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The California Waiver
The EPA administrator's decision was wrong.

Monday, February 4, 2008

ENVIRONMENTAL Protection Agency Administrator Stephen L. Johnson didn't win any friends and influenced no one during a recent Senate hearing on his decision to deny California a waiver to implement its tough tailpipe emissions law. Claiming executive privilege because of a lawsuit filed by the Golden State, he sent to the Environment and Public Works Committee papers that were covered in redaction tape. In addition, Mr. Johnson was evasive in acknowledging that global warming was a "major crisis" and insisted on sticking to one talking point: that climate change was not "unique and exclusive" to California and, therefore, a waiver was not warranted.

The irascible Mr. Johnson is relying on what is, at best, a legal technicality to justify bad policy. Because its tough laws on pollution from motor vehicles predate those stipulated in the Clean Air Act, California was given the authority to craft its own restrictions (and other states are allowed to follow). For the laws to take effect, California must get a waiver from the EPA. The administrator can reject the waiver request only if the state regulations are not as stringent as federal laws, he deems the regulations arbitrary or he determines that California "does not need such State standards to meet compelling and extraordinary conditions."

We intentionally quote the law because it was Mr. Johnson's frequent use of "unique and exclusive" instead of "compelling and extraordinary" during his testimony that has critics claiming that he is acting outside the scope of the law. The courts will decide whether this is the case. Nevertheless, we believe Mr. Johnson's decision was wrong.

Maryland and 10 other states have adopted California's plan to slash tailpipe emissions from cars and light trucks 30 percent by 2016, starting with the 2009 model year. Their effort to regulate greenhouse gas emissions has been backed up by decisions from high courts in Vermont and California and the U.S. Supreme Court, which ordered the EPA to regulate those emissions because of their contribution to global warming.

The urgency to address climate change has been lost on the Bush administration. Even when a presentation to Mr. Johnson by the EPA's career staff noted that "California continues to have compelling and extraordinary conditions" that "are vulnerable to climate change conditions" and that the agency was "likely to lose" a court challenge if the waiver was not granted, the 27-year EPA veteran ignored his staff's counsel.

Mr. Johnson told the committee that global warming "is a global problem requiring a global solution, at least at a minimum a national solution." It is precisely because of President Bush's resistance to binding targets on greenhouse gas reductions in the United States that states have taken matters into their own hands. In defending his wrongheaded decision to deny California the waiver, Mr. Johnson said that "ultimately it was a judgment call on my part." His judgment, like that of the administration on climate change, is severely lacking.

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