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Dems Will Investigate Emissions Ruling

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ERICA WERNER | December 20, 2007 08:32 PM EST | AP

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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.

The officials, speaking on condition of anonymity because they were not authorized to discuss the matter, confirmed a Washington Post report that a Power Point presentation prepared for Johnson included the prediction, "EPA likely to lose suit," if sued for denying the waiver.

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.

She said a decision document would be published in the Federal Register as soon as possible.

"As a 26-year career scientist and EPA veteran, the administrator clearly values legal and technical expertise of his staff," Wood said. She said Johnson "evaluated the waiver according to the criteria in the Clean Air Act and made his decision."

Schwarzenegger said the state would file an appeal within three weeks.

"I have no doubt that we will prevail because the law, science and the public's demand for leadership are on our side," he said. Officials in Vermont, Washington and other states also announced plans to sue.

It was the first time EPA had completely denied California a Clean Air Act waiver request, after granting more than 50.

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.

Twelve other states _ Connecticut, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington _ have adopted the standards. The governors of Arizona, Colorado, Florida and Utah have said they also plan to adopt them. The rules were also under consideration in Iowa.

Johnson said California's emissions limits were not needed because Congress just passed energy legislation raising fuel economy standards nationwide to an average of 35 miles per gallon by 2020. California officials said the state's law was tougher and acted faster.

Rep. Henry Waxman, D-Calif., who is chairman of the House Oversight and Government Reform Committee, wrote to Johnson on Thursday demanding by Jan. 23 all documents relating to the waiver request, "other than those that are available on the public record." Sen. Barbara Boxer, D-Calif., who heads the Senate Environment and Public Works Committee, also was demanding to see the documents.

President Bush stood behind the EPA head.

"The question is how to have an effective strategy. Is it more effective to let each state make a decision as to how to proceed in curbing greenhouse gases or is it more effective to have a national strategy?" Bush said at a news conference Thursday.

The National Resources Defense Council filed a Freedom of Information Act request demanding EPA produce the records it used to make the decision.


Associated Press writer Rita Beamish in San Mateo, Calif., contributed to this report.