[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
EPA'S NEW OZONE STANDARDS
=======================================================================
HEARING
before the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
MAY 20, 2008
__________
Serial No. 110-117
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.house.gov/reform
----------
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
HENRY A. WAXMAN, California, Chairman
EDOLPHUS TOWNS, New York TOM DAVIS, Virginia
PAUL E. KANJORSKI, Pennsylvania DAN BURTON, Indiana
CAROLYN B. MALONEY, New York CHRISTOPHER SHAYS, Connecticut
ELIJAH E. CUMMINGS, Maryland JOHN M. McHUGH, New York
DENNIS J. KUCINICH, Ohio JOHN L. MICA, Florida
DANNY K. DAVIS, Illinois MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts TODD RUSSELL PLATTS, Pennsylvania
WM. LACY CLAY, Missouri CHRIS CANNON, Utah
DIANE E. WATSON, California JOHN J. DUNCAN, Jr., Tennessee
STEPHEN F. LYNCH, Massachusetts MICHAEL R. TURNER, Ohio
BRIAN HIGGINS, New York DARRELL E. ISSA, California
JOHN A. YARMUTH, Kentucky KENNY MARCHANT, Texas
BRUCE L. BRALEY, Iowa LYNN A. WESTMORELAND, Georgia
ELEANOR HOLMES NORTON, District of PATRICK T. McHENRY, North Carolina
Columbia VIRGINIA FOXX, North Carolina
BETTY McCOLLUM, Minnesota BRIAN P. BILBRAY, California
JIM COOPER, Tennessee BILL SALI, Idaho
CHRIS VAN HOLLEN, Maryland JIM JORDAN, Ohio
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
JOHN P. SARBANES, Maryland
PETER WELCH, Vermont
------ ------
Phil Schiliro, Chief of Staff
Phil Barnett, Staff Director
Earley Green, Chief Clerk
Lawrence Halloran, Minority Staff Director
C O N T E N T S
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Page
Hearing held on May 20, 2008..................................... 1
Statement of:
Grifo, Francesca, senior scientist, Union of Concerned
Scientists; Michael Goo, climate legislative director,
Natural Resources Defense Council; Roger O. McClellan,
advisor, Toxicology and Human Health Risk Analysis; and
Alan Charles Raul, partner, Sidley Austin LLP.............. 166
Goo, Michael............................................. 203
Grifo, Francesca......................................... 166
McClellan, Roger O....................................... 243
Raul, Alan Charles....................................... 256
Johnson, Stephen L., Administrator, U.S. Environmental
Protection Agency; Susan E. Dudley, Administrator, Office
of Information and Regulatory Affairs; and Rogene F.
Henderson, Chair, Clean Air Scientific Advisory Committee.. 66
Dudley, Susan E.......................................... 76
Henderson, Rogene F...................................... 86
Johnson, Stephen L....................................... 66
Letters, statements, etc., submitted for the record by:
Dudley, Susan E., Administrator, Office of Information and
Regulatory Affairs:
Letter dated May 20, 2008................................ 148
Prepared statement of.................................... 78
Goo, Michael, climate legislative director, Natural Resources
Defense Council, prepared statement of..................... 205
Grifo, Francesca, senior scientist, Union of Concerned
Scientists, prepared statement of.......................... 169
Henderson, Rogene F., Chair, Clean Air Scientific Advisory
Committee, prepared statement of........................... 88
Higgins, Hon. Brian, a Representative in Congress from the
State of New York, prepared statement of the American Lung
Association................................................ 123
Issa, Hon. Darrell E., a Representative in Congress from the
State of California, memorandum dated May 2, 2008.......... 273
Johnson, Stephen L., Administrator, U.S. Environmental
Protection Agency, prepared statement of................... 68
McClellan, Roger O., advisor, Toxicology and Human Health
Risk Analysis, prepared statement of....................... 245
Raul, Alan Charles, partner, Sidley Austin LLP, prepared
statement of............................................... 258
Watson, Hon. Diane E., a Representative in Congress from the
State of California, letter dated May 16, 2008............. 154
Waxman, Chairman Henry A., a Representative in Congress from
the State of California:
Memoranda by majority and minority....................... 9
Prepared statement of.................................... 4
EPA'S NEW OZONE STANDARDS
----------
TUESDAY, MAY 20, 2008
House of Representatives,
Committee on Oversight and Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 1:46 p.m., in
room 2154, Rayburn House Office Building, Hon. Henry A. Waxman
(chairman of the committee) presiding.
Present: Representatives Waxman, Cummings, Kucinich,
Tierney, Watson, Higgins, Hodes, Sarbanes, Welch, Platts,
Cannon, Issa, Bilbray, and Sali.
Staff present: Phil Barnett, staff director and chief
counsel; Kristin Amerling, general counsel; Karen Lightfoot,
communications director and senior policy advisor; Greg Dotson,
chief environmental counselor; John Williams, deputy chief
investigative counsel; Alexander Teitz, senior environmental
counsel; Jeff Baran and Erik Jones, counsels; Jen Berenholz,
deputy clerk; Matt Siegler, special assistant; Caren Auchman,
press assistant; Leneal Scott, information systems manager; Rob
Cobbs, William Ragland, and Miriam Edelman, staff assistants;
Larry Halloran, minority staff director: Jennifer Safavian,
minority chief counsel for oversight and investigations; Keith
Ausbrook, minority general counsel; A. Brooke Bennett, Ashley
Callen, and Kristina Husar, minority counsels; John Cuaderes
and Larry Brady, minority senior investigators and policy
advisors; Patrick Lyden, minority parliamentarian and member
services coordinator; Benjamin Chance, minority professional
staff member; Ali Ahmad, minority deputy press secretary; and
John Ohly, minority staff assistant.
Chairman Waxman. The committee will please come to order.
Today's hearing will focus on several recent decisions that are
of fundamental importance to our health and the environment.
I have worked on health and environmental issues for
decades, and I know that regulatory decisions in these areas
can be very complex. But the law is clear: While all of us may
have views as to what we may want the outcome to be in any
rulemaking, we don't necessarily get the outcome we want. We
are not entitled to specific results, but what we are all
entitled to is a fair process that is based on the science, the
facts, and the law.
That impartial and rigorous system is one of the critical
pillars of our Government.
Unfortunately, President Bush seems to believe these rules
don't apply to him. On key issues, this administration has
pushed ahead with its agenda despite the evidence and the law.
We know that is what happened on the decisions to launch the
Iraq war; it happened again on decisions authorizing torture;
and it happened when the White House fired independent and
nonpartisan Justice Department officials.
For months this committee has been investigating recent
Environmental Protection Agency decisions relating to both
global warming and the new air quality standards, and after
reviewing nearly 60,000 pages of internal documents and
interviewing officials involved in the rulemakings, we have
found evidence that the White House often ignored the facts and
the law.
The first rulemaking was a response to California's
petition to regulate greenhouse gas emissions from cars and
light-duty trucks. Under the Clean Air Act, EPA must approve
California's request unless it finds the proposal is arbitrary,
isn't technically feasible, or isn't justified by compelling
and extraordinary conditions.
The record is overwhelming that EPA's experts and career
staff all supported granting the California petition. In one
internal document, EPA's own lawyer said: ``We don't believe
that there are any good arguments against granting the waiver.
All of the arguments are likely to lose in court if we are
sued.''
Administrator Johnson apparently listened to his own staff
people. The committee has learned that before communicating
with the White House, the Administrator supported granting a
partial approval to California's request, but then the White
House intervened. In December, after secret communications with
White House officials, Administrator Johnson ignored the law
and the evidence and denied California's petition.
The second EPA rulemaking revised the air quality standards
for ozone air pollution to protect both human health and the
environment.
In this case, EPA's expert advisory committee, the Clean
Air Scientific Advisory Committee, unanimously recommended a
new standard for protecting the environment. After considering
all of the alternatives, Administrator Johnson agreed with this
new approach, which is called a seasonal standard. In a
submission to the White House, he described the case for the
new standard as ``compelling,'' and he said that there was no
evidence from the perspective of biological impact supporting
the alternative standard favored by industry.
But once again the White House intervened. On the evening
before the final rule was released, President Bush rejected the
unanimous recommendation of both EPA's scientific experts,
lawyers, and Administrator Johnson and instructed EPA to
abandon the new standard.
The committee's investigation reveals that EPA officials
were astounded by the President's decision and said it wasn't
supported by either the science or the law. One official wrote,
``I have been working on National Ambient Air Quality Standards
for over 30 years and have yet to see anything like this.''
Another wrote, ``We could be in a position of having to
fend off contempt proceedings. The obligation to promulgate a
rule, arguably, means to promulgate one that is nominally
defensible.''
And an EPA Associate Director observed, ``This looks like
pure politics.''
The same thing happened in a third critical rulemaking.
Last April the Supreme Court directed EPA to determine whether
CO2 emissions endanger health and the environment
and must be regulated under the Clean Air Act. This is a
Supreme Court decision, and under Administrator Johnson EPA
assembled a team of over 60 career officials to work on this
hugely important regulation. The staff determined that
CO2 did endanger the environment and drafted
proposed rules to reduce tailpipe emissions.
To his credit, Administrator Johnson listened to his staff
and sent an official ``endangerment finding'' to the White
House. That endangerment finding means that the regulation
should go forward. Jason Burnett, the Associate Deputy
Administrator, told the committee that he personally
transmitted the Administrator's determination to the White
House in December.
Yet once again the White House ignored the law, the
science, and Administrator Johnson. Two months ago EPA was
forced to announce that the agency would go back to square one
and start the rulemaking process all over again.
In each of these rulemakings, the pattern is the same: The
President apparently insisted on his judgment and overrode the
unanimous recommendations of EPA's scientific and legal
experts.
Now, our investigation has not been able to find any
evidence that the President based his decisions on the science,
the record, or the law. Indeed, there is virtually no credible
record of any kind in support of the decisions.
I recognize and support the broad powers our Constitution
vests with the President of the United States. But the
President does not have absolute power, and he is not above the
law. The President may have a personal opinion about the new
ozone standards, California's regulation standards, and
regulating CO2, but he is not allowed to elevate his
views above the requirements of the law.
This is an important hearing, and I look forward to
learning more from our witnesses.
[The prepared statement of Chairman Henry A. Waxman
follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Waxman. Before we proceed with hearing the
witnesses, I want to recognize Mr. Issa, who is sitting in for
Tom Davis, the ranking member of the committee, with an opening
statement.
Mr. Issa. Thank you, Mr. Chairman, and thank you for
expressing the majority position extremely well. As we often
say here in Washington, we are all entitled to our opinions,
just not our facts.
The appropriate role of the President was established in
the Constitution and has been revisited on numerous occasions
by all three branches of Government. Presidents of both parties
have asserted the right to oversee and direct the actions and
decisions of regulatory agencies. President Clinton offered a
prime example of an aggressive Executive who was constantly
involved in directing regulatory actions. Indeed, the Executive
order that gave rise to today's hearing was issued by President
Clinton in 1997.
I say this to remind the chairman that the goal of this
hearing is to investigate whether or not the President provided
his opinions to EPA Administrator Stephen Johnson. On the issue
of National Ambient Air Quality Standards [NAAQS], for ozone,
it is pretty open and shut. He did.
The President makes no pretense that he did not, as might
have been implied by the other opening statement. We knew that
on March 12, 2008, a memo sent from Susan Dudley informing
Administrator Johnson of the President's judgment on the
secondary NAAQS standard. That memorandum is part of EPA's
public docket on the ruling and has been available to staff
since the initiation of the ozone investigation. In fact, the
smoking gun is on the Web site.
Moreover, the President's involvement in the ozone NAAQS
discussion does not reflect any unusual or improper action. His
involvement was pursuant to a process established by the
Clinton Executive order. That order openly declares the
President's role in major rulemakings, namely, that the
President will resolve disagreements between an agency and the
Office of Management and Budgets Office of Information
Regulatory Affairs [OIRA].
Accordingly, according to the record, the President himself
accepted OIRA's conclusions; therefore, the President carried
out his constitutional responsibility consistent with the
precedent an applicable Executive order and the Clean Air Act.
I would also like to remind members of this committee that
a difference over policy outcomes does not necessarily make a
policy outcome fatally flawed, meaning that in fact we can
disagree but at the end of the day law is discretionary in this
case, and when followed, as it was by the President or any
President, he may choose among a variety of policy options.
It should not be surprising that the policy opinion chosen
by a President of one party differs from the policy opinion
that a Member of Congress from another party would have chosen,
nor should it be a reason to cast blameless aspersions or
discredit the deliberative process used to arrive at that
decision. From the beginning EPA had proposed the option of
either setting a secondary standard equal to the primary
standard or alternately adopting a more biologically relevant
standard, the so-called W-126 standard of 21 parts per million
per hour.
Given the legitimate role of the President in this decision
and the legitimate choices before him, it appears this kind of
oversight simply seeks to bully the President into making a
decision supported by some Members of Congress. This is raw
politics. The majority supposes that the unwelcome decision is
an unlawful one. The President concluded within his discretion,
the ozone standard should be set at 0.075 because of the
uncertainty of any benefit at a lower level.
Democrats can have a different judgment about the
uncertainties and their benefits, but that does not make the
President's decision improper in any way. If some Democrats
want a stricter ozone standard, they could pass legislation to
impose one. They have not done this and do not appear to be
ready to do so, at least in part because some Members of their
party disagree.
Finally, with respect to the proper role of the Clean Air
Scientific Advisory Board, in plain language the Clean Air Act
expressly states that CASAC is advisory, not a standard-setting
panel and not a policymaking panel. Under no circumstances does
the Clean Air Act require the Administrator to simply rubber-
stamp CASAC's findings. The Advisory Committee is directed to
review the science and make recommendations to the
Administrator.
By definition, ``recommendations'' can be rejected. With
respect to the ozone NAAQS standard in particular, there is no
bright line in the science today regardless of those who would
like to seek one that shows that above-level ozone is unhealthy
and below the level it is somehow of no danger.
Accordingly, setting the NAAQS level for ozone is
necessarily a policy judgment entrusted to the Administrator
and claiming that science dictates a certain outcome is
contrary to both science and law. It is worth noting the EPA
has spent over 3,200 staff hours in producing over 65,000 pages
of documents in their effort to comply with the committee's
demands.
OIRA has been similarly responsive, turning over somewhere
between 6,800 and 7,900 document pages, and participated in
half a dozen in-person meetings in conference calls in support
of accommodating this committee's needs. Throughout the process
the majority has praised the EPA in their efforts to
accommodate the committee's demanding production schedule and
acknowledge the logistical difficulties involved in such a
voluminous document production.
Finally, I understand the committee has recently released a
memorandum summarizing the majority's findings with respect to
both ozone investigation as well as the California waiver
investigation. The minority has also drafted a separate
memorandum based on our own independent evaluation of the
facts. I ask that the minority documents be inserted into the
record at this time.
Chairman Waxman. Without objection, all of the memoranda
provided by the majority and minority staff will be made part
of the record.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Issa. Thank you very much, Mr. Chairman. I look forward
to this fact-finding hearing. I believe it is appropriate to
ask when there are differences in opinions, because I believe
Congress has an oversight role, but as I said in my opening
statement, it is very clear the President was within his
discretion in this case, based on the facts presently
available.
With that, I yield back.
Chairman Waxman. Thank you, Mr. Issa.
We are pleased to welcome three participants on our panel.
We will hear from Stephen Johnson, who has served as the
Administrator of the Environmental Protection Agency since May
2005. He has been working at EPA in different capacities for
the past 27 years.
Susan Dudley was appointed as Administrator of the Office
of Information and Regulatory Affairs in the White House's
Office of Management and Budget in April 2007. Prior to her
current position, Ms. Dudley worked at the Mercatus Center at
George Mason University and as a consultant at Economists, Inc.
Dr. Rogene Henderson is currently the Chair of EPA's Clean
Air Scientific Advisory Committee and is a senior scientist
emeritus at the Lovelace Respiratory Research Institute. She is
an expert on air quality and has had a distinguished career
serving on multiple boards and committees related to the topic.
I would like to extend a special thank you to Dr. Henderson for
the accommodations she has made to make herself available for
this hearing. Thank you very much.
This hearing has been postponed twice, and each time Dr.
Henderson rescheduled her flight and canceled her plans to make
sure she was available. I believe she even canceled a vacation
which I am sorry to hear about. Thank you very much for being
here.
It is the policy of this committee that all witnesses that
testify before us do so under oath, so if the three of you
would please stand and raise your hands I would appreciate it.
[Witnesses sworn.]
Chairman Waxman. The record will indicate that each of the
witnesses answered in the affirmative.
Mr. Johnson, or all three of you, your prepared statements
that you have submitted to us in advance will be made part of
the record. We would like to call on you for your oral
presentation. We usually like to keep that within around 5
minutes, if possible. We will have a clock running. It will be
green, and then the last minute will be yellow, and then when
the time has expired, it will be red.
I will not cutoff any of you from your presentation, but if
you are mindful that the time has expired, we would like you to
keep that in mind and try to summarize.
STATEMENTS OF STEPHEN L. JOHNSON, ADMINISTRATOR, U.S.
ENVIRONMENTAL PROTECTION AGENCY; SUSAN E. DUDLEY,
ADMINISTRATOR, OFFICE OF INFORMATION AND REGULATORY AFFAIRS;
AND ROGENE F. HENDERSON, CHAIR, CLEAN AIR SCIENTIFIC ADVISORY
COMMITTEE
STATEMENT OF STEPHEN L. JOHNSON
Mr. Johnson. Good afternoon, Chairman Waxman, and members
of the committee. I am pleased to be here to discuss EPA's
decision to significantly strengthen the National Ambient Air
Quality Standard [NAAQS], for ground-level ozone.
It is also a pleasure to appear alongside Dr. Rogene
Henderson, Chair of EPA's Clean Air Scientific Advisory
Committee [CASAC]. Former EPA Administrator Levitt appointed
Dr. Henderson to this position in 2004 and in 2006 I invited
her to continue serving in this important role.
Since 1980, ozone levels have been cut nation-wide by more
than 20 percent, even while our economy has more than doubled.
As many of the Bush administration's recent rules to reduce air
pollution take effect, we expect that trend to continue.
While air quality has been improving so has our scientific
knowledge of the relationship between pollution, public health,
and our planet. As we learn more, science and the law require
that we make changes. That is what we have done with regard to
ozone.
This afternoon, I would like to describe my decisions on
the ozone standards, first for the primary standard designed to
protect public health, and, second, for the secondary standard
designed to protect public welfare. Since EPA last updated
ozone standards in 1997, more than 1,700 new studies have been
published about ozone's effects on human health. Many of these
studies strengthen the linkages between ozone exposure and
effects such as reduced lung function or aggravated asthma.
In a large number of new studies showed that ozone is both
more damaging and harmful at lower concentrations than
scientists understood. After evaluating the results of these
studies, along with recommendations of staff, my Clean Air
Scientific Advisory Committee and public comments, I concluded
that the 1997 standard no longer met the Clean Air Act
requirement to protect public health with an adequate margin of
safety. To provide that protection at a level that is requisite
to protect public health, I selected a level of 0.075 parts per
million for the primary standard as the most stringent 8-hour
standard for ozone in our Nation's history, it will provide
significant public health benefits to millions of Americans.
Advances in science also provided significant new evidence
about ozone's impact on the environment, particularly on
sensitive plants and trees. When I proposed the standards last
June, I presented two options: one, setting the standard
identical to the primary as has been the practice for many
years; or, two, setting a 3-month standard to address the
cumulative effects of plant exposure to ozone over the growing
season. Each of these alternatives had strengths and also had
weaknesses.
Selecting a secondary standard was difficult, as the record
of this rulemaking shows. In making the decision, I reviewed
the 1997 NAAQS decision and the scientific evidence available
since then. I considered recommendations from CASAC and my
staff. I read comments from the public, and as a matter of good
government and as required by Executive Order 12866, I
coordinated with others in the executive branch about the two
options before me. I weighed all of this information in making
my final decision, which was to set the standard identical to
the primary standard at 0.075 per million.
This stronger standard will provide significantly increased
protection for plants and trees. In my 3 years as
Administrator, I have strengthened two air quality standards,
one for particulate matter and one for ozone. Earlier this
month, I proposed to strengthen our Nation's air quality
standards for lead. This is the first time in 30 years.
In the process of navigating the requirements of the Clean
Air Act, I have come to see both the strengths and limitations
of this law, and, I believe, the need to change it for the
better. I believe it is time to modernize the Clean Air Act to
improve public health. When I announced the revisals on
standards March 12th, I also announced four principles upon
which the administration will seek proposals to modernize the
Clean Air Act. Congress has adopted these principles and other
environmental statutes such as the Safe Drinking Water Act.
The Clean Water Act is an important act for us to review.
The Clean Air Act is not a relic to be displayed in the
Smithsonian but a living document that must be refurbished to
continue realizing results. I look forward to working with you
in our efforts to improve this important law and to continue
our progress toward clear air across the Nation.
Thank you, Mr. Chairman. I would be happy to answer any
questions.
[The prepared statement of Mr. Johnson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Waxman. Thank you very much, Mr. Johnson.
Ms. Dudley.
STATEMENT OF SUSAN E. DUDLEY
Ms. Dudley. Chairman Waxman, and Ranking Member Issa, and
distinguished members of the committee, thank you for inviting
me and giving me the opportunity to testify today regarding the
role of the Executive Office of the President, NEPA's ozone
NAAQS rulemaking.
In the interest of public transparency, both OMB and EPA
placed in the correspondence related to this rulemaking in the
public record to ensure clear presentation of the issues
involved, Pursuant to Executive Order 12866 issued in 1993 by
President Clinton, OIRA oversees the regulatory process for the
executive branch by coordinating interagency review of
significant regulatory actions. In most cases OIRA is able to
work with the regulatory agency to resolve any issues that
arise during the interagency review process. For those rare
circumstances when such resolution is not possible, the
Executive order provides a process for conflict resolution by
the President with the assistance of the Chief of Staff.
EPA's ozone NAAQS is a significant regulation under E.O.
12866 and such was submitted to OIRA on February 22, 2008. In
the course of interagency review, concerns were raised with the
secondary, the welfare-based standard. These concerns focused
on the form of the standard, not the level. EPA's proposed rule
had sought comment on two alternative forms. Both were
scientifically and legally valid, one set equal to the primary
standard and another based on measured ozone levels over a
season. The draft final rule would have relied on the seasonal
form of the secondary standard.
Establishing a separate seasonal standard would have
deviated from EPA's past practice which has been to set the
secondary ozone NAAQS equal to the primary NAAQS. The draft
initially submitted for review did not clearly support a
conclusion that a secondary standard was requisite to protect
the public welfare. First, as EPA observed in the preamble to
the 2007 proposed rules, a secondary standard set at a level
identical to the proposed new primary standard would provide a
significant degree of additional protection for vegetation as
compared to the current standard established in 1997.
Second, EPA's analysis indicated that the draft secondary
standard accumulated over a season would not be more protective
of vegetation than one set equal to the primary public health
based standard. On the contrary, EPA recognized the seasonal
standard in the final draft was generally less stringent than
the primary standard.
Given the public interest in this regulatory proceeding, I
wanted to ensure that these concerns were laid out clearly to
avoid misunderstandings, so I conveyed them to Administrator
Johnson in memorandum dated March 6th. On March 7th, EPA Deputy
Administrator Peacock responded in writing. Then, pursuant to
the appeals procedure, the Executive order, EPA sought further
consideration of this disagreement regarding the form of the
secondary standard.
Following the established Presidential Review process, the
President concluded that, consistent with administration
policy, added protection should be afforded to the public
welfare by strengthening the secondary ozone standard and
setting it equal to the new primary standard.
On March 12th, I sent a memorandum to Administrator Johnson
memorializing this process. As the preamble to the final rule
states: ``While the Administrator fully considered the
President's views, the Administrator's decision and the reason
for it are based on and supported by the record in this
rulemaking.''
So, in summary, let me reiterate three key points. First,
in the course of interagency review of EPA's final ozone, both
OMB and EPA have been forthright in making key correspondence
regarding initial disagreements over the form of the secondary
standard available to the public.
Second, the focus of my correspondence with EPA was not the
primary health-based standard, but the secondary, welfare-based
standard. No changes were made to the level or form of the
health-based standard.
Third, discussions regarding the secondary standard related
exclusively to the form of the secondary standard and did not
affect the level of protection from ozone exposure provided to
vegetation. Contrary to some media accounts, the 8-hour form
ultimately selected by the EPA Administrator is not lower or
less protective than the alternative seasonal form of the
standard.
Thank you for the opportunity to testify.
[The prepared statement of Ms. Dudley follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Waxman. Dr. Henderson.
STATEMENT OF ROGENE F. HENDERSON
Ms. Henderson. Thank you for asking me to testify before
this committee. I am testifying as the current Chair of the
USEPA's Clean Air Scientific Advisory Committee [CASAC], which
is a congressionally mandated committee that advises and makes
recommendations to the EPA Administrator concerning the
scientific basis for setting air quality standards. The CASAC
ozone panel included 25 members, all of whom were carefully
vetted for their scientific qualifications and for any
potential conflicts of interest.
The questions addressed by the ozone panel was the same as
for any criteria pollutants. In light of newly available
information, are the existing standards adequate to protect
public health with a margin of safety in terms of the primary
standard or to protect public welfare in terms of the secondary
standard.
The ozone panel met with EPA staff in public meetings seven
times to review eight documents over a 2-year period. Public
comments were solicited at each of our meetings. Highly
productive discussions were held between EPA staff, the public
and CASAC in our efforts to develop the best scientific advice
to provide the Administrator.
A major product of these extended discussions was the
unanimous recommendation that the primary standard should be
lowered from a level of 84 parts per billion to a level between
60 and 70 parts per billion. Note that the recommendation was
in terms of a range. There is enough uncertainty at this low a
concentration of ozone that CASAC can only recommend a range of
values they consider to be protective of public health. It is a
policy decision for the Administrator to determine where within
that range to set the standard.
Our scientific advice was not accepted. The primary
standard was lowered but only to 75 parts per billion. The
CASAC panel does not endorse the new primary standard as being
sufficient protective of public health with a margin of safety
as explicitly required by the Clean Air Act.
Moving on to the secondary standard, which includes
protecting our ecology, the panel was in unanimous agreement
that we now have enough information to be able to set a
cumulative seasonal secondary standard rather than having to
default to using the primary standard. It is both common sense
and fully justified scientifically to set a secondary standard
separate from the primary standard, since, unlike humans,
vegetation is affected by cumulative exposures to ozone during
the growing season and during daylight hours.
It is also in agreement with the National Research
Council's 2004 Report on Managing Air Quality in the United
States in which they strongly recommend that the EPA move away
from having identical primary and secondary standards to
setting a reasonable secondary standard because there is
growing evidence that some vegetation is more sensitive to
pollutants than are humans.
Nevertheless, in March, Ms. Dudley of the OMB sent a memo
to Administrator Johnson saying the form of the secondary
standard should not be changed. This memo was clearly refused
in a knowledgeable, well-written reply from Deputy
Administrator Marcus Peacock. In reply, Ms. Dudley stated that
President Bush had decided against having a secondary standard
that was different from a primary standard. In defense of this
decision, the White House said the decision was based on
following the law. There is no law against having a different
standards, as evidenced by the precedent set in 1971 when
separate secondary standards were set for both particulate
matter and sulfur oxides.
Equally perplexing is the fact that the OMB objections were
to the proposed form of the secondary standard, which is a
scientific matter and not to the level of the proposed
standard, which includes policy decisions. CASAC has been
accused of wandering from scientific issues into policy. In
this case, policymakers wandered into scientific issues, and
they did not do it well. Wilful ignorance triumphed over sound
science.
Certainly the Administrator is the one who decides what
standard to set, and CASAC's role is only advisory in nature.
However, if the Administrator sets the standard outside the
range recommended by his Science Advisory Committee, a strong
reason for doing so should be given. The Administrator has said
his decision was based on his own judgment.
Congress may want to ask, on whose advice is the
Administrator basing his judgments? The Clean Air Act mandates
that one source be the CASAC whose work is done transparently
in public by vetted members. By contract, the advice that
appears to be trumping the CASAC advice is not transparent. The
OMB and the White House set the secondary standard in effect
rather than the EPA Administrator.
In closing, I wold like to quote from Dr. Paul Gilman, who
is the former Assistant Administrator for Research and a
Science Advisor for the EPA, in a statement he made before a
recent hearing of the Senate Committee on Environment and
Public Works. ``Our best insurance that the science, the
scientific judgment, and policymaking are as good as they can
be is that the process is transparent, participatory, peer-
reviewed, and followed with informed oversight. Setting the
standards by fiat behind closed doors is not in our best
interest.''
Thank you.
[The prepared statement of Dr. Henderson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Waxman. Thank you very much, Dr. Henderson.
We will now proceed to questions and, by agreement with the
minority, we will have 12 minutes on each side to begin, 12
controlled by the chairman and 12 controlled by Mr. Issa. Then
we will proceed to the 5-minute rule. Without objection that
will be the order.
Let me start off, Administrator Johnson. My concern is that
the decisions at EPA are not being based on the science and
they are not being based on the law. They are being made at the
White House, and they are being made for political reasons. My
concern is that this is happening over and over again. It
appears to be what happened on the ozone rule. It appears to be
what happened when you rejected California's efforts to
regulate carbon dioxide from vehicles, and it appears to be
what happened when EPA tried to regulate carbon dioxide itself
after the Supreme Court decision.
Dr. Henderson, let me start with you. You are the Chair of
the Clean Air Scientific Advisory Committee, and you reviewed
the new ozone standards that were recently announced by EPA.
Are the standards that Administrator Johnson set consistent
with the science?
Ms. Henderson. It is not consistent with the CASAC's
recommendations which are based on science.
Chairman Waxman. Well, did CASAC give a range so that there
was some discretion left that you thought would fit with the
science that you knew?
Ms. Henderson. Yes. The CASAC always recommends a range,
never a bright line. We know that there is uncertainty at these
low levels of ozone, so with careful consideration of the
uncertainties and what we know from the scientific work that
has been done since the last ozone standard was set, we
recommend a range within which the Administrator could set a
level that would be protective of public health with a margin
of safety.
Chairman Waxman. And did the Administrator select within
the range recommended by the Scientific Advisory Committee?
Ms. Henderson. No, he did not.
Chairman Waxman. Now, in essence, you are saying that
Administrator Johnson did not follow the science, is that
correct?
Ms. Henderson. That is correct.
Chairman Waxman. Now, Administrator Johnson, I want to give
you a change to respond. Dr. Henderson says you didn't follow
the science. Do you agree with that?
Mr. Johnson. Well, I would respectfully disagree with that
characterization. One is that I did agree with our CASAC that
the current standard was not requisite to protect public health
with an adequate margin of safety, hence we were in agreement
together. I should note that not all comments agreed with that
conclusion.
Second is that not only do I have the advice--and I
appreciate and certainly respect the advice of CASAC and Dr.
Henderson's role as the Chair--but also I have the
responsibility to listen to what my staff say and, of course,
evaluate all of the public comments after all the comments are
in. I made the decision based upon all of the science before me
that 0.075 was requisite to protect public health with an
adequate margin of safety.
Chairman Waxman. Excuse me, you answered my question. You
think you set it within the protection of the science.
Mr. Johnson. Absolutely.
Chairman Waxman. OK. Now, the record shows your views about
the science and the law were constantly being reversed by the
White House. Your professional views may be scientifically and
legally correct, but they are not the ones that are prevailing
comments to the White House that the secondary standard for
ozone, the one that protects the environment, be set based on
cumulative seasonal exposure, isn't that right?
Mr. Johnson. Well, more accurately, Mr. Chairman, would be
that there are two options. There was one that the Agency
preferred as part of the deliberation, and it was clear that
there were others in the administration who felt the other was
a preferred option. Of course, as I believe good government, we
went through the process as outlined by President Clinton's
Executive order, and the President provided input. Ultimately,
I made the decision, and made the decision to set a secondary
standard that is the most protective secondary standard in our
Nation's history.
Chairman Waxman. You, as the head of EPA, recommended a
proposal. OMB and the White House looked at that proposal and
said to you, we don't want that proposal. Then you made the
decision that they recommended.
When you sent your draft final rule to the White House in
February, it said that the evidence for seasonal standard was
compelling and that a seasonal standard was necessary to ensure
the requisite degree of protection. But the White House then
objected to that proposal, and you changed it. Is that what
happened?
Mr. Johnson. Well, I think, more accurately, was is that
certainly it agreed with CASAC that a cumulative seasonal
metric is the most biologically relevant form for vegetation;
however, at the time we certainly noticed----
Chairman Waxman. I really want a direct answer to the
question. You submitted a rule to the White House, and the
White House said they wanted a different rule, and then you
decided what the White House suggested to you.
Mr. Johnson. Well, there was a difference of opinion
between two----
Chairman Waxman. No, no. Yes or no. Yes or no?
Mr. Johnson. Well, I don't believe it is a yes or no
question, sir.
Chairman Waxman. Well, you gave them one option and they
gave you the other, and the one you accepted was theirs.
Mr. Johnson. We had two options on the table. There was one
that was preferred by EPA, one that was preferred by OMB and
perhaps others, and it went through an Executive order process.
I think that is good government.
Chairman Waxman. OK. Well, this is not a minor change; it
was a major reversal that I believe was not supported by the
record. Your own staff said it was pure politics and that they
have never seen anything like it in 30 years of working on air
quality standards.
An agency lawyer worried that the final decision was not
even nominally defensible, and this wasn't the only time you
have been reversed by the White House. It seems to be happening
over and over again.
Your Associate Deputy Administrator, Jason Burnett, told
the committee that last fall you supported granting
California's petition to regulate carbon dioxide emissions from
vehicles. According to Mr. Burnett, you changed your position
after you talked with the White House. Is that accurate?
Mr. Johnson. I don't believe that is a fair
characterization, Mr. Chairman. I think, certainly, as you look
through the thousands and thousands of pages, including his
deposition, that shows a very deliberate process going through
where I evaluated all options from moving from a full approval
to denial and options in between.
Chairman Waxman. And you recommended it be in between. You
didn't agree that there should be a complete granting of what
California wanted, which was a waiver to do exactly what they
wanted. You wanted a partial waiver so that it would go into
effect through a period of time, and that was sent to the White
House.
Mr. Burnett told us under oath that he thought a partial
grant--he, meaning you--thought that a partial grant of
California was the best course of action.
Well, that is what happened in this instance. The same
thing happened the third time. According to your staff, you
decided last fall that EPA should issue its own greenhouse gas
rules, and you submitted a proposing endangerment finding to
the White House. You also circulated a proposal to other
agencies to regulate tailpipe emissions of carbon dioxide. Is
that accurate?
Mr. Johnson. It is true that we have a draft of
endangerment finding that was part of the rulemaking process
before the Energy Independence and Security Act was passed.
Chairman Waxman. And you also recommended that other
agencies regulate tailpipe emissions of carbon dioxide.
Mr. Johnson. Well, that was part of a draft decision that
has not gone through interagency process.
Chairman Waxman. But you recommended it to the Department
of Transportation.
Mr. Johnson. Well, again, it was so deliberative and they
had not reviewed it, and again, it was before the Energy
Independence and Security Act, which then changed the course of
action for EPA, and that is writing a regulation for renewable
fuel standard.
Chairman Waxman. We interviewed----
Mr. Johnson. Excuse me. I am just working, as required,
working with the Department of Transportation as they updated--
--
Chairman Waxman. Well, we interviewed seven senior career
EPA officials earlier this year, and they all told us the same
thing. You supported Federal regulations for carbon dioxide
emissions and submitted an endangerment finding to the White
House. They said the proposal was sent to the White House in
the first or second week of December. They told us that after
you submitted your recommendations to the White House, they
were told to stop all work on the regulations. This policy
reversal became official in March when you announced that EPA
was going to start the regulatory process all over again.
My concern, Administrator Johnson, is that you've become
essentially a figurehead. Three times in the last 6 months you
have recommended to the White House that EPA take the steps to
address climate change and protect the environment. In each
case, your positions were overruled.
Now, your positions were right on the science and the law,
yet in each case you backed down. You received your
instructions from the White House. Now that is not how our
Government is supposed to work. Congress passes the laws and
the executive branch is supposed to faithfully administer them.
But what we see happening at EPA is that when you try to
follow the law and the science, you are overridden. The
attitude in the White House seems to be that President Bush can
ignore the environmental laws that Congress wrote and do
whatever he pleases.
Now, my questions are about the process and the results.
Let's go to this ozone decision. EPA is required under the law
to set an ozone standard to protect public health and a
secondary ozone standard to protect crops, forests, and other
aspects of public, and we just went over that very briefly.
After years of scientific review, you sent the draft final
ozone standard to the White House for review. To protect the
environment your draft recommended that EPA establish a new
standard, one that would protect plants from cumulative
exposure over growing season. The document to the White House
stated that you found the evidence for the new standard to be
compelling and necessary. You also wrote that you found no
evidence to support the alternative standard favored by
industry.
When the final rule was issued on March 12th, you made a
complete reversal on the environmental standard, you abandoned
the seasonal approach, and you adopted the short-term approach
that industry favored. These changes were made at the last
minute pursuant to instructions from White House. According to
the record, they were personally directed by the President.
Administrator Johnson, your statement that there was
compelling evidence in support of the seasonal standard was
dropped in the final rule. So was your statement that there was
no biological evidence supporting the industry standard. Why
were these statements deleted from the rule?
Mr. Johnson. Well, Mr. Chairman, as we prepared for making
a decision--as I prepared making a decision on the secondary
standard, again, we proposed two options, and I think the
important point to note is it was not an issue of a level of
protectiveness. Either form provided additional level of
protectiveness for public welfare.
Chairman Waxman. Did the White House provide you with new
scientific evidence to change your mind?
Mr. Johnson. Well, Mr. Chairman, certainly during the
review, it was part of the Executive order. OMB certainly
issued a concern, ``The draft is not adequate to support such a
decision.'' And as I evaluated their comments and, certainly,
the President's comment and reviewed it, I made the decision to
establish the secondary standard----
Chairman Waxman. I understand you made that decision.
Mr. Johnson [continuing]. After I made the primary
standard.
Chairman Waxman. But the Clean Air Act is clear in setting
ozone standards. The Agency is required to use the best science
and set a standard that protects health and environment.
Did the White House do this? Did the administration listen
to the scientists, or did they reject the science and set
standards that will not protect health and the environment?
Mr. Johnson. No. Again, as I said, both forms were
protective of the environment. The question is, what is the
form? It is not the standard. And, in fact, for the secondary
standard, some of the issues that I was facing in terms of
uncertainty with adopting a separate standard, a cumulative 3-
months so-called W-126 form, was, for example, crop yield data
was derived largely from data generated 20 years ago.
In addition, the degree of risk attributable to varying
levels of ozone exposure, there were uncertainties. Degree of
protection that any specific cumulative seasonal standard would
produce an associated potential for error in determining the
standard and what would be providing a requisite degree of
protection, all of those were among the uncertainties that,
certainly, as I factored into my decision played a role. That
is why I chose the primary form with input in this case from
the President.
I am very proud of the process. It has been a very
transparent process where Susan's memo, Marcus' memo, and in
fact a letter citing what the President's input to me is a
final decision. I think that is good government, and I think
that is the way we ought to operate.
Chairman Waxman. Thank you very much, Mr. Johnson.
Mr. Issa.
Mr. Issa. Thank you, Mr. Chairman. I will continue where
the chairman left off because I think it is a good line of
questioning.
Administrator Johnson, you, if I understand correctly, are
a career professional, is that right?
Mr. Johnson. That is correct.
Mr. Issa. When did you join the EPA?
Mr. Johnson. In 1980.
Mr. Issa. In 1980.
Mr. Johnson. Well, actually, I came to EPA, left and then
came back, but my service computation date is 1980.
Mr. Issa. Longer than some of the staff behind me have been
alive, so we will say you have been there a long time, and you
are not a political appointee. I mean, even though you sit now
in an appointed position, you are a career professional, is
that right?
Mr. Johnson. I am a career professional who also is a
political appointee, and I am proud of both of those mantles.
Mr. Issa. But you were selected because of your long tenure
with the EPA, clearly.
Mr. Johnson. I believe the President, in fact, it was said
that he wanted the most experienced, best person for the job,
and I am honored to be serving our Nation and the President in
that capacity.
Mr. Issa. Well, let's run through a little of that
experience. First of all, I assume you were at the EPA when
California asked for a waiver from the need for MTBE or other
oxygenates and try to use things that wouldn't destroy our
water or wood corrosive, do you remember that?
Mr. Johnson. I do remember that, yes, sir.
Mr. Issa. Do you remember that was denied by the Clinton
administration?
Mr. Johnson. I do.
Mr. Issa. So when it came to California meeting its own
high clean air standards and not being at the back of the
ethanol lobby, the administration under President Clinton was
not willing to grant that waiver, right?
Mr. Johnson. Well, I must say that is tangential because I
was not in the Air Office or working on air issues, but I am
aware of that fact.
Mr. Issa. And California's request for a waiver was, they
were going to comply with all of the standards; they simply
weren't going to use things that poisoned our water or required
that corn farmers in the Midwest get a special benefit.
So the strange thing is, you know, today we are asking
about a reduction, and I want to go into that. I am trying to
figure out what good deed can possibly go unpunished. Let me
run you through that.
You were also there in--and I apologize, I said 1997--it
was a typo. The Executive order of President Clinton's was at
the beginning of his administration in 1993, isn't that true?
Mr. Johnson. That is correct.
Mr. Issa. And didn't he essentially assign that to Vice
President Al Gore as sort of the go-to on air quality, if you
remember?
Mr. Johnson. I don't remember, sir.
Mr. Issa. I don't forget on that one. But I certainly think
that is within the administration's right. In this case,
President Bush has kept that to himself.
But in 1993, if I understand correctly, the ozone level was
1.0 or 120 parts where today it is going to be 75. That was the
air quality prior to the 1997 ruling, is that right?
Mr. Johnson. Yes.
Mr. Issa. And so in 1997 it was reduced from 120 to 84.
Since 1997 when it was reduced to 0.084, has Mr. Waxman's
district ever been in compliance? Does Hollywood or L.A. meet
that 0.084?
Mr. Johnson. No, sir, not.
Mr. Issa. OK. So we have had a standard, and many parts of
California have never reached that standard. Many parts of
America have never reached that standard, is that correct?
Mr. Johnson. There are a number of parts of America that
have not, that is correct.
Mr. Issa. And doesn't it make the science a little inexact
to figure out where the safety level is if, in fact, people are
above the existing standard and you are going to lower it even
further? Isn't that one of the variables you have to deal with?
Mr. Johnson. Well, the law actually prohibits me from
considering costs or considering whether or not the standard is
actually able to be implemented. Of course, that is one of the
reasons why, among a number of reasons why, that I think that
it is worthy of congressional debate.
I believe there is an opportunity to improve the Clean Air
Act. I think that it is unconscionable that we have a standard
that we have gone through years of scientific evaluation to say
this is protective of public health and then communities not
even being in compliance with that for 20 or plus years. I
think it is worthy of congressional debate, and I believe that
there are other approaches that could achieve public health
protection sooner.
Mr. Issa. So, particularly, when it comes to
CO2, if I understand your recommendation, it is time
for Congress to act to create a more responsive law that would
allow for compliance, offsets, things to deal, to be honest
with the chairman and myself as Californians, the fact that we
have some containment areas that just simply never complied.
Mr. Johnson. Well, sir, I wholeheartedly agree. My
experience in 27 years with a very complex statute as the Clean
Air Act is, dealing with global air pollutant with many, many,
many issues, my experience says that a legislative fix is the
more efficient and effective way because, my experience says,
with these complex laws subject to years and years of
litigation.
I believe that global climate change needs to be addressed.
I believe the greenhouse gas emissions need to be addressed,
and I think the most efficient and effective way is through a
legislative fix. Having said that, I am initiating the
rulemaking process by issuing an advance notice of proposed
rulemaking of, later this spring.
Mr. Issa. Well, I appreciate that. Just to finish on my
numbers game here a little bit, you mentioned in your opening
statement we are down about 20 percent over several decades,
most of your career. If I do the numbers, coming from 120 parts
to 84 parts, it was about 33 percent reduction. So if we are
down 20 percent, we obviously didn't hit--we didn't go from the
120 to the 84.
Now if I understand correctly, going to 0.75 is about an 11
percent reduction, and going to 0.070 would be about a 16
percent. So today we appear to be having a hearing about
whether a reduction of 11 percent is somehow anti people's
breathing versus a reduction of 16 percent would somehow make
it OK. Is that pretty much what I should be understanding
today?
Mr. Johnson. Well, that is certainly a view. Again,
ultimately, when I made the decision on both the primary and
the secondary both in regard to the primary, public health, I
determined that the existing standard was not protective. It
was not requisite to protect public health with an adequate
margin of safety and wholeheartedly agreed with CASAC that it
needed to be reduced.
I made the decision to reduce it and to make it more health
protective. In fact, again this is the Nation's most health-
protective 8-hours ozone standard in the history of the Nation,
and that shouldn't go unnoticed.
Mr. Issa. I appreciate that, and I agree. If I understand
correctly, though, basically, if 2, 3, 4 years from now after
we have achieved a portion of this 11 percent reduction that is
presently being ordered, there is nothing that stops this
process, with Dr. Henderson's help and so on, from seeing that
there is an even lower level bolstering the science and
ordering a lower level. There is nothing whatsoever stopping it
from happening at any time, is that correct?
Mr. Johnson. Well, it is not only not stopping it, we are
actually directed by law and it is part of the 77 amendments to
the Clean Air Act, we are required every 5 years to review each
and every one of these standards.
Of course, one of the challenges for the Agency since that
amendment in 1977, the Agency has never met the 5-year
requirement, and, of course, that is why we believe that there
are changes and improvements in the way we actually go through
the NAAQS process: to preserve science as well as to improve
the timeliness of what we are doing.
So we are required to make these evaluations and keep up
with what the current state of the science is.
Mr. Issa. I appreciate it. I would like to yield for a few
minutes to Mr. Bilbray, as he needs it.
Mr. Bilbray. Thank you.
Mr. Johnson, I don't come from a business background, and I
don't come as a lawyer. I come from the regulatory background.
I served on Air Resources Board in California, I served in the
air district, San Diego, on the few--in fact the only--air
district I know in California that has actually had its
standards dropped recently, I mean its category dropped because
we were so successful.
You talked about since 1980 a 20 percent reduction in
emissions just in California during that time with 20 percent
reduction, and I think our California numbers will be less, I
think more of a drop. We have had a 50 percent increase in
population. And that is one thing I hope that when we talk
about the threat to the public health, we think about the fact
that sheer population has been ignored from the entire
environmental impact of those sheer numbers and that has to be
considered.
Doctor, you serve on one of the most critical bodies when
it comes to environmental strategies, and I was very happy to
work with our scientific body at ARB. California's program has
been very successful because of the use of science.
Back in the 1990's when California petitioned a waiver from
the oxygen mandate, the mandate that we put ethanol or MTB into
our gasoline, was your committee review that mandate?
Ms. Henderson. No, because we an air committee, so we did
not.
Mr. Bilbray. Well, this was an air committee. This was
coming from the----
Ms. Henderson. This was from the Air Board?
Mr. Bilbray. This was coming from the Air Resources Board.
Ms. Henderson. I became chair of this committee back in
2004, so it did not occur during my chairmanship.
Mr. Bilbray. OK. Let me just tell you something. By 1994,
California had recognized and our scientists had recognized
that ethanol and methanol in our gasoline was not only not
beneficial but was an environmental detriment, not just for
water but air pollution.
We formally requested this in 1994. I, for one, authored
the bill that every Californian except one signed onto, to
allow us to burn a cleaner, cheaper fuel for California. But we
were blocked.
Mr. Johnson, what was the rationale of the Clinton
administration for blocking the request for a waiver for
cleaner fuel for the consumers of California and for the
environment of California? What was their justification
requiring us to put MTBE in our fuel and ethanol in our fuel
when the best scientists in air pollution that reviewed the
process said there was no scientific reason to do it?
Mr. Johnson. Well, sir, I am with Dr. Rogene, it was
actually before my time, but certainly I know I have staff and
can get back for the record to respond to that.
Mr. Bilbray. Well, I will tell you, now that we have people
that are administrators of EPA at that time who was over at
California.
And, Mr. Chairman, I am just telling you, I was outraged at
that time that the Clinton administration, in my opinion, was
bending to political pressure that was influenced by
contributions at that time, and I think that we ought to
recognize that, yes, there is undue influence on
administrations.
But no one administration has a monopoly there, and I wish
that both Republicans and Democrats could have stood up for the
environment against the political pressure, not only in the
White House but here in the legislative body. To this day for
us to point fingers at one administration when we went for
almost a decade requesting a waiver based on the environment,
and it was denied by Washington to the people of the State of
California who, I think we all admit, have done extraordinary
things to protect the environment.
Thank you very much.
Mr. Issa. Administrator Dudley, continuing on, let me ask
you a question. Could you explain to the committee why the
regulations of carbon dioxide is such a unique pollutant that
it requires a new regulatory paradigm and doesn't fit into the
old regulatory structures of the Clean Air Act?
Ms. Dudley. I think that Administrator Johnson mentioned
this a bit in his previous remarks, too. CO2 is a
global pollutant. It doesn't matter where it is emitted, the
effects will be felt regardless of whether it is emitted here
or in China. In order to achieve the reductions that we think
we need requires new technology, so massive incentives for new
technology.
So the Clean Air Act, which was mostly recently updated in
1990, just was never designed for it and really isn't well-
suited to it.
Chairman Waxman. Thank you, Mr. Issa.
Mr. Issa. Could we ask that Administrator Johnson also
answer it, if you don't mind, Mr. Chairman? He has something.
Mr. Johnson. Yes. I would just say that one of the, I
think, important reasons for the advanced notice of proposed
rulemaking is that the Massachusetts versus EPA decision was in
the context of automobiles and light trucks. The way the Clean
Air Act operates is that decision in endangerment not only
affects that narrow area of mobile sources but all mobile
sources and, in fact, spills over into Title I and all
stationary sources as well.
So when I moved forward with an advanced notice for
proposed rulemaking, it is actually expanding and looking at
the entire, all sources, potential sources, of carbon dioxide
and other greenhouse gases. I think that it is important for us
as an agency, to understand all of those issues, and I think it
will also help Congress, you, as you debate this very important
issue.
As I have said I believe, given my experience, a
legislative approach is a much better approach than working
through the intricacies of the Clean Air Act, and with the
likely litigation that would ensue.
Chairman Waxman. You might prefer another law, but there
was a law. There is a law, the Clean Air Act adopted by
Congress, and the U.S. Supreme Court said that EPA is supposed
to regulate carbon emissions under that law. Even if you would
like another law, you have to enforce the law that is there.
Mr. Johnson. Well, and that is why I am proceeding with an
advanced notice of proposed rulemaking, which is the first step
in the regulatory process.
Chairman Waxman. Mr. Tierney.
Mr. Tierney. Thank you, Mr. Chairman.
Dr. Henderson, in your written testimony you address the
decision to set an environmental standard for ozone that is
higher than the standard that scientific experts recommended.
You stated, ``Wilful ignorance triumphed over sound science.''
Those are strong words. Would you explain for us?
Ms. Henderson. I was referring, really, to the secondary
standard because in the case of the secondary standard, we were
really excited that we now have enough information to use a
different form for the secondary standard. In the past, we have
had to default to the primary standard because we didn't have
the right information.
Then, to get so close to having the form changed and then
at the last minute, with no explanation, really, of why it was
done, that form was squelched. The new form was squelched by
the White House because President Bush said we couldn't have a
different secondary standard from the primary standard.
Now, that is ignorance to me. That is wilful ignorance
because I do not think the OMB really hadn't read the Clean Air
Act to know that you can set that. I don't think the OMP really
hadn't read the EPA staff documents that carefully explained
why we were focusing on vegetation as the welfare effect of
concern.
So that is what my ``wilful ignorance'' meant. It bothers
me, with all the hard work that went into this by the EPA staff
and by CASAC to develop this different form for a secondary
standard that someone can just, for no transparent reason, say,
no, can't do that. That is what I meant by wilful ignorance.
Mr. Tierney. Thank you very much.
Mr. Johnson, do you want to respond?
Mr. Johnson. Well, again, the record clearly indicates that
this was a difficult decision and that these were two, both
viable, options. Again, an important piece is that the level of
protectiveness was essentially equivalent whether a W-126 form
or identical to the 8-hour ozone----
Mr. Tierney. That is interesting you should say that
because what I see is there was no new evidence--at least you
couldn't give an answer to Mr. Waxman--no new evidence from the
White House at all on that issue. Before you had found evidence
to be compelling, in your own words, and necessary, in your own
words, and, in your own words, found no evidence to support the
alternative standard that was favored by industry.
So, Mr. Johnson, you say that the final decision was
justified, but looking at your own words--and let's look at
some of the words of your own staff, what they had to say about
it. If you look through the documents that were provided by EPA
as part of the investigation, and it is stunning; stunning to
see how EPA staff reacted to the rejection of the seasonal
standard recommended by Dr. Henderson.
An EPA Associate Director comments, ``Looks like pure
politics.''
An EPA lawyer wrote, ``We could be in a position of having
to fend off contempt proceedings. The obligation to promulgate
a rule arguably means to promulgate one that is nominally
defensible.''
One EPA manager told his colleagues that he offered
``sympathies to all for all the work that went down the
drain.''
Another career official stated, ``I have been working on
NAAQS for over 30 years and have yet to see anything like
this.''
Yet another Agency official responded by saying, ``I know
how incredibly frustrating and disgusted we all are at the
moment.''
So, Mr. Johnson, I think what is happening with the EPA is
pretty unacceptable. It is the Administrator's job to implement
our Nation's environmental laws and to protect the public
health and welfare. It has to be based on the best evidence, By
your own words, the evidence was compelling, it was necessary
that the standard be different and the new form be instituted.
So it looked to me that by your own words and by your staff's
words, you are not doing your job.
Recently, the Union of Concerned Scientists released the
results of a survey of nearly 1,600 EPA scientists. The survey
revealed that EPA scientists face significant political
interference with their work. Nearly 1,000 EPA scientists said
they personally experienced at least one incident of political
interference during the past 5 years. Over 500 EPA scientists
knew of many or some cases where the EPA political appointees
had inappropriately involved themselves in scientific
decisions.
Mr. Johnson, are you concerned at all that hundreds of EPA
scientists are reporting incidences of political interference
with their work?
Mr. Johnson. Well, sir, I am proud of the fact that EPA has
consistently ranked in the top 10 places for Federal
employment. As a career----
Mr. Tierney. Are you concerned, as my question was, are you
concerned that hundreds of EPA scientists are reporting
political interference in their work?
Mr. Johnson. Well, I would like to quote to you, if I may,
a quote from Dr. Paul Gilman, who just recently testified.
``EPA has become too politicized in its actions, too eager to
pursue narrow political goals and too willing to ignore
congressional intent. At least a dozen former EPA officials who
played roles in setting policy now work as industry
consultants, or''--this is also quoted, Orlando Sentinel--
``Science is as politicized in America as it was in the Soviet
Union and Nazi Germany, and EPA is a prime example.''
He then goes to say, ``I want to make this point that these
headlines all came prior to the current Administration and
pertained to the previous administration.''
So, sir----
Mr. Tierney. So that is just an excellent defense, Mr.
Johnson.
Mr. Johnson. So, sir----
Mr. Tierney. So apparently because you think something was
politicized in a previous administration, politicizing in this
administration is laudable.
Mr. Johnson. No, that is an inappropriate conclusion, sir.
Mr. Tierney. My question to you was, are you proud of the
fact, or are you concerned of the fact that hundreds of EPA
scientists are reporting political interference with the work
now, not in the past administration--we can have a hearing on
that some other time. Are you proud of what is going on now?
Mr. Johnson. I am very proud of the work of the Agency and
all the thousands of scientists that we have and includes
17,000 employees at EPA.
Mr. Tierney. Well, I take it some----
Mr. Johnson. And, Mr. Tierney, I will say just I will share
my experience as a scientist growing up in the Agency that
there are those times that scientists agree with the ultimate
decision; there are times that they don't, and I understand
that.
As my role as Administrator is to evaluate the science and
evaluate the policy under what the law directs me to do and
make the best decision, that is what I have been doing, and
that is what I continue to do.
Mr. Tierney. Clearly, that is not what happened here, Mr.
Johnson.
Chairman Waxman. The gentleman's time has----
Mr. Tierney. By your own admission.
Chairman Waxman. Time has expired.
Mr. Bilbray.
Mr. Bilbray. Yes, Mr. Chairman. I have to say--let me just
followup on this issue of a survey by scientists that there was
an undue political influence here.
Mr. Johnson, is it fair for me to say that there were 55
requests for comment sent out by the Union of Concerned
Scientists?
Mr. Johnson. I don't----
Mr. Bilbray. 5,500; 5,500, I am sorry.
Mr. Johnson. Yes. I don't know the numbers of what was done
or what wasn't. I am aware that, in fact, the survey was
received by political appointees and non-scientists, so I have
no idea what criteria they used for sending the survey out.
Mr. Bilbray. That I have, sir. Fifty-five hundred out
there. About 1,500 came in, and of that we are looking at maybe
half of them had concerns, and there might have been--my
concern was that for this to be used in this hearing as some
kind of scientific document, and I say anybody who would like
to take a look at this and said it is not a scientific
document, it doesn't just--no pollster in the world would
accept this. Any elected official that would accept it as being
a standard, I think, would be appalled by it, but we will talk
about with the next panel.
Doctor, my question to you is, in your analysis, you know,
you talked about the vegetation and the ecosystem. Was there a
consideration of economic value considered in that standard?
Ms. Henderson. CASAC is not allowed to consider economic
issues, and what we are asked to do is give advice and
recommendations on what will be protective of vegetation and
the welfare without regard to the costs or the ease of
implementation.
So what we did consider was what was biologically relevant
and what was recommended by the National Research Council.
Also, I have a concern for the effect of ozone on vegetation as
well as on people. When you continually emphasize the primary
standard, where do you monitor? You monitor where the people
are in urban areas. But we are neglecting the rural areas where
our food crops and plants are grown, and when you need to have
information, well, how does ozone affect those crops, and how
protective do we need to be for that?
Mr. Bilbray. Doctor, how long have you been chairman of
this body?
Ms. Henderson. I am in my 4th year. I go off in October.
Mr. Bilbray. OK. I am concerned because when I talk about
economic value, you went immediately to a defensive based on
the cost of implementing strategies. You didn't talk about the
economic value of the crops that might have been destroyed.
Ms. Henderson. Well, I--forgive me.
Mr. Bilbray. You shifted and went way off of where I was
talking about, and I have to understand that, you know, that
economic value is something regulatory agencies do all the
time.
Ms. Henderson. Certainly, and there is a, I believe--what
do they call it--a regulatory impact assessment done after our
assessment.
Mr. Bilbray. My question to you, then, if you did not make
that, what criteria did you use to set that on the impacts?
Ms. Henderson. To set the form?
Mr. Bilbray. Yes. What standards have you used?
Ms. Henderson. The form was purely a scientific issue. I am
not an ecologist, but we have very good ecologists on our
panel, and they are the ones who develop the form.
I mentioned Ellis Kelling [phonetically], a member of the
National Academy of Sciences and others. They know what they
are doing, so they developed the form.
Mr. Bilbray. OK. I am just concerned that, you know, Ms.
Dudley and Johnson, this issue of economic values both in the
impact of not doing something and--I am sorry, the doctor went
off just worried about enforcement, but also enforcement--isn't
there a consideration if you have an economic value impact from
both sides: first of all, lack of action and action?
Mr. Johnson. Well, again, under the Clean Air Act and under
establishing NAAQS, I am not allowed to consider costs or
whether in fact it can be implemented or not. So I have to base
my decisions based upon what the science says. Of course, I
think it is also important to note that with all science there
are uncertainties, and there is a range of uncertainties. So,
then, science, policy, and then ultimately judgment needs to be
exercised to make an appropriate decision.
Mr. Bilbray. Well, isn't, in the statute, the term
``economic value'' actually integrated right into the statute?
Isn't there a reference there?
Ms. Dudley. I have it in front of me.
Mr. Bilbray. Go ahead, ma'am.
Ms. Dudley. It says, ``Welfare includes but is not limited
to effects on soils, water, crops, vegetation, man-made
materials, animals, wildlife, weather, visibility and climate,
damage to and deterioration of property, hazards to
transportation, as well as effects on economic values and on
personal comfort and well-being.''
Mr. Bilbray. Well, let me just say that is a consideration
with setting standards. I sure wish we would set the same
standard before we start putting poison in our field, too.
Chairman Waxman. Thank you, Mr. Bilbray.
Mr. Higgins.
Mr. Higgins. Thank you, Mr. Chairman. I would like to focus
on the primary standard and health impacts. I think this is
really important because it affects lives, health, and the
well-being of people across the Nation.
There are health risks we have some control over, but
unhealthy air affects each and every one of us. Breathing in
this life is not an option. Ozone is a dangerous pollutant. It
hurts our lungs, worsens coughs and asthma, and makes us more
vulnerable to colds and flu. When ozone layers are high, more
people go to the hospital, more children miss school, and more
adults miss work, and more people die.
Dr. Henderson, will the standards set by EPA adequately
protect Americans from ozone pollution?
Ms. Henderson. The CASAC panel does not agree that the
standard that was set is sufficiently protective of public
health, particularly in regard to a margin of safety. Our
concern is for particularly asthmatic children whose asthma is
aggravated by the higher ozone levels and for what you----
Mr. Higgins. So the answer is no?
Ms. Henderson. The answer is no. I should be more succinct.
No.
Mr. Higgins. Administrator Johnson, how do you respond to
Dr. Henderson's concerns?
Mr. Johnson. Well, I disagree that I set the standard that
is requisite to protect public health with an inadequate margin
of safety. That is the statutory requirement, and that is what
the science in my judgment indicates.
I think it is also, and as you can read in our final agency
decision document, and we go in great detail, and in fact we--I
think it is a good idea and we are also required to respond to
CASAC's recommendations.
There was one study that was a pivotal study, a clinical
study conducted by Dr. Adams, and that his study he was the
only one that had gone and studied to the level of 0.060, which
was at the lower end of the CASAC range. Dr. Adams actually
wrote to the Agency twice questioning the use of his study in
saying that we were misusing his study, that there were too
many scientific uncertainties at that level.
So that, and for other reasons which are documented in our
decision document, I disagreed with CASAC on the actual level
and agreed--but I did agree that the current standard was not
requisite to protect public health, and that is why I reduced
it from 0.084 to 0.075.
Mr. Higgins. Well, look, yes, I want to address an
inconsistency within EPA's analysis. I believe there is a major
inconsistency here. EPA developed a regulatory impact analysis
comparing the standard you chose to the standard recommended by
Dr. Henderson. EPA projected that your weaker standard will
produce the following results each year: Between 500 and 3,500
premature deaths, 1,400 non-fatal heart attacks, almost 10,000
asthma attacks or asthma symptoms, 7,500 emergency room and
hospital visits, 67,000 lost work days, and almost a million
lost school days.
Mr. Johnson, why didn't you listen to your own staff and
set a more stringent standard to avoid these harms?
Mr. Johnson. Again, the Clean Air Act does not require a
primary standard to be set at zero risk, and to achieve that
which you are referring would have to be set at a zero,
probably zero level. The Clean Air Act does not require that.
The standard of the law is requisite to protect public
health within an adequate margin of safety, and through court
decisions, that standard is neither more or less stringent than
necessary.
Mr. Higgins. Yes.
Mr. Johnson. And then that is my judgment, and I made the
judgment that we needed to strengthen the standard, and I
strengthened the standard which is the Nation's most health-
protective 8-hour ozone standard in our history. And I am very
proud of that.
Mr. Higgins. The public health experts aren't uncertain
about the harm from ozone. The most eminent public health
organizations in America agreed upon the Science Advisory
Committee's recommendations, and this included the American
Academy of Pediatrics, the American Medical Association, the
American Heart Association, among others.
I have a letter from the American Lung Association to this
committee strongly critiquing EPA's rule, and I ask unanimous
consent to enter it into the record.
Chairman Waxman. Without objection that will be ordered.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Higgins. The American Lung Association says, ``If EPA
had followed the law, we could have cut the risk of life-
threatening pollution to millions of Americans nationwide.
Administrator Johnson, last question. Your decision seems
to be inconsistent with the mainstream thinking. It rejects the
recommendations of your expert panel, your own staff, the
outside public health organizations. It is just not credible to
argue that your decision is based on science.
Mr. Johnson. Well, I disagree with that, and we certainly
have in excess of 400 pages of document that goes in great
detail describing the science behind my decision, and that it
is the most health protective standard in the Nation's history.
I might add, as I met with all the public health officials,
and I met with others so that I could have their input, and I
think that is important as part of the process in me making a
decision.
As I mentioned in my oral testimony, I have just proposed a
new health protective standard for lead, and I have taken it a
step further because CASAC recommended a particular range. But
as part of the evaluation the Centers for Disease Control have
said that there is no safe level of lead. So CASAC did not
recommend, but I felt it was important as a public health
official to ask the question: Should we be setting the standard
for lead at zero?
Chairman Waxman. Mr. Higgins, your----
Mr. Johnson. So those are the kinds of decisions that I
have to make, and I see input. Again, I appreciate the Council
of CASAC, my staff, the notice and comment, the public hearings
all of which, but, ultimately, I need to make a tough decision.
Mr. Higgins. I yield back, Mr. Chairman.
Chairman Waxman. The gentleman's time has expired.
Mr. Platts.
Mr. Platts. Thank you, Mr. Chairman. I appreciate you
holding this hearing, and I apologize that a scheduling
conflict prevents me from remaining, but I would like to yield
the balance of my time to the gentleman from California, Mr.
Issa.
Mr. Issa. I thank the gentleman.
You know, if we could put the map up on the board, I think
we have----
Chairman Waxman. Mr. Platts.
Mr. Issa. Oh, would you ask Todd to stay for a few minutes?
Chairman Waxman. Mr. Platts is yielding his time. He must
stay here. Go ahead.
Mr. Issa. OK. If you could put the map up on the board, and
this will primarily concern, I think, most both Administrator
Dudley and Administrator Johnson, but if you will look at the
chart, these are counties with monitor violations in 2008,
primary ozone at the 0.75 parts per million, and secondary
standard of 0.21.
Now, my understanding is that every area that is dark,
which includes, unfortunately, most of California. There is no
effective difference whether you set the standard for secondary
higher or lower, is that correct? That basically, the ones that
are in compliance will be in compliance at either level; the
ones that are not in compliance will not be in compliance at
either level. Is that roughly true, based on the map you see up
there, if you are familiar with it?
Mr. Johnson. Based upon analysis that our staff did that
whether the form was the W-126 form or the following identical
to the 8-hours ozone standard, based upon the decision that I
made to be protective that it didn't matter either way.
Mr. Issa. OK, following up on that----
Mr. Johnson. But, clearly--excuse me, sir.
Mr. Issa. Yes.
Mr. Johnson. But clearly, for the primary standard there
were many counties based upon monitoring data that would be out
of compliance within the new primary health protective
standard.
Mr. Issa. I realize that and, of course, if California's
out of compliance, in such a large area they are going to be in
either case.
I would note that the food basket of California appears to
be producing a tremendous amount of crops for us with already
noncompliant ozone layers.
Dr. Henderson, can you explain, essentially, why
productivity has increased dramatically in most of America,
whether it is corn, wheat, rice, or the vegetables grown in
California during a time in which ozone levels were far above
what you are saying you would like them to be?
Ms. Henderson. Well, it would be a mistake for me to try to
calculate all the factors that go into food production.
What I was trying to mention was we could do a better job
of air quality management in rural areas if we had some kind of
handle on what the ozone levels are and if they are at a level
that can affect the foliage.
Mr. Issa. OK, but back to Administrator Johnson, you didn't
find that setting a different standard would have made any
difference. In other words, the economic value that you are
required by statute to--and, Administrator Dudley, you, too--
you are required to look at this economic value. If I read this
map correctly, there is not economic value to the different
standard because it doesn't, in fact, change the compliance. Is
that correct?
Mr. Johnson. You have to be very precise. Based upon the
data sets analyzed between 2003 to 2005, and then 2004 to 2006
from currently monitored counties, no additional counties would
have been out of attainment under the seasonal secondary
standard initially proposed by EPA.
Mr. Issa. OK. Could we put the chart up that comes next?
This is the chart of levels for the 12-hour standard, the so-
called W-126 standard. I think all of you are familiar with
this.
When I read it, looking at the difference between the 0.075
and the 0.070, under the 126 standard, 21 parts per million, I
see no change again. Is that essentially a more graphic way to
show that, in fact, there would have been no benefit had we
implemented the lower standard? The secondary standard.
Mr. Johnson. Yes.
Mr. Issa. So, Dr. Henderson, if I accept science--and I
do--and that your conclusions are well-intended but without the
economic value consideration, would you agree, based on no
counties changing, the 126, that in fact it was within the
Administrator's purview to judge that and to come up with at
least the standard for now of 0.075?
Ms. Henderson. I am mixing whether you are talking about
the secondary standard or the primary standard.
Mr. Issa. Well, I am going to the secondary standard, but
let me put it another way. Your advisory role is for the
Administrator to accept or reject that, in fact, it is advisory
even though it is scientific based, and you have standards
different than he does. You said yourself you do not evaluate
this economic value where he does. Is that correct?
Ms. Henderson. It is certainly within his purview. He is
the one who decides. We are advisory only. In the case of the
secondary standard, I think the decider was President Bush. And
that is within his purview, I mean.
Mr. Issa. Thank you. Thank you for allowing me to clear up
the difference in scope, Mr. Chairman.
Chairman Waxman. Mr. Hodes.
Mr. Hodes. Thank you, Mr. Chairman. The law is very clear
that EPA may not consider costs in setting a National Air
Quality Standard to protect the environment. The Supreme Court
specifically addressed the issue in 2001. The court wrote that
if EPA established a standard by ``secretly considering the
costs without telling anyone,'' it would be grounds for
throwing out the standard because the Administrator had not
followed the law.
I am concerned that this is exactly what happened in this
case. The record before this committee shows that the unanimous
recommendation of the Clean Air Scientific Advisory Committee
was rejected by you, Mr. Johnson, apparently on the basis of
White House opinion or desire to which you apparently exceeded,
given the change in your position from February 22nd to March
12th, for which is there is no explanation that is reasonable
other than what the White House told you to do, and much weaker
standards were finally selected.
I want to know, Mr. Johnson, during the Agency's
consultation with the White House, did White House officials
express concerns about the costs of implementing the ozone
standards?
Mr. Johnson. Sir, are you referring to the primary or the
secondary standard?
Mr. Hodes. Either one. Did they express concerns about the
costs of implementing the ozone standards with respect to
either primary or secondary? And I will just point out for you
that your Administrator, Mr. Peacock, said that it is clear
that the prohibition extends even to secondary standards.
Mr. Johnson. That is my belief, and that is the way I
operated in my decisionmaking.
Mr. Hodes. Did the White House express concerns about the
costs of implementing either the primary or secondary standards
in your consultations with the White House?
Mr. Johnson. As I said, for making a decision, it is my
decision and my decision alone, made independently, and I
cannot consider and did not consider costs nor whether it was
implementable.
Chairman Waxman. Mr. Hodes, I don't think he has answered
your question.
Mr. Hodes. I know. I am sorry, Mr. Johnson. Here is my
question: Not what you consider, I am asking you, Mr. Johnson,
during the consultations you had with the White House, did the
White House officials express concerns to you or your agency
about the costs of implementing the ozone standards.
Mr. Johnson. Well, if I did recall, I am not sure that it
would be appropriate for me to get into what--who said what at
what point in time. In fact, I believe that it is important for
me and others, future administrators, to be able to have candid
discussions with members of the executive branch, and, as I
said, I made the decision. I made the decision without
consideration of cost, and that is the important----
Mr. Hodes. Let's stop there because I want to pursue this,
and I want an answer to my question. When I hear a witness
start talking to me about ``if I did recall,'' I wonder whether
or not the witness is being evasive. Do you recall having
discussions with the White House concerning costs of
implementing the standards?
Mr. Johnson. I have routine conversations with members of
the executive branch.
Mr. Hodes. Sir, it is a simple yes or no answer. Do you
recall?
Mr. Johnson. It is not a simple yes or no answer because I
have routine conversations on a multitude of issues, and I am
saying is that with, on this issue, I made the decision. I
understand what the law directs me to do, and that is not
consider costs and I did not consider costs.
Mr. Hodes. Let me go back. Do you recall, sir--search your
memory--having conversations with the White House about costs
in implementing the standards?
Mr. Johnson. If I did recall, it would not be appropriate
for me to discuss the nature of those conversations.
Mr. Hodes. So you won't tell me whether you do or do not
recall?
Mr. Johnson. As I said, it was not part of my
decisionmaking.
Mr. Hodes. That is not my----
Mr. Johnson. That is the important piece, sir.
Mr. Hodes. With all due respect, I am asking the questions
and you are answering them.
Mr. Johnson. I am answering and you don't like the answers.
Mr. Hodes. No. What I want to know is, do you recall or
don't you recall?
Mr. Johnson. I said even if I did recall, it is not
appropriate for me to get into the nature of discussions I have
within the executive branch.
Mr. Hodes. And the basis of your refusal to answer the
question, is it your lack of recollection or some assertion of
privilege?
Mr. Johnson. I am not asserting any privilege at this time,
but I think that it is important, and I think that it is
important that I and future administrators have the ability to
had candid conversations. I also believe that is important, and
certainly as the Agency deliberates on issues that are before
us, and I think that is an important privilege, and also I
think that it is an important principle that I need to maintain
for me and for future administrators.
Mr. Hodes. I will try this one last time. You understand,
sir, you are under oath before this committee?
Mr. Johnson. Oh, I understand that, sir.
Mr. Hodes. Do you or don't you recall having conversations
with the White House about whether or not costs were considered
by the White House?
Mr. Johnson. As I said, that whether or not I recall or
don't recall, I don't believe that it is appropriate for me to
discuss the nature of those conversations. I believe it is
appropriate for me to be able to have candid conversations, and
I also said under oath that I did not consider costs in making
my decisions.
Chairman Waxman. Thank you, Mr. Hodes. Your time has
expired.
Mr. Sarbanes.
Mr. Sarbanes. Thank you, Mr. Chairman.
Ms. Dudley, I am going to give you some equal time here. I
was intrigued by your memo that came, let me see if I can find
it, on March 6th, which was 6 days before this deadline, you
sent a memo to EPA where you said, ``The draft does not
provide''--this is the draft EPA report--``does not provide any
evidence that a separate secondary standard would be more
protective than one set equal to the draft primary standard.''
Explain that.
Ms. Dudley. The air quality that would be achieved by
setting the secondary standard based on that seasonal form
averaging it over 3 months or setting it equal to the primary,
the level of air quality is the same. I think it gets back to
the maps that were up there.
But what we care about is air quality, and the air quality
that vegetation and humans are exposed to, the two standards
from all the analysis that EPA did would have the same effect.
Mr. Sarbanes. I am incredulous that you could claim there
wasn't any evidence when in the draft, original draft, the
Administrator indicated that he found evidence compelling that
ozone-related effects on vegetation are best characterized by
an exposure index that is cumulative and seasonal in nature,
and that conclusion on the part of the Administrator was
reflective of what the expert panel had concluded, and what
months if not years of research and work on the part of the EPA
staff had concluded.
So again, I mean I could see you asserting perhaps that it
does not provide adequate evidence or sufficient evidence, but
to suggest that it didn't provide any evidence, that there was
no evidence that this secondary standard that was originally
being ut forward would be the appropriate one doesn't seem to
jibe with all of the other testimony and documentation that we
have.
Ms. Dudley. There are two different issues here. One is
that whether vegetation responds over a season rather than over
a day, and EPA did present evidence to that. EPA also presented
evidence that the current standards--or the previous standard
may not be protective of vegetation.
But at the end of the day, regardless of which form you
used, air quality would be reduced so that vegetation would be
exposed to the same air quality. That is the bottom line, so
that the form of the standard will not affect the air quality.
It won't affect what people have to do to come into compliance
with the standard, and it won't affect the air quality in those
counties that are affected by the standard.
Mr. Sarbanes. Well, what you are saying strikes me as
double-talk in the context of what we heard in the original
draft from the Administrator, and certainly the reaction of the
staff and the experts to the ultimate decision to abandon the
more cumulative standard in favor of the same standard as the
primary was intense, and it was lamented at all levels within
the staff which to me suggests that there was sufficient
evidence. Certainly, there was evidence that would be the most
appropriate route to take.
Administrator Johnson, I just want to say to you that I am
offended--and I am not trying to be facetious here, I actually
mean this--I am offended on your behalf by the White House's
handling of this matter, because right up to the end you were
going with the science. In fact, I commend you for the fact
that after you started to see the writing on the wall on March
6th, you nevertheless, and then at that point, had the ability,
I guess, to begin regrouping. You nevertheless pushed forward
right up to the point of the deadline when the rug was
essentially pulled out from under you, or you received this
countermand, this final countermand or overwrite from the White
House.
I am going to ask you a question which again I don't mean
to be facetious. You are somebody who was in the Agency for
many years, you had this opportunity to take the top spot
there. I am curious, when you did that, did the President in
speaking with you about taking this job, or the White House in
speaking with you about it, did they indicate to you that there
would be times when the science would be overridden for
political purposes? And you would essentially have to carry
that water for the White House? How clear were they about these
instances occurring.
Mr. Johnson. Sir, my charge and certainly my oath of office
was to carry out the mandates and the laws that I am
responsible for under the Environmental Protection Agency. That
was the charge. The President sent further and said, Steve, I
want you to accelerate the pace of environmental protection
while you help maintain the Nation's economic competitiveness.
That was the charge that was given. I have certainly been very
public about that.
I have been carrying out those duties to the best of my
ability, looking at sound science, and, as I said, science
isn't pure. There are many uncertainties and science requires
policy judgments and, of course, then there are a variety of
other issues that come into play depending upon the statute.
Mr. Sarbanes. Well, with all due respect, I can't imagine a
clearer example of where your charge to carry out the law in
respect to science could come into conflict with what the
President's and White House's edict was in this particular
matter.
I yield back.
Chairman Waxman. The gentleman's time has expired.
Mr. Welch.
Mr. Welch. Thank you, Mr. Chairman.
Mr. Johnson, my understanding is Jason Burnett is a senior
member of the EPA.
Mr. Johnson. Yes.
Mr. Welch. And he is a trusted and respected advisor, is
that right?
Mr. Johnson. Yes.
Mr. Welch. A person on whom you had confidence, have
confidence?
Mr. Johnson. Yes.
Mr. Welch. Is that correct? He, as you know, has been
deposed, and he testified that, according to him in his
testimony, you favored granting this California waiver in full
in August and September. Is Mr. Burnett correct?
Mr. Johnson. Well, I think that he is correct in
characterizing that over time, as I was briefed----
Mr. Welch. Let's keep it simple. I mean, I understand this
is a process. My question, and I am really going to try to
frame a question that is clear, that allows you to answer it as
clearly and as succinctly as possible. I do appreciate that
this is a process, and you have many things that come in so
what happens today isn't necessarily what is the wise decision
tomorrow, OK?
But is he correct in his recollection, according to his
testimony, that in August and September, you were leaning
toward a full waiver?
Mr. Johnson. Well, I don't recall the August and September
timeframe, but I can say with confidence that I was considering
all options, including a full grant and also a full denial, and
options in between. And I think my recollection is, as I read
the transcript last night, and I think he also states that as
well.
Mr. Welch. Mr. Burnett said--it was very clearly--that in
August and September you were favoring granting a waiver in
full.
We have to move on here. I only have 5 minutes, so you read
it last night. That is what he said.
Chairman Waxman. Well, the issue isn't what Mr. Burnett
said; the issue is whether it is accurate or not.
Mr. Johnson. Well, as I said, is that I considered each one
of the options.
Mr. Welch. All right, let me go through this.
Mr. Johnson. I don't recall the particular time, but I did
consider----
Mr. Welch. But that is obvious. It is obvious that you did.
Here is what he said. I think you have more or less
acknowledged that in August and September he was correct, you
were leaning toward a full waiver. He said that over time you
began to think of a partial grant. Is he right there?
Mr. Johnson. I considered a partial grant, that is correct.
Mr. Welch. All right. Then on December 19th you issued a
denial.
Mr. Johnson. Yes.
Mr. Welch. Was that after you had been to the White House
to have conversations about this issue?
Mr. Johnson. Well, again, I have routine conversations with
the White House throughout the calendar. Again, this was my----
Mr. Welch. Did you have any----
Mr. Johnson. This was the decision.
Mr. Welch. Did you have anything----
Mr. Johnson. I understand----
Chairman Waxman. Mr. Johnson, we would appreciate it if you
answer the questions.
Mr. Johnson. Yes, I am trying.
Mr. Welch. Did you have a meeting with the President about
this?
Mr. Johnson. I have routine meetings with the executive
branch, including the President.
Mr. Welch. OK. What part of my question don't you
understand? Did you have a meeting with the President about
this issue of the EPA waiver?
Mr. Johnson. When and where and if I have meetings with the
President are--I said I have routine meetings with members of
the executive branch. Those meetings I believe are in
confidence.
Mr. Welch. Is there something----
Mr. Johnson. And as I said, I made the decision. It was my
decision alone.
Mr. Welch. Mr. Johnson, you described this process is
transparent and open, correct?
Mr. Johnson. Yes.
Mr. Welch. And you are proud of the process?
Mr. Johnson. I am. This was an excellent process. As you
can see from the thousands of pages.
Mr. Welch. Does transparent mean if we can't know whether
you, in fact, met with the President and discussed with him
this issue?
Mr. Johnson. I believe that as Administrator that I need to
have the ability to have private meetings with the President
and members of the executive branch.
Mr. Welch. Did I just ask you what the content was of your
meeting with the President?
Mr. Johnson. I said I have already acknowledged that I have
routine meetings with the President and members of the
executive branch. I think that is good government.
Mr. Welch. Yes, but a few things: In your September 12th
briefing, there were slides that were presented that included a
statement from our staff that the clearest and most defensible
option would be to grant the waiver. Is that true?
Mr. Johnson. I don't recall that particular slide. I know
that there was a wide range of options and that they were all
legally defensible.
Mr. Welch. There were staff evaluations at the September
meeting--this is all in the record. This is not disputable.
Mr. Johnson. I said I don't remember that particular
document.
Mr. Welch. So we can pretend to the people listening that
this is an established fact, but let's----
Mr. Johnson. Sir, there were how many thousands of pages of
documents that were submitted to you?
Mr. Welch [continuing]. September 12th briefing it said
California has extraordinary ozone conditions, that greenhouse
gas standards are reasonably viewed as necessary to address
climate change, and opponents to the waiver have not met their
burden of showing the California standards won't benefit
climate change and ozone conditions.
Are you aware that in these evaluations they originally
contained those remarks in writing until they were removed at
the insistence of Mr. Meyers?
Mr. Johnson. I don't recall that situation, and I don't
necessarily see documents that are drafted by individual
staffs.
Mr. Welch. But you were at the meeting.
Mr. Johnson. Oh, I don't necessarily see all the workings
of drafting and redrafting before that it reaches my desk. That
is the point.
Mr. Welch. This is sounding like some of the meetings you
were at you were present, and some of the meetings you are at,
you are not. September 20th and 21st briefing, this is your
briefing. I mean, it is not somebody else's.
Did the EPA staff make it clear that the statutory criteria
for granting the waiver had been met? That is a threshold
question, correct?
Mr. Johnson. There were a wide range of options, and there
were opinions that were provided to me that as part of the
record. As I said----
Mr. Welch. It is a little frustrating.
Mr. Johnson. Well, it shouldn't be frustrating----
Mr. Welch. Well, it is.
Mr. Johnson [continuing]. Because there is a 50-page
document----
Mr. Welch. No, no, it is a simple----
Mr. Johnson [continuing]. Describing my decision and the
scientific basis on what the law requires me to decide, which I
decided.
Chairman Waxman. Mr. Welch, your time has expired.
Mr. Johnson, you admitted you had a conversation with the
President on the California waiver. That wasn't an issue.
Now, you are refusing to say whether you had a conversation
with the President on the ozone waiver. What is the difference?
Mr. Johnson. As I said, I have routine conversations with
the President as well as members of the executive branch, and I
believe that those----
Chairman Waxman. Let me get the record straight.
Mr. Issa. Could we have regular order?
Chairman Waxman. The chairman is pursuing regular order.
You said for the record that you had a conversation with the
President on the ozone layer?
Mr. Johnson. I don't recall making that----
Chairman Waxman. On the ozone ruling?
Mr. Johnson. I don't recall making that comment myself.
Chairman Waxman. Do you recall making a comment that you
have had a conversation with the President on any of these
three rules that we have been looking at?
Mr. Johnson. As I said, what I do recall and I believe is
an accurate reflection of what I have said, is that I have
routine conversations with members of the executive branch,
including the President on a wide range of issues.
Chairman Waxman. OK, I am not going to pursue this because
I will have another opportunity, but it seems to me you are
being awfully evasive, and I don't know why you cannot tell
this committee whether you in fact had a discussion about this
rule or that rule or the other rule. We are only talking about
three different rules. Either you did or you didn't. I don't
know why you cannot tell us that information.
No one is asking you what was said. We are just asking you
whether you had a conversation, and the answer is not
acceptable to say, I have had conversations with the President
and others on a routine basis, and I am not going to tell you
whether I had a conversation on these subjects. What else do
you talk to him about?
Mr. Johnson. As I have said, I have routine conversations
on----
Chairman Waxman. In those routine conversations, did you
talk about the ozone----
Mr. Johnson [continuing]. On a wide range of topics.
Mr. Issa. Mr. Chairman, I must insist that we go to regular
order.
Chairman Waxman. The gentleman is not in order at this
time.
Mr. Issa. Mr. Chairman, the rules of the House----
Chairman Waxman. The gentleman will cease.
Mr. Issa. The rules of the House call for an alternating 5
minutes on----
Chairman Waxman. The gentleman will cease.
Mr. Issa [continuing]. On what time does the chairman
speak. The point of order, Mr. Chairman, on what time does the
chairman speak and ask these questions.
Chairman Waxman. The Chair has the prerogative to pursue
for the record a clarification and I am pursuing it.
Mr. Issa. Mr. Chairman, where in the rules is that stated?
Could I see a copy of the rules that allow it, because as I
said, the rules of the House, Mr. Chairman----
Chairman Waxman. We will furnish you with a copy at the
appropriate time.
Mr. Issa. Mr. Chairman, there are multiple Members that
could yield to you time. I would ask that you----
Chairman Waxman. I will have you physically removed from
this meeting if you don't stop. I want to know an answer to the
question.
Did you have a discussion with the President on any one of
these three rules?
Mr. Johnson. Mr. Chairman, as I said, I have routine
conversations with the President and the executive branch on
all, on many matters before the Agency of particular
importance. I don't believe that it is appropriate for me to
get into the details of what those conversations are or are
not. I think that is an important privilege that and
opportunity that we have.
Chairman Waxman. Are you asserting executive privilege?
Mr. Johnson. Not at this time, sir.
Chairman Waxman. OK, Ms. Watson is now recognized.
Ms. Watson. Thank you, and let me try this: Mr. Johnson, in
December 2007, you announced that EPA would deny California's
petition--and I am a Californian--for a Clean Air Act waiver to
enforce its standards to reduce greenhouse gas pollution from
cars and trucks. In our previous investigations of the White
House's manipulation of climate change science, we learned that
the Office of the Vice President was involved in these
activities.
Because the California waiver directly relates to climate
change, I would like to ask you about the Vice President's role
in the California waiver decision. It is very important to me.
Was the Vice President's Office involved with the deliberations
on the California waiver?
Mr. Johnson. Not to my knowledge, no.
Ms. Watson. Your answer is no, OK. According to press
accounts, the Vice President was involved in the issue and the
Press has reported that the CEO of Ford and Chrysler met with
Vice President Cheney prior to the denial and urged the
administration to reject the waiver. Did the Vice President or
his staff put any pressure on you or your staff to deny the
California waiver request?
Mr. Johnson. No.
Ms. Watson. Did the Vice President or his staff tell you
they opposed the California waiver?
Mr. Johnson. Not that I recall.
Ms. Watson. Mr. Johnson, we are looking at a mysterious,
last-minute reversal of your position on the California waiver.
We need to fully understand the reasons for that sudden change
of course. Transparency is what we are trying to get to, and it
would be fundamentally wrong if you reversed your decision
because of the meeting the Vice President had with the auto
industry. It would violate the Clean Air Act if a denial
resulted from any pressure from the Vice President's office.
But the committee won't know the truth if you do not tell
us and, in terms of being transparent, we want to know why
there was a reversal. We asked for the waiver because living in
California, having worked for 20 years in the legislature, we
did a lot to clean up our air. In fact, it took us 14 years for
the smoking policies that stopped smoking on airplanes in
California air space, and now it is the practice around the
globe.
So we kind of know what we are doing when we ask for a
waiver. So if you could be transparent, was there any pressure
put on you at all to change your own recommendations, to
reverse your own recommendations.
Mr. Johnson. Well, then I would with due respect beg to
differ with your characterization. I didn't reverse any
decision; I made the decision, and the decision was documented
in the letter of what I intended to do--to the Governor--in
December, and later on then, as I said, the approximately 50-
page document goes into great detail on my decision.
It was my decision, it was mine alone, and as I note in the
document that climate change is a problem that is not unique to
California. My decision is grounded in the law and the facts
that were before me.
Ms. Watson. We have your words down in the record, but was
there any input from the White House that influenced your final
decision to deny us a request for a waiver?
Mr. Johnson. Again, my decision was based upon the law and
the facts in Section 209.
Ms. Watson. No, let me clarify and speak real clearly.
Mr. Johnson. Please.
Ms. Watson. So you can answer me directly, was there any
input from the White House, either the President or Vice
President, that influenced your decision?
Mr. Johnson. Again, I have routine conversations with the
executive branch and----
Ms. Watson. All right, you will not answer----
Mr. Johnson [continuing]. And I made the decision----
Ms. Watson. Hold on. Hold on, I am asking some questions. I
have gone through this for the last hour. Yes or no.
Mr. Johnson. As I said, I have routine conversations----
Ms. Watson. No. That doesn't----
Mr. Johnson. Well, again----
Ms. Watson. Right, we are talking about transparency.
Mr. Johnson. As I said----
Ms. Watson. Yes or no?
Mr. Johnson. The answer is no, they did not make the
decision. The answer is yes, I made the decision.
Ms. Watson. I didn't ask did you do that. Maybe my English
is not clear. Let me see if I can restate it.
Mr. Johnson. Please.
Ms. Watson. Yes. You have these routine conversations.
Mr. Johnson. Yes.
Ms. Watson. Was there anything--you don't have to give me
the content--was there anything in the conversation, any input
from either the President or the Vice President--and the Vice
President in particular, because we do have a record of
conversations with an industry that adds to the pollution in
the air, was there any input from the Vice President that
impacted on your decision to deny California its waiver?
Mr. Johnson. Specifically, for the Vice President I don't
recall any.
Ms. Watson. Your answer is that you don't recall.
Mr. Johnson. I said no, I don't recall any.
Ms. Watson. OK, thank you. Thank you very much.
Chairman Waxman. Mr. Issa expressed that I was being unfair
by taking additional time out of order, and I, in order to be
fair, will yield him at this point 3 minutes so he can pursue
further questions.
Mr. Issa. Thank you, Mr. Chairman, and I appreciate the
balance.
In a nutshell, Administrator Johnson, you are aware that
Members of Congress enjoy the speeches and debate exemption--it
is been well documented--that what we do and say in order to
make our decisions and how we come to the floor is protected
from, basically, discovery by your branch. So it probably
shouldn't come as a surprise, or should come as a surprise to
you that we are surprised that you are not going to tell us
whether or not there were conversations within the executive
branch that led to your independent decision.
So I hope you will take that as an I-understand-it-even-if-
others-don't.
In a nutshell, you serve at the pleasure of the President,
is that correct?
Mr. Johnson. That is correct.
Mr. Issa. But the President doesn't have the right to order
you; he only has the right to either accept what you do,
statutorily, make independent judgment if he has statutory, or
fire you. Isn't that essentially correct?
Mr. Johnson. Essentially, that is----
Mr. Issa. OK, so you have independent authority subject to
that portion of the pleasure, and you have asserted that in
order to make your decision.
I would like to quote a well-known gentleman, Chairman
Dingell, who declared that this regulation of CO2
was a glorious mess. Do you agree with Chairman Dingell that
under the current law taking a common material that is going to
be everywhere and diffuses quickly, and regulating it under the
existing Clean Air Act, will be a glorious mess?
Mr. Johnson. I believe that there are many intricacies and
complications with the Clean Air Act, and my personal opinion
is that, given the likely years and years of litigation that
would ensue, I prefer a legislative approach. However, as the
chairman duly noted, I had responsibilities to administer the
Clean Air Act, and that is what I am doing by beginning with an
advance notice of proposed rulemaking, which will certain help
the Agency as it sorts through the intricacies of the Clean Air
Act and, I trust, will also help Members of Congress.
Mr. Issa. Now, in your consideration of granting a waiver
to California, did it occur to you at least as to
CO2 that when you haven't yet set levels on
something you have just now been told through the courts you
have the ability to set a level on, an independent request
would be premature and inappropriate.
Is that part of your consideration in how do you grant a
waiver before you have even determined what the basis? You
might, in fact, regulate to a level much lower than what
California would?
Mr. Johnson. Well, actually, the Section 209 of the Clean
Air Act actually identifies three very specific criteria, and
that has to be the sole basis of my evaluation of any waiver
petition. In my judgment, California did not need the second
criteria, which is a compelling and extraordinary conditions. I
go into great detail describing why I do not believe, in my
judgment, they met those conditions.
Chairman Waxman. Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman.
Administrator, let me ask you this: I found it interesting
that when the chairman was asking you about meetings with the
President, you did not provide a direct answer. You talked
about all these wonderful times that you have, and then when
Ms. Watson asked you about the Vice President, you did answer
and say that you didn't have meetings with regard to the
California standards.
I just want to make sure I understand why it sounds like
there was a different standard there for you.
Mr. Johnson. It is not a different standard, sir, but, as I
said, I have routine meetings with the executive branch,
including the President. Asked specifically about the Vice
President, and to best of my recall I did not have any
conversations with him. I was just trying to respond to----
Mr. Cummings. And all with regard to this, is that right?
Mr. Johnson. With regard to the California waiver, that is
correct. So I was just trying to clear that up.
Mr. Cummings. Yes. Well, I am glad you did. I just, you
know, one of the things, this stuff is personal for me because
I have asthma. In my district in Baltimore, we have a high rate
of asthma, and the taxpayers pay you. They pay you as they pay
us. We, in Maryland, are anxious to adopt the same standards
that California has, and so, you know, we are curious as to how
our Administrator, our man in the EPA, how he makes his
decisions.
So, you know, during the time that the EPA, as
Administrator many of your decisions have provoked widespread
public criticism and even outrage. In response, you have said,
``It is not a popularity contest,'' and you said, ``In the end,
it is the judgment, and each of these decisions is my decision
and my decision alone.'' Do you remember saying that?
Mr. Johnson. I do remember saying that, and I agree with
that.
Mr. Cummings. But you don't get to decide whatever you
want. You must base your decisions on the scientific data and
the criteria that Congress established in law. The final
decisions are made by the courts to determine whether your
decision is conformed to the law. All too frequently their
answer has been no.
Chairman Waxman asked you recently about EPA, as to EPA for
the full litigation record on the Clean Air Act decisions
issued by this administration. It is not a pretty picture. Out
of the 26 cases decided by the D.C. Circuit, EPA lost two-
thirds in whole or in part.
Did you know that?
Mr. Johnson. Yes, I do, and our then General Counsel Roger
Martella sent, I believe, a letter to the chairman detailing
all of the court cases which do not reflect that kind of
percentage. So, yes, I am concerned when we lose cases, and
that is why I am going my very best job to make sure that not
only are our decisions, my decisions, based upon sound science
but on good laws as well.
Mr. Cummings. Well, I am glad you said that, because these
losses include some of this administration's highest profile
environmental rules. In 11 cases, the court said that the EPA's
position was barred by the plain language of the law, which is
the legal equivalent of a shutout.
To date, the D.C. Circuit has reviewed eight of your
decisions and has entirely or partially rejected half. Does
this track record concern you?
Mr. Johnson. Yes. Any time that the Agency loses a lawsuit,
I think that is important, and that is of concern to me.
Mr. Cummings. And I know EPA has fine lawyers. My concern
is whether you and the White House are listening to them.
Mr. Johnson. Well, sir, I listen to all of my staff,
including a great legal staff. As I said, I base my decisions
on science and on the law and on the facts that are before me.
Mr. Cummings. Now, the committee's investigation of your
denial of the California waiver decision revealed that legal
staff warned that a denial would likely--that you would likely
lose, but you disregarded their advice even when EPA has lost
in court the first time. That hasn't stopped the administration
from trying again.
This summer EPA plans to issue a third New Source Review
rule, which would allow dirty power plants to upgrade and
increase air pollution without installing pollution control
equipment. The D.C. Circuit overturned the administration's
second New Source Review rule as well as part of the first, and
the Supreme Court has already rejected the legal theory EPA is
relying on.
Has your legal staff warned you that this rule would be
highly vulnerable to legal challenge?
Mr. Johnson. Well, since the rule is pending before the
Agency, that is an important issue that we are currently
debating.
Mr. Cummings. Thank you, Mr. Chairman.
Chairman Waxman. Thank you, Mr. Cummings.
Mr. Cannon.
Mr. Cannon. Thank you, Mr. Chairman. This has been an
interesting and relatively intense hearing. I would like to
give Mr. Johnson the opportunity just to sort of respond to
some questions that he has time to respond to, so we can
actually make some sense out of those.
On December 19, 2007, Mr. Johnson, you announced that you
would be denying California's waiver request, and on February
29, 2008, you released the complete decision document
explaining the decision. Were you advised that the decision to
deny California's waiver request was supported by the law?
Mr. Johnson. Yes.
Mr. Cannon. Would you like to elaborate on that a little
bit?
Mr. Johnson. Well, the staff presented me a wide range of
options. We went through each of those options, and each one,
those that were not defensible, were eliminated, and the ones
that were presented, options were presented to me, including
denial were presented, and ultimately that is the decision that
I made.
Mr. Cannon. So there were some options perhaps out there
that didn't make it to you because they were not legally
justifiable.
Mr. Johnson. Again, I don't know which ones were or were
not, but certainly the ones that were presented to me were
legally defensible, including a denial.
Mr. Cannon. Were you advised that the decision to deny the
waiver we requested was supported by the facts of the record as
well as the law?
Mr. Johnson. Yes. In fact we have an approximately 50-page
decision document that goes into great detail, detailing my
decision and based upon all of the facts.
Mr. Cannon. So you were presented with options that were
justified by the law and the facts, and then you made a
decision, and that decision was then substantiated by the law
and the facts in your decision?
Mr. Johnson. Yes.
Mr. Cannon. Was denying California's waiver request one of
the options that was included as one of the options included by
your staff?
Mr. Johnson. That is correct.
Mr. Cannon. Do you have any reason to believe your staff
would present you with an option that was not supported by the
law or the facts of the record?
Mr. Johnson. I do not.
Mr. Cannon. Is there anything else you would like to say
about this issue since you have been hectored to----
Mr. Johnson. Well, sir, I know that the chairman and other
members of the committee disagree with my decision, and I
understand that. These decisions are not easy decisions, but I
made the right decision. I made the decision based upon the
facts, based upon the law, what the law directs me to, and I
stand by that. It was my decision and my decision alone.
Mr. Cannon. Thank you. You just answered the next question
I was about to ask. It was your decision. Do you stand by that
decision today?
Mr. Johnson. Absolutely.
Mr. Cannon. You know, I personally have some bona fides. I
worked in the Reagan administration after the Surface Mining
Law had been passed, and the first of the regulations had been
done under the Carter administration. The second had been done
under Secretary Jim Watt, and both were probably extreme. It is
very difficult to find a middle path that actually works, works
for industry and works for the American people and works for
the environment.
I just want you to understand that some of us understand
how difficult these things are, especially difficult when the
world changes and technology has changed the world around us.
It has changed the world in which we can regulate and manage
regulation. And to suggest that we could never do anything new,
whether you are Democrat or Republican, would bind us, tie us
up in a way that would not make any sense at all. In fact, I
would hope that in America we would start looking at how we can
actually move away from Federal, centralized regulation to more
local regulation throughout the country.
I think our information technology gives us that
opportunity. Our understanding that the science of pollution
and what is harmful to our bodies, what is harmful to the
environment, is moving rapidly forward, and I would hope that
the hectoring that you have felt today will not be perpetuated
in the future by whoever replaces you and others but, rather,
is a thoughtful review of what happens so that we can help
guide these sort of bumpers instead of being sledge hammers
about it.
Mr. Johnson. Well, sir, I appreciate that, and I also
respect the role of Congress and important role in oversight,
and I am very supportive of oversight responsibility, and I am
also supportive of transparency. But, as you can well imagine,
I have to also be supportive of the ability to have candid
conversations, have advice so that I can make decisions that
are independent decisions, whether that be independent
decisions from Congress or independent decisions, again under
the law, or independent decisions from the White House, or
anybody else.
I do respect the oversight responsibility, and I believe
that the thousands of pages and the depositions and all the
rest demonstrate to me that I went through a very thoughtful, I
went through excruciating number of briefings and details so
that I could be best equipped to make the most informed
decision.
So again, I appreciate the opportunity to be here, Mr.
Chairman, and thank you for those remarks.
Mr. Cannon. Thank you, Mr. Chairman. I assume my time has
expired.
May I just thank Ms. Dudley for being here? Her office is
also under the jurisdiction of the committee that I am the
ranking member of on Judiciary. We have spent some time
together. I appreciate her being here, and perhaps some other
time we can ask more questions of you, Ms. Dudley.
I thank you, Mr. Chairman. I yield back.
Chairman Waxman. Thank you, Mr. Cannon.
Ms. Watson. Mr. Chairman, a question to you.
Chairman Waxman. Yes?
Ms. Watson. Is it possible for us to get a copy? Mr.
Johnson has spoken of the 50-page report, and I think it is in
the public domain. Can we access a copy of that?
Chairman Waxman. We will make it available to you.
Ms. Watson. All right. Thank you very much.
Chairman Waxman. I would like to recognize myself. The
Constitution is clear. Congress passes the laws and the
executive branch must faithfully execute them.
Administrator Johnson, we knew what your professional
positions were as the head of EPA. You had a record. You heard
from an advisory committee, you heard from your staff, you got
input from all sorts of groups, environmentalists and industry.
That is all appropriate that you get all this input in to make
the decisions.
We knew what your decision was on three areas: ozone, the
California waiver, and the greenhouse gas question. Or at least
we know what you sent to the White House.
And then you reversed yourself after you had a candid
conversation with the White House that would indicate you are
getting input from the President, which you may think is
important. But it also may indicate that the President is
really making the decisions. What we need to do our oversight
job is to find out on what basis he is telling you that you
ought to make a different decision than what you initially
proposed.
Now, in the case of ozone the Clean Air Act clearly states
that air quality standards must be set by you using your best
judgment based on the latest scientific information. The law
does not provide that it is the President's decision; it says
that it is your decision.
Now, I understand some Constitutional scholars would say
when Congress grants an agency authority, the President is
granted that authority as well. Other scholars disagree. We
don't have to resolve that issue, but in the setting of ozone
standards, the science and staff work all pointed in one
direction: Set a secondary standard that uses a seasonal form.
EPA's record is clear, but in literally the last hours of
the rulemaking process when you faced the deadline in which you
have to come out with a rule, the President helped you see that
you ought to reverse what EPA and what you had suggested, and
the record does not explain how the President made his
decision.
Now, we issued a subpoena both to Administrator Johnson and
Administrator Dudley to provide documents that will help the
committee understand how this decision was made.
Ms. Dudley, the subpoena required you to produce the
documents by April 18th.
Mr. Johnson, you were required to produce the documents by
May 6th. Unfortunately, you both continued to withhold
documents.
I wrote to both of you on Friday. I informed you that
unless there is an assertion of executive privilege, you must
produce the documents at this hearing today. Administrator
Johnson, has the President asserted executive privilege over
the documents responsive to the subpoena?
Mr. Johnson. My understanding, sir, that executive
privilege is not something to be invoked lightly, and that
constitutional confrontations between the legislative and
executive branches should be avoided whenever possible.
At this time I am not making an assertion of executive
privilege today. Instead, I am committing that to you that my
staff remains available and willing to continue our discussions
about how to reach a mutually agreeable resolution regarding
the remaining documents.
My staff earlier, right before the hearing, delivered a
number of additional documents on the ozone max.
Chairman Waxman. Administrator Dudley, has the President
asserted executive privilege over the documents that we
requested of you pursuant to a subpoena?
Ms. Dudley. I know that our lawyers have been discussing
the documents. We have produced over 7,000 pages and, in fact,
I have a letter delivered to you from OMB General Counsel today
which, with permission, I would like to put on the record.
Chairman Waxman. Without objection, we will have it in the
record.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Waxman. Well, during my 2-year tenure as chairman
of this committee, we have established a track record of making
reasonable accommodations to executive branch interests that
have arisen in committee investigations. In this case, you are
trying to shield the White House from reasonable oversight, and
that is not a reasonable position or an accepted one.
The precedents are clear: Unless there is a valid claim of
executive privilege, you need to turn over the documents. As
Chairman Burton recognized when he was chairman: ``The only
privilege under which the President may withhold subpoena
documents is an executive privilege.''
Ranking Member Davis took the same position. In this
investigation there has been no assertion of executive
privilege, and the documents the committee seeks are central to
understanding whether the President has complied with the law.
This is a serious issue, and your defiance of the subpoena is a
serious matter that the committee is going to have to address.
An example of this is whether, in establishing the ozone
rule whether costs were taken into consideration in a
surreptitious way, and we know what the Supreme Court has to
say about that matter, and we also know that Ms. Dudley has a
March 6th memo from the White House that was sent to EPA where
she criticized EPA for failing to respond to economic values in
setting the environmental standard.
One of her objections seems to be the EPA proposal would be
too costly to industry. We want to know more about that. We
want to know on what basis that position is reached and others.
So what I am telling you both, that unless you assert executive
privilege, this committee has always stood by the fact that we
expect the compliance with the subpoena.
Mr. Issa.
Mr. Issa. Thank you, Mr. Chairman.
Chairman Waxman. I have taken 5 minutes and 41 seconds. The
minute will be given 5 minutes and----
Mr. Issa. Thank you, Mr. Chairman.
I would like to followup on that. The President's
involvement in the ozone proceeding, as I understand it, is not
only allowed, and it is not improper influence but, in fact, is
consistent with President Clinton's even greater involvement in
setting the 1997 standard, isn't that correct?
Mr. Johnson. That is correct.
Mr. Issa. And I wasn't here in 1997, but I don't believe
that the deliberative process between the Agency, that internal
process, was ever demanded that it be exposed. Do any of you
know if there was a record under one of the previous chairmen
where they demanded to know everything that led to President
Clinton assisting in the decisionmaking process finally made by
the EPA but his input into that standard in 1997?
Mr. Johnson. I don't know.
Mr. Issa. I don't think there was, and I think we may be
working with slightly different standards of what is
appropriate.
Chairman Waxman. Will, the gentleman yield?
Mr. Issa. Of course, Mr. Chairman.
Chairman Waxman. Well, I do want to indicate that these
standards that you are talking about were exhaustively examined
by Congress. In the 105th Congress, there were approximately 30
days of hearings in at least 10 committees on this topic. EPA
Administrator Carol Browner personally testified over a dozen
times regarding the standards. Our own committee conducted an
investigation about the matter as well.
Mr. McIntosh, who was the subcommittee chairman, requested
OMB produce all records related to OIRA's view of the proposed
rules in response to this and other requests. OMB produced
thousands of pages in documents, including internal White House
communications, and apparently withheld only two memoranda to
the President from senior advisors within the executive branch
of the President.
So this record demonstrates that Congress, especially our
committee, spared no effort in conducting oversight over the
Clinton rulemaking. It also shows that the Clinton
administration was extraordinarily responsive to our
committee's extensive demands for interviews and documents.
Mr. Issa. Well, and I appreciate the reclaiming of my time.
It certainly shows that we have a long tradition of looking
into it and that we also have a long tradition of recognizing
that the President has a role to set, to participate in the
standard-setting, both President Clinton and now President
Bush.
I would like to get to one closing matter, because I think
we have sort of made the point with the inclusions of these
graphs and so on that the difference in the secondary standard
would have made no difference. So I think we will go on to out
of ozone and on to CO2.
Administrator Johnson, if you were to have granted
California's waiver request, and if California went into global
cap-and-trade, and if California reduced its CO2,
assuming that China and India continue to produce new coal
facilities that have absolutely no scrubbers, that are just
putting out CO2, would it really be all that
significant when you look at the present level in California
reduced by, let's say, 20 or 30 percent versus the new coal
plants being put up on a weekly basis in China?
Mr. Johnson. Well, if I may, those are not the criteria on
which I had to base the California waiver.
Mr. Issa. No, no, I understand that, but you are
obviously----
Mr. Johnson. So I based that on were there the criteria
that were in the law.
Now, asking the other question, the challenge that we have
as a Nation and as we have across all the States, including my
home State of Maryland, is that all contributes to global
climate change. So, in fact, what is happening in Maryland over
what is happening in Florida or New York or wherever, is all
contributing to----
Mr. Issa. OK. And I want to focus on that because, although
it is not the primary portion of this hearing, I think as we
close t his hearing as to this panel, I think it is important.
We have to get down the amount of CO2 going into the
atmosphere on a worldwide basis if we are going to be effective
in reducing CO2 worldwide, thus assuming that the
scientists' predictions are right that if we continuing putting
more CO2 in, we will, by definition, be contributing
to global warming.
We make that assumption. This committee has studied it,
extensively. Based on that assumption, isn't it a global issue,
one that requires treaties and a reduction on a global basis if
we are going to be effective?
Mr. Johnson. I believe it requires that each of the
nations, whether you are a rapidly developing economy like
China or India, or the United States or European Union, to be
leaders and to move forward, and that each situation is
different. Fifty percent of our electricity comes from coal;
Australia it is 82 percent; France is much less than that, it
is less than 10 percent.
Mr. Issa. One final question, because I think we have made
that point. You have a responsibility as a Federal officer to
all Americans, and if I understand the standard under which you
rejected California's waiver, part of that is an equal
protection, that States are not allowed to arbitrarily have
separate standards without need because in fact you are
protecting all of us and our commerce against arbitrary changes
in standards by States.
Isn't that true?
Mr. Johnson. Well, again, the three criteria that focus
specifically on California, other States are not allowed to
take any other action themselves unless the waiver was granted,
and then they can adopt what the California standard is.
The issue that was before me was, was there compelling and
extraordinary conditions, and my decision--again part of those
50 pages--clearly shows, and the science clearly shows, whether
it is sea level rise--sea level rise is more of a problem for
the East Coast than it is for the West Coast. Acceleration of
temperature or higher temperatures, yes, California experiences
higher temperatures but there are other parts of the country
that make it worse.
And so, as looked at, the criteria, particularly compelling
and extraordinary, in my judgment based upon the science, did
not meet the standard.
Mr. Issa. Thank you, and thank you for this hearing, Mr.
Chairman. I yield back.
Chairman Waxman. Thank you, Mr. Issa.
We have another panel of four witnesses. If Members would
permit, I would like to move on to the next panel.
Mr. Bilbray.
Mr. Bilbray. Mr. Chairman, can I just followup, just
quickly, on one item?
The standard that we are complaining about with the ozone
standard, the Science Committee was saying it should be at
0.07, right, minimum? Or maximum?
Ms. Henderson. Maximum, but we gave a range of 0.06 to
0.07.
Mr. Bilbray. California's standard, Mr. Johnson, is sitting
at the maximum that it was recommended. Now, traditionally, has
there been ever a time--and I am trying to remember it my 30
years of involvement in this issue--has there ever really been
too many regulations where the Federal standard has been more,
you know, more stringent than the California standard?
Mr. Johnson. I don't recall.
Mr. Bilbray. I just want to say, when we argue about this,
we are talking 5 to 7 percent. But I think we admit that--I
know you are going to get sick and tired of hearing me talk
about California, and when we get to greenhouse, I will beat
our breast about importing all the electricity but not wanting
to have the coal plants. But what I am saying, it is in all
fairness, we are so close on this issue it is not the huge
element, and I would ask our toxicologist how many deaths per
million are we talking about here which we usually talk about.
So I yield. Mr. Chairman, I just want to say that there are
some big issues out there, and I wish that we would be setting
some standards here like stop burning coal here in the capital
or buying coal electricity for the capital here. And I hope
that we can work together at getting a waiver for California on
the greenhouse and the fuel mixture and work on making the
capital truly greenhouse neutral, CO2 neutral,
rather than these phony offsets, and I look forward to working
with it, Mr. Chairman. With your extensive background on it, I
think we have some great opportunities if we just work together
on this.
So thank you very much for the added time.
Chairman Waxman. Thank you, Mr. Bilbray.
Ms. Watson, I understand you wanted an equal amount of
time. Would 2 minutes that we will yield to you, if you wish to
pursue it with some documents for the record?
Ms. Watson. Yes, because my State is involved, and we have
tried to address pollution there, the largest State, 38 million
people and all their cars. I think every family has 13 cars. So
this is really important to me, and I am taking it personally,
too.
When EPA makes decisions that don't meet the law and loses
in court, environmental protection is delayed and the public
indeed is hurt. These aren't the only cause to problems. A
State must adopt each new Federal requirement into State law,
and those efforts are wasted as well.
Now I have their letters that are addressed to the chairman
from Leo Drozdoff, the Administrator of the Division of
Environmental Protection for the State of Nevada. Now, this
isn't a partisan issue for Nevada has a Republican Governor.
Administrator Drozdoff says, ``We appreciate your efforts to
identify and quantify the impact of EPA's failed rulemaking
attempts. Every time we are forced to develop programs that are
clearly in conflict with the Federal environmental law, it is
an opportunity wasted and environmental protections delayed.
The resource implications to a small State like ours and the
negative effect on our relationship with the EPA are enormous.
These impacts will be felt for years and years to come.''
This is an extraordinary protest from a State Energy Policy
Act, and, Mr. Chairman, I would like to have unanimous consent
to enter this letter into the record.
Chairman Waxman. Without objection, that will be the order.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Waxman. The gentlelady's time has expired.
Mr. Cannon requested time as well.
Mr. Cannon. Thank you, Mr. Chairman. First of all, let me
just point out that you made the comment that on the ozone rule
that you wondered if costs were taken into account in a
surreptitious or inappropriate way. I think that is vitally
important. That is the work of this committee is to oversee
those kinds of things. I would hope that we would be able to
find those problems, not just suggest the existence of such
problems.
Just finally, Mr. Johnson, suppose California had been
allowed to have their CO2 lower standard, had the
waiver granted, would that have made any difference as to
CO2 in California or in the country? Any significant
difference?
Mr. Johnson. Well, it is an issue of debate, but certainly
based upon what we know is that we have both a national and a
global problem, and so automobiles and improving efficiency
there certainly help, but since it is a global air pollutant,
it is highly questionable how much effect it would really have.
So again I have to say for the record, those are not the
criteria.
Mr. Cannon. Right.
Mr. Johnson. The criteria I had to look at were, are there
compelling and extraordinary conditions in California.
Mr. Cannon. But the request for the waiver had to be more
symbolic than substantive?
Mr. Johnson. Well, again, it was a formal waiver request,
and certainly we did due diligence and held two hearings. I had
many, many briefings and certainly having a 50-page, or
approximately 50-page, decision document on waiver is unusual,
if nothing else, in its size and all of the issues that are
there.
Mr. Cannon. Thank you, Mr. Chairman. I yield back.
Chairman Waxman. Thank you.
Mr. Johnson, as we end your participation at this hearing,
I want to tell you something very clearly. This hearing isn't
about what you decide, it is about how you decide and the
integrity of the process. I don't think you ought to leave this
room satisfied that you have deflected questions and avoided
telling us information that we are entitled to have.
Judging by some of the responses I think you have given us
today, I expect you to regard this part of the process with
derision from many of us. We walk away from this hearing
astounded that you, as a career EPA employee, are willing to be
part of a process that makes a mockery of the rulemaking
process, and that you are willing to come here and pretend that
what really happened didn't happen.
In this case, we have the record to guide us. It tells us
how EPA's best legal and scientific experts supported granting
California's petition and adopting a new ozone standard for the
environment. The record tells us you ultimately agreed with
EPA's experts and gave those recommendations to the White
House, and we know the White House overruled you.
Yet your testimony pretends that none of this happened, and
it pretends you have reached the ultimate decisions
independently and with a scientific and legal basis. Your staff
knows this isn't true, and we know that it isn't true. As
someone who has long fought for EPA and strong environmental
protections, I can't adequately express how deeply this saddens
me and how poorly it reflects on the EPA.
I thank the three of you for being here, and we are going
to move on to our next witnesses. I call forward our second
panel, Dr. Francesca Grifo. Dr. Grifo is a senior scientist and
director of the Union of Concerned Scientists, Scientific
Integrity Program. She has over 20 years of experience
directing science based projects and programs. She holds a
Ph.D. in Botany from Cornell University.
Michael Goo is the climate legislative director for the
Natural Resources Defense Council. He has previously served as
majority counsel for the Senate Committee on Environment and
Public Works, minority counsel for the House Energy and
Commerce Committee, and as Acting Assistant General Counsel at
EPA.
Dr. Roger McClellan currently advises public and private
organizations on issues related to air quality. He has
previously served as Chair of EPA's Clean Air Scientific
Advisory Committee and as president of the Chemical Industry
Institute of Technology.
Alan Raul is a partner with Sidley Austin, and is Chair of
the firm's Information, Law, and Privacy Practice Group, and he
is also a member of the firm's Government and Internal
Investigations Group and Appellate Group as well.
I welcome you to our hearing. It is the practice of this
committee that all witnesses testify under oath, so I would
like to ask each or you to please stand while I ask you to
raise your right hands.
[Witnesses sworn.]
Chairman Waxman. The record will indicate each of the
witnesses answered in the affirmative.
Dr. Grifo, we want to call on you first.
For all of you, your prepared statements are in the record
in full. We would like to ask you to try to limit your oral
presentations to 5 minutes. The clock will indicate when it is
red that the 5-minutes have expired. Please go ahead.
STATEMENTS OF FRANCESCA GRIFO, SENIOR SCIENTIST, UNION OF
CONCERNED SCIENTISTS; MICHAEL GOO, CLIMATE LEGISLATIVE
DIRECTOR, NATURAL RESOURCES DEFENSE COUNCIL; ROGER O.
MCCLELLAN, ADVISOR, TOXICOLOGY AND HUMAN HEALTH RISK ANALYSIS;
AND ALAN CHARLES RAUL, PARTNER, SIDLEY AUSTIN LLP
STATEMENT OF FRANCESCA GRIFO
Ms. Grifo. Good afternoon, and thank you, Mr. Chairman, and
thank you to the committee. I am a senior scientist, as you
said, and director of the Scientific Integrity Program as the
Union of Concerned Scientists, a leading science-based non-
profit working for a healthy environment and a safer world.
I would like to thank the committee for the opportunity to
speak to you this afternoon about the problem of political
interference in the work of Federal Government scientists. The
United States has enjoyed prosperity and health in large part
because of its strong and sustained commitment to independent
science.
As the Nation faces new challenges at home and growing
competitiveness abroad, the need for a robust Federal
scientific enterprise remains critical. Unfortunately, an
epidemic of political interference in Federal science threatens
this legacy. Political interference in EPA's decision regarding
the air quality standard for ground-level ozone is emblematic
of the problem of manipulation, suppression, and distortion of
science at the EPA.
You have already heard that EPA Administrator Stephen
Johnson issued the final ozone standard at an arbitrary level
inconsistent with the analysis of EPA scientists and
independent science advisors and, ultimately, not sufficiently
protective of public health. You have heard that the White
House pressured the EPA to consider economic costs associated
with tightening the ozone standard. The law, as affirmed by a
2001 Supreme Court decision requires the standard be based
solely on best available science. EPA leadership failed to meet
that objective.
The White House's interference or meddling in the ozone
decision is not a stand-alone incident. Time and time again
White House officials or EPA political appointees have stepped
in to second guess, manipulate, or suppress the work of EPA
scientists, threatening the Agency's ability to protect human
health and the environment.
In our investigation of EPA scientists, our survey
conducted by Iowa State University together with us, hundreds
of scientists report direct interference in their scientific
work, fears of retaliation and systemic disregard for the
expertise of EPA's Advisory Committee. Our survey found that
889 scientists reported personally experiencing one of these
events in the last 5 years. In essay responses, nearly 100 EPA
scientists self-identified OMB, Office of Management and
Budget, as the primary culprit in this interference. It is
important to note that we didn't ask them about OMB. The
question was much broader; they volunteered that.
Two hundred and thirty-two scientists had personally
experienced frequent or occasional changes or edits during
review that changed the meaning of scientific findings, not
just routine edits but those that change the meaning. Two
hundred and eighty-five scientists had personally experienced
frequent or occasional selective or incomplete use of data to
justify a specific regulatory outcome.
A hundred and fifty-three scientists had personally
experienced frequent or occasional pressure to ignore impacts
of a regulation on sensitive populations. Five hundred and
thirty-six scientists felt that the Agency occasionally,
seldom, or never heeds advice from independent scientific
advisory committees. This result was markedly worse at the
Office of Air Quality Planning and Standards which works
closely with the advisory committees to set the NAAQS. Half of
these respondents felt the EPA did not heed the advice of the
advisory committees.
The White House has rewritten EPA's scientific documents
concerning climate change, pressured EPA scientists to support
predetermined conclusions regarding the health effects of toxic
mercury pollution, and pushed for rules that politicize the
scientific findings contained in the OIRA's toxic data base.
Science has been mis-used on air pollution, asbestos, fuel
efficiency, mountaintop removal mining, oil extraction,
pesticides, plywood plant pollution, toxic selenium
contamination, and on and on.
Fortunately, this is not a problem without a solution. A
suite of reforms are detailed in our report Interference at the
EPA, but here are the most timely. The House and Senate
overwhelmingly approved by partisan legislation to strengthen
whistleblower protections for Federal employees. It is crucial
that the final legislation now in Conference Committee contains
specific protections for scientists who expose efforts to
suppress or alter Federal research.
The EPA should increase openness in its decisionmaking
process. If research results in analysis by EPA scientists are
made public before they drop into, as the GAO put it, the black
box of OMB, attempts to distort science will be exposed. The
expanded breadth of the OMB must be pushed back. Questioning
the scientific consensus of Agency experts is not OMB's proper
role.
EPA should adopt media communication and scientific
publication policies that ensure taxpayer-funded scientists and
their research are accessible to Congress and the public, and
scientists need to be made proactively aware of these rights.
Finally, there are two actions that can take place
immediately: Administrator Johnson should send a clear message
to all political appointees that he will not tolerate any
attempts to alter or suppress Federal Research just as EPA
Administrator William Ruckelshaus did 25 years ago.
Administrator Johnson should pledge to operate EPA in a fish
bowl.
We would welcome a dialog with Administrator Johnson,
although as of this morning he has not responded to repeated
requests to begin that conversation. We look forward to
continuing our work with the 110th Congress to restore
scientific integrity to Federal policymaking.
Thank you.
[The prepared statement of Dr. Grifo follows:]
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Ms. Watson [presiding]. Thank you, Dr. Grifo.
Mr. Michael Goo.
STATEMENT OF MICHAEL GOO
Mr. Goo. Thank you, Chairman Waxman, and Ranking Member
Davis and Mr. Issa for the opportunity for the opportunity to
testify here regarding EPA's new National Ambient Air Quality
Standards for Ozone.
My name is Michael Goo. I am the climate legislative
director for the Natural Resources Defense Council. NRDC is a
national non-profit organization of scientists, lawyers, and
environmental specialists dedicated to protecting public health
and the environment.
Before I turn to my scripted statement, I just wanted to
make a couple of points here about some of what we have heard
today. And Mr. Johnson won't admit talking to the White House
about the ozone decision, but we have the EPA talking points
from the meeting with the President, and they say that the
seasonal form is the most scientifically defensible, and they
say that the seasonal form is the most legally defensible.
And the question that we have is, what caused the
Administrator to change his mind, quite literally overnight, so
that the EPA staff had to scramble around to change the
document within 24 hours?
And then just to also respond to a point, a chart was put
up. Administrator Dudley said that there would be no more
attainment areas with the secondary standard set the same as a
primary standard, but it is not just the form that regulates
the stringency of the standard, it is also the level.
The CASAC--and I am not quite sure, Dr. Henderson didn't
have the opportunity to comment on this--but the CASAC said
that the level should be between 15 and 17, and the level was
actually set at 21. Of course, therefore, it wasn't as much
more protective than the primary standard.
Now let me turn to my prepared remarks. The first I just
want to make with regard to ozone is that we now know that
ozone kills people. We say that ozone results in excess or
premature mortality. That is a fancy way of saying that smog
kills people. Ozone pollution, also, so it is a host of other
health effects--susceptibility to infection, asthma attacks,
school absences, emergency room visits, and even overnight
admission into the hospital--and these are real effects with
real consequences for us, for our children, for our elderly,
and our infirm.
The second point I wish to emphasize is that ozone
pollution is ubiquitous. According to EPA, approximately 140
million Americans live in areas that violate the 1997 8-hour
standard, including more than 16 million children, more than 6
million people age 75 and older, and more than 9 million people
who suffer from asthma.
Putting these two facts together, it is clear that ozone is
a major public health problem in the United States.
In my testimony, I have characterized the decision of the
Administrator as a shameful distortion of the scientific and
regulatory process for setting National Ambient Air Quality
Standards. I say that from my vantage point as a former EPA
attorney who spent more than 4 years developing and defending
the standards set forth in the Clinton administration, which
were ultimately upheld by the U.S. Supreme Court.
Prior to this administration in an unbroken line of cases
extending back nearly 40 years, these standards were repeatedly
upheld by the courts, and since its creation in 1977, nearly
every Administrator prior to this one has made decisions
regarding the National Ambient Air Quality Standards within the
scientific boundaries set by the Clean Air Scientific Advisory
Committee.
This Administrator, despite very clear recommendations from
CASAC, chose to disregard its advice. The Administrator had
before him an enormous opportunity to advance the cause of
public health protection in the United States. He had a
voluminous scientific record documenting health effects at
levels below the existing standard.
He had a unanimous recommendation from CASAC, and he has a
very clear directive from the Congress and the courts that he
must set the standard to protect public health with an adequate
margin of safety, erring on the side of caution. In short, he
had all the elements that he needed to set a highly defensible
standard that would have protected public health with an
adequate margin of safety, and it distresses me to report that
the Administrator squandered that opportunity.
The record is clear. The Administrator's decision is not
based on the latest scientific evidence; it is not based on the
recommendations of CASAC; it does not protect public health;
and it does not include a margin of safety.
Somebody tried to defend this decision as a reasonable
policy decision or attempt to justify the decision on the basis
of vague notions of uncertainty, but to say something is a
policy judgment, or to say that a decision is based on
uncertainty has little by way of actual rationale.
The question is, what is the policy, and in what direction
does any alleged uncertainty cut? Is the policy to honor the
latest scientific evidence and the recommendation of CASAC
erring on the side of safety? I would submit that the record
before us makes clear the answers to those questions.
In the end, these standards will be replaced by ones that
reflect the science and the law, but in the meantime our
citizens' lungs and their health will suffer as a result.
Chairman Waxman, I commend your efforts and the efforts of
your staff to bring this deplorable situation into the light of
day. Thank you.
[The prepared statement of Mr. Goo follows:]
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Chairman Waxman [presiding]. Thank you very much.
Dr. McClellan.
STATEMENT OF ROGER MCCLELLAN
Mr. McClellan. Good afternoon, Mr. Chairman, and
distinguished members of the committee. I am Roger McClellan,
an independent advisor in air quality issues. My home is in
Albuquerque, NM. I appreciate the invitation to present my
views on EPA's recent review and revision of the National
Ambient Air Quality Standards for ozone. I ask that my written
testimony be entered in the record as though read in its
entirety.
Let me summarize. For more than four decades I have been
contributing to the development of science needed to address
important societal issues concerned with air quality. I am
proud to have served on many EPA scientific advisory committees
from the origin of the agency to the present time under
administrations of both parties.
This included service on the Clean Air Scientific Advisory
Committee, which I chaired 1988-1992, and on panels that have
considered all the criteria air pollutants. I served on the
Ozone Panel that advised a 1997 standard. I did not serve on
the most recent Ozone Panel, however, I have closely followed
the standard-setting process that led to the final rule
announced by Administrator Johnson on March 12, 2008, focusing
on the primary or health-based standard.
As you know, every standard has four interrelated elements:
an indicator, an averaging time, a numerical level, and a
statistical form. It is important that these always be
considered in their entirety.
Throughout the review process leading up to the final rule,
there has been debate over the numerical level of the 8-hour or
averaging time standard with ozone as the indicator. In my
opinion, much of the debate was premature and focused on the
outcome desired by some parties, a lowering of the standard
even before the review of the science was complete. This
resulted in a blurring of the boundary between the role of
science and judgment in the setting of the standard.
With publication of the proposed rule for the ozone
standard, the debate intensified. That included repeated
reference to the CASAC recommendation the primary standard be
set within a specific narrow numerical range, 0.060 to 0.070
ppm. In my opinion, the CASAC panel moved from the science
arena into the policy arena with its strident advocacy of an
upper bright line value of 0.070 ppm for the primary standard.
CASAC's selection of this narrow range and an upper bright
line value followed the template that CASAC had been used, used
with the pm 2.5 standard. In that case CASAC, the panel I
served on, advocated setting the pm 2.5 annual standard setting
at 13 to 14 micrograms per cubic meter--a view that I dissented
from--and the 24-hour standard at 25 to 35 micrograms per cubic
meter.
The Administrator made policy judgments in setting the 24-
hour standard at a level of 35 micrograms per cubic meter, a
drastic reduction from the previous, and reaffirmation of the
annual standard at a level of 15 micrograms per cubic meter.
CASAC argued, with the exception of myself or another, that
he had made a political choice and ignored the science. In the
case of ozone, Administrator Johnson made a policy judgment.
set the ozone standard at 0.075 ppm average over 8 hours. The
value was actually consistent with the original advice of his
own staff, 0.075 ppm up to a level slightly below the current
standard which we know was 0.080, but with rounding could have
been up to 0.084.
Again, CASAC argued he made a political decision and
ignored the science In my view, the CASAC panels have not fully
understood nor communicated the extent to which the
recommendations they communicated to the Administrator
represented their interpretation of the science and their
personal policy preferences on the numerical level of the
standard.
Even before the final rule for ozone was announced, CASAC
scheduled the teleconference to develop unsolicited advice to
the Administrator. This clearly moved CASAC from the scientific
advisory arena into the political arena. This was evidenced by
panel members noting the importance of getting the record right
for the courts and the suggestion that the Administrator should
have resigned rather than cooperate with OMB and the White
House.
The panel's letter on that teleconference continues to
suggest that somehow science and scientists alone can establish
the appropriate standard or, at a minimum, dictate the upper
bound acceptable for a policy decision. The Clean Air Act does
not call for a standard-setting committee with the
Administrator merely serving as a rubber stamp for the
committee's judgments. The Clean Air Act wisely calls for a
Clean Air Scientific Advisory Committee to provide advice to
the Administrator on policy judgments that under the Clean Air
Act are the exclusive responsibility of the Administrator.
In my opinion, the Administrator has appropriately
exercised his authority in making policy judgments on both the
revised pm 2.5 and ozone standards, making selections from
among an array of scient-based options. The basis for his
policy decisions are well documented in both final rules,
including consideration of both the science and personal
judgments of CASAC. They are also consistent with the Supreme
Court's interpretation of the Clean Air Act.
He did not consider cost, however, he did exercise judgment
appropriately in deciding how low is low enough in setting the
numerical level of both standards from among an array of
science-based options. There is no scientific methodology that
can be used as a substitute for the Administrator's judgment.
I welcome the opportunity to address any questions you may
have.
[The prepared statement of Mr. McClellan follows:]
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Chairman Waxman. Thank you, Mr. McClellan.
Mr. Raul.
STATEMENT OF ALAN CHARLES RAUL
Mr. Raul. Mr. Chairman, Mr. Issa, members of the committee,
thank you for inviting me to testify today to provide my views
on the authority of the President to influence the decisions of
his subordinates in the executive branch. It is an honor to
appear before you.
I am testifying today in a personal capacity based on my
interest and background in administrative and constitutional
Law. I am currently engaged in private law practice and have
previously served as General Counsel of the U.S. Department of
Agriculture, General Counsel of the Office of Management and
Budget, and as Associate Counsel to the President.
Until recently, I also served in a part-time capacity as
vice chairman of the Privacy and Civil Liberties Oversight
Board.
My views here are focused only on the general issue of
Presidential authority to influence and direct the regulatory
actions and decisions of the executive branch under Article II
of the Constitution. It is my view that the President is and
should be in control of the executive branch, but, importantly,
this does not derogate or diminish Congress' power to set
policy by legislation and to oversee the Executive's execution
of the laws.
Rather, the unitary Executive means that it must be the
President and not some relatively unknown subordinate, narrow
agency, or obscure technical committee who is responsible to
the public to take care that the laws are well and faithfully
executed. In short, the unitary executive concept promotes more
effective rulemaking by bringing a broader perspective to bear
on important regulatory decisions and enhances democratic
accountability for regulatory decisionmaking by pinning
responsibility on the President to answer to the public for
important regulatory actions taken by his or her
administration.
Setting standards requisite to protect public health and
welfare is inherently a policy exercise because Congress and
the courts acknowledge that government regulations cannot, and
need not, achieve zero risk. Indeed, it is the President's
responsibility, not just his right, to ensure that executive
branch regulatory decisions, to the extent Congress has left
the Executive with some discretion, reflect the President's own
policy judgments. That way the public can hold the President
accountable for important regulatory judgments or,
alternatively, look to Congress for stronger, smarter, or more
specific laws.
If the EPA Administrator does not agree with the President,
he or she may resign or be replaced, but there are no grounds
to complain that the President's position is undue
interference. The reasons why the Constitution established a
powerful President are well known. In short, the Framers were
acutely conscious of the debilitating weaknesses that resulted
from Executive by Committee during the Revolutionary War and
under the Articles of Confederation. They clearly understood
that putting one person in charge of the executive branch would
promote accountability.
The Constitution adopted a unitary Executive in order that
the American people would know exactly whom to credit or whom
to blame if the laws were not faithfully and effectively
discharged. If responsibility is diffused, then the ability of
the public to influence and choose their government is diluted,
and Presidents of both parties have asserted the right to
oversee and direct the actions and decisions of their
regulatory agencies.
Former Chief Judge of the D.C. Circuit, Patricia Wald, who
served as Assistant Attorney General for Legislative Affairs in
the Carter administration and was appointed to the D.C. Circuit
by President Carter, strongly supported the power of the
President to direct his or her subordinates in the executive
branch. In 1981, she offered the leading opinion on
Presidential Control over Rulemaking, Sierra Club v. Cassel.
Interestingly, Judge Wald was joined in that opinion by then
Judge, now Justice Ruth Bader Ginsburg.
Judge Wald addressed arguments advanced by environmental
plaintiffs who claimed that President Carter had improperly
interfered with EPA rulemaking in order to impose weaker
pollution controls than the technical staff at EPA desired. She
categorically rejected this criticism of President Carter's
decisive role. Echoing Alexander Hamilton, Judge Wald opined
that preserving the President's flexibility to direct his or
her subordinates was so important that it was not legally
required for the executive branch to publicly disclose the
details of White House and Presidential contacts.
Similarly, President Clinton further codified and
solidified the process and desirability of Presidential control
over executive branch rulemaking, and you have heard testimony
earlier today about Executive Order 12866, which required that
Agency regulations be consistent be consistent with the
President's priorities and the principles set forth in the
Executive order.
As you heard also, President Clinton, himself, was
personally involved in improving the 1997 ozone standard that
was a precursor of the standard involved today, and just as is
the case with the current ozone rule, as was the case with
President Carter's sulfur and particulate matter rules that
Judge Wald addressed, EPA ultimately chose in 1997 a pollution
standard that was more lenient than the one favored by Agency
staff and recommended by the CASAC Committee of Scientific
Advisors.
I would submit that it makes sense as a matter of public
policy to acknowledge and respect the President's ultimate
dominion over the executive branch. If Federal Regulations do
not serve the public well, either because they are too
restrictive or too permissive, or simply not well designed, the
President and Congress, of course, should take the blame. If
the regulations are reasonable and accomplish the public's
goals efficiently, then the President and Congress should
receive the credit.
Technical advisors are essential to the rulemaking process,
but the buck has to stop with the person who answers to the
people. That is the President.
Thank you for considering my views.
[The prepared statement of Mr. Raul follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Waxman. Thank you very much, Mr. Raul.
We will now proceed to questions, and to start off the
questioning, I want to recognize Ms. Watson.
Ms. Watson. Thank you so much, Mr. Chairman. And, Mr. Goo,
I felt your passion in your testimony. I am very passionate,
too, because my grandfather, in coming here--once into
California I am speaking of--and once he got here he found he
had to go over and live in Arizona. When he came back, he fell
dead in the streets leaving a widow with seven children. The
oldest is my mother. So that was before we had the Clean Air
Act.
I spent 17 years as the Chair of Health and Human Services
in the California State Senate. We fought viciously with those
who did not want to clean up the air because they felt it would
impact on, I guess, their profits.
So you have expressed grave concerns that Administrator
Johnson's decisions on the new ozone standards were not based
on science and the law. In your view, is this failure to base
an EPA decision on science and the law an isolated incident?
And could you put this in context in terms of this
administration's overall record of implementing the Clean Air
Act?
Mr. Goo. I would be glad to, Congresswoman Watson. This is
not an isolated instance at all, far from it. What we have seen
in the past 8 years is a concerted attempt to effectively
dismantle the Clean Air Act through implementation and
enforcement, and we have seen it in a number of instances from
new source review to Mercury pollution, to the National Ambient
Air Quality Standards and their position on greenhouse gases.
As I mentioned and as you note, air pollution is very
serious business here in the United States. More Americans die
from air pollution than die from drunk driving and HIV/AIDS put
together, and most of that is from particulate air pollution,
which I would mention as a good example of the same kind of
decisionmaking that we have seen where the Administrator chose
to disregard the clear advice of the Clean Air Scientific
Advisory Committee.
The very next decision that we will be seeing in the
National Ambient Air Quality Standards area will be with regard
to lead and known toxic air pollutants. We are concerned that
the next decision with regards to lead may resemble the past
two National Ambient Air Quality Standards.
Ms. Watson. Let me just ask you this. Have you seen this
disregard for the scientific input as a problem for the Agency
over a period of time?
Mr. Goo. I think over the last 8 years, this has been a
very difficult time for people at the Agency. If you look at
the depositions and you look at the record that Chairman Waxman
has compiled, you see that any number of staff, career staff
attorneys, were saying things like, I have never seen this in
the last 30 years. It has been extremely distressing.
The career staff at EP are extremely dedicated, and they
are dedicated to the science and to pubic health protection.
They have not been well served in this administration.
Ms. Watson. Well, I want to thank you very much. I feel the
same exact way. California is my State, and I want to thank
you. The Clean Air Act says that the EPA must use its
understanding of science to protect people's health and lives
from air pollution. Disregarding the law and the science
subjects people in our environment to grave harm.
My family was affected by the fact that we didn't have
these standards, and I lost a grandfather whom I never knew. So
the rejection of our request in California hit us very, very
hard.
Thank you very much, Mr. Chairman, for this time.
Chairman Waxman. Thank you, Ms. Watson.
Mr. Cannon.
Mr. Cannon. Thank you, Mr. Chairman. Mr. Goo, how many
people die of AIDS each year?
Mr. Goo. I don't have the precise figure, but I will get it
for you. More than 45,000 people die of particulate matter
pollution from power plants alone in the United States each
year.
Mr. Cannon. We are going on with a very short number of
minutes, sir, 2 minutes each, so if you don't mind, I am just
going to ask some pretty quick and clear questions.
Dr. Grifo, how many members are there in the Union of
Concerned Scientists?
Ms. Grifo. We have members who are citizens and scientists
from across the country, roughly 200,000 that work actively
with us.
Mr. Cannon. How many of those are scientists, have a Ph.D.
in science?
Ms. Grifo. I can tell you that for our particular issue,
the scientific integrity issue, we have an activist list of
15,000 scientists from across the country. The broader one, I
can get you that exact number.
Mr. Cannon. I would actually appreciate that, and how many
of the members, broader membership of UCS, are Government
employees?
Ms. Grifo. I don't know, but I can potentially find that
out.
Mr. Cannon. I would appreciate that. And of those who are
active scientists but not Government employees, do you have any
idea how many receive Government contracts?
Ms. Grifo. I am sorry?
Mr. Cannon. How many receive contracts or money from the
Federal Government to do research?
Ms. Grifo. I don't have any way of knowing that, sir. We do
not take any Government money at the Union of Concerned
Scientists.
Mr. Cannon. I know you don't, but many of your scientists
do. Let me just point out that when you have a taxpayer-funded
research, and priorities change because times change, you are
going to have complaints from scientists.
Are you familiar with the Congressional Research Service's
review of the study that you quoted in your testimony?
Ms. Grifo. I got it about 15 minutes ago.
Mr. Cannon. You should read it, because I think it points
out that your study is----
Ms. Grifo. I did read it, and I am happy to respond to
anything in it. It is all completely refutable.
Mr. Cannon. Pardon me?
Ms. Grifo. I have. I am happy to respond to any of this.
Mr. Cannon. It would be hard for you to respond. I have too
short a time, but you are talking about 5,810 people that were
surveyed, were asked questions that were EPA scientists. You
had about almost 1,600 respondents and 700 complaints. I think
that this whole--you should look at that, because I think it
deeply undermines the credibility of your statistical
inclusions about this administration and the integrity of
science, which I think is largely driven by financial
interests, and the transition that is happening in society, and
the change priorities that we have in America.
Thank you, and, Mr. Chairman, I yield back.
Ms. Grifo. If I may respond. I would like to direct you to
page 5 of the CRS Report where it says, ``Consequently, there
are no issues related to sampling errors as there was no
probability sample.'' Page 6 of the CRS Report where it says,
``This is not an issue here, however, this is not a sample
survey but a census.'' And page 7 of the CRS Report where it
says, ``The UCS Report does provide sufficient information for
any analyst to examine it and highlight some of those
limitations.''
Chairman Waxman. Mr. Bilbray.
Mr. Bilbray. Thank you, Mr. Chairman. Mr. Chairman, let me
first point out that I support the waiver for greenhouse gases
for California, and I look forward to working with you at
offering some legislation that will authorize that and the
Clean Fuel Strategies of California and exempt us from the
Federal restrictions.
But I think we need to recognize that a lot of people--this
would be the first time a State would have the ability to
regulate outside of its jurisdiction because in our California
strategies, we are talking about restricting the importation of
certain electricity across the State boundary, which is
absolutely new, and we need to take a look at that.
Now the Concerned Scientists. I want to pose a question
here. There were 71 issues that you took with decisions that
the administration had, and you feel that there was undue
political influence on these decisions?
Ms. Grifo. I am sorry, what are you referring to?
Mr. Bilbray. You listed 71 different times that you felt
there was undue political influence and some political agenda
pushed by the administration in their decisions, in your
testimony.
Ms. Grifo. Seventy-one? I don't think I used the number 71.
Mr. Bilbray. Well, there's a list on your testimony. My
question is, in all of this, have the Concerned Scientists
taken a position about the use of ethanol in our fuel stream
and its environmental and health risk?
Ms. Grifo. Sir, that is a different program at the Union of
Concerned Scientists, and I can certainly put you in touch with
them.
Mr. Bilbray. Well, ma'am, let me just tell you something. I
have 71 here that has been given to me by your testimony. There
is----
Ms. Grifo. Can you point what the 71 is?
Mr. Bilbray. Page 25.
Ms. Grifo. Oh, in the A to Z. It is actually almost 90 now,
yes.
Mr. Bilbray. OK, 90. In that list, I don't see ethanol and
its environmental damage that the largest State in the Union is
trying to outlaw, eliminate, and you guys have sort of walked
away from it, but in the same population issue I see, you know,
four or five issues on abortion or birth control in here. I
have to be frank with you--as how you walk away something that
is as much of an environmental problem as ethanol, but then
talk about the morning-after pill, or abstinence programs as
being your major concern.
I will challenge you to abandon your political prepositions
and work with us at addressing real science and threat issues.
But this testimony here, this and what I would say was the lack
of scientific way of approaching your so-called survey,
wouldn't you agree that if you were doing this kind of survey,
you would, from a scientific point of view, there is no way an
environmental regulatory agency would accept that survey as
being a substantive document.
Ms. Grifo. First of all, I think the CRS did accept it as a
substantive document. That is the thrust of what is said here,
and each of the pieces in here--well, we can go through them
one by one, and I am happy to talk about them.
But the point of the A to Z guide is, if you have
documentation of political interference in science, I would
love to see it. Everything in the A to Z guide has primary
documentation. If you have it, we will analyze it, and we will
put it up there.
Mr. Bilbray. Well, then, I would ask that over almost 20
years a group that claims to be scientific, where do you stand
on forcing the State of California continue to burn ethanol as
fuel when the science says it is bad?
Ms. Grifo. That is not the issue of this hearing, I am
sorry.
Chairman Waxman. Mr. Issa.
Mr. Issa. Thank you, Mr. Chairman, and I will be brief. I
would ask unanimous consent that the Congressional Research
Service Report be, in fact, put into the record.
Chairman Waxman. Without objection, that will be the order.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Issa. And I, for one, will take CRS's independent study
and certainly would welcome the Union of Concerned Scientists
to submit to us where they think that somehow it is factually
wrong. However, I would suggest in the future that if you want
to do a survey, do a survey, but if you want to do polling,
that there are science practices that would allow for it.
Really, I would just like to take this limited amount of
time and say to Dr. McClellan, you are here--and to Mr. Raul--
you are both here on your own dime, you are both experts, and,
historically, can you give us, briefly, in the remaining time a
contrast between today and the period of time in which you
served. because, quite candidly, I wasn't here during the
Clinton administration and then a Republican majority.
But I would like to have a contrast because I would like to
understand, do you believe that there is somehow a rabid change
in the way the administration works with your former agencies,
or is it substantially the same, and we are simply seeing it
different because we see it through different eyes?
Mr. McClellan. Thank you for the question. I would be very
pleased to address that.
As I noted in my opening remarks, I have been associated
with the EPA and its advisory structure from the beginning of
the Agency. At the time the Agency was created, I was chair of
a committee, which was Advisory to the U.S. Public Health
Service. That function was brought into EPA, and thus I became
a part of the Science Advisory Board at its beginning.
I will have to say that controversy has been a part of the
fabric of the EPA since its origins, and it has been a part
since the passage of the Clean Air Act, which preceded the
Agency. Indeed, one of the first activities I participated in
was a visit to Research Triangle Park in the early 1970's as we
were putting in place the first Air Quality Standards. We went
there based on concerns that came to the surface with a
headline story in the L.A. Times about the question of whether
scientists were being pressured to come to a particular
viewpoint.
Periodically, over time we have seen these controversies.
It is natural because you have science, and scientists are not
without their own emotions and their own judgment. We are
passionate about the use of our science.
Mr. Issa. I appreciate, and----
Mr. McClellan. I don't see a big spike.
Mr. Issa. Thank you. And Mr. Raul, just very briefly so we
can go to a vote, I am afraid.
Mr. Raul. Well, I think there has not been as much change
as it may appear, listening to only one hearing. I think
President George W. Bush has not been a potted plant with
respect to environmental rulemaking in his administration, nor
have his predecessor Presidents been potted plants. President
Clinton was very involved, President Reagan, President Carter,
all very involved in rulemaking.
President Reagan, of course----
Chairman Waxman. We are going to have to----
Mr. Raul. Sure.
Chairman Waxman. I think if you would put the rest in for
the record, I would very much appreciate it.
Mr. Issa. Thank you very much, Mr. Chairman.
Chairman Waxman. Mr. Raul, even though you assert that the
President can direct the Administrator's decision, do you agree
that the President must follow the law?
Mr. Raul. Absolutely, Mr. Chairman.
Chairman Waxman. And so when the President intervenes and
makes a decision on the secondary--or when he intervened and
made a decision on the secondary ozone standard, does the
decision still have to meet the requirements of the Clean Air
Act?
Mr. Raul. Absolutely.
Chairman Waxman. And the Clean Air Act requires the EPA
Administrator to identify the level of air quality requisite to
protect the public welfare from any known or anticipated
adverse effects associated with the presence of such air
pollutants in the ambient air.
Mr. Goo, is it your position that scientific evidence
available to the Administrator and the President that the
secondary ozone standard was set at a level requisite to
protect the public welfare?
Mr. Goo. No, it is not my opinion. The unanimous
recommendation of CASAC was that the form of the standard, not
the 8-hour standard, the basic point here is that plants and
foliage respond differently than human lungs do. The 8-hour
standard was set to protect human lungs and human respiratory
function. The secondary standard----
Chairman Waxman. Well, whoever set that standard, whether
it was in fact the President or the Administrator, you don't
think it fits with the science?
Mr. Goo. That is correct, Mr. Chairman.
Chairman Waxman. And therefore the Clean Air Act.
Mr. Goo. Right.
Chairman Waxman. And, Dr. Grifo, your survey is important
because it provides us with a big picture of political
interference with the work of scientists at EPA. Almost 1,600
EPA scientists filled out survey questionnaires and sent them
to the Union of Concerned Scientists, and the cases where EPA
political appointees had inappropriately involved themselves in
scientific decisions, or interference with political appointees
from other parts of the administration like the White House and
EPA scientists, who were directed to inappropriately exclude or
alter technical information from EPA scientific documents.
This survey shows that there has been a serious problem of
political interference with the EPA scientists working under
the Bush administration. That I think is unacceptable and has
to stop.
I thank the four of you very much for your testimony, and
we will keep the record open in case there are other thoughts
you want to submit to us for the record, or questions that
Members may seek to ask.
That concludes our hearing. We stand adjourned.
[Whereupon, at 4:58 p.m., the committee was adjourned.]