Markey Presses For "Endangerment" Documents; EPA Refuses

Mar 13: At a hearing before the House Select Committee on Energy Independence and Global Warming [See WIMS 3/13/08], U.S. EPA Administrator Stephen Johnson refused to turn over documents pertaining to global warming decisions within his agency, even though Congress has a right to the documents. Chairman Edward Markey (D-MA) made it clear that this refusal would force his committee to explore the full range of options available to compel the EPA to hand over the documents.

In the hearing, Johnson did not claim executive privilege, but instead relied on what Representative Markey said is "an inapplicable argument that only applies to outside parties seeking information under the Freedom of Information Act. Congress has a right to documents without any FOIA request, and has a right to these documents." Markey said, "Administrator Johnson specifically did not claim executive privilege as a basis for refusing to turn over the documents, because he knows that it doesn't apply. Consequently, his stonewalling this committee cannot be accepted."

Markey continued, “The EPA is interfering with the work of my committee to understand why this administration is refusing to decide whether the planet is endangered. If the EPA does not make the documents available by the time the House returns, then this committee will use the full extent of its authority to make sure the public understands who in the Bush administration is blocking the professional scientists from concluding what the world already knows: that the planet is in danger because of global warming.”

On April 2, 2007, in a 5-4 decision, the U.S. Supreme Court decided the historic case about global warming (Massachusetts, et al. v. EPA, et al., No. 05-1120), and ruled that EPA has existing authority under the Federal Clean Air Act to regulate greenhouse gas (GHG) emissions from motor vehicles [See WIMS 4/2/07]. The Supreme Court decision directed EPA to determine whether greenhouse gas emissions cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare.

If EPA makes this so-called “endangerment finding,” the Supreme Court said, then it must regulate these emissions from motor vehicles. In its response to the Supreme Court decision, EPA spent about six months conducting intensive analysis and, according to EPA staff disclosures to Congress, Johnson signed off on the Agency’s positive endangerment finding. The endangerment finding, as well as a completed proposal to regulate emissions from motor vehicles (to levels that correspond to a fleet average of 35 miles per gallon by 2018), were forwarded to other White House and federal agencies for review in December.

According to numerous statements made by Johnson and other Bush administration officials, the proposals were to be released publicly by the end of 2007 and finalized by the end of 2008. That has not occurred. Instead, reports have indicated that EPA has ceased all work in this area and, at the hearing, Johnson would not even commit to a firm date on which these documents would be released.

Markey said, “The Bush administration’s approach to global warming policy has been to deny the science, delay the regulation, and dismiss its critics, and Administrator Johnson’s refusal to move forward with this critical first step to limit greenhouse gas emissions is right out of that playbook. This EPA may be the last environmental ministry in the developed world to concede what the world’s scientists and governments already know: global warming emissions are dangerous, and must be controlled."

Witnesses testifying at the hearing included: Administrator Johnson; the Secretary of the Kansas Department of Health and Environment; a Kansas House Member; Lisa Heinzerling, Professor of Law, Georgetown University Law Center; Chief Climate Counsel for the Sierra Club; and Peter Glaser, Partner with Troutman Sanders.

Access a release from Representative Markey (click here). Access the hearing website for links to all testimony and an audio file of the hearing (click here). [*Climate]