EPA Defies Another Subpoena: 'It May Create Erroneous Impressions' 1

Posted by Wonk Room Thu, 17 Apr 2008 22:25:00 GMT

Originally posted at the Think Progress Wonk Room.

In continued defiance of Congressional oversight, the Environmental Protection Agency (EPA) has flatly declined to obey a subpoena from the House Committee on Global Warming and Energy Independence. The subpoena for documents relating to the EPA’s refusal to obey the Supreme Court mandate to regulate greenhouse gases was issued by a unanimous, bipartisan vote on April 2, a year after the Supreme Court decision.

On April 11, the EPA requested and received an extension to respond, but today the agency has decided not to turn over the documents: Grave Concerns

Whether or not the EPA has “grave concerns” about “erroneous impressions,” a “chilling effect,” and “institutional prerogatives,” these are not legally defensible reasons to defy a Congressional subpoena. In a terse response, Committee chair Ed Markey (D-MA) found the reasoning “unpersuasive.” The letter continues:

Subpoena Cloud

Of course, if the EPA simply turned over the documents, it would no longer be under such a “cloud.”

The EPA is also defying the House Oversight Committee’s subpoena for related documents on White House involvement. Both letters of refusal were written by EPA assistant administrator Christopher P. Bliley—who was OMB head Jim Nussle’s chief of staff in Congress.

Warming Law notes this defiance likely triggers contempt of Congress proceedings for EPA administrator Stephen Johnson.

View the full letter: EPA 4-16-08 Subpoena Response (PDF)

Nominee To Be EPA's Top Lawyer Embraces Unitary Executive Doctrine

Posted by Wonk Room Thu, 10 Apr 2008 21:54:00 GMT

Originally posted at the Think Progress Wonk Room.

David R. HillIn his Senate Environment and Public Works nomination hearing today, David Hill, the Bush nominee for the General Counsel of the Environmental Protection Agency (EPA), was asked by Sen. Barbara Boxer (D-Calif.) what the EPA Administrator should do “if the President of the United States tells him to do something illegal.”

I believe that the courts have held, Senator, that within the unitary executive the administrator and the EPA, just as with all executive agencies, work for the President and are responsible to the President of the United States.

The “unitary executive” theory is a formerly obscure legal argument that asserts “all executive authority must be in the President’s hands, without exception.” Supreme Court Justice Samuel Alito is a champion of the doctrine, as is Vice President Cheney’s chief of staff, David Addington.

Boxer’s question was not purely hypothetical. The current administrator of the EPA, Stephen L. Johnson, has overruled his staff’s scientific recommendations on global warming regulations and ozone limits – both apparently at the behest of the White House.

Yesterday, Rep. Henry Waxman (D-CA) issued a subpoena to compel the EPA to turn over documents involving communications with the White House.

Hearing transcript:

BOXER: Can you please answer my question? I beg you. You’re a very smart man. I’m not trying to trap you. I’m simply trying to get an answer.

Do you believe it is appropriate for the OMB or other White House staff to overrrule the scientific judgment of the EPA Administrator when Congress has explicitly delegated that decision to the administrator?

I’m not talking about consultation having lunch, chit-chatting, having coffee, and exchanging ideas. I’m talking about overruling a decision.

HILL: Ultimately the administrator works for the President of the United States.

BOXER: Doesn’t the Administrator have to carry out the Clean Air Act? What if the President of the United States tells him to do something illegal? You’re saying he has to do that?

HILL: I believe that the courts have held, Senator, that within the unitary executive the administrator and the EPA, just as with all executive agencies, work for the President and are responsible to the President of the United States.

The Nomination of David R. Hill to be Assistant Administrator (General Counsel) for the Environmental Protection Agency

Posted by Brad Johnson Thu, 10 Apr 2008 13:00:00 GMT

Witness
  • David R. Hill (Nominated to be Assistant Administrator (General Counsel) for the Environmental Protection Agency)

House Republicans Ask Waxman to Investigate EPA (Staff)

Posted by Warming Law Wed, 09 Apr 2008 16:14:00 GMT

The WSJ’s Dana Mattioli reported yesterday afternoon on the latest development in congressional oversight of the EPA’s California waiver decision:

In a letter today, two senior Republicans on the House Committee on Oversight and Government Reform asked the panel’s chairman, Henry Waxman (D., Calif.), to investigate whether top EPA staffers either violated federal rules that restrict regulators from lobbying, or “misused their positions to surreptitiously influence” EPA’s decision on whether to allow California to regulate carbon-dioxide emissions from vehicles.

Reps. Tom Davis (R-VA) and Darrell Issa (R-CA) are mad at Margo Oge and Christopher Grundler, the senior EPA officials tasked with evaluating California’s waiver request and (unsuccessfully) telling Administrator Stephen Johnson that he had no choice but to grant it. Congressional oversight of that decision revealed that the pair subsequently provided former EPA Administrator William Reilly—at Reilly’s request—talking points with which to argue the waiver’s merits to Johnson.

Davis and Issa argue that this deserves the same level of scrutiny that Waxman devoted to a surreptitious plan to lobby Congress and governors against the waiver—Johnson may have also been a target, but he could not recall whether that was the case—deployed last summer by Secretary of Transportation Mary Peters, White House officials, and industry lobbyists.

This actually isn’t the first time that congressional Republicans have gone after Oge and Grundler. During a hearing that followed the revelation of the Reilly memo and other EPA documents, Senator James Inhofe (R-OK) asked Administrator Johnson whether his employees had violated the Hatch Act. Johnson defended their actions, saying that he has "always encouraged my staff to give me candid and open advice" (he just reserves the right to ignore it, even when phrased as a clear mandate and not simply advice, and the resulting fallout severely alienates staff unions).

Rep. Waxman responded to the letter by pledging to give it "careful consideration," while noting that the Committee had "found no evidence that EPA career staff lobbied members of Congress with respect to [California’s request]" (translation: the Davis-Issa analogy to his previous investigation is bunk). For his part, Reilly, who ran EPA under the first President Bush and granted California several waivers, has said that his communications with career staff who served under him were not unprecedented, let alone improper or illegal.

Kansas, Bleeding Carbon Emissions, Looks to the Outback-Bound EPA

Posted by Warming Law Fri, 04 Apr 2008 16:32:00 GMT

Reports from Kansas this morning indicated that today, state legislators would attempt to overturn October’s denial of construction permits for two coal-fired power plants by the administration of Governor Kathleen Sebelius—which has cited concern over global warming impacts and a desire to move instead toward clean energy solutions. (UPDATE: Literally just as we were publishing this post, the bill fell short of a veto-proof majority by a single vote.) Sebelius recently vetoed similar legislation, which would also significantly amend state anti-pollution law to strip regulators of the ability to factor in CO2 emissions, instead tethering their authority to the federal government’s position on GHG-related harm. Legislative supporters have laden their efforts with a handful of green-friendly provisions in order to greenwash their intentions dub the bill a "compromise," and claimed to have finally lined up enough support to override the governor, "unless someone lied to [House Speaker Melvin Neufeld]."

It’s painfully ironic that Kansas might move the ball into the EPA’s court, given the past week’s news, and considering that state officials recently told Congress that the Bush administration’s intransigence has helped bring about this fiasco. Our earlier favorable comparison between KS environmental honcho Roderick Bremby and EPA Administrator Stephen Johnson is also amplified by their divergent reactions to the hot seat: the former has publicly defended his decision, while the latter has infamously decided to dodge congressional testimony and subpoenas in Australia.

Finally, it bears mention that the full might of the anti-climate-regulation/denialist machine has been brought to bear on this issue (who can forget the infamous Ahmadiejad/Chavez/Putin ads?). An overwrought editorial in today’s Wall Street Journal—not that there’s any other kind from them on this topic, as Solve Climate has assiduously documented—accuses Sebelius of acting as though she were opposing "crimes against humanity" for daring to mention the moral implications of climate change (much in the same way the Supreme Court has). The current legislation was also greeted by an onslaught of Washington lobbyists testifying on its behalf, including former EPA official turned "Dirty Rotten Scoundrel" Bill Wehrum and born-again consumer-safety advocate Grover Norquist.

On Mass vs. EPA Anniversary, Stephen Johnson Delays and Hides

Posted by Wonk Room Wed, 02 Apr 2008 22:33:00 GMT

Originally posted at the Think Progress Wonk Room.

johnsonOne year ago today, the Supreme Court handed down an epochal decision in the global warming case Massachusetts vs. the Environmental Protection Agency, stating that the EPA had the responsibility to determine how to regulate carbon dioxide for its contribution to global warming. The EPA, led by administrator Stephen L. Johnson, has utterly failed to do so, prompting a series of Congressional investigations and new lawsuits.

Johnson’s adversaries marked the anniversary of the Supreme Court decision today by continuing to press their case. Officials of 18 states filed suit against the EPA for its continued inaction—their petition “asks the U.S. Court of Appeals for the District of Columbia Circuit to require the EPA to act within 60 days.” By a unanimous vote, the House Global Warming Committee issued subpoenas “for EPA documents showing the Agency’s progress in making the ‘endangerment’ finding and proposing national emissions standards.”

The Supreme Court decision mandated that the EPA:
  • Declare whether greenhouse gases pose a threat to human health and need to be regulated;
  • Make a decision on California’s Clean Air Act petition to regulate motor vehicle greenhouse gas emissions;
  • Propose federal regulations for motor vehicle greenhouse emissions.
In the past year, EPA Administrator Stephen L. Johnson has only completed one of those tasks, by denying California’s waiver petition following the signing of the 2007 Energy Act in December.

Investigations by Congress, though repeatedly stymied by the agency, have determined that EPA staff actually worked vigorously last year to meet the Court mandate. In late fall Johnson brought the complete package with a health endangerment finding, approval of the California waiver, and motor vehicle regulations to the White House. After that, Johnson issued his waiver denial and all work at the EPA on the issue ceased. Henry Waxman, chair of the House Oversight Committee, has vigorously pursued documents related to the California waiver denial, even as the EPA responds to his subpoenas with document requests of their own.

Johnson’s latest act was to declare last week that the EPA would release an “Advance Notice of Proposed Rulemaking” asking for new round of comments, a delaying tactic promoted by a “memo from the Heritage Foundation.”

He is now fleeing to Australia with his top staff for two weeks to discuss the “ongoing environmental collaboration” between the countries—and fortuitously delay further Congressional hearings. The $280,000 trip is taxpayer-funded.

Under Subpoena, EPA Instead Demands Docs From Oversight Committee

Posted by Wonk Room Thu, 20 Mar 2008 13:07:00 GMT

Originally posted at the Think Progress Wonk Room.

bush
Under subpoena by Rep. Henry Waxman (D-CA) to turn over documents involving the White House, the EPA instead requested documents from him, in a letter revealed Wednesday by E&E News.

On March 10, House Oversight Committee Chairman Henry Waxman (D-CA) kicked off a new round the latest installment in his ongoing investigation of the EPA with a letter to Environmental Protection Agency Administrator Stephen L. Johnson:
“I am writing to request that EPA provide to the Oversight Committee documents that the agency has improperly withheld from the Committee…relating to your decision to reject California’s efforts to reduce greenhouse gas emissions.”

This request includes not only specific documents that EPA eventually turned over in heavily redacted form, but also “hundreds of documents” that involve EPA and the White House that top-level EPA officials told Waxman’s committee are being withheld.

On March 12, Waxman sent a detailed timeline of events to Johnson based on the EPA interviews showing that the EPA’s efforts to regulate CO2 stopped after the White House became involved.

On March 13, Waxman issued a subpoena for 196 of the documents.

The next day, the EPA’s Christopher P. Bliley – who was White House budget director Jim Nussle’s chief of staff when Nussle was in Congress – sent a letter to Waxman, saying that the documents “raise very important Executive Branch confidentiality interests” and that “we need additional time to respond to your request.”

Then he one-upped Waxman, making a document demand of his own:
EPA would also like to request copies of the transcripts from the Committee’s interviews of seven Agency employees.
His reason?
The Agency has an interest in ensuring that the information provided to the Committee by Agency employees in their official capacity is accurate and complete, particularly here where that information appears to be the basis for a new and expansive document request.

In other words, the White House wants to make sure their stories don’t contradict what Waxman already knows.

Needless to say, the EPA does not have oversight or subpoena power over the House of Representatives.

Waxman has also opened an investigation into Bush’s manipulation of the new smog standards issued by the EPA last week.

EPA LETTER (3/14/08) EXCERPTS:

EPA respects your role as Chairman and is committed to providing the Committee information necessary to satisfy its oversight interests to the extent possible and consistent with our Constitutional and statutory obligations. The three documents you are requesting are internal EPA documents that raise very important Executive Branch confidentiality interests. Because of this concern, we need additional time to respond to your request. We plan to further respond by March 20.

[…]

EPA would also like to request copies of the transcripts from the Committee’s interviews of seven Agency employees. During the interview process, your staff noted concerns about the possible chilling effect on testimony of Agency employees if the Agency were privy to the information disclosed by the employees. In light of your March 12 letter, which contains multiple references to individual testimony and is posted on the Committee’s website, EPA believes that this concern is not longer a valid basis for withholding the transcripts from the Agency. The Agency has an interest in ensuring that the information provided to the Committee by Agency employees in their official capacity is accurate and complete, particularly here where that information appears to be the basis for a new and expansive document request.

We look forward to discussions with your staff on the scope of this request. As I have said before, this is a top priority for the Agency and we are committed to responding as expeditiously as possible. . .

EPA Fully Embroiled in Scandal; Bush Changed Regulations

Posted by Brad Johnson Fri, 14 Mar 2008 10:44:00 GMT

EPA administrator Stephen L. Johnson has taken significant heat from environmental groups, state officials, and Congress for his December denial of California’s Clean Air Act waiver request to enact AB 32 to regulate tailpipe greenhouse gas emissions (and the February release of his justification). Congressional investigations, though stonewalled repeatedly by Johnson, have revealed that unanimous staff recommendations to approve the waiver were overturned by the administrator.

The Supreme Court decision Mass. v. EPA, which compelled the agency to make a decision on the waiver, also required the agency to make an endangerment finding as to whether greenhouse gases pose a threat to human health and if so, to issue motor vehicle regulations. On Wednesday Rep. Henry Waxman (D-Calif.)’s Oversight Committee investigation revealed that Johnson in fact attempted to issue an endangerment finding and motor vehicle regulations in December, but was evidently overruled by the White House and Department of Transportation. Johnson is still being unresponsive to Waxman’s investigation, as well as the one newly opened by Rep. Ed Markey (D-Mass.) of the Global Warming Committee.

Late Wednesday night, the EPA issued new smog regulations, lowering the public health (primary) and public welfare (secondary) standards to 75 parts per billion from 84 ppb. The Washington Post’s Juliet Eilperin revealed that the EPA scientific panel was overruled in its recommendation to establish a much lower seasonal secondary standard to protect plantlife during the growing season:
Nearly a year ago, EPA’s Clean Air Scientific Advisory Committee reiterated in writing that its members were “unanimous in recommending” that the agency set the standard no higher than 70 parts per billion (ppb) and to consider a limit as low as 60 ppb.

She goes on to note that on March 6, the Office of Management and Budget’s Susan E. Dudley sent a letter to the EPA asking them to consider the effect of a too strict regulation on “economic values and on personal comfort and well-being,”. EPA Deputy Administrator Marcus C. Peacock replied that “EPA cannot consider costs in setting a secondary standard,” with the cutting retort: “EPA is not aware of any information that ozone has beneficial effects on economic values or on personal comfort and well being.”

Today Eilperin further revealed that President Bush personally stepped in at the last minute to block the EPA’s intended secondary standard.
The president’s order prompted a scramble by administration officials to rewrite the regulations to avoid a conflict with past EPA statements on the harm caused by ozone. Solicitor General Paul D. Clement warned administration officials late Tuesday night that the rules contradicted the EPA’s past submissions to the Supreme Court, according to sources familiar with the conversation. As a consequence, administration lawyers hustled to craft new legal justifications for the weakened standard.

Massachusetts v. U.S. EPA Part II: Implications of the Supreme Court Decision

Posted by Brad Johnson Thu, 13 Mar 2008 13:30:00 GMT

Chairman Edward J. Markey (D-Mass.) and the Select Committee on Energy Independence & Global Warming will hold a hearing on Thursday March 13, 2008 with EPA Administrator Stephen Johnson and other experts to discuss EPA and the Bush administration’s response to the landmark Supreme Court decision Massachusetts v. EPA.

Witnesses

Panel I

  • The Honorable Stephen L. Johnson, Administrator, Environmental Protection Agency (EPA)

Panel II

  • The Honorable Roderick Bremby, Secretary, Kansas Department of Health and Environment
  • The Honorable Josh Svaty, Kansas House Member
  • Lisa Heinzerling, Professor of Law, Georgetown University Law Center
  • David Bookbinder, Chief Climate Counsel, Sierra Club
  • Peter S. Glaser, Partner, Troutman Sanders

Waxman, Markey Go After EPA's Supreme Court Avoidance

Posted by Warming Law Wed, 12 Mar 2008 21:30:00 GMT

Tomorrow morning, the House Select Committee on Global Warming and Energy Independence will be holding a hearing on the implications of Massachusetts v. EPA nearly one year later. Chairman Edward Markey (D-MA) plans to question EPA Administrator Stephen Johnson on why he’s delayedaction on the EPA’s remand (which might result in another lawsuit). Committee members will also hear from a panel that includes Kansas Secretary of Health and the Environment Roderick Bremby, who made national headlines this fall by utilizing his legal authority under state law to deny permits for two new coal-fired power plants—citing the growing scientific consensus surrounding warming-related impacts and the Court’s ruling in Mass v. EPA to justify his landmark decision. 

The hearing WILL NOT be broadcast online (though it is being videotaped), but Warming Law will be in attendance and might be able to liveblog the proceedings, and will report back later regardless. We’ll be particularly noting whether any members decide to take up the "common sense questions" proposed today as talking points by the Heritage Foundation, which hyperbolically warns that an endangerment finding for CO2 would require the EPA [to] completely de-industrialize the United States." Heritage and the Competitive Enterprise Institute—which has similarly argued that an EPA global warming program would amount to "policy terrorism"—have actively taken credit for Johnson’s recent decision to suddenly halt work on an endangerment finding.

Amidst such boasts of outside influence on EPA, Markey’s counterpart on the House Oversight and Government Reform Committee, the indomitable Rep. Henry Waxman (D-CA), has started investigating the White House’s apparent interference in short-circuiting an endangerment finding. In a letter sent to Johnson today, Waxman notes on-the-record conversations with senior EPA officials that—combined with Johnson’s public statements up through the last couple of weeks—depict a process that was suddenly halted as it neared completion:

Multiple senior EPA officials [cited directly in this letter] have told the Committee on the record that after the Supreme Court’s landmark decision in Massachusetts v. EPA, you assembled a team of 60 to 70 EPA officials to determine whether carbon diioxide emissions endanger healt hand welfare and, if so, to develop regulations reducing CO2 emissions from motor vehicles. According to these officials, you agreed with your staff’s proposal that CO2 emissions from motor vehicles should be reduced and in Decemer forwarded an endangerment finding to the White House and a proposed motor vehicle regulation to the Department of Transportation…

The senior EPA officials who spoke with the Committee did not know what transpired inside the White House of the Department of Transportation or what directions the White House may have given to you. They do know, however, that since you sent the endangerment finding to the White House, "the work on vehicle efforts has stopped." They reported to the committee that the career officials assigned ot the issue have ceased their efforts and have been "awaiting direction" since December.

As per OMB Watch, the letter also pre-emptively rebuts the suggestion that the fuel economy standards passed by Congress in December have any legal impact on EPA’s legal obligations in wake of Mass. v. EPA. Waxman is demanding that EPA provide "copies of the documents relating to the endangerment finding and GHG vehicle rule, including copies of any communications with the White house and other federal agencies about these proposals." Copies of an EPA techinical support document, the proposed endangerment finding, and the proposed vehicle GHG rule are due by this Friday, March 14; all other documents are to be provided by March 28.

It should also be noted that Waxman previously uncovered an improper lobbying effort by the same parties in question here, DOT and the White House, against California’s since-denied application for a waiver to enact its own vehicle GHG standards. Waxman’s oversight into White House influence on that decision also continues, with a letter sent to Johnson on Monday threatening to subpoena missing documents unless they were provided by close-of-business today.

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