Governors to sue EPA over rejection of state emissions law

WASHINGTON – The Bush administration’s rejection of state efforts to tighten rules on greenhouse gas emissions touched off a flurry of counterattacks Thursday. Democrats in Congress began an investigation. Governors led by California’s Arnold Schwarzenegger said they would sue. Environmental groups demanded to see the government’s rationale for its decision.

Those were the opening moves in what is shaping up to be a fierce legal and political battle. At issue is the Environmental Protection Agency’s decision to block California and at least 16 other states from regulating greenhouse gases that come from new cars and trucks.

Environmental lawyers and congressional aides were focusing on whether the EPA’s administrator, Stephen L. Johnson, denied California’s request without relying on the legal and technical documentation they said should accompany such a decision. His statement that his position was based on a legal analysis of the Clean Air Act appeared at odds with the way other government officials characterized the process.

Johnson’s decision overruled a consensus among EPA’s legal and technical staff that denying the waiver was unlikely to stand up in court, according to government officials familiar with the decision. Johnson’s advisers told him that granting the request would put the agency in a much more defensible legal position should automakers take the EPA to court.

Critics also pointed to a sentence in a letter Johnson sent Schwarzenegger on Wednesday. Johnson wrote, “I have decided that EPA will be denying the waiver and have instructed my staff to draft appropriate documents setting forth the rationale for this denial.”

Environmental lawyers said such after-the-fact reasoning was unusual and they predicted it would not stand in court. “Here they’ve decided to deny without figuring out what the proper reason for denial should be,” said Dan Galpern, a lawyer with the Western Environmental Law Center in Oregon who is representing a coalition of environmental groups in the case.

EPA spokeswoman Jennifer Wood said it was not unusual for the agency’s chief to make a decision on a Clean Air Act waiver request and then ask staff to draft technical documentation to support it. In this case Johnson provided early notification in order to meet his commitment to Schwarzenegger to issue the decision by the end of the year, Wood said.

Schwarzenegger said the state would file an appeal within three weeks. Washington was among the states announcing plans to join the legal challenge.

Washington Gov. Chris Gregoire said the federal government has no legal grounds to deny the waiver and is being “obstructionist” while failing to adequately address greenhouse emissions.

Gregoire said tougher auto standards are part of the state’s diverse efforts to ease climate change and global warming.

“The states are laboratories,” she told a news conference. “We still have states’ rights in this country. Particularly where there isn’t federal leadership, we ought to be allowed to move forward and lead.”

The tailpipe standards California adopted in 2004 would have forced automakers to cut greenhouse gas emissions by 30 percent in new cars and light trucks by 2016. Under the law, the state needed a waiver to put in place the rules, and other states could then adopt them, too.


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