After delaying California’s request for nearly two years, U.S. EPA administrator Stephen Johnson promised he would make a decision by the end of the year. Hours after President Bush signed the federal energy bill on December 19, Johnson announced his decision to reject California’s waiver request.

The decision went against the recommendation of Johnson's own staff, and long-standing EPA practice. The agency has routinely approved over 50 waivers in the past, leading to improvements like unleaded gasoline, and catalytic converters. This is the first time in the 37-year history of the Clean Air Act that the U.S. EPA has not granted California a waiver.

The Tailpipe Emissions Waiver would exempt federal fuel economy standards for California, and eighteen other states that have either adopted or pledged to implement California’s improved regulations. In all they represent nearly half of the American auto market.

Following the U.S. Supreme Court ruling last April that the U.S. EPA has the authority to regulate greenhouse gases, California Attorney General Jerry Brown and Governor Schwarzenegger on November 8th filed a lawsuit against the EPA urging a response to California’s long-delayed request for authority to regulate tailpipe emissions for cars and light trucks sold in the state.

Immediately following Johnson's denial of the waiver request, Gov. Schwarzenegger announced December 19th his intention to file another lawsuit in the District of Columbia Court of Appeals, vowing to pursue every legal opportunity to obtain the U.S. EPA waiver:

"It is disappointing that the federal government is standing in our way and ignoring the will of tens of millions of people across the nation. We will continue to fight this battle.  California sued to compel the agency to act on our waiver, and now we will sue to overturn today's decision and allow Californians to protect our environment."

Schwarzenegger claims, “EPA’s denial of our waiver request to enact the nation's cleanest standards for vehicle emissions is legally indefensible and another example of the failure to treat climate change with the seriousness it demands.”

California's mileage standards were carefully designed to fight climate change through 2050, seeking to cut vehicles' greenhouse gas tailpipe emissions by 30 percent between 2009 and 2016.  By comparison, the energy bill’s new mileage standard, “not reflecting a vision beyond 2020,” says Schwarzenegger, aims at reducing gasoline consumption, which is said to reduce vehicles' overall “carbon footprint.”  The federal energy bill requires a fleet-wide average of 35 mpg by 2020, California officials say the state law would result in a 36 mpg average four years earlier.

By implementing California’s standards, California alone would eliminate greenhouse gases equivalent to taking 6.5 million cars off the road by the year 2020.  If all the other states with similar plans follow through, that figure would grow to more than 22 million vehicles and would cut gasoline consumption by an estimated 11 billion gallons a year.

According to House Oversight Committee chair Henry Waxman (D-Calif.) and other sources, Johnson ignored the recommendations of the EPA's professional staff which concluded that if the waiver were denied and California sued, the agency would likely lose in court.

In justifying his decision, Johnson claimed that the federal bill would achieve greater fuel reductions than California's.

But Mary Nichols, chair of the California Air Resources Board, who oversaw air regulations for the EPA under President Clinton, and helped prepare waivers in the past, disagreed. Her staff calculated that California's regulations would result in cumulative reductions over double those of the federal standard.  At a news conference Wednesday she said she was "frankly stunned" by the EPA's numbers, and that "it will be interesting to see what kind of technical analysis EPA is able to produce."

Amid charges that the decision was politically motivated, the Detroit News reported that executives from Ford and Chrysler met with vice-president Cheney in November. The automakers presented Cheney with a letter explaining their view that neither California nor the EPA should have the authority to regulate emissions. Not surprising, given that DaimlerChrysler paid the largest fine ever - over $30 million dollars - last year for failing to meet federal fuel efficiency standards.

While Johnson stated that he was not influenced by pressure from the White House, Barbara Boxer and Henry Waxman are preparing hearings to determine whether the White House influenced the decision. Sen. Dianne Feinstein directed the EPA's inspector general to immediately open an investigation. "The thought has occurred that this was a political decision rather than an environmental decision, and that cannot be countenanced."

Nor did Speaker Nancy Pelosi accept Johnson's argument that a “national solution” to carbon dioxide emissions was preferable to a “confusing patchwork of state rules," Speaker Nancy Pelosi wrote, "Citing the passage of our new law as a justification for denying California's request defies the legislative history as well as the explicit language of the 'Energy Independence and Security Act'."

Moreover, with 19 states representing over 50% of the population seeking to adopt California's tailpipe waiver, and others likely to follow suit, the "confusing patchwork" represents exactly the kind of regulatory uniformity that automakers have been fiercely lobbying against for decades.  

According to the Washington Post, experts say tailpipe regulations are a far more comprehensive way to address vehicles' contribution to greenhouse gases than raising fuel efficiency. California's law would also regulate a broader spectrum of greenhouse gases than the energy bill, including refrigerants from vehicle air conditioners. It also governs the emissions of a range of alternative fuels, not just gasoline.

At the end of the day, a “national solution” to greenhouse gas emissions is precisely what the EPA has refused to offer. In his letter to Governor Schwarzenegger, Johnson argues that unlike local pollutants which clearly fall under the Clean Air act, "greenhouse gases are fundamentally global in nature."

Administration preference and industry pressure aside, the sheer scope of the problem may offer a clue to the EPA's sudden reversal of policy. It is clear to many that if the EPA can regulate greenhouse gas emissions from vehicles, it could also regulate them from industry smokestacks, power utilities, factories, even methane-emitting animals. And despite Administration claims that it is taking a leadership role in the fight against global warming, this may be one job it simply doesn't want to take on. Denying California's waiver and letting the courts settle the matter may be little more than a way of stalling until somebody else is in office.

Whether the courts overturn the EPA's decision or not, it is clear that in an age of global warming, the responsibility for regulating greenhouse gases is a larger, more complicated task than any single government or agency was originally designed to deal with.