President Claims Executive Privilege Over CAA Documents

Jun 20: President Bush has asserted executive privilege over thousands of pages of documents that would show whether the President and his staff complied with the Clean Air Act (CAA) in overruling EPA Administrator Stephen Johnson on important environmental decisions. The latest White House response comes as a result of Representative Henry Waxman (D-CA), Chairman of the House Committee on Oversight and Government Reform announcement on June 13 that the Committee would meet on June 20 to consider a resolution citing EPA Administrator Stephen Johnson and Susan Dudley, Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget for contempt of Congress. Waxman claimed that thousands of pages of documents have not been submitted to the Committee as requested relating to EPA's denial of California's petition to regulate greenhouse gas emissions from motor vehicles and EPA's revision of the national ambient air quality standards for ozone.

On May 20, Waxman indicated that the Committee's investigation had uncovered details of White House involvement in EPA’s regulation of ozone on the eve of a court imposed deadline, forcing EPA staff to scrap a standard supported by its independent panel and to perform “emergency rewrites” to the regulation [See WIMS 5/21/08]. Waxman also released extensive documentation on the Committee's investigation of the California waiver request decision.

According to a June 20, letter from EPA, "I am writing to inform you of the President's decision to assert executive privilege over some of these documents, with the exception of the documents or portions of documents that are being provided to you today. Although EPA will not be providing all of the documents sought by the subpoenas, we are providing the vast majority. . . As set forth more fully in the attached letter from Attorney General Michael Mukasey to the President, the Committee's subpoenas infringe upon the Executive Branch's strong interest in protecting the confidentiality of communications with and/or information received or solicited by the President and his senior advisors. We very much regret that we have arrived at this point and have gone to great lengths in an attempt to find a solution that accommodates both of our interests. Our letter of June 18 sets forth in detail the extensive accommodations EPA has made with respect to the Committee's demand for information about these matters. The Committee has received over 10,000 of the Agency's documents concerning these both of these matters. . ."

A similar letter from OMB to Chairman Waxman indicates, "Without providing any legitimate justification or demonstration of need, you demand 1,735 pages of internal deliberative documents from the President's EOP [Executive Office of the President] staff at OIRA, and 221 pages of communications between the President's staff at OMB and other EOP offices. In order to preserve the confidentiality that is essential to the ability of current and future Presidents to receive candid analyses, advice and recommendations from EOP staff, and for the reasons set forth in the attached letter from the Attorney General, I have been authorized to report to the Committee the President's decision to assert Executive Privilege with regard to the documents that have been withheld by OIRA. Accordingly, we will not be providing them. . ."

In a statement at the Committee's meeting, Chairman Waxman said, "For months, the Committee has been investigating EPA's decision to prevent California and other states from reducing greenhouse gas emissions from motor vehicles and its decision to adopt new ozone air quality standards weaker than those recommended by the agency's scientific experts. These investigations have shown that the decisions in these important environmental matters were made not at EPA, but in the White House. In both cases, the scientists, the agency career staff, and EPA Administrator Johnson wanted to take stronger action to protect the environment. And in both cases, the White House rejected the agency's position.

"Today the President has asserted executive privilege to prevent the Committee from learning why he and his staff overruled EPA. There are thousands of internal White House documents that would show whether the President and his staff acted lawfully. But the President has said they must be kept from Congress and the public. . .

"The Clean Air Act is clear about what can be considered and what cannot be considered when EPA makes decisions under its authority. In both cases, the EPA's methodical and scientific process pointed to specific outcomes. In both cases, the outcome dramatically changed when the White House became involved. . .

"Today's assertion of executive privilege raises serious questions about Administrator Johnson's credibility and the involvement of the President. Without the remaining documents, it will be nearly impossible to fully understand the President's role in overruling the unanimous recommendations of EPA's own experts. We had scheduled a vote on a contempt resolution for this morning for Mr. Johnson and Ms. Dudley. We will not have that vote in light of the executive privilege claim. I want to talk with my colleagues on both sides about this new development and consider all our options before deciding how we should proceed."

Access the Committee's website for links to all documents (click here). [*Air, *Climate]