For the past couple of weeks, we’ve been awaiting the release of an Advanced Notice of Proposed Rulemaking for determining how to regulate CO2 emissions under the Clean Air Act. Releasing an ANPR in itself is an exercise in delay at this point, as a federal judge commented last week. A preliminary draft forwarded to the White House confirmed this, mixing strong findings about the negative impacts of climate change with delay-justifying language that contradicts both these findings and the rulemaking standards of the Clean Air Act. 

It was expected that the final ANPR would be released by the end of last week, and would amount to a watered-down version of this document, which was itself evidently an altered version of the attempted endangerment finding the White House deliberately ignored in December 2007. But the document has yet to appear in the Federal Register, and an exclusive report (subscription req.) in this morning’s Wall Street Journal revealed why: even the ANPR prepared by the EPA, with EPA Administrator Stephen Johnson acceding to changes by the White House, was too much for this administration to stomach:

The White House’s Office of Management and Budget has asked the EPA to delete sections of the document that say such emissions endanger public welfare, say how those gases could be regulated, and show an analysis of the cost of regulating greenhouse gases in the U.S. and other countries.

The OMB instead wants the document to show that the Clean Air Act is flawed and that greenhouse-gas regulations should be developed under new legislation, several people close to the matter said. The EPA needs to clear a final draft with the White House in order to release the document.

“This is a collision course between the agency and the OMB,” said one person familiar with the document. The OMB “had in mind to lay out a different story that the Clean Air Act is broken and can’t be used to regulate emissions.” The Clean Air Act was originally enacted in 1970 to clean up air pollution and was amended in 1990.

It’s easy to see here why even the embattled Johnson, who came up with the strategy of developing an ANPR and running out the clock until 2009, is reportedly resisting the White House ever-so-slightly behind the scenes. The White House isn’t merely asking for further edits; it’s asking the EPA to take out the heart of the document, its meandering examination of the science and potential regulations being put off, and replace it with an entirely new document that fully justifies the administration’s latest global warming non-policy. Rather than feign applying the Clean Air Act, the White House would use the ANPR to discredit and disarm the Act as currently written, and argue for the same exact policy that wasn’t able to pass legal muster before the Supreme Court in Massachusetts. v. EPA.

The idea that the administration is trying to ignore the Supreme Court isn’t exactly novel.  But this is the farthest it has gone in terms of actively trying to pretend that the Court’s ruling simply did not exist, and enacting changes to the Clean Air Act that it knows could never get by Congress via executive fiat instead.

Of course, if the EPA publishes a document that reflects the White House’s demands, it could conceivably be challenged again in federal court, with the petition this time resting on a shamefully arbitrary and capricious ANPR rather than the even more difficult-to-meet ”unreasonable delay” standard that the DC Circuit rejected last week. Barring such intervention, however, the legal impact could be felt after President Bush leaves office, potentially slowing down the next administration’s efforts:

“Clearly [White House officials] don’t want to leave behind a blueprint that suggests that the Clean Air Act could offer a potential pathway in a cost-effective way to reduce greenhouse-gas emissions,” said one of the people close to the matter who supports the EPA document’s analysis. “Leaving a blueprint behind could leave the next administration a document they could work from, and that’s not in their interest,” the person said.

If the agency establishes a policy direction in this phase of the rule-making but later changes direction in the proposed rule, it could create opportunities for legal challenges under the Administrative Procedures Act, said Peter Robertson, a former deputy administrator at the EPA and a partner at the Pillsbury law firm specializing in environmental public policy.

“There wouldn’t be a reason for OMB to monkey with this document if it weren’t going to be an important step in the process now and later on,” Mr. Robertson said.

Supposedly, the final ANPR will be published by the end of this week.