
© National Journal Group Inc.
Friday, Jan. 18, 2008

It's a recipe for high-profile conflict: The Democratic House speaker and several influential committee chairmen hail from California, and a Bush administration agency has blocked an initiative launched by their home state.

In mid-December, Environmental Protection Agency Administrator Stephen Johnson refused to let California regulate greenhouse-gas emissions from cars and trucks in the state. Now, furious members of Congress from California are vowing to hold tough oversight hearings to probe the unexpected decision.

House Speaker Nancy Pelosi, D-Calif., has accused EPA of undermining the "ability of the states to protect their citizens from the dangers of global warming." Sen. Barbara Boxer, D-Calif., chairwoman of the Senate Environment and Public Works Committee, and Rep. Henry Waxman, D-Calif., chairman of the House Oversight and Government Reform Committee, have demanded that Johnson hand over all paperwork related to the decision. In an interview, Waxman asserted that the ruling "seems contrary to law and common sense, and seems to be very much a political one." Sen. Dianne Feinstein, D-Calif., has also asked EPA's inspector general to probe the steps that Johnson took before issuing his decision.

Boxer has already begun scrutinizing Johnson's ruling by holding what she described as a "field briefing" on January 10 in Los Angeles. Waxman is seeking to interview several EPA employees. The agency has missed all of the deadlines set by Boxer and Waxman for providing documents related to the decision. Johnson is expected to testify at a January 24 hearing of Boxer's panel.

The controversy stems from California's proposal to require vehicle manufacturers to reduce the greenhouse-gas emissions of cars and trucks sold in that state by 30 percent by 2016. That plan is part of a sweeping state initiative to slash its greenhouse-gas emissions to 1990 levels by 2020. Under the Clean Air Act, California can adopt tougher air-pollution controls than those set by the federal government, but it must first get EPA's blessing. Over the years, California has sought and received more than 50 waivers allowing it to impose stricter pollution regulations. Once California adopts new controls, other states can follow suit.

In 2005, the California Environmental Protection Agency petitioned the federal EPA for permission to implement the state's tailpipe-emission-control program. This time, however, Johnson denied the state's petition. The EPA administrator argued that although past California petitions focused on state or regional air-pollution issues, global warming is an international issue that the federal government should handle.

Johnson said that the recently enacted energy bill, which will increase vehicle fuel efficiency to 35 miles per gallon by 2020, will more aggressively reduce greenhouse-gas pollution from cars and trucks. In response, California regulators issued their own report demonstrating that their plan would make more-significant cuts in global-warming pollution.

Jeffrey Holmstead, who headed EPA's air-pollution office during President Bush's first term, maintained that it's more logical for federal regulators to handle global warming. "California's theory of law is that the Congress enshrined their ability to be an environmental leader," said Holmstead, now an attorney with Bracewell & Giuliani. "But to give California pre-eminence on national or international issues would be a little weird."

David Doniger, policy director for the Natural Resources Defense Council's climate center, countered that the Clean Air Act does not limit California's ability to impose stricter air-pollution controls. "The law doesn't say that California has the authority to deal only with compelling local pollution," Doniger said. "It says California can respond to compelling and extraordinary conditions. In this case, California is being severely impacted by global warming."

In response to Johnson's denial of California's waiver, the state's attorney general, Jerry Brown, filed suit against EPA. Sixteen states have joined that lawsuit, and five environmental groups, including Environmental Defense, the NRDC, and the Sierra Club, have a separate legal action pending against the agency.

The aggressive push-back comes as Congress prepares to tackle climate-change legislation. In the Senate, a bill approved by Boxer's committee is headed to the floor, while the House is poised to begin writing its measure. The legislation faces an uphill battle to enactment this election year, but even if it falters, Democrats can still hammer away on the issue -- and probably rack up some political points -- through their oversight efforts.

Lawmakers involved with crafting the legislation must decide whether the states or the federal government should take the lead. House Energy and Commerce Committee Chairman John Dingell, D-Mich., last year floated a proposal that would have pre-empted state climate-change laws, but he later withdrew it. During last year's energy bill debate, the Bush administration and auto-industry lobbyists unsuccessfully tried to inject language to block the California car standards.

Dingell's chief of staff, Dennis Fitzgibbons, said that Pelosi has acknowledged that the federal-state jurisdictional battle must be settled. "When we begin work on a climate-change bill, this is going to be one of the thorniest policy problems," Fitzgibbons said. "There is going to have to be some way of apportioning responsibilities between the states and the federal government to make sure that you don't come up with something that's inconsistent, duplicative, or counterproductive."