A law against greenhouse gases

How two local attorneys made history

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Steve Silverman and John Hannon

by Howard Kohn

Over drinks at the Olive Lounge on a recent evening Steve Silverman and John Hannon, two veterans of the Office of General Counsel of the Environmental Protection Agency, talked animatedly as they revisited key junctures in a three-president saga that finally on April 1 resulted in history-making new greenhouse gas and fuel economy standards for cars and light trucks.

“This is the first standard that controls greenhouse gasses,” said Steve, who was born in this area, graduated from the old Northwood High, moved to Takoma Park in 1996 and is perhaps better known in town as a concert pianist and the newsletter editor for the Philadelphia-Eastern neighborhood (PEN).
John, who has lived in the area 35 years and in Silver Spring since 2005, agreed, “It’s the start of a new era.  Greenhouse gasses are being regulated as a pollutant.”

The two attorneys played a pivotal role in the case, and for both of them, old-school liberals who have stuck it out as civil servants and held onto a belief in the good of government, it was an experience of extreme highs and extreme lows.  The case involved litigation, administrative edicts and much shadow politicking, and, due to the caprice of presidential partisanship, Steve and John at times had to go into court espousing views contrary to their own beliefs and desires.

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The case began during the Clinton Administration with a petition from environmentalists who asked the EPA a direct question: Will you please regulate carbon emissions from cars and trucks? They wanted to reduce the number of gas-guzzlers as a way to slow down climate change. The state of California next tried to force federal action by legislating greenhouse gas standards far stricter than federal fuel economy standards.

“We were hopeful back then, but Clinton left office before anything concrete could happen,” Steve said.
With the election of George W. Bush, Steve and John found themselves in an almost opposite role, assigned to fend off environmental groups and California lawyers.

The Bush administration’s position was that the Clean Air Act did not authorize the federal government to regulate greenhouse gases, which led in 2006 to a precedent-setting 5-4 Supreme Court ruling written by Justice John Paul Stevens.  As litigators for the EPA, Steve and John were on the losing side, although that is not how they looked at it.

Steve spoke of Justice Stevens, who a day earlier had announced his retirement from the Court, as a hero:  “That decision was one of his greatest achievements, and for me, personally, I could not have been happier.”

The Supreme Court decision set the EPA free to treat carbon dioxide as a pollutant.  On May 14, 2007, President Bush told the EPA and the Department of Transportation to develop rules to obey the court. “That day was my birthday,” said Steve. “I took Bush at face value. I considered it my birthday present.”

On December 10, 2007, however, the day Bush signed into law the Independence and Security Act, a ruse was exposed, at least within the EPA ranks. “That was the low point for us,” John said. “We realized we had been used by the administration to get weak legislation out of Congress.”

“That was a bitter time. I was bitter,” Steve said. “Work stopped. Instead of a proposal for standards, we were asked to put out only an invitation for comment. It went out under the name of the EPA and was published in the Federal Register. But it was not what any of us wanted.”

“It was a tactic to mark time and run out the clock,” John said.

As the election of 2008 approached, Steve and John were on pins and needles. The opportunity created by the Supreme Court could easily have been lost.  In the very first week of the next administration, though, President Obama asked the EPA to seize the opportunity.  

John and Steve were assigned to work with a team of engineers and analysts and oversee a change in direction. “Frankly, I’d say this reinvigorated everyone in the EPA,” Steve said, beaming. “We helped turn everything around.”

On May 19, 2009, John and Steve sat in the third row of a phalanx of folding chairs on the Rose Garden lawn, guests of the president, along with the high and mighty of the auto industry and the regulatory bureaucracy, and most of the nation’s governors. Obama roguishly addressed the governors, “I’m going to introduce you in order of physical attractiveness,” and deliberately chose for last the California governor, Arnold Schwarzenegger. 

But Obama’s message was that the EPA should use the California standards as a model.

Effectively that is what happened. The standards put in place in April require a national average of 35.5 miles to a gallon by model year 2016 for passenger cars and light trucks, estimated to save $4,000 over the life of a vehicle and make a meaningful dent in tailpipe emissions of CO2.

“It was so satisfying to be part of this,” said John.

Steve nodded. “This was monumental, the climax of a career.”

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