Finally, EPA Administrator Stephen Johnson gets to show what stuff he's made of. Is he your garden variety Bush appointee who shoots off arbitrary and lawless decrees from behind his desk? Or is he the type who'll go before Congress, lead with his chin, and declare his loyalty from the rooftops?

Sen. Barbara Boxer (D-CA), chair of the Senate environmental committee, rolled out the red carpet for Johnson yesterday, when she released notes that her staff had taken on internal EPA briefing documents (you can see them below). They showed, as has been reported, that Johnson's staff recommended granting California's petition to limit greenhouse gas emissions from cars and trucks. But Johnson ignored that and denied it anyway.

It was a battle for Boxer's committee just to see these documents. The EPA sent over heavily redacted versions, arguing that they were protected by executive privilege -- specifically that cherished privilege against "needless public confusion" over the staff advising one thing and the political appointees declaring another.

Since the EPA leadership refused to release the offending documents, Boxer's staffers had to go over and copy them themselves. Reports the AP, "EPA officials asked that the information be kept private, but Boxer's staff told EPA they wouldn't agree to that condition, and they released the excerpts to reporters Wednesday."

So what was Johnson's rationale? He said in his two-page letter that global warming is "fundamentally global in nature" and so California didn't meet the "compelling and extraordinary conditions" necessary to pass such a law. But his staff had said just the opposite: "California continues to have compelling and extraordinary conditions in general (geography, climatic, human and motor vehicle populations - many such conditions are vulnerable to climate change conditions) as confirmed by several recent EPA decisions." And if Johnson went ahead and denied the waiver anyway, his staff told him, California would sue, and as one briefing slide told him, "EPA likely to lose suit."

That suit, led by California and joined by 15 other states (Massachusetts, Arizona, Connecticut,
Delaware, Illinois, Maine, Maryland, New Jersey, New Mexico, New York,
Oregon, Pennsylvania, Rhode Island, Vermont and Washington) is pressing on.

You can expect Johnson to stick to his guns, even as he tips his hat to his staff for a job well done (though ignored). ("What it shows is quality staff work," Jonathan Shradar, acting EPA press secretary, said of the excerpts.) He's also sure to be grilled about whether he decided to buck his staff on his own:

Among the questions Boxer is expected to ask Johnson is what discussions he had with the White House before reaching his waiver decision. Records show that auto executives met with Vice President Dick Cheney and dropped off documents at the White House arguing against the waiver request.

The notes Boxer released yesterday are below:

"COMPELLING AND EXTRAORDINARY CIRCUMSTANCES" (Excerpts from several slides):

· "California continues to have compelling and extraordinary conditions in general (geography, climatic, human and motor vehicle populations - many such conditions are vulnerable to climate change conditions) as confirmed by several recent EPA decisions..."

· "Though GHG once emitted become well mixed in the global atmosphere, the climate change that results from increased concentrations of GHG is not uniform, either spatially or temporally. Resultant impacts on health, society, and the environment can further vary by region."

· "Wildfires are increasing. Wildfires generate particulates that can exacerbate the health impacts from increased smog projected from higher temperatures."

· "California has the greatest variety of ecosystems in the U.S.; and the most threatened and endangered species in the continental U.S."

· "California exhibits the greatest climatic variation in the U.S."

· "IPCC's key conclusions: many of the IPCC's key conclusions about impacts elevated to the executive summary for North America are specific issues in California, and thus California exhibits a greater number of key impact concerns than other regions," including:

o Coastal communities and habitat impacts

o Over-allocated water resources

o Ageing infrastructure, heat islands and air pollution (i.e., ozone) impacts

o Wildfires and insects outbursts

· "Ozone conditions."

o “Legislative history, case law, and past waiver practice acknowledge that California’s ozone problem is ‘compelling and extraordinary’”

SLIDE - "If We Grant . . ."

· "Likely suit by manufacturers"

· "EPA is almost certain to win such a suit"

· "Grant will likely allow CA standards to go into effect . . . "

· "Grant would be generally consistent with federal GHG rule"

SLIDE - "If We Deny . . ."

· "Almost certain lawsuit by California"

· "EPA likely to lose suit"

(In a revised version of the presentation, the point about losing the lawsuit was changed to read: "EPA's litigation risks are significantly higher than if a waiver is granted.")

· "A decision to deny may have some consequences for justifying federal GHG rule," including "require[ing] downplaying benefits of GHG rule - we would need to say that expected reduction in ozone precursors and temperature doesn't appreciably help CA problems including ozone."