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Setting the Record Straight on Lisa Jackson and Climate Change

Christie Whitman injected over a decade of delay in EPA regulation of GHG’s

At best, Lisa Jackson returned to the status quo ante set in 1998

Please don’t dominate the rap jack, if you’ve go nothing new to say. ~~~ Grateful Dead (1970) (listen!)

[Update: 1/12/13 – this makes Obama/Jackson nonfeasance virtually criminal – it is finally sinking in, even at the NY Times:

I just got an Action Alert from Environmental Defense Fund (EDF) asking me to take action to “Thank Lisa Jackson, Clean Air and Climate Leader“.

First on the list of accomplishments that I am supposed to thank Jackson for, EDF claims that Jackson:

Under her leadership, the EPA has:

  • Determined, on the basis of an irrefutable body of science, that greenhouse gases endanger public health and welfare, establishing a bedrock science-based foundation for our nation to address climate pollution under the Clean Air Act.

I’ve read similar misleading garbage in numerous media outlets and environmental group press releases- all of whom get the “endangerment finding” story just flat out wrong.

So, here are the facts and the history on that

Endangerment finding

On November 8, 2012 – before the Jackson resignation was announced – I wrote about the history of the endangerment finding to hold Christie Whitman accountable, see:  Setting the Record Straight on Christie Whitman and Global Warming.

Readers had to hit the links to read the documents, so let me make it easy and put the relevant text in this post. I want to make 4 points, all of which have been ignored in the Orwellian spin on Jackson’s record:

1) Jackson broke no new legal or scientific ground in making the December 7, 2009 endangerment finding that EPA had authority to regulate GHG emissions.

The Clinton/Browner EPA made essentially the same legal determination 11 years earlier on April 10, 1998  (see memo below).

2) Jackson exhibited no Leadership on this issue – legally she was required to issue the finding by the April 2007 US Supreme Court’s Massachusetts decision and the science was long well settled.

[Note: I like this statement from the CAFE rule cited below

Given the non-discretionary duty in Section 202 (a)(1) and the limited flexibility available under Section 202 (a)(2), which this court has held relates only to the motor-vehicle industry,* * * EPA had no statutory basis on which it could ‘ground [any] reasons for further inaction’’ (quoting State of Massachusetts v. EPA, 549 U.S. 497, 533, 535 (2007).

A petition by an environmental group and legal action by the State of Massachusetts is what brought the issue to the Supreme Court, not any EPA action or Jackson effort.

3) Jackson’s EPA has not implemented the endangerment finding in terms of directly regulating greenhouse gas emissions from existing major sources (500 coal and oil fired power plants)- instead she exempted them from regulation.

(Note: EPA didn’t need the endangerment finding – as the NY Times claimed –   “to negotiate strict new emissions standards for cars and light trucks” or to enact mercury, inter-state haze, and particulate rules, all of which could have gone foreward under the Clean Air Act and existing CAFE laws, aka “the Energy Policy and Conservation Act as amended by the Energy Independence and Security Act” (Fed. Reg. Vol. 77, No. 199 @ p. 62624 10/15/12).  And even Obama justified the fuel economy standards based on reducing dependence on foreign oil, consumer savings at the pump,energy security, and “creating an economy built to last”, NOT on slowing global warming. Seems like climate change, carbon emission, and global warming were tabooed terms that could not cross Obama’s lips.)

Instead of regulation, Jackson supported a market based alternative to regulation, known as “cap and trade”. Even after the cap & trade legislation failed in Congress, EPA still did not regulate existing major sources like 500 coal and oil fired power plants.

4) While Jackson was NJ DEP Commissioner (2006-2009), she did nothing to implement or enforce State regulatory authority to limit greenhouse gas emissions pursuant to DEP rules adopted in 2005 by her NJDEP predecessor, Bradley Campbell.

I will keep this simple and am willing to document all of the above claims at the request of any reader. Supporting evidence is available by reading the links above, but I’d be glad to walk you through the complex regulatory documents.

Here is smoking gun text that documents the 1998 Clinton/Browner EPA finding on the legal issue of whether greenhouse gases are regulated pollutants under the Clean Air Act and the 2003 Bush/Whitman EPA reversal of the Clinton/Browner legal finding.

On August 28, 2003, EPA General Counsel Robert E. Fabricant – who had previously served in Whitman’s Governor’s Office – wrote: (read the full memo)

Relevant to the Agency’s consideration of this petition is an April 10, 1998 memorandum regarding “EPA’s Authority to Regulate Pollutants Emitted by Electric Power Generation Source” from then [EPA] General Counsel Jonathan Z. Cannon to then [EPA] Administrator Carol M. Browner. In that memorandum, Mr. Cannon concludes that CO2 is an “air pollutant”  under the [Clean Air Act] CAA and thus subject to regulation under the CAA to the extent the criteria of any of the Act’s regulatory provisions are met.

I have reviewed Mr. Cannon’s memorandum and the text and history of the CAA in the context of other congressional actions specifically addressing global climate change. Based on my review, I have determined that the CAA does not authorize EPA to regulate for global climate change purposes. Accordingly, CO2 and other GHGs cannot be considered “air pollutants” subject to the CAA’s regulatory provisions for any contribution anthropogenic GHG emissions may make to global climate change. This memorandum explains the reaons for my conclusions and formally withdraws Mr. Cannon’s April 10, 1998 memorandum as no longer representing the views of EPA’s General Counsel.

The US Supreme Court explicitly cited and rejected Mr. Fabricant’s analysis in the 2007 Massachusetts decision.

Christie Whitman injected over a decade of delay in EPA regulation of GHGs and Lisa Jackson returned to the status quo ante set in 1998.

In fact, it could be argued that Jackson has not even returned to the 1998 position – that she actually made things WORSE because she crafted a weak regulatory strategy  based on which EPA has failed to regulate existing sources and adopted seriously flawed interpretations of the CAA to limit EPA’s authority.

End of story.

So please stop giving Jackson credit for leadership; for doing something she was legally required to do; and misrepresenting what she actually did.

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