Committee calls CA Air officials “unresponsive, ” suggests CA stepping on feds’ toes

Updated Monday, November 28, 2011

For California Air Resources Board (ARB) chair Mary Nichols, pre-Thanksgiving prep meant responding to list of requests from Orange County Republican congressman Darrell Issa and his House Oversight and Government Reform Committee.

As part of its expanding probe into how the newest Corporate Average Fuel Economy (CAFE) standards were set, the letter asked for information about how California came up with its vehicle emissions standards and what role state officials played in developing the newly announced federal fuel economy standard.

According to documents released by the Air Board just before the holiday, Issa’s letter includes charges that the state of California is “de facto,” setting fuel economy standards, a job legally left to the feds.

In her response, Nichols twice asserts that California is not setting fuel economy standards but has set emission standards, an authority reaffirmed by federal court decisions and supported in the Clean Air Act, which allows states to seek waivers to enact its own pollution standards. “Every federal court that has heard this misguided preemption mantra has soundly dismissed it,” wrote Nichols.

Issa presses the point further by asking Nichols whether she believes that “greenhouse gas regulation is ‘related to’ fuel economy standards.” Nichols calls the claim “a legalistic contortion that defies common sense,” and counters that were that true, “states could not regulate speed limits because such are clearly closely ‘related to’ fuel economy.”

[module align=”left” width=”half” type=”pull-quote”]”Every federal court that has heard this misguided preemption mantra has soundly dismissed it,” wrote Nichols.[/module]

In his letter, Issa mentions that Nichols declined to appear for an October committee hearing and did not offer an alternative person.  Issa said this was “emblematic” of a concern that ARB is “unresponsive” and “unappreciative of congressional priorities,” and he was expanding his investigation because of it.

One of Issa’s 18 queries came startlingly close to the “Have you stopped beating your wife?” category. One asks, “Do you believe that a closed and secretive process is the best approach for regulating an industry that affects nearly every American?” Nichols responds that ARB’s processes are “thorough, transparent and open.” She also notes that it is “standard practice” to confer with overlapping agencies, stakeholder groups and “potentially regulated parties before launching a formal rule-making process.”

Issa mentions a New York Times article that quoted Nichols as saying, “We put nothing in writing, ever.”  The 2009 article Issa quotes is talking about the private conversations between Nichols, presidential energy advisor Carol Browner and auto industry officials. Browner set those talks in motion to work toward a compromise on a single national standard, one that was indeed announced later. Issa skipped over the rest of Nichols’ quote, which read: “…that was one of the ways we made sure that everyone’s ability to talk freely was protected.”

In response to Issa’s request for all ARB communications with federal agencies and automakers about the agency’s involvement in fuel economy standard talks for model years 2012 through 2016, Nichols writes that there were none, since ARB does not set fuel standards. At one point Nichols calls some of Issa’s requests for documentation “unduly broad and overly burdensome” and “declines to produce manufacturers’ confidential business information or other privileged information.” In addition to responses to the committee’s queries, Nichols’ staff included nearly 20 pages of supporting documentation.

Issa is on record supporting alternative fuels, saying the country should “encourage the development of zero-emission clean energy generation, such as nuclear, hydro-electricity, wind, solar, all of which can meet our energy needs now and replace older and dirtier fossil fuel generation.” He supports increasing fuel efficiency standards and also increasing domestic fossil fuel production, including opening the Alaska National Wildlife Refuge, the outer continental shelf and western states’ oil shale assets. He also states on his website that Congress must maintain “strong oversight” over the agencies that regulate the energy industry.