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BUSH ADMINISTRATION ENVIRONMENTAL 

RECORD AT DEPARTMENT OF INTERIOR 

AND ENVIRONMENTAL PROTECTION AGENCY 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 24, 2008 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.access.gpo.gov/congress.senate 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

JOSEPH I. LIEBERMAN, Connecticut 

THOMAS R. CARPER, Delaware 

HILLARY RODHAM CLINTON, New York 

FRANK R. LAUTENBERG, New Jersey 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

AMY KLOBUCHAR, Minnesota 

SHELDON WHITEHOUSE, Rhode Island 

JAMES M. INHOFE, Oklahoma 

JOHN W. WARNER, Virginia 

GEORGE V. VOINOVICH, Ohio 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

LARRY E. CRAIG, Idaho 

LAMAR ALEXANDER, Tennessee 

CHRISTOPHER S. BOND, Missouri 

BETTINA POIRIER, Majority Staff Director and Chief Counsel 

ANDREW WHEELER, Minority Staff Director 

(III) 

C O N T E N T S 

Page 

SEPTEMBER 24, 2008 

OPENING STATEMENTS 

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 1 

Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode Island ......... 4 

Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland ................ 5 

Baucus, Hon. Max, U.S. Senator from the State of Montana .............................. 20 

Klobuchar, Hon. Amy, U.S. Senator from the State of Minnesota ...................... 68 

WITNESSES 

Pope, Carl, Executive Director, Sierra Club .......................................................... 9 

Prepared statement .......................................................................................... 12 

Clark, Jamie Rappaport, Executive Vice President, Defenders of Wildlife ........ 22 

Prepared statement .......................................................................................... 25 

Ball, Reverend Jim, President and CEO, Evangelical Environmental Network 33 

Prepared statement .......................................................................................... 35 

Schaeffer, Alan, Executive Director, Diesel Technology Forum .......................... 51 

Prepared statement .......................................................................................... 54 

ADDITIONAL MATERIAL 

Statement of Norman D. James, Attorney, Fennemore Craig, Phoenix, AZ ...... 75 

(1) 

BUSH ADMINISTRATION ENVIRONMENTAL 

RECORD AT DEPARTMENT OF INTERIOR 

AND ENVIRONMENTAL PROTECTION AGENCY 

WEDNESDAY, SEPTEMBER 24, 2008 

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC. 

The full committee met, pursuant to notice, at 2:34 p.m. in room 

406, Dirksen Senate Office Building, Hon. Barbara Boxer (chairman of the full committee) presiding. 

Present: Senators Boxer, Baucus, Cardin, Klobuchar, and 

Whitehouse. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. The hearing will come to order. 

I want to welcome everybody here to this beautiful room where 

so many wonderful laws have been written, and we want to write 

some more good ones. We do our oversight as best we can in this 

room. 

Today’s hearing is the Bush administration’s Environmental 

Record at the Department of Interior and at the EPA. Our first 

panel is set to be Robert Meyers, Principal Deputy Assistant Administrator, Office of Air and Radiation, U.S. EPA, and Lyle 

Laverty, the Assistant Secretary for Fish and Wildlife, Department 

of the Interior. 

And then we have panel two, who I will introduce after that. 

So the purpose of this hearing is to examine the Bush administration’s record on important public health and environmental matters. Unfortunately, instead of reviewing accomplishments, we look 

back on years filled with environmental rollbacks that serve the 

special interests and not the American people. 

Today, this Committee will shine a light on the Bush administration’s efforts to undermine EPA’s and the Department of Interior’s 

mission to protect public health and the environment. A clear picture of the Bush administration’s environmental record can provide 

a road map for the next Administration and the Congress which 

will be useful in the effort to reverse these dangerous decisions. 

This Committee is going to work up until the last minute of this 

session. Time and time again, the White House has interfered in 

EPA decisions that should be based on science and the law. Time 

2 

and time again, EPA has ignored the law and the advice of its own 

scientific experts. 

Let’s take a look at a few examples of this disturbing record. 

One, in one of its first official acts, the Bush EPA announced it was 

suspending the newly strengthened standard for arsenic—I am 

sorry, we have to get ourselves in gear. To we have a chart for arsenic? OK. 

In one of its first official acts, the Bush EPA announced it was 

suspending the newly strengthened standard for arsenic in tap 

water. It was a public outcry, and we blocked them. I remember, 

just to catch their attention, I sent the movie Arsenic and Old Lace 

over to the White House to make a point that this was in fact a 

dangerous substance. 

Then EPA proposed to do what it called the CHEERS study 

jointly with the chemical industry in which low-income families 

were offered gifts and other incentives if they agreed to enroll their 

newborn children in pesticide studies in their homes over a 2-year 

period. There would be videos taken of these children crawling 

around in pesticides. There was a great outcry and EPA canceled 

the study. 

Senator, would you join me up here? I would really appreciate it. 

Senator Baucus is probably coming, but if you could just sit in Senator Carper’s chair. Senator Carper’s chair, you think? Is Senator 

Carper coming? Senator Carper’s chair. 

Senator WHITEHOUSE. I will upgrade and become Senator Carper. 

[Laughter.] 

Senator BOXER. I was just going through the EPA record, starting off with before you were here, one of the first things they did 

is try to weaken the arsenic standard in drinking water. And then 

the CHEERS study, where, as you may remember reading about at 

this time, we had a great outcry because this was low-income families. They were getting paid off to put their kids in a dangerous 

study. 

And now we recently saw they tried to revive this idea, but after 

meeting with my staff, they couldn’t answer any of the ethical 

questions, and they retreated from that study. 

EPA set a weaker clean air standard for toxic soot than its independent scientific advisers, children’s health advisers, and its own 

scientists recommended. Soot kills thousands of Americans every 

year. I think we have to keep reminding people of this. Soot kills 

thousands of Americans every year, especially children and the elderly. 

Next, EPA rejected the advice of its own scientists, scientific advisers, and children’s health experts and set a weaker health 

standard for smog than the scientists recommended. Smog poses a 

serious health risk to millions of people, killing thousands of people 

each and every year. 

Next, EPA set a weaker standard for lead pollution in air, and 

for lead paint cleanup than its independent scientific advisers recommended. As we all know, lead is highly toxic to kids and can reduce IQ and can cause learning and behavioral problems and can 

damage children’s developing brains. 

3 

The courts, including Bush-appointed judges, have repeatedly 

struck down EPA’s rules that weaken public health protections. 

Judges have used strong language to express their frustration with 

EPA’s failure to comply, saying for example, ‘‘only in a HumptyDumpty world would EPA’s explanations make sense’’ or that, 

quote, ‘‘EPA employs the logic of the Queen of Hearts in Lewis 

Carroll’s classic Alice in Wonderland.’’ These are the words of the 

courts, the words of the courts. 

According to a recent GAO report prepared at my request, EPA 

political officials worked with the White House and the Pentagon 

to undermine the process for evaluating toxic chemical risks. The 

Bush administration’s system puts polluting agencies like DOD in 

the diver’s seat, with an ability to secretly stop or weaken EPA actions to control toxic chemicals like perchlorate, TCE, and other 

pollutants. 

Ben, could you sit in Senator Lieberman’s seat? 

Next—and I want to just talk about perchlorate for a minute. 

Perchlorate is this dangerous toxin that interferes with the thyroid. 

It means that it interferes with our ability to produce hormones. 

It damages the brain and it damages the nervous system. Now, 

perchlorate is in 35 States in many, many sites—35 States. It is 

everywhere. We have some leaks that show us that in fact the EPA 

is going to walk away from setting a standard for perchlorate, 

which the scientists tell us must be set at between one and six 

parts-per billion. 

It is shocking, and there was actually a big story in The Washington Post about this, but they are not doing anything about these 

chemicals. 

EPA has severely weakened its office of Children’s Health Protection and ignored its Children’s Health Advisory Committee, as we 

learned from GAO last week. GAO did a study and they said EPA 

is not paying attention. 

EPA’s record on global warming could not be worse. Despite the 

President’s campaign to regulate carbon, the White House reversed 

course and rejected actions to control global warming pollution. It 

literally took an order from the court, the U.S. Supreme Court in 

Massachusetts v. EPA to force EPA to begin to address the problem. Even then, the White House blocked EPA from issuing its proposed ‘‘endangerment finding’’ under the Clean Air Act, which 

would have given the green light to action on global warming. 

The Bush administration denied the California waiver, and I 

want to publicly thank Senator Whitehouse for his intense and unrelenting questions yesterday of an EPA witness. Mr. Johnson has 

not been here for 6 months. Yesterday, he sent someone else, and 

that individual actually contradicted Mr. Johnson’s testimony that 

he had given about the waiver. We know that waiver is crucial to 

our State so that they can move forward. We also know that it is 

the first time a waiver has been denied in 40 times. Forty times 

we have gotten these waivers. 

EPA has slowed its Superfund program—this is another issue— 

to a crawl. Over the last 7 years, the pace of cleanups has dropped 

by 50 percent compared to the last 7 years of the prior administration. The cleanups have fallen from 80 to 40. 

4 

And getting back to perchlorate, they are not going to set a 

standard. I wanted to say that because I know Carl Pope just came 

in, and he has worked so hard on this. EPA data shows that 16.6 

million people are exposed to unsafe levels of perchlorate. And we 

know how risky it is to kids. It disrupts their normal development. 

Now, on occasion, EPA has taken a positive step, including the 

issuance of cleanup orders to the DOD, although the DOD is not 

complying in many of these cases, which we found out. Senator 

Cardin, I want to thank him for his intensive questions about Fort 

Meade. 

Now, on the Department of the Interior side, we don’t get to 

interact with them that much, but where we do interact with them 

is on the Endangered Species Act, and they have proposed a terrible proposal to dramatically weaken the rules under the EPA— 

another 11th hour attempt to undermine environmental protections. 

The Endangered Species Act is one of America’s most successful 

environmental laws. Indeed, just last year the Fish and Wildlife 

Service removed the bald eagle, the very symbol of our Country, 

that was saved because of this Act. The Bush administration has 

proposed to rewrite the rules so that most expert agencies will not 

be involved anymore. 

So here is where we stand, colleagues. We had been told that 

Robert Meyers, Principal Deputy Assistant Administrator of the Office of Air and Radiation at EPA would be here for our first panel, 

along with Lyle Laverty, Assistant Secretary for Fish and Wildlife, 

Department of the Interior. They are not showing up for this hearing. They are not showing up. 

We will leave their cards there in case they do show up, but I 

have never seen anything like what we are getting from this Administration. Johnson has been in hiding since March, and now 

they won’t even send people because they don’t want to face up to 

the tough questions we have for them. And you know what? They 

are cowardly and they have been a danger to the people of this 

Country. That is it. 

Now, if those words don’t get them here, I don’t know what else 

will. 

And so I turn to Senator Whitehouse first, and then Senator 

Cardin. 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 

U.S. SENATOR FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Thank you, Chairman. Thank you very 

much for your relentlessness in this pursuit and your passion to 

make sure that this is an agency that accomplishes its mission of 

protecting the people of this Country. 

I think what I will do is ask unanimous consent that the documents that I assembled, with your assistance and with the assistance of your staff, that supported my call for Administrator Johnson’s resignation, and that I put into the Senate record in the 

speech to that effect on the Senate floor, be made a part of the 

record of this proceeding. 

Senator BOXER. Is there objection? Hearing none, so ordered. 

[The referenced documents were not received at time of print.] 

5 

Senator WHITEHOUSE. I would also point out we had an interesting hearing in the Judiciary Committee not long ago, and the 

Director of the FBI, Bob Mueller, came. I spoke at some length to 

compliment him on the way he handled the pressure that was put 

on him by the White House with regard to the President’s program 

to wiretap Americans without a warrant, and how he stood by his 

guns through all of that. I don’t think he wanted to cross the President. I don’t think that was his intention. 

But what he did recognize and what Deputy Attorney General 

Comie recognized and what I think Principal Assistant Deputy Attorney General Patrick Philbin recognized is that even in the executive branch, when you take on certain public offices, you also take 

on certain public duties. The oath you take and the dignity and 

honor of the office that you assume binds you, honor bound, to the 

accomplishment of those duties. 

If the President wants you to do something different, you simply 

cannot do it. You have to stand up to him and say, I can’t do that; 

if you insist on that being done, you will have to find somebody else 

to do it. It is not consistent with the responsibilities of this office. 

And it strikes at the heart of this phony I think largely corrupt 

unitary executive theory that has been the intellectual cover by 

which the White House has made an effort to essentially cow all 

executive agencies and bend them to their political will. 

Setting aside the immediate health issues, as important as they 

are today, something very bad happens in America when the entire 

executive branch turns its eyes away from the duties and responsibilities that people are sworn to uphold based on their office, and 

instead look only for political direction from the White House, and 

are willing to do anything, say anything that obliges them, even if 

the repayment for being a toady is nothing more than rides on Air 

Force One or having your wife have tea with the First Lady at the 

White House, or whatever it is that causes you to—whatever your 

price is for having sold out the duties of your office. 

Unfortunately, I think we will look back for many, many years 

at this episode, what happened at EPA and what happened at Interior. It is not just wrong substantively in terms of the protection 

of our people’s health and our Country’s natural resources. It is 

wrong at the very heart of the checks and balances that make 

America the Country that we are. 

I think frankly it is disgraceful. I can understand why they are 

not here. I would be ashamed to come and defend myself here if 

I were in their shoes, but there has been a lot at stake. And your 

persistence and your relentlessness in keeping the focus on it I 

think is something that people will look back 20, 40, 60, 100 years 

from now and note as they look at bright spots in these dark days 

of misrule. 

Senator BOXER. Thank you so much. 

Senator Cardin. 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, 

U.S. SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. Thank you, Madam Chair. This is a sad day for 

the Environmental Protection Agency. It is a sad day for our Nation in that the representatives would not appear before the ConVerDate Aug 31 2005 09:01 Jun 11, 2015 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\88912.TXT VERN
6 

gress in order to review with us the status of environmental efforts 

to protect public health. It is a tragic day. 

Let me, Madam Chair, compliment you. You know, we can have 

as many hearings and we can pass as many laws as we want, and 

you can’t change the attitude of this government as it relates to the 

importance of protecting public health through our environment 

and leaving our planet in better condition than we found it. You 

just can’t do that. You are not going to change their record, unfortunately. 

But you have put a spotlight on this. You have put sunshine onto 

what they have done, and the American people now understand exactly what has happened over these last 8 years. I thank you for 

doing that because I think this record needs to be told. 

We shouldn’t be, I guess, surprised the witnesses aren’t here. We 

know that this Administration has prevented the release of scientific information that should have been released. They have 

failed to follow the expert advice of their own career people. They 

have done that over and over again. So it is not a surprise that 

they would not want to be confronted by questioning by this Committee. 

I asked my staff in preparation for today’s hearing to outline for 

me the areas of concern and accomplishment by the Bush administration as it relates to protecting our environment. And Madam 

Chairman, I got a long list of concerns. I will just mention a few. 

It is a little bit too long. But I said, look, go back and find me 

something positive, and they did. They found one, so let me say 

there was one good thing that we found, and that is the national 

monument designation of the Northwest Owyhee owls. Congratulations on that. 

But it is overshadowed by this long list, long list. We know how 

many hearings we have had on greenhouse gases, and we know 

just recently, the hearing this past week. The people of Maryland 

understand how much more we are at risk because of sea level 

changes. And this Administration is not even following the order 

of the Supreme Court in moving promptly to determine the regulations of greenhouse gases. 

The California waiver is outrageous, Madam Chair. That is just 

outrageous. My own State of Maryland wanted to follow the California model. There have been two models in the Country: the minimum model established by the Federal Government and the California waiver. That is how we have done things in the past. 

Against the advice of their own department, against the law, they 

said no, the lead in the air which is affecting people in my own 

State, they refused to take the appropriate actions. The Endangered Species Act, you mentioned several times they have been 

forced to move forward because of court litigation. The quality of 

our drinking water, they have ignored. 

You mentioned the cleanup. Well, let me tell you, you are right. 

EPA issued orders. DOD didn’t follow it. The bottom line is, we 

don’t have action, and the people that live around Fort Meade are 

suffering as a result of contamination of the water supply because 

of the failure of the Department of Defense to clean up the hazardous waste sites. And we have the same risk now at Fort Detrick 

in my State of Maryland. The shore infrastructure funds. Look at 

7 

what they have been doing trying to prevent the water quality 

there. 

And then, let me just mention budgets, and I will be parochial. 

I will talk about the Chesapeake Bay. It is not the first and not 

the last time I will be talking about the Chesapeake Bay in this 

Committee. But this Administration has failed to adequately fund 

the programs that are essential to the Chesapeake Bay. The EPA 

program office, the Clean Water Revolving Fund, the NOAA Chesapeake Program Office, the Army Corps of Oyster Recovery, the 

USGS budget for analysis of pharmaceuticals in the Potomac River, 

the Forest Service’s Chesapeake Forest Program, and then most recently, Madam Chairman, the Chesapeake Bay Watershed Program authorized in the farm bill they wanted to zero out. 

I just want to thank not just the work of this Committee, which 

has been critical, but the work of the Congress in restoring much 

of those funds. Thank goodness we have done that here because 

Senator Whitehouse is correct. The challenges for the next Administration are going to be so much more difficult because of the 

record of this Administration. 

This Congress has tried to be constructive. It is difficult in working with this Administration. I do look forward to the next Administration in forging the type of environmental programs that will 

make us proud. Our work will be more difficult, but I do look forward to restoring and correcting a lot of the damage that has been 

caused by the policies of this Administration. 

[The prepared statement of Senator Cardin follows:] 

STATEMENT OF HON. BENJAMIN L. CARDIN, U.S. SENATOR

FROM THE STATE OF MARYLAND

Madame Chairman, thank you for holding this hearing today. 

President Bush’s 2006 decision to establish a vast portion of the Northwestern 

Hawaiian Islands as a National Monument covering 1,200 nautical miles, an area 

larger than 46 of the 50 states, is an extraordinary accomplishment. I applaud the 

Administration’s action. It is a legacy he can be proud of. 

Unfortunately, the remaining record of the Bush administration is abysmal. 

On Climate Change, the Administration has consistently tried to limit the amount 

of scientific data released, inserted political opinions for scientific findings, and ignored requirements to deal with the climate change issue 

On its bedrock statutes regarding clean air and clean water, EPA has issued a 

number of controversial rules and regulations, often at odds with the recommendations of its own scientists. A number of the actions have been challenged successfully in the courts. 

• EPA rejected the recommendations of its scientific advisors by setting a new 

Smog Standard which is less protective of health than the level recommended by 

its advisors. 

• Earlier this year the U.S. Circuit Court of Appeals for the District of Columbia 

ruled unanimously that the EPA’s rules for air emissions from power plants failed 

to comply with protective safeguards in the Clean Air Act that require strong and 

timely protection of public health from mercury emissions. 

• The Bush administration announced a proposal to establish new limits on the 

amount of lead allowed to be in the air which ignored the recommendations of EPA 

scientists. 

It is not just regulatory programs that have gone astray. The Administration’s 

budget requests for environmental programs are also taking us in the wrong direction. 

Sewer Infrastructure. A 2004 report from the EPA estimated that the lack of adequate sewer infrastructure was partly responsible for the estimated 850 billions of 

gallons of storm water that contaminated sewage that enters U.S. waters each year. 

This year’s Bush administration’s budget request for wastewater (the Clean Water 

State Revolving Fund) is more than 50 percent lower than when he took office. 

8 

Drinking Water. The Bush administration has not required any testing or set 

safety limits for drugs in water despite the fact that the Safe Drinking Water Act 

and the Food Quality Protection Act direct the EPA to address the problem of 

chemicals and their impact on the body. This year the Administration proposed cutting the water quality programs at the United States Geological Survey, which provided the key monitoring data showing the drug contamination. 

Refusing to collect scientific data is the opposite of safeguarding our drinking 

water, and it is unacceptable. 

NATURAL RESOURCES AND PUBLIC LANDS

The Bush Record on natural resource lands has generally been one of neglect. The 

greater harm, however, has come from an effort to limit the reach of the Endangered Species Act. 

Mr. Laverty’s predecessor was forced to step down in disgrace because of the way 

she inserted political ideology into the Fish and Wildlife Service’s work, overruling 

staff scientists and ignoring the law. The Bush administration’s Endangered Species 

Act proposal attempts to take the scientists out of the equation. 

THE RECORD IN MARYLAND IS NO BETTER THAN IT IS NATIONALLY. 

Climate Change: With sea level rise well documented and rising water temperature killing off key underwater grass species, the Chesapeake Bay is already experiencing serious affects from global warming. The Administration’s failure to address 

the problem has exacerbated the problem. 

And because greenhouse gases persist in the atmosphere for decades, failure to 

act over the last seven-plus years means significantly deeper and swifter reductions 

will be needed to address the threats in the future. 

California Waiver: Maryland is one of 18 states seeking to join California in its 

ability to regulate mobile sources of greenhouse gas emissions. 

Chesapeake Bay: In addition to the failure to act on climate change issues, the 

Administration has failed to adequately fund a variety of well-established programs 

ranging from the 

• EPA Program Office, 

• the Clean Water SRF, 

• NOAA’s Chesapeake Bay Program Office, 

• the Army Corps of oyster recovery program, 

• USGS’s budget for analysis of pharmaceuticals in the Potomac River, 

• the Forest Service’s Chesapeake Forests program, and most recently, 

• the Chesapeake Bay Watershed Program authorized in the Farm Bill. 

We don’t have the time to detail all the ways this Administration has 

• undercut public health safety, 

• ignored threats to our health and our environment, and 

• undermined scientific integrity. 

I hope we will focus on a few of the major problems and point out areas where 

the next Administration needs to right some fundamental missteps. 

Senator BOXER. I want to thank both my colleagues. 

So just to clear up the record, I want to place a couple of documents in the record. I don’t know if my colleagues are aware, you 

probably are, but I will remind you because it was in the back of 

my mind. I remember when Stephen Johnson, his nomination was 

pending, and he came up here, and it was Chairman Inhofe at the 

time. And Chairman Inhofe said, before we have opening statements, I would like to have you respond to a required question of 

this Committee, if you would please; would you please stand: Are 

you willing to appear at the request of any duly constituted Committee of Congress as a witness? And each nominee nodded in the 

affirmative, including Mr. Johnson. 

Now, he hasn’t been here in 6 months, so he did not tell the 

truth to this Committee when he said he would. 

And then also Mr. Laverty, nameplate over there, and I said to 

him, Robert—because his name is Robert Lyle, I called him RobVerDate Aug 31 2005 09:01 Jun 11, 2015 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\88912.TXT VERN
9 

ert—Robert, I will ask you the same; are you willing to appear at 

the request of any duly constituted Committee of Congress as a 

witness? Yes, ma’am, I am. 

He didn’t tell the truth either. He is not here. 

This is serious stuff. When you don’t show up at a hearing that 

is duly constituted, you are not fulfilling your constitutional responsibility. And when you don’t show up for 6 months, it seems 

to me, you committed perjury when you answered this question in 

the affirmative. And then you don’t even send anyone? 

I think after Senator Whitehouse did his questioning yesterday, 

maybe that is why. They didn’t want to send anybody else, Senator. 

Let me tell you what they told us. This is what they told us. 

EPA’s senior staff told my senior staff that they are not here because they didn’t want to be questioned on the issues raised in yesterday’s hearing about the waiver and other things we questioned 

them about. Interior said they couldn’t get their testimony cleared. 

What Country are we in? So this is a sad moment. It is unbelievable, but it is not new for us. We haven’t been able to get the head 

of the EPA here in 6 months. He has a lot of time on his hands. 

He is traveling around the world, I read, and going to—what did 

he do last week? He went on a river boat trip and we hear he is 

going to Israel and Jordan, Australia. 

OK. We do have a panel that did show up, and I dare say it was 

a lot harder for some of you to get her than for Mr. Johnson to 

come a few blocks. 

So if you would come and join us: Carl Pope, the Executive Director of the Sierra Club; Jamie Rappaport Clark, Executive Vice 

President, Defenders of Wildlife; Reverend Jim Ball, Ph.D., President and CEO, Evangelical Environmental Network; Alan Schaffer, 

Executive Director, Diesel Technology Forum; and Norman James, 

Director, Fennemore and Craig. 

OK. Well, Mr. Schaffer, you are the only minority witness who 

showed up, and we want to welcome you. We are glad you are here 

and we are interested to hear what you have to say. And Mr. Jones 

hasn’t come either. So. 

So we are going to just go down the row here. We are taking a 

look-back. The reason we are taking a look-back is we need to 

know how much work we have to do in the next Congress and the 

next Administration. So I think there is so much we have to undo 

that we thought we would get started early and start our list. 

You know how at home we have a to-do list? We put it up on 

the refrigerator. My to-do list looks a little different than a lot of 

others because we have so much that we have to do. 

So let’s start off with Carl Pope, Executive Director, Sierra Club. 

Let’s say 7 minutes each, and make sure you put your mic on. 

STATEMENT OF CARL POPE, EXECUTIVE 

DIRECTOR, SIERRA CLUB 

Mr. POPE. Sorry, thank you. 

Madam Chair, Senator Inhofe, members of the Committee, I am 

Carl Pope and I am the Executive Director of the Sierra Club. 

Looking back, I think the fundamental lesson of the last 8 years 

is that James Madison wrought well. In the environmental arena, 

the executive dictatorship which the Vice President attempted to 

10 

erect on the foundation of a hyper-partisan parliamentary Congress 

was, I am happy to report, repeatedly and consistently thwarted by 

the checks and balances built into our system. 

Let’s begin with EPA, which I think can best be described at this 

moment as a pile of judicial smithereens. 

Senator BOXER. Go ahead. You can all look at your BlackBerrys 

when you are done. 

Mr. POPE. Over at EPA, if you were to pick up the Code of Federal Regulations in 2 years and examine it, you would be hardpressed to know that this Administration ever existed. Virtually 

the entire regulatory edifice of clean air policy, which this Administration attempted to erect, has been dismissed by a combination of 

the courts, the Congress and vigorous State action. In its place, for 

the first time in American history, a vigorous State-based policy of 

clean air protection has been put in place. 

The courts threw out the Bush administration’s mercury rules, 

its interState transportation policy. They blocked its efforts to repeal the new source review requirements. And during the period 

when the mercury rule was on the books, more than 20 States rejected its permissive emission limits and adopted much more effective rules of their own. 

When EPA said that carbon dioxide was not a pollutant, the Supreme Court disagreed and said it must be regulated under the 

Clean Air Act. When this Administration refused to comply, States 

all over the Country began moving on their own, first REGI, then 

the Western Governors Initiative, now the Midwestern Clean Air 

Alliance. 

California after this Administration for years sat by while oil imports increased and global warming got worse and the price of gas 

rose and American motorists suffered, refused to set tougher fuel 

economy standards. California acted, 14 States have now followed 

it; when EPA and the auto industry tried to prevent this, once 

again, the courts refused to go along, and while the needed waiver 

has not indeed been issued, it is in the courts where I am certain 

when the issue is adjudicated it will be issued. And perhaps more 

important, both candidates for President of the United States have 

pledged that if elected, they will immediately grant the waiver. 

In fact, and this has not been commented on, but it is a remarkable fact that in the last 3 years, in the face of an Administration 

which we all know has done everything it could to slow action on 

global warming, the United States and its States have put in place 

regulatory changes which will reduce the long-term carbon dioxide 

emission rate of this economy by 9 percent. More than 900 million 

metric tons of CO2, which were projected 3 years ago to be part of 

our business-as-usual inventory, will not happen. This estimate is 

very conservative. It does not, for example, include a very important decision made this weekend by the body which sets emission 

standards for all of the Nation, to raise the fuel efficiency requirement for all new homes and offices by between 15 percent and 20 

percent. 

So EPA may not have acted. America has acted. 

Let’s look at the public health. Consistently, repeatedly, time and 

time again, EPA has ignored the recommendations of its own scientific advisers. At one point on the particulate rule, EPA even proVerDate Aug 31 2005 09:01 Jun 11, 2015 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\88912.TXT VERN
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mulgated the interesting scientific notion that the lungs of rural 

Americans were better able to handle the abuses of pollution than 

the lungs of urban Americans. The Bush administration was nothing if not fair. They were very willing to savage their own supporters. 

But if you look actually at what has happened in terms of State 

regulation of clean air, the States have been moving forward. We 

have actually made tremendous progress in the last 5 years in 

spite of the lack of executive leadership. 

On clean water, a similar story. The Administration wanted to 

permit raw sewage to be dumped into drinking water. Congress 

sent them packing. The Administration wanted to issue regulations 

that would have permanently exempted 60 percent of the Nation’s 

waterways from Clean Water Act protection. Republican hunting 

and fishing groups scared them off in 2004. When Florida ignored 

the requirement that it regulate toxic pollution, the courts required 

it to act. 

So the good news is that little of the Bush administration’s affirmative environmental agenda survived. But the bad news is that 

checks and balances don’t work very well to get routine maintenance done. They don’t work very well to get the Nation to pay its 

bills. They don’t work very well to maintain the integrity of governmental processes of the science of the Federal Government, of the 

measuring of the Federal Government, or the bookkeeping of the 

Federal Government. 

And where we have an enormous problem inherited from this 

Administration is in the loss of governmental capacity, scientific integrity, the fact that we have a huge amount of undone routine 

maintenance, whether it is the national parks, our Nation’s sewage 

system, clean water, clean air monitoring. The fact is the next Administration will inherit a Federal Government information process 

which has been fundamentally broken and which James Madison’s 

checks and balances were inadequate to resolve. 

At the end of the day, there are tasks, Madam Chair, for which 

executive leadership is important. I was asked recently whether I 

thought we needed new leadership on the environment in the 

White House. I was forced to respond, that question suggests that 

we have leadership today. 

Thank you very much. 

[The prepared statement of Mr. Pope follows:] 

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Senator BOXER. Well, that sure says it. 

Senator Baucus, I want to take a minute here before we go to 

our next witness to fill you in what has been happening. 

We had planned this a very long time ago, and we had received 

word that we were going to have two witnesses, Robert Meyers, 

Principal Deputy Assistant Administrator from the EPA, and Lyle 

Laverty, Assistant Secretary for Fish and Wildlife. Neither of them 

have shown up. They told us, one said they didn’t want to—where 

is my quote. They called and said they are not here, the EPA, because they didn’t want to be questioned on the issues raised at yesterday’s hearing, in which Senator Whitehouse pretty well asked a 

lot of hard questions on the waiver, and we had other questions. 

And Interior said they couldn’t get their testimony cleared. 

Now, I have never seen anything like this. I went back to essentially the oath they took. They were asked would they—you know 

how we always ask nominees will you always come when you are 

asked. This makes 6 months since Mr. Johnson has been here. I 

know you have a very important hearing on Libby here. So I wanted to give you the sense of what is going on. 

We will go to your opening statement at this time, and then we 

will resume the hearing with Ms. Clark. So please go ahead. 

OPENING STATEMENT OF HON. MAX BAUCUS, 

U.S. SENATOR FROM THE STATE OF MONTANA 

Senator BAUCUS. Well, thank you, Madam Chair. I am very disappointed that the Administration has taken that course of action. 

Clearly, when agencies cooperate and attend, there is a much 

better result for the public good. 

Senator BOXER. Of course. 

Senator BAUCUS. Because at the very least, it enables the relevant agency to come up with ways to make, to improve upon 

something they perhaps not have done or should have done in the 

past. To stonewall causes the public to have even less confidence 

in government. All of us are public servants. The American public 

are our employers, who we work for. We are just the hired hands. 

We are just employees, whether it is us in the Senate or whether 

it is the people who work at EPA, OMB, the Administration or 

what not, because people have entrusted us with making decisions 

that affect their lives. I am just very disappointed, to say the least, 

the EPA has chosen that course of action. 

I thank you, though, for holding this hearing because it is important. Accountability is one of the hallmarks of good government, 

and oversight hearings I think are extremely important in the interests of good government. I have been increasingly disappointed 

over the last 8 years that sound science and public health are waning at the EPA. 

Protecting people and the environment is the mission of the EPA. 

It should be the most important consideration in whatever EPA 

does, whether it is writing regulations or cleaning up a Superfund 

site. When EPA strays from its mission in order to promote special 

interests or to cut costs, people get hurt. 

There is no better example of this than the situation at Libby, 

Montana. You have heard me talk many times about the tragic circumstances of Libby. Libby, Montana is a town plagued by decades 

21 

of asbestos contamination. Hundreds have died, died of asbestos-related disease, and many hundreds more are sick and dying. 

Tomorrow, this Committee will hold an important hearing on the 

failure of EPA to keep public health as the most important goal 

during the cleanup of Libby. Madam Chairman, I thank you for 

holding the hearing tomorrow and for allowing me to chair that 

hearing. This hearing highlights the concerns about the Bush administration’s environmental record and EPA’s conduct with respect to Libby. The hearing tomorrow is another example of the 

topic discussed here today. 

My staff and the Committee staff have conducted an extensive 

investigation of EPA’s handling of Libby, Montana and its failure 

to declare it a public health emergency. This is a relevant topic for 

today’s hearing. I would like to ask consent to enter some of the 

documents uncovered during the investigation in the record today. 

I have them with me. Madam Chairman, these are some of the documents we have uncovered, and believe me, they are alarming. Let 

me read them. 

Senator BOXER. Without objection, they will go into the record. 

Senator BAUCUS. I thank you, and I thank the Chair again for 

allowing me to speak today, and also for chairing the hearing tomorrow, having the hearing tomorrow. It is not only tragic, it is 

stunning in its scope of what EPA has not done, particularly in 

conjunction with OMB. 

In fact, in many respects the EPA was for a while on the right 

track. This was a few years ago, around 2001 and 2002. And then 

something happened, and the something that happened is that the 

White House just put the kibosh on EPA’s actions to not only 

cleanup Libby, but to declare a public health emergency. And then 

the staff all recommended strongly that EPA declare a public 

health emergency. And even Christine Todd Whitman, when she 

was then Administrator, so agreed. But then the White House intervened and said no, and they said no because they did not want 

to pay the cost of cleaning up asbestos in Libby and also paying 

the cost of cleaning up asbestos products in other parts of the 

Country, products that were manufactured with asbestos in Libby, 

Montana. The company is W.R. Grace. W.R. Grace is worse than 

reprehensible in its conduct here. 

But anyway, the point is tomorrow to get this out on the record 

so the public knows what happened. Hopefully, it will lead to a result where we do get this problem addressed, with a public health 

emergency declared so that asbestos products are addressed in attic 

insulation, other installations with asbestos products can be removed, not just in homes in Libby, Montana, but also in other 

parts of the Country. 

So thank you very much. 

Senator BOXER. Senator, I just want to say I know you have such 

a burden on your shoulders with your work here, but you have carried this Libby, Montana issue. I have watched you, you know, seriously fight and fight and fight for justice. I just want you to know, 

as Chair of this Committee, that I am so proud to have you on this 

Committee and to have your voice because, you know, there are 

certain things in life where there is right and there is wrong. It is 

just so obvious. 

22 

And people sometimes say, well, why would the Administration 

not do the right thing? Well, I think you pointed it out. Either they 

don’t want to spend the money or the special interests are behind 

it, and they don’t want any action. We just found out that in perchlorate—you know, that terrible toxic chemical that interrupts the 

thyroid and harms kids and damages their brain—we just found 

out that EPA is not going to set a standard. 

Now, their own scientists have told them you must set a stand 

between one and six parts per billion. There are 35 States that suffer from this toxin. And kids are suffering brain damage. This is 

extraordinary, and they are walking away from it. 

So there is a pattern here, and that is the purpose of this hearing is, and your continuing it tomorrow, is to step back and look 

at all the work we have to do just to repair the damage that was 

done these past 8 years. 

Senator BAUCUS. Thank you very much. 

Senator BOXER. Thank you. 

All right, Ms. Clark. 

STATEMENT OF JAMIE RAPPAPORT CLARK, EXECUTIVE VICE 

PRESIDENT, DEFENDERS OF WILDLIFE 

Ms. CLARK. Thank you, Madam Chair. I am happy to be here 

today. Members of the Committee, I am Jamie Rappaport Clark. I 

am the Executive Vice President of Defenders of Wildlife. I do appreciate the opportunity to testify today. 

I have to say when I was first told, as soon as I got here, about 

the Administration not coming to testify, I was dumbfounded, to 

say the least. I am glad I was given a heads up, because having 

a long career in the Federal Government as a wildlife biologist before accepting a Presidential appointment as Director of the Fish 

and Wildlife Service in the last Administration, it never dawned on 

me that you could actually say no, that you wouldn’t come. Or it 

never dawned on me that I wouldn’t come when asked to explain 

decisions made by our agency or by the executive branch. So that 

is quite surprising. I can assure you that coming up here to explain 

ourselves wasn’t always comfortable. 

I would, however, like to draw a fairly bright line between those 

who have refused to testify and those former career colleagues that 

have worked incredibly hard and quite doggedly over these last 8 

years to protect wildlife and special places. I think they have done 

us all proud. 

Over the past 25-plus years, I have seen the Endangered Species 

Act and how it works from a variety of different perspectives, both 

inside and outside of government. Based on this experience, I can 

say that during these last 8 years, the Administration has largely 

abandoned our longstanding bipartisan commitment to protect endangered and threatened species and their habitat. 

It has slowly starved ESA programs of critical resources. It has 

slow-walked the protection of endangered and threatened species 

by listing fewer than in any previous 8-year period. The Administration, as the Interior Department’s Inspector General and Government Accountability Office has found, has repeatedly politically 

interfered with the science supporting endangered species decisions. 

23 

You will recall 18 months ago after documents were leaked to the 

press, the Administration denied outright, they denied that it was 

considering a massive rewrite of ESA through regulation changes. 

But the proposals published last month certainly demonstrate that 

it never really did abandon efforts to undermine and weaken the 

ESA. 

The section seven consultation requirements are the heart of protections of the Endangered Species Act, but the Administration is 

now proposing to allow any Federal agency to avoid consultation if 

the agency unilaterally—unilaterally—decides that an action it 

sponsors is not anticipated to result in take of an enlisted species, 

and its other effects are insignificant or unlikely. 

Now, that might sound reasonable—in fact, it does on its face. 

It sounds reasonable. Why have consultation if there are no effects? 

But figuring out whether an action will cause take or other effects 

often is the key issue and it can be a difficult one to solve. On 

many occasions, the questions of whether take will occur is not 

readily apparent. To know that requires expertise and in-depth 

knowledge of a species’ biology and behavior. 

Current rules allow Federal agencies to decide whether there will 

be adverse effects in their actions, but the agencies must obtain the 

concurrence of the Fish and Wildlife Service or the National Marine Fisheries Service. Under this Administration’s proposal, however, independent species experts at one of the services would no 

longer review Federal agency judgments about the effects of actions 

that it sponsors. This framework lets the fox guard the chicken 

coop. 

Shifting the responsibility for determining the effects Federal actions will have on listed species to the agency proposing those same 

actions, when those agencies have potentially conflicting missions 

and priorities, will clearly undermine progress toward species recovery. It would be much more effective, and I submit efficient, to 

appropriately fund and staff our existing wildlife agencies and programs to ensure that they can carry out section seven consultations 

in a timely and responsible manner. 

The Administration is also proposing to drastically narrow the 

consideration of Federal agency impacts even when consultation 

does occur. Using some novel concept of essential causation, the 

Administration would eliminate consultation for Federal actions 

that contribute to effects on a species, perhaps even substantially 

if that effect would still occur to some extent without the actions. 

Even though the scientific evidence builds every day that greenhouse gas pollution is a significant cause of adverse effects on wildlife, this Administration would eliminate by fiat by statement, any 

meaningful consideration of the cumulative impacts of this pollution or allow for possible solutions. 

But the changes they propose go well beyond global warming. 

They would make it far more difficult to address all types of cumulative impacts on wildlife so that all listed species today, almost 

1,400 of them, and their habitat could be quietly destroyed a little 

bit at a time, even if the destruction eventually adds up to losing 

the species altogether. 

Perhaps even more harmful are the supposed clarifications proposed by the Administration to the official list of endangered and 

24 

threatened species, which put into place a radical new interpretation of the law. The practical effect of the revisions would be to 

write into law an opinion of the Interior Solicitors Office, the Interior Department’s Solicitor, which reverses more than three decades—the entire implementation of law since it was passed—but 

more than three decades of understanding, by concluding that a 

species eligible for listing may be given protection only in some of 

the places it occurs and not in other places. 

For nearly 35 years before the Solicitor came along with this new 

novel argument, any species that met the Act’s definition of an endangered species or a threatened species received the Act’s protection wherever it occurred. With the stroke of a pen, a political appointee reverses long-settled understanding and did it just with the 

stroke of a pen—no opportunity for public engagement or public 

comment. 

Two years ago, the Senate wisely refused to consider legislation 

that included some of the same concepts that are now found in the 

Administration’s proposals today. Congress should stop these proposals once again. 

Thank you, Madam Chair. I am happy to answer any questions. 

[The prepared statement of Ms. Clark follows:] 

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Senator BOXER. Thank you very much. 

Reverend Jim Ball, President and CEO, Evangelical Environmental Network. Welcome. 

STATEMENT OF REVEREND JIM BALL, PRESIDENT AND CEO, 

EVANGELICAL ENVIRONMENTAL NETWORK 

Reverend Ball. Chairman Boxer, Ranking Member Inhofe—oh, 

he is not here—distinguished members of the Committee, my name 

is Reverend Jim Ball, and I am President and CEO of the Evangelical Environmental Network. It is an honor to testify before you 

today. 

I just want to highlight that we had passed out issues of our latest magazine, and there is a photographic essay on endangered 

species in the issue. I would love to have it included in the record. 

Senator BOXER. Without objection. 

Reverend Ball. My purpose here is to offer moral guidance on 

protecting the environment, which can be found in reflecting upon 

the belief that we are made in the image of God. In Genesis 1:26, 

it states: ‘‘Then God said, let us make humanity in our image, in 

our likeness, and let them rule over the fish of the sea and the 

birds of the air, over the livestock, over all the earth, and over all 

the creatures that move along the ground.’’ 

This text helps us understand the tremendous power God has 

given us as human beings, power to rule, power that can easily be 

misused. It is clear, however, that God intends us to use this power 

in a certain way. With our God-given freedom, we are to image or 

reflect how God would rule on earth, always understanding that 

any authority or power we have does not come from us. 

How we treat both who and what is within our control, within 

our power, is a true test of our moral character as individuals and 

as a society. How we treat who we have the power to help or harm 

is governed by some basic moral principles. We are to: love our 

neighbors; do unto others as we would have them do unto us; and 

protect whom Jesus has called ‘‘the least of these,’’ described elsewhere in scripture as orphans, widows, and aliens or foreigners— 

precisely those who don’t have power and are therefore vulnerable 

to those who do. 

As Jesus helped us see when asked what was the greatest commandment, all of these moral principles ultimately flow out of our 

chief aim as human beings: to love God with all of our heart, soul, 

mind and strength. The major way we love God is by doing God’s 

will, which is another way of saying that we are to freely be whom 

God created us to be: images or reflections of how He would do 

things on earth. Morally, this is how we are to exercise power, as 

a loving and just God would. 

In the United States, how citizens and the government can legally exercise power is determined by you, the legislators, in keeping with the Constitution. When it comes to environmental concerns, how can you or members of the executive branch exercise 

power on behalf of the citizenry in keeping with the basic moral 

principles of loving our neighbors and protecting the most vulnerable? 

Take lead as an example. As the best scientific evidence demonstrates, it clearly causes harm to children. The current standard 

34 

in 1978 is clearly outdated and should be strengthened or improved. My hope is that when the EPA issues their final ruling in 

mid-October, the EPA Administrator will abide by the unanimous 

recommendations of the EPA’s own scientific panel, as well as his 

scientific staff. The same pattern should be followed with ozone and 

particulate matter. Other pollutants to highlight that are not currently regulated, but should be, are mercury and greenhouse gases. 

Thus far, I have briefly discussed how we are to treat who we 

have the power to help or harm. How we treat what we have under 

our control, including God’s other creatures and the natural resources of God’s earth is also very much wrapped up in being made 

in the image of God, of doing God’s will. 

In keeping with our moral obligations as image-bearers, the Endangered Species Act provides for the legal protection of God’s 

other creatures within our power, helping to ensure that the blessing of life and sustenance God has given to his other creatures is 

not turned into a curse by us. Any diminishment of legal protection 

that ensures the survivability of the multitude of species created, 

blessed, and provided for by God runs counter to our calling to rule 

as God would rule. 

On the other hand, the improvement or enhancement of such 

protection is in keeping with our being made in the image of God. 

But don’t be fooled and don’t fool yourselves. As the Apostle Paul 

says, ‘‘Be not deceived; God is not mocked.’’ God knows the difference between real improvements and those designed for other 

purposes that do not enhance protection. 

But just a few verses later, the Apostle Paul offers words of encouragement that are especially important for Members of Congress and your staff to hear: ‘‘So let us not grow weary in doing 

what is right, for we will reap at harvest-time, if we do not give 

up.’’ 

Thus, to be true images of God in our love and service of others, 

especially those within our power, as well as in our dominion or 

care of the rest of creation, is at the core of what it means to be 

a moral being. Will the use of our power be characterized by service, generosity, compassion, and mercy? Or will it degenerate into 

selfishness, greed, and tyranny? 

And so as finite creatures and members of the Senate, your exercise of legal power is tinged with eternity. You can weak or 

strengthen our country’s efforts to protect people, especially the 

most vulnerable, from air pollution and climate change. You can 

stand by and let others weaken them, even though you have the 

power to stop them. You have the same moral choices concerning 

the protection of God’s other creatures. 

So what type of images of God will you be in relation to environmental concerns as you exercise your freedom and power as members of the Senate? True images? True reflections of God’s will, 

God’s love? I pray that God grant you, as well as members of the 

executive branch with authority over the environment, the spiritual 

strength and wisdom to be His true images on earth in your protection of your fellow citizens and God’s other creatures. 

Thank you for your attention, and I look forward to any questions. 

[The prepared statement of Reverend Ball follows:] 

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Senator BOXER. Thank you, Reverend. I really liked that quote 

about never give up because we don’t. 

[Laughter.] 

Senator BOXER. Believe me, the three of us don’t and many others on this Committee and our staff. So we thank you for those 

words. They are very comforting to us. 

Mr. Schaeffer, we are happy to have you, Executive Director, 

Diesel Technology Forum. Welcome, sir. 

STATEMENT OF ALLEN SCHAEFFER, EXECUTIVE DIRECTOR, 

DIESEL TECHNOLOGY FORUM 

Mr. SCHAFFER. Good afternoon. Madam Chairwoman and members of the Committee, my name is Allen Schaeffer and I serve as 

Executive Director of the Diesel Technology Forum. We are a notfor-profit educational group representing the Nation’s leading diesel engine, vehicle and equipment manufacturers, fuel refiners and 

suppliers, including those that make emissions control technology. 

We are delighted to be here today to discuss the actions at the 

Environmental Protection Agency relative to the Clean Air Act over 

the last 8 years. Specifically, our focus will be on diesel engines, 

equipment and fuels. 

The last 8 years have seen actions that compel the fundamental 

transformation to a new generation of diesel engines, fuels, and 

emission control technologies. We refer to this as clean diesel. By 

definition, this is the combination of advanced engines, cleaner 

fuels, and new emissions control devices all working together. 

Clean diesel is the future. It is a system that will soon be standard equipment on every diesel engine and piece of equipment in 

America, including a whole new generation of clean diesel cars now 

coming to market. Moving to this clean diesel technology has involved both conventional and non-conventional approaches by industry, the EPA and other stakeholders. In a practical sense, it 

means stringent new engine emissions standards, a switch to a 

cleaner diesel fuel, but also a voluntary collaborative approach to 

reduce emissions from existing engines and equipment. 

For engine manufacturers, it has required substantial innovation 

and breakthroughs in emissions control technology. For fuel refiners, it has required substantial and unprecedented investments to 

clean up diesel fuel. 

With regard to new engines, over the last 8 years the EPA has 

enacted the most stringent emissions standards on the diesel industry in history, requiring more than a 90 percent reduction in 

emissions of particulate matter and nitrogen oxides from their previous levels. This effort began in 2000 with rules adopted by the 

Clinton administration, which were subsequently defended, implemented and expanded to other equipment sectors by President 

Bush and the current Administration. 

As a result of the EPA’s numerous regulatory actions, the pathway to cleaner diesel engines and fuels to achieve much lower 

emissions is now in place from everything from small construction 

equipment, farm machinery, highway commercial trucks, freight locomotives, marine vessels, work boats, and very large off-road machines and mining equipment, and most recently to a new generaVerDate Aug 31 2005 09:01 Jun 11, 2015 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\88912.TXT VERN
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tion of clean diesel passenger cars that now meet the emissions 

standards of all 50 States. 

A graphical representation of the continuous improvement in diesel engines is provided as an appendix to this testimony. 

The foundation of this success story was the switch to cleaner 

diesel fuel, which we refer to as ultra-low sulfur diesel. This is a 

critical aspect of the clean diesel system because it enables the use 

of advanced emissions control devices. The last time a major 

change in diesel fuel formulation took place was in 1993, and resulted in spot supply shortages and vehicle performance problems 

for the first 6 months of the fuel transition. Older truck engines 

were particularly affected in California. Enforcement waivers had 

to be granted, and the switch was viewed as problematic on a number of fronts. 

This time around, EPA took a number of steps to assure a 

smoother transition, including convening a panel of stakeholders to 

monitor implementation of the fuel refining requirements, as well 

as providing information to those that had to comply with the rule 

through the Clean Diesel Fuel Alliance with the Department of Energy and industry and other stakeholders. 

While not perfect, the October 15, 2006 roll-out of clean diesel 

fuel was a marked improvement over 1993. EPA mostly succeeded 

in meeting the goal of a smoother transition to the new fuel that 

was transparent, had widespread fuel availability for 2007 and 

later-year model trucks and diesel cars which required the use of 

this new clean fuel. Work continues today toward assuring consistent nationwide supply and meeting the final 100 percent availability requirement by December 31, 2010. 

As a result of this progress, many stakeholders have come together to applaud the contribution of ultra-low sulfur diesel fuel 

and clean diesel technology to the Nation’s clean air progress. Our 

group partnered with the Natural Resources Defense Council in a 

joint press conference heralding the switch to new clean diesel fuel 

in October 2006. 

EPA has also closely collaborated with California on the adoption 

of many diesel engine emissions and fuel quality standards, and 

has been helpful in raising awareness about the fuel savings potential for a new generation of clean diesel cars that get 20 percent 

to 40 percent better fuel economy than a gasoline vehicle. 

I would like to turn now to non-conventional approaches. While 

the Administration has implemented a substantial number of regulations that impact new engines, it also has worked to reduce diesel 

emissions and improve air quality by pursuing some non-conventional and non-regulatory approaches for existing engines and 

fuels. 

Because diesel engines are renowned for their durability and 

long lives, in 2000 EPA announced the creation of a new voluntary 

program called the Diesel Retrofit Initiative. Through this program, EPA hopes State and local governments, fleet operators, and 

industry could complement the reductions coming from regulatory 

actions by using newly available technology on existing heavy-duty 

trucks, buses and equipment. A goal at that time was set to reduce 

emissions from more than 11 million diesel engines. 

53 

Subsequent efforts followed, known as Clean School Bus USA 

and other diesel retrofit initiatives through the construction sector. 

One of the key reasons for EPA’s success in promoting this program was the creation of regional diesel collaboratives, where they 

invited industry and environmental groups, as well as State and 

local governments, to focus on projects and concerns of regional interest. EPA brought an important energy and attention to this critical issue and offered Federal support, while letting local stakeholders have flexibility to set their own priorities. 

The key to the success of the national clean diesel retrofit effort 

is funding for end-users like school districts, refuse haulers, contractors, trucking fleets and others so that they can implement 

these new technologies. 

Here, Congress and this Committee in particular, continue to 

play a vital role. Senators Carper and Voinovich in 2005, along 

with Senator Clinton and others on the Committee, undertook a bipartisan effort to help advance clean diesel retrofit through the 

Diesel Emissions Reduction Act, otherwise known as DERA, a portion of the 2005 energy bill. DERA provides funding for the voluntary retrofit initiative authorized at up to $200 million a year for 

each of 5 years. 

This year, we have our first appropriation and the success is 

really substantial. State grant programs have generated interest 

now from all 50 States. Every single State has expressed interest 

in this program, with 35 providing their own matching funds. It is 

a real testament to the success of the initiative. The only criticism 

we have heard about the program, besides the desire for full funding, has been around the coordination of EPA and California’s efforts to verify new technology. 

In conclusion, the transformation to clean diesel is well at hand, 

and by any measure is a success story with industry, environmental stakeholders and the EPA working together. Manufacturers 

are delivering on the challenge to the production and delivery of 

clean diesel commercial trucks since last year. Refiners have delivered cleaner diesel fuel and continue to expand its availability. 

End-users that have acquired the new technology are finding it to 

meet or exceed their expectations for performance. 

Every category of stationary and mobile diesel engines, with the 

exception of ocean-going container vessels, is now on the path to 

clean diesel fuel and low-emissions technology. And finally, there 

is genuine excitement about the new generation of clean diesel cars 

which is coming here in the U.S. beginning this year. The voluntary incentive-based programs EPA has championed through its 

National Clean Diesel Campaign and the SmartWay Transport 

Partnership will play a greater role in reducing emissions and saving energy in the future. 

Congress has placed an important role in authorizing and appropriating funds for these voluntary incentive programs, and consumer tax credits for light duty advanced lean-burn diesel vehicles. 

Your continued support in this area is needed. 

Thank you for the opportunity to appear today. 

[The prepared statement of Mr. Schaeffer follows:] 

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Senator BOXER. Thank you very much, sir. 

I know that Senator Klobuchar had a statement to make, so I 

will call on her. 

OPENING STATEMENT OF HON. AMY KLOBUCHAR, 

U.S. SENATOR FROM THE STATE OF MINNESOTA 

Senator KLOBUCHAR. OK, thank you very much, Chairwoman 

Boxer. I want to thank you for holding this important hearing and 

for your diligence and perseverance in the face of many obstacles 

in trying to push these environmental issues. 

I have to tell you, and I want to thank our witnesses for all being 

here. I wish, Mr. Schaeffer, that every environmental issue we 

dealt with was handled on a more bipartisan basis, but that just 

hasn’t happened with many of the ones that the witnesses referred 

to here. 

My State has operated that way in the environmental area. We 

have a Republican Governor, a Democratic legislature, and we have 

been able to enact one of the most aggressive renewable portfolio 

standards in the Country—25 percent by the year 2025 for renewables. Part of it is I think we see it, as I know most States in the 

Country do, is that the environment and the world around us part 

of our way of life. 

I always like to ask people how much money you think we spend 

on worms and bait in Minnesota. Would you like to answer that, 

Mr. Pope? Every year, how much money do you think we spend on 

worms and bait? 

Mr. POPE. I don’t know, but I am sure the number is large, Senator. I am sure you do know. 

Senator KLOBUCHAR. It is $50 million for fishing in Minnesota, 

and it is just a good example of how clean water and mercury-free 

water is part of our way of life in our State. I have been really 

emboldened by some of the groups that have come out to support 

work on climate change in our State. Snowmobile groups testified 

because they have seen the effect that the lack of snow and the 

warmer temperatures have had on recreation. Ski clubs have testified. It is not just the little kids with penguin buttons on anymore. 

So despite all of the resistance—and that is putting it mildly— 

we have experienced with this Administration, I see hope in the 

way that groups have been able to come together. I think of the 

blue-green alliance between some of the environmental groups and 

the labor groups. I think, Reverend Ball, about the work that the 

religious community is doing and all the hearings that Chairwoman Boxer had that have brought together different groups that 

want to come together and get something done. 

The second reason I believe it is so important in our State is our 

State believes in science. We brought the world everything from 

the post-it note to the pacemaker. We are the home of the Mayo 

Clinic. We believe that you shouldn’t hide science. That is why I 

have been so shocked in my first year-and-a-half in the Senate to 

have this endangerment finding on the Clean Air Act and on climate change and greenhouse gases that we have to look at it in 

a back room with three Senators. I have been told we can’t even 

make a copy of it. 

69 

I didn’t really think it was some top security secret. I thought it 

was something that the public should be able to have. And so I am 

looking forward to next year with a fresh start that we will be able 

to bring this science into the realm of this Committee room from 

a new Administration. 

And then finally, as you so eloquently talked about, Reverend 

Ball, I just see this as a moral issue. When I gave the prayer at 

the National Prayer Breakfast for world leaders, I talked about the 

prayer of the Ojibway Indians in our State, where they talk about 

how decisions have to be made not for today, but for those seven 

generations from now, and that we have that moral obligation as 

leaders. That is why I have so appreciated Chairwoman Boxer’s attempt to work across the aisle and get things done. I know we are 

going to have success next year. I can feel it in my bones, but it 

has been a very difficult year for us. 

So I just want to thank all the witnesses for being here and for 

participating. I will make you a promise. There is a reason I am 

in the gang of 20 on the energy issue. I don’t agree with everything 

that the other side has, but I think we need to work together better. But it has made it nearly impossible in the environmental area 

with this Administration, and that just has to change next year. 

Senator BOXER. Yes, it does, and it will. 

I was thinking, if any of you could shed light, I particularly think 

perhaps Carl and Jamie might the ones on this particular question. 

I was struck by how many executive orders there have been, you 

know, where they have back-doored a lot of the rules and regs. 

Have either of you studied that? You know, in other words, if you 

don’t want to obey the law, there are various ways. First, you can 

try to get it repealed. No one is going to repeal the Endangered 

Species Act. It is just not. The bald eagle symbolizes a lot of what 

was said, so we are not going to do that. So there are ways—you 

know, obviously they have put forward a plan to do that. 

But just in terms of executive orders, Carl or Jamie, have you 

taken a look at how many have been issued and how many could 

be repealed on the first 100 days of the new President if he desired 

to? 

Mr. POPE. Well, they have done almost everything with executive 

orders or things that are less. Executive orders at least are public 

documents. You have to tell people about them. An extraordinary 

amount of what they have done they have been unwilling to tell 

people what they are doing. We don’t really know, for example, 

what the enforcement advisories to the Army Corps of Engineers 

and EPA are with regard to the jurisdiction of the Clean Water Act 

over intermittent headwater streams. 

We do know that at least 500 cases that we have been able to 

ferret out, you know, basically by hiring detectives, that in at least 

500 cases waterways were not protected by the Clean Water Act 

because some Federal bureaucrat or some political appointee decided the Clean Water Act didn’t apply, and that although this was 

a waterway and it was within the United States, it was not in a 

legal sense a water of the United States. 

So I think that in fact the amount of legally instantaneous improvement to be achieved is enormous. The challenge is that what 

is legally instantaneously achieved may not be achievable if you 

70 

don’t have the staff, you don’t have the science, you don’t have the 

budget, you don’t have the morale on the part of civil servants to 

do the job. There is a major leadership challenge to get this stuff 

undone because these agencies have been so badly damaged. But 

legally, the next President will have a relatively open field. 

Senator BOXER. Do you want to add to that, Jamie? 

Ms. CLARK. Well, I haven’t counted, but it is clear that this Administration has been incredibly frustrated legislatively. What they 

have not been able to achieve legislatively, they have worked very 

hard to deal with administratively. 

Worse than that, they are increasingly doing it under the radar. 

So there is not opportunity for public engagement, public input, as 

Carl was mentioning. And clearly as it relates to Interior and the 

issues that Defenders of Wildlife deals with on a daily basis, the 

Endangered Species Act is one of the best examples. They have 

been thwarted by you and others, thankfully, up here to in essence 

gut the ESA, which has served us so well. 

One of the best examples—executive order notwithstanding—is 

what is happening in the Solicitor’s office. By fiat of a Solicitor, 

they totally changed the way that the Endangered Species Act is 

implemented through the writing of creative opinion. It is tantamount to changing the law. It has undone 35 years of interpretation by the biologists. 

Senator BOXER. Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. 

Ms. Clark, you have held significant executive office. 

Mr. Pope, you have referenced the great James Madison, so I will 

direct a question to you about the point that I made in my opening 

statement. 

I guess, simply put, the question is, does someone who undertakes the duties of an executive position undertake any duties 

other than the duty of obedience to the White House? 

Mr. POPE. Well, I suppose that depends on whether you address 

that question to anybody prior to Vice President Cheney or to Vice 

President Cheney. It is clear that in this Administration, the view 

is that in fact the oath of office is an oath of office to the President. 

That is what their interpretation of the unitary executive means. 

Now, if you asked me if I can find any shred of validation in 

American political, judicial, legislative or constitutional history, I 

can’t, and the Vice President has never offered any. But if you really look at the way they behave, and you look at the way in which 

the founding fathers described the way the British cabinet and the 

British Parliament interacted with King George, the parallels are 

eerie. 

Senator WHITEHOUSE. There was some—I will let you answer as 

well, Ms. Clark—but Mr. Pope has prompted my recollection of a 

telling moment in a Judiciary Committee hearing when one of the 

loyal Bushes who was testifying referenced having sworn her oath 

of office to the President. Of course, Chairman Leahy pounced on 

that in a moment, and interrupted and said, wait a minute, didn’t 

you swear an oath to the Constitution? 

And then rapid back-peddling began, but it was a telling moment 

and relates very much to the questions we have heard about of in 

theory nonpartisan positions at the Department of Justice, with the 

71 

candidates facing the inquiry of what is it about George W. Bush 

that makes you want to serve him, which again I think is a bit 

more consistent with the realm of King George than it is with the 

United States of America that I grew up in and was trained about 

as a lawyer. 

Ms. Clark. 

Ms. CLARK. Well, Senator, I can only speak from personal experience. 

Senator WHITEHOUSE. What did you feel when you took your 

oath of office? 

Ms. CLARK. Well, it was quite clear to me. I was also kind of 

brought along through the confirmation process as a career biologist within the agency first. It was absolutely clear to me that I 

was swearing to uphold the Constitution, and to steward the laws 

and regulations under the governance of the Fish and Wildlife 

Service, under the authority of the Fish and Wildlife Service. 

That certainly didn’t mean that I was going to ‘‘disobey the 

White House.’’ And there was often great conversation with the 

Secretary of Interior and the White House. But there was not a 

question ethically or from a performance base that we were swearing to uphold the Constitution. That is how my Senate confirmation hearing went and that is how the swearing-in ceremony went. 

So that was paramount. 

Senator WHITEHOUSE. Which of course, to confirm and State the 

obvious, includes the requirement that even the President of the 

United States faithfully execute the laws. 

Thank you, Madam Chair. 

Senator BOXER. I just want to thank this panel so much. 

I want to thank Senator Whitehouse so much. 

This has been a difficult time for us because it is hard to make 

progress when people don’t show up. You know? At least you have 

a chance in discourse to try to persuade one another. And when 

they don’t show up—and in Mr. Johnson’s case for 6 months—it is 

really difficult. 

I want to say, working on the global warming legislation was one 

of the greatest experiences in my life, and to shepherd it through 

this Committee was one of the best accomplishments that I could 

talk about. 

And just having the faith community come to the table was really wonderful, Reverend Ball. 

And I want to say to Carl here that I think you know how much 

Carl Pope of the Sierra Club was such an advocate in saying to me 

they need to be part of this and they need to be happy, and this 

has got to be done, all of us together. 

So having all of you here is really great. I wanted to say, we got 

a beautiful letter from the National Council of Churches, and I 

thought, you know, it was very much, Reverend Ball, the same effect of yours, just making us sit back for a moment and understand 

that there is a whole spiritual component to what we do. 

I thought just one very simple sentence in here I think is important: In a time of growing environmental concerns, it is important 

that the EPA and those agencies with the needed expertise and experience remain vigilant in protecting God’s earth and God’s people. 

72 

I mean, that is it in a very simple way. That is all we are asking 

from Mr. Johnson. We are not asking anything other than what he 

is supposed to do. 

Mr. Schaeffer, having you here was wonderful. You told a good 

story and we started taking care of these diesel engines back in the 

Clinton era and we continued with the progress, crossed over party 

lines. This is an example of how it should be. 

Unfortunately, there are so few examples of this, maybe a few, 

a scant few. And the rest of it has really been—and I am not going 

to overState it—it has just been a war against the environment, to 

be honest. I use those words carefully, but that is what it has been 

because every day, you know, we hear about another repeal, another executive order, another outrageous decision, another ducking of an obligation. 

And it is just—you know, Bettina now, she calls me. I know 

when she calls me on Friday afternoon, late Friday, that something 

terrible has happened. 

Senator WHITEHOUSE. For the Saturday papers. 

Senator BOXER. What? Yes, for the Saturday papers. You know, 

they hope no one is going to notice it, but that is why we do this 

oversight, as Senator Whitehouse alluded to, because we need to 

set the record straight. 

Well, all of you are our allies in this. We work for the people and 

that is it. So I just want to say that I hope better days are coming 

in so many ways. We have a financial crisis that needs to be dealt 

with in the right way, and we are trying to do that. We have an 

environmental crisis that is going to have to wait until the next 

Administration because this one won’t come to the table—unheard 

of—but we will not stop what we have to do. 

Senator Whitehouse, I know you have some closing remarks. 

Please proceed. 

Senator WHITEHOUSE. I just wanted to, with respect to the boycott of this hearing by the Administration witnesses, State that I 

thought that the questions that I was asking Mr. Meyers yesterday 

were ones that merit answer. Clearly, he was having substantial 

difficulty. I don’t know that the record of the hearing would reflect 

it because the record is not well-suited to long gaps of silence. 

But there were extremely long gaps of silence—30 seconds, a 

minute—while he sat there trying to puzzle his way through to an 

answer that would neither commit perjury by him, nor reveal perjury by the by the Administrator. And I think that stumped him 

in those times, but as I said, I think these are questions that merit 

an answer. Although clearly, as this Administration winds down 

and slinks off-stage, there is no appetite for meeting further with 

us, I hope that those questions get answered anyway. 

Frankly, I hope that with respect to our request, somebody from 

the Department of Justice interviews Robert Meyers and continues 

that examination and gets those answers, and doesn’t get fobbed off 

by the short timeframe we have to work with in these hearings. I 

think he is a witness who would—it would be very interesting and 

I think useful to have half an hour or an hour to examine him 

under oath and be able to run down questions and get to the bottom of his answers. 

73 

I very much hope that somebody at the Department of Justice 

who is looking into the letter that the Chairman sent and that I 

sent, follow up on this, because I think that he does have only two 

choices. He can either perjure himself or reveal the perjury of his 

Administrator. 

Thank you. 

Senator BOXER. I think that is a very important statement that 

you made. Anyone who followed yesterday’s hearing, it was one of 

the most—it was such a long silence, that I had forgotten what the 

question was, and the poor clerk here had to go back and find the 

question. It was just on and on. 

I am going to put in the record, without objection, the statement 

of the National Council of Churches, which goes very well with 

Reverend Ball’s. 

[The referenced document was not received at time of print.] 

Senator BOXER. I am really stunned today that they are not 

showing up. It speaks volumes to their disdain for the American 

people, because after all, we represent the American people. That 

is our job. We don’t have any other power other than that which 

we derive from them. So when they don’t come to Congress, they 

are not talking to us, they are not talking to the American people. 

These are tough, tough days. We have a few more tough days 

ahead of us. But the American people have to know the truth. As 

we look at this investigation, perjury, on the whole issue of the 

waiver, we have sent over the fact that these witnesses, Mr. Johnson, these officials, Mr. Johnson and Mr. Laverty—right?—Mr. 

Johnson and Mr. Laverty told us that they would appear anytime 

we asked them. That was the condition upon which—if they had 

said no, that would have been the end of it, but they meant no, 

maybe. 

We didn’t say, will you appear when you are in the mood or if 

you feel good and have a good cup of coffee. We didn’t say will you 

appear when you think it is good for you and not when you don’t. 

We didn’t say any caveat. We said what we have to say: Will you 

come to a duly constituted hearing? 

I have to say, Senator Inhofe—this is a fact, this will come out— 

tried not to have a duly constituted hearing. I wanted to make sure 

you knew he was going to object to our meeting, and that is why 

we had a recess. We almost didn’t have this hearing. We almost 

had a briefing because I think they knew for them not to show up 

here, they could have not shown up if it was a hearing. But if it 

is a hearing, they have to show up. 

So it is an unpleasant sticky wicket. When Congress wants to do 

its job, and we know it is not pleasant. I wouldn’t want to be Mr. 

Johnson facing me and Sheldon Whitehouse. But you know what? 

That is his job. He has to face us. And if he is such a coward, he 

ought to resign, which is what we asked him to do, instead of traveling around the world on taxpayer dollars going to Israel and Jordan and going on some fancy-dan ship. Somebody said he went on 

this ship where they had a show or something, but he missed the 

show? Did he miss it? I guess he was so busy. 

He tried very hard to make the ventriloquist show, but he may 

not have made it because he is just so busy. 

All right, enough said. 

74 

Thank you. 

We stand adjourned. 

[Whereupon, at 12:35 p.m., the committee was adjourned.] 

[Additional material submitted for the record follows.] 

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