Former general counsel Martella discusses controversy over endangerment finding decision

With several members of Congress actively investigating EPA's recent handling of greenhouse gas emissions regulations, many questions have been raised about the Bush administration's influence over the final decision. Did the EPA Administrator intend to file an endangerment finding? What does the advanced notice of proposed rulemaking (ANPR) mean for future regulation? During today's OnPoint, Roger Martella, former general counsel for the EPA and now a partner in the Environmental Practice Group at Sidley Austin, discusses the endangerment finding, EPA's decision to file an ANPR and why he says the Clean Air Act is not the appropriate vehicle for regulating greenhouse gas emissions. Martella also explains why he believes the ANPR will serve as a roadmap for emissions regulation for the next administration.


Monica Trauzzi: Welcome to OnPoint. I'm Monica Trauzzi. Joining me today is Roger Martella, former general counsel for the EPA and now a partner in the environmental practice group at Sidley Austin. Roger, thanks for coming on the show.

Roger Martella: Thank you, Monica.

Monica Trauzzi: Roger, there's a lot of discussion on Capitol Hill at the moment over a recent decision by EPA to essentially punt any regulation on greenhouse gas emissions to the next administration. It's drawing controversy because, according to documents and testimony by a former EPA official Jason Burnett, Administrator Johnson had decided to file an endangerment finding. But the agency was asked by the White House to withdraw that finding and they instead filed an advance notice of proposed rulemaking. You were at the agency when the decision was made. What was the agency's reasoning for not taking the steps to regulate greenhouse gas emissions?

Roger Martella: I think Administrator Johnson's been very transparent in explaining the reasons he decided to move forward with an advance notice of proposed rulemaking as opposed to the actual regulations on greenhouse gases from cars, for example. I'm going to paraphrase him a little bit, but from what I understood from the letters he wrote and his explanation that the time was he was aware that triggering regulations under the Clean Air Act, under any provision, would overflow into other provisions of the Clean Air Act. And perhaps that wasn't so controversial, but when you're going to have the floodgates open you want to be prepared for the flood. And he wanted to make sure there was an opportunity to fully understand the ramifications of regulating under any one provision or other provisions of the Clean Air Act. So this ANPR process, as he has explained it, will allow a more holistic view to make sure that when greenhouse gas regulations proceed, whether it's under the Clean Air Act or some other new legislation Congress might enact, that we're prepared for the ramifications of that and that we understand how to prepare for the flood.

Monica Trauzzi: At a recent press conference EPW chairwoman, Barbara Boxer, unveiled several sections of a document that was handed over to her committee by EPA that details what the administrators thinking was. And the document said, "In sum, the administrator is proposing to find that elevated levels of greenhouse gas concentrations may reasonably be anticipated to endanger public welfare." Was that your understanding of the situation when you were at the EPA?

Roger Martella: The president, in the Rose Garden, announced not long after the Massachusetts decision, that EPA, at the time, would be moving forward with greenhouse gas regulations and, implicit in that understanding, in order to regulate greenhouse gases under the Clean Air Act would be an endangerment finding. So I don't think it comes as a surprise that people would have been working on a proposal for an endangerment finding if they were also, at the time, as people well know, were working on an actual, substantive greenhouse gas regulation. With the ANPR, for the reasons we've talked about, the administrator decided to take a more holistic approach. And if you look at the ANPR documents today, there's a technical support document that talks about the factors going into an endangerment, that's out in the public record, out on the docket. I have not actually made the comparison. I probably wouldn't even be informed enough to make the comparison between what is in that TSD document versus what might have been in any given version previously.

Monica Trauzzi: What's your take on the testimony given by Burnett and the current investigation that we're seeing?

Roger Martella: I have to tell you, my focus is really on looking forward and recognizing that we're moving toward an era of, some time, whether it's two years, three years, four years, towards an era of regulations on climate change and greenhouse gas controls. And I'm spending more of my time trying to look forward, prepare for that, help people prepare for that and being forward-looking.

Monica Trauzzi: This investigation has sort of raised some question about who's calling the shots. Is it the White House or EPA?

Roger Martella: I think administrator has spoken pretty clearly on that, in terms of his view on who was making decisions.

Monica Trauzzi: Was your resignation from EPA earlier this year tied in any way to what Jason Burnett came out and said or the controversy surrounding the endangerment finding decision?

Roger Martella: I explained my resignation pretty explicitly to my staff at the time. It was for my family, with a new baby that was born during my time as EPA general counsel, trying to spend more time with them and taking a good break, as I've done the past few months, to focus on them.

Monica Trauzzi: OK, so let's talk about the advance notice of proposed rulemaking and what it all means. You say that this is a roadmap to climate change regulation for the next administration. Some would say it's a road to nowhere. But why do you believe that this is sort of doing the work for the next administration and will be helpful?

Roger Martella: I think what will happen, if you look at the document that EPA produced several weeks ago, it's about a 600 page document. It's over a hundred pages of supporting material. What I think you will find at the end of this process will be the climate change Bible. This will be everything you need to know, it looks like, after the public comment period, on how you could approach various greenhouse gas regulation under the Clean Air Act and possibly under other provisions. And so, I think what will happen, this is my speculation, is the next administrator will have this sitting on their desk when they walk into office and will be able to take this Bible basically and move forward with greenhouse gas regulations if they decide to do so as a policy matter. So I believe the importance of this process is your speaking not to this administration, but you're speaking to the McCain, the Obama administrations on climate change. And I think to some extent you're also speaking to Congress who will be looking at this as well.

Monica Trauzzi: And you see this as an opportunity for stakeholders to weigh in on how this would impact their industries.

Roger Martella: This may be the most critical opportunity for stakeholders. This is a very unique opportunity at the early stages of the discussion on how to regulate greenhouse gases affecting all sectors of the economy to do three things. One is to indicate how you're impacted by climate change regulations. Make short EPA and the regulators have a full understanding of how the regulations impact you. The second is to propose solutions, talk about ways you're already addressing greenhouse gases and carbon dioxide, so that EPA can take that into consideration as it determines what the regulations will be. It has many, many proposals in there, but there are also proposals out there companies and other people are doing, that should be considered as part of the equation. And the third critical thing in here is to identify you as a stakeholder. We probably are at the early end of what's likely to be years of discussion and debate on how to proceed on comprehensive climate change regulation. By participating in this process you'll be seen as a stakeholder, both at Congress and administration moving forward.

Monica Trauzzi: Which industries stand to benefit the most by this process?

Roger Martella: I think the industries that are taking a pragmatic approach, that are participating in this process, who are preparing for some likelihood of climate change controls, greenhouse gas controls, in the future will benefit the most and who are offering solutions, ideas for how EPA can regulate climate change in a way that both protects the environment, addresses the challenge of global climate change, but also is sensitive to the impacts on the economy. Because this is not just a regulation of the environment, this actually will be EPA's most significant regulation of the economy if regulations move forward in the next administration.

Monica Trauzzi: Does this sort of protect industry too though, because we're drawing out any potential rulemaking decisions?

Roger Martella: You hear that sometimes. And the irony, from my view, is at the end of the day I think environmentalists probably have more to cheer in this than the industry groups do. Both presidential candidates have indicated a willingness to move forward on greenhouse gas regulations. There are many quotes from them on that. And, in some ways, this could actually accelerate the ability of the next administration to move forward aggressively if it chooses to do so. So it emphasizes a need for all stakeholders to make sure that their voices are being heard in this process at a very early stage.

Monica Trauzzi: So, why is the Clean Air Act inadequate to address greenhouse gas emissions? Why doesn't it provide the correct tools to approach this situation?

Roger Martella: Right, well, you know, I'm not one to tell you it's absolutely impossible under all circumstances. Frankly, the Supreme Court put that issue to rest. But I will tell you, and I think a lot of people will agree, whether it's industry groups or environmental groups, that it's an infinitely poorer choice than new legislation that would comprehensively take a reasonable approach to addressing climate change wholesale. This was not what the Clean Air Act was designed to do and while you can contort it to address greenhouse gases, it was not set up to address global pollutants and global issues. It provides EPA little discretion to address the global ramifications of climate change. How do our actions relate to actions of other nations, like the developing world? It provides little ability to do differentiate between different sectors and different contributors to climate change so that even small contributors are being treated the same in the Clean Air Act as large contributors. And the rigid application leads to very unintended consequences. You've probably heard, a lot of people have heard about the fact that it will bring perhaps millions of schools, residential buildings, big box stores into the jurisdiction of the EPA. And even EPA and the ANPR offer some very creative ideas to kind of get around that, but no one has come up with a surefire solution.

Monica Trauzzi: Final question here, EPA has been losing a lot of court cases recently and you've been involved in several. There's been some strong language also used by the courts in these cases. Why is EPA losing so much?

Roger Martella: There have been some significant cases EPA has lost, there's no doubt about it. But looking at those cases that EPA has lost does not give the general impression of the overall track record of both EPA and the Justice Department in litigating environmental matters. You frequently see strong language, I think, because these are very emotional issues, not just for the public, but for judges. But if you look at the track record as a whole, as we did while I was general counsel, EPA has a very strong record, a very defensible record, which I think it can be very proud of.

Monica Trauzzi: OK, we'll end it right there on that note. Thank you for coming on the show.

Roger Martella: Thank you.

Monica Trauzzi: This is OnPoint. I'm Monica Trauzzi. Thanks for watching.

[End of Audio]



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