• A Superior Court judge in Alameda County has ruled that cell phone companies cannot charge early-termination fees, and has ordered that Sprint return $18.2 million dollars to consumers. This will probably get fought on appeal, but right on. The concept of fee for service has worked pretty well for most of consumer capitalism, as has being nice to your customers instead of bullying them into compliance.
• There's been a lot of outrage at the LA City Council's ruling banning new fast-food restaurants from breaking ground in South LA for a year. Actually, far from being an issue of infringing on freedom, it's a little thing called land use, and every city has them - even the one that the outraged Will Saletan lives in.
I'm pretty skeptical that these proposed South LA regulations will do any good. But it's not unique or unusual for land use regulations to exist. And working class people around the country suffer dramatically larger concrete harms from the sort of commonplace suburbanist regulations that Saletan's been living with, without apparent complaint, in Chevy Chase. Those kind of regulations are bad for the environment, bad for public health, and serve to use the power of the state to redistribute upwards. So if you're going to rail against land use regulations, maybe pick the ones that really hurt people.
• In environmental news, Senate leaders like Barbara Boxer are calling for the resignation of EPA Administrator Stephen Johnson for his preferring ideology over science, defying the advice of his own staff, evading oversight and misleading Congress, particularly about refusing the California waiver to regulate tailpipe emissions. They're also asking the Attorney General to investigate whether Johnson perjured himself at one of the California waiver hearings in Congress. In addition, Jerry Brown is suing the EPA for their refusal to regulate greenhouse gas emissions at the nation's ports.
• And this is pretty interesting, turns out the Sarah of "Sarah's Law" (parental notification) doesn't have the squeaky-clean image her sponsors claim:
Backers of a ballot measure that would require parents to be notified before an abortion is performed on a minor acknowledged Friday that the 15-year-old on which "Sarah's Law" is based had a child and was in a common-law marriage before she died of complications from an abortion in 1994 [...]
A lawsuit co-sponsored by Planned Parenthood Affiliates and filed Friday in Sacramento County Superior Court asks the Secretary of State to remove the girl's story and other information it deemed misleading, including any reference to "Sarah's Law," from the material submitted for the official voter guide.
"If you can't believe the Sarah story, there's a lot in the ballot argument you can't believe," said Ana Sandoval, a spokeswoman for Planned Parenthood and the campaign against Proposition 4.
Using someone's life story for political means, and wrongly at that. Good people.
Don't forget the Begich fundraiser in SF tonight.
The No on 6 campaign will be doing some organizing in the next few weeks against Prop 6, another Runner initiative to wastefully incarcerate more of California's youth. There will be meetings in SoCal (tomorrow), SF(9/9), and in the Central Valley (9/16). Full details at the No on 6 website here.
Just to update on the EPA's denial of a waiver to California to regulate its own greenhouse gas emissions - the White House is now refusing thousands of documents on the matter to Henry Waxman's Oversight and Government Reform Committee, citing executive privilege.
"I don't think we've had a situation like this since Richard Nixon was president," said Rep. Henry Waxman, D-Calif., the chairman of the House Committee on Oversight and Government Reform, which is conducting the investigation.
An EPA official, Jason Burnett, has told committee investigators that EPA Administrator Stephen Johnson had favored granting the waiver but denied it after meeting with White House officials. In testimony last month, Johnson refused to say whether he'd discussed the waiver request with Bush.
The White House waited until the very day that the Oversight Committee was going to rule on contempt citations for failing to respond on this issue. And the OMB and the EPA basically answered by saying "we've given you enough documents, no more documents for you."
It's clear that the EPA and the Bush Administration will stonewall until the day they leave office on this front, and so it's up to the next President to make a determination on the waiver. And all you need to know about California's chances of being able to regulate emissions is that Obama supports the waiver, and McCain has been vague and evasive about it (not to mention he's taken more money from oil companies than any other Presidential candidate).
Meanwhile, California is offering another regulatory solution: they're adding a Global Warming score to the sticker of every car for sale in the state.
The California Air Resources Board said Thursday the window sticker will give consumers the information they need to choose a cleaner-burning car or light truck.
"This label will arm consumers with the information they need to choose a vehicle that saves gas, reduces greenhouse gas emissions and helps fight smog all at once," board chairman Mary Nichols said in a statement. "Consumer choice is an especially powerful tool in our fight against climate change. We look forward to seeing these stickers on 2009 model cars as they start hitting the showrooms in the coming months."
We'll see if this affects consumer choice in the coming months, although the fuel economy portion of the sticker is already driving demand. To say nothing of those 5 hydrogen fuel cell cars turning up on Southern California roads.
Yes, you're not seeing things; the headline of this post is accurate. But there is a twist, as the WSJ's Dana Mattioli reported yesterday afternoon:
In a letter today, two senior Republicans on the House Committee on Oversight and Government Reform asked the panel’s chairman, Henry Waxman (D., Calif.), to investigate whether top EPA staffers either violated federal rules that restrict regulators from lobbying, or “misused their positions to surreptitiously influence” EPA’s decision on whether to allow California to regulate carbon-dioxide emissions from vehicles.
Reps. Tom Davis (R-VA) and Darrell Issa (R-CA) are mad at Margo Oge and Christopher Grundler, the senior EPA officials tasked with evaluating California's waiver request and (unsuccessfully) telling Administrator Stephen Johnson that he had no choice but to grant it. Congressional oversight of that decision revealed that the pair subsequently provided former EPA Administrator William Reilly-- at Reilly's request-- talking points for arguing the waiver's merits to Johnson. Davis and Issa argue that this deserves the same level of scrutiny that Waxman devoted to a surreptitious plan to lobby Congress and governors against the waiver-- Johnson may have also been a target, but he could not recall whether that was the case-- concocted last summer by Secretary of Transportation Mary Peters, White House officials, and industry lobbyists.
This actually isn't the first time that congressional Republicans have gone after Oge and Grundler. During a hearing that followed the revelation of the Reilly memo and other EPA documents, Senator James Inhofe (R-OK) asked Administrator Johnson whether his employees had violated the Hatch Act. Johnson, to his credit, defended their actions, saying that he has "always encouraged my staff to give me candid and open advice" (he just reserves the right to ignore it, even when phrased as a clear mandate and not simply advice, and the resulting fallout severely alienates staff unions).
Rep. Waxman responded to the letter by pledging to give it "careful consideration," but noting that the Committee had "found no evidence that EPA career staff lobbied members of Congress with respect to [California’s request]" (translation: the Davis-Issa analogy to his previous investigation is bunk). For his part, Reilly, who ran EPA under the first President Bush and granted California several waivers, has said that his communications with career staff who served under him were not unprecedented, let alone improper or illegal.
Recently, Senator Barbara Boxer(D-CA) got wind of EPA Administrator Stephen Johnson's plans to bring a "substantial number of EPA staffers" on a work-related to Australia next month-- and in the process leave a whole lot of worries behind, which Boxer euphemistically refers to as "certain important matters" that he'll be unavailable to testify before Congress about. TPM Muckraker's Paul Kiel provides a useful summary of the matters (which should be familiar to Warming Law readers) on which Johnson might want to avoid Congress, adding that he was unable to get EPA to comment and that Boxer's office understands that the trip is scheduled to last at least two weeks. Boxer is clearly exasperated in the letter she wrote to Johnson yesterday, placing it in the context of EPA's already-scarce budget and noting that he ought to be looking a bit closer to home:
If your goal is to learn about actions to address global warming, I suggest that you visit California, which has moved ahead aggressively with greenhouse gas controls. I invited you to testify in January in California on global warming pollution from vehicles, but you declined.
Still, even though no one should envy Johnson's task of spinning the administration's indefensible delaying tactics during a month that will include Earth Day, the anniversary of Massachusetts v. EPA, answering Rep. Henry Waxman's (D-CA) subpoena, and other political and legal landmines, it seemed a bit too predictable that Johnson would leave the country to avoid these kinds of predictable issues alone. Something else, in other words, had to be up his sleeve.
Enter today's letter to Reps. Ed Markey (D-MA) and James Sensenbrenner (R-WI), Chairman and Ranking Member of the House Select Committee on Energy Independence and Global Warming. Johnson, following up on his most recent testimony about the aftermath of Mass. v. EPA-- and repeating its greatest-hits list of the bogus excuses it provided for refusing to issue the necessary endangerment finding for CO2 emissions-- announced that he'll be issuing an "Advanced Notice of Proposed Rulemaking" (ANPR) later this spring to study industry's concerns the issue, and will follow up with a public comment period. Rep. Markey was not pleased, to say the least:
Hoping to further ratchet up pressure on EPA Adminstrator Stephen Johnson regarding California's waiver denial, Senator Barbara Boxer (D-CA) has now released additional transcriptions of internal agency documents her EPW committee staff was able to view. David Roberts has posted some initial thoughts on the highlighted contents-- including a plea from EPA staff to Johnson indicating that if he couldn't grant the waiver at least temporarily, "...you will face a pretty big personal decision about whether you are able to stay in the job under those circumstances."
Even more interesting to us, from a legal perspective, is the following excerpt from that same set of talking points, which is played out repeatedly in the 27 pages of documents transcribed and released by Boxer (added emphasis ours):
• [It is obvious] that there is no legal or technical justification for denying this. The law is very specific about what you are allowed to consider, and even if you adopt the alternative interpretations that have been suggested by the automakers, you still wind up in the same place.
That last sentence is critical, as it bears out the reality that Johnson lacks the administrative authority and legal justification to reintepret the law as he has here. Internal emails and presentations consistently indicate that Johnson's ultimate ruling was wrong and unprecedented along three key lines of argument:
So Barbara Boxer is not sitting on her heels waiting for a new President, she's acting boldly to reverse Stephen Johnson's horrible EPA decision blocking California from regulating tailpipe emissions.
Senate environmental committee Chair Barbara Boxer (D-CA) has introduced a bill that would overrule EPA Administrator Stephen Johnson and instruct him to grant California's waiver.
Right out of the gate, it's got bipartisan support. Cosponsors include Senators Dianne Feinstein (D-CA), Joseph Lieberman (ID, CT), Hillary Clinton (D-NY), Frank Lautenberg (D-NJ), Benjamin Cardin (D-MD), Bernie Sanders (I-VT), Sheldon Whitehouse (D-RI), Edward Kennedy (D-MA), Patrick Leahy (D-VT), Christopher Dodd (D-CT), John Kerry (D-MA), Barbara A. Mikulski (D-MD), Olympia Snowe (R-ME), Susan Collins (R-ME), Bill Nelson (D-FL), Barack Obama (D-IL), and Robert Menendez (D-NJ).
It was fairly certain that litigation would reach the same result, or that a Democratic President would order the EPA to reverse the decision. But that would take quite a while, and in the interim, the climate deteriorates even further.
Shortly before Stephen L. Johnson was sworn in by President Bush as administrator of the Environmental Protection Agency, he gave the president a towel symbolizing a New Testament passage in which Jesus washes his disciples' feet. The towel, given to graduates of Johnson's alma mater, a small evangelical college, symbolizes a life of Christian service.
Like the president, Johnson is a deeply religious man who says he relies on his faith in his work. Johnson prayed and spoke gratefully of early-morning prayer sessions held in his government office in a promotional video filmed there for an offshoot of a worldwide Christian ministry.
We'll see if Boxer can get what would be a needed 67 votes to overcome a Bush veto. But good for her for trying to accelerate the process.
To be completely honest, while I expected a long hearing today, I didn't quite realize it was going to entail over four hours of testimony and fourdistinctlivebloggingthreads. A lot of stuff there to process, and Hill Heat (which also live-blogged part of the hearing over at Daily Kos), Think Progress, and TPM Muckraker all spotlight key highlights (the latter two with the assistance of somewhat-hillarious video clips), as David noted in his earlier post here.
At the end of the day, though, EPA Administrator Johnson's rationale was best summed up in one of his exchanges, a little after noon, with Senator Sheldon Whitehouse (D-RI). Observing that Johnson had responded to a prior question by saying that California's vehicle emissions standards were not needed "in my opinion," Whitehouse flatly stated that the law is pretty clear that he can't substitute his preferences for California's policy judgment. A bit flummoxed, Johnson fell back once again on the argument that the Clean Air Act lets him decide whether California has met its conditions.
In other words, Johnson was saying that yes, he can essentially do as he pleases in terms of interpreting Section 209 of the Clean Air Act. I point to my earlier post on this subject: while he may indeed have some amount of deference provided, it has to be within reason:
This argument for strong deference to the Administrator's reading of the act (usually we'd say "agency deference," but it's now clear that the rest of the agency isn't at all with him) is right along the lines that our own Tim Dowling anticipated-- and debunked as unlikely to stand up in court in this case-- after the waiver was denied. EPA staff seem to have convincingly laid out why, under the law, the waiver should be granted and anything to the contrary wouldn't fly. Johnson's assertion that the Clean Air Act lets him instead impose his policy preferences entirely novel reading of the Act is simply shaky.
Sure, Johnson said today, things like precedent, 99% supportive public comments and his staff's unanimous opinions weigh on him (though by the way, many of those public comments looked to him like a "card-writing campaign" designed to draw him into a "popularity contest"-- the nerve of those people, and the tens of thousands we're told have already emailed to protest his decision!). But at the end of the day, in his incomplete legal judgment, it's his independent decision to decide that there weren't "compelling and extraordinary circumstances" for a waiver because global warming is different and is a worldwide pheonomenon, and that's all there is to it.
Do check out Sean Siperstein at Warming Law's liveblog of today's events in the Senate Environment Committee, where Barbara Boxer and others made EPA Administrator Stephen Johnson squirm for quite a while this morning.
The background, including Boxer's finding that the EPA staff favored the granting to California of the waiver for them to regulate tailpipe emissions, is here and here. More on today's session is here and here, including the hilarious admission that the EPA used duct tape to redact documents about their decision-making process.
BOXER: 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 and staff had to stand here. It's just unbelievable. [...]
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. And this is not the way we should run the greatest government in the world. It does not befit us. So that's why I'm worked up about it and think we have been treated in a very shabby way.
Even Lieberman was laying into Johnson on this one. What an embarrassment.
Late on Friday, the EPA delivered a box of hard-copy documents about the California waiver denial from to Senator Barbara Boxer, theoretically meeting her past-deadline demand for disclosure in advance of Thursday's Senate hearing. The catch, as per the Associated Press-- many documents were either missing or contained numerous redactions. In a letter from Deputy Administrator Christopher Bliley, EPA invoked executive privilege regarding executive deliberations and attorney-client communications, claiming above all that a failure to restrict public release of the documents would have a "chilling effect" on agency decisions [...]
Boxer had threatened to subpoena the agency if it did not turn over the waiver documents. She said she would continue her quest for all the information. Boxer aides said the agency's offer to show her the redacted information privately was not satisfactory.
Apparently 16 pages of a 43-page Power Point presentation were completely blank except for the titles - one of which said "EPA likely to lose suit."
Sen. Boxer is extremely angry about this dodging of federal oversight, calling it "an insult to the American people and a dereliction of duty." There's a hearing about the EPA waiver denial in the Senate Environment Committee scheduled for Thursday, and the Chief Administrator Stephen Johnson will be there. Insofar as Senate committee hearings are must-see TV, this will be one of them.
When we last left EPA Administrator Stephen Johnson, his agency was facing a lawsuit from California and over a dozen other states over his failure to grant a waiver allowing tailpipe emission regulation. It was fairly clear that this decision was wholly political and in no way matching the scientific studies inside the EPA; Johnson's staff was unanimously opposed to the decision. Last week, Sen. Boxer chaired a field hearing in Los Angeles to investigate what was behind the denial of the waiver. Johnson failed to attend. This is from an email:
California Attorney General Jerry Brown, California Air Resources Board Chair Mary Nichols, the Sierra Club's Carl Pope, the NRDC's Fran Pavley, and Congresswoman Hilda Solis all appeared as witnesses. Unfortunately, one chair at the briefing was noticeably empty: the seat we reserved for EPA Administrator Stephen Johnson.
Clearly, EPA Administrator Johnson does not want California and 18 other states to implement California's higher emission standard for automobiles -- a key part of our fight against global warming -- but the public deserves to know why. We can't let Administrator Johnson hide the truth from the American people.
At the hearing, Attorney General Brown called on Boxer to subpoena Johnson and all of the relevant documents that went into the decision. Boxer is planning a hearing on January 24th with the EPA Administrator, and she's attempting to use public pressure to get Johnson to release the documents. She's asking supporters to forward Johnson this email (over):
