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47–126 PDF 2009

EPA’S NEW OZONE STANDARDS

HEARING

BEFORE THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

MAY 20, 2008

Serial No. 110–117

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

——— ———

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

JIM JORDAN, Ohio

PHIL SCHILIRO, Chief of Staff

PHIL BARNETT, Staff Director

EARLEY GREEN, Chief Clerk

LAWRENCE HALLORAN, Minority Staff Director

(III)

C O N T E N T S

Page

Hearing held on May 20, 2008 ............................................................................... 1

Statement of:

Grifo, Francesca, senior scientist, Union of Concerned Scientists; Michael

Goo, climate legislative director, Natural Resources Defense Council;

Roger O. McClellan, advisor, Toxicology and Human Health Risk Analysis; and Alan Charles Raul, partner, Sidley Austin LLP ........................ 166

Goo, Michael .............................................................................................. 203

Grifo, Francesca ......................................................................................... 166

McClellan, Roger O. .................................................................................. 243

Raul, Alan Charles .................................................................................... 256

Johnson, Stephen L., Administrator, U.S. Environmental Protection

Agency; Susan E. Dudley, Administrator, Office of Information and

Regulatory Affairs; and Rogene F. Henderson, Chair, Clean Air Scientific Advisory Committee .......................................................................... 66

Dudley, Susan E. ....................................................................................... 76

Henderson, Rogene F. ............................................................................... 86

Johnson, Stephen L. .................................................................................. 66

Letters, statements, etc., submitted for the record by:

Dudley, Susan E., Administrator, Office of Information and Regulatory

Affairs:

Letter dated May 20, 2008 ....................................................................... 148

Prepared statement of ............................................................................... 78

Goo, Michael, climate legislative director, Natural Resources Defense

Council, prepared statement of .................................................................... 205

Grifo, Francesca, senior scientist, Union of Concerned Scientists, prepared statement of ........................................................................................ 169

Henderson, Rogene F., Chair, Clean Air Scientific Advisory Committee,

prepared statement of ................................................................................... 88

Higgins, Hon. Brian, a Representative in Congress from the State of

New York, prepared statement of the American Lung Association .......... 123

Issa, Hon. Darrell E., a Representative in Congress from the State of

California, memorandum dated May 2, 2008 ............................................. 273

Johnson, Stephen L., Administrator, U.S. Environmental Protection

Agency, prepared statement of .................................................................... 68

McClellan, Roger O., advisor, Toxicology and Human Health Risk Analysis, prepared statement of ............................................................................ 245

Raul, Alan Charles, partner, Sidley Austin LLP, prepared statement

of ..................................................................................................................... 258

Watson, Hon. Diane E., a Representative in Congress from the State

of California, letter dated May 16, 2008 ..................................................... 154

Waxman, Chairman Henry A., a Representative in Congress from the

State of California:

Memoranda by majority and minority ..................................................... 9

Prepared statement of ............................................................................... 4

(1)

EPA’S NEW OZONE STANDARDS

TUESDAY, MAY 20, 2008

HOUSE OF REPRESENTATIVES,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 1:46 p.m., in room

2154, Rayburn House Office Building, Hon. Henry A. Waxman

(chairman of the committee) presiding.

Present: Representatives Waxman, Cummings, Kucinich,

Tierney, Watson, Higgins, Hodes, Sarbanes, Welch, Platts, Cannon,

Issa, Bilbray, and Sali.

Staff present: Phil Barnett, staff director and chief counsel; Kristin Amerling, general counsel; Karen Lightfoot, communications director and senior policy advisor; Greg Dotson, chief environmental

counselor; John Williams, deputy chief investigative counsel; Alexander Teitz, senior environmental counsel; Jeff Baran and Erik

Jones, counsels; Jen Berenholz, deputy clerk; Matt Siegler, special

assistant; Caren Auchman, press assistant; Leneal Scott, information systems manager; Rob Cobbs, William Ragland, and Miriam

Edelman, staff assistants; Larry Halloran, minority staff director:

Jennifer Safavian, minority chief counsel for oversight and investigations; Keith Ausbrook, minority general counsel; A. Brooke

Bennett, Ashley Callen, and Kristina Husar, minority counsels;

John Cuaderes and Larry Brady, minority senior investigators and

policy advisors; Patrick Lyden, minority parliamentarian and member services coordinator; Benjamin Chance, minority professional

staff member; Ali Ahmad, minority deputy press secretary; and

John Ohly, minority staff assistant.

Chairman WAXMAN. The committee will please come to order. Today’s hearing will focus on several recent decisions that are of fundamental importance to our health and the environment.

I have worked on health and environmental issues for decades,

and I know that regulatory decisions in these areas can be very

complex. But the law is clear: While all of us may have views as

to what we may want the outcome to be in any rulemaking, we

don’t necessarily get the outcome we want. We are not entitled to

specific results, but what we are all entitled to is a fair process that

is based on the science, the facts, and the law.

That impartial and rigorous system is one of the critical pillars

of our Government.

Unfortunately, President Bush seems to believe these rules don’t

apply to him. On key issues, this administration has pushed ahead

with its agenda despite the evidence and the law. We know that

is what happened on the decisions to launch the Iraq war; it hapVerDate 11-MAY-2000 12:34 Feb 23, 2009 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\47126.TXT KATIE PsN: KATIE
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pened again on decisions authorizing torture; and it happened

when the White House fired independent and nonpartisan Justice

Department officials.

For months this committee has been investigating recent Environmental Protection Agency decisions relating to both global

warming and the new air quality standards, and after reviewing

nearly 60,000 pages of internal documents and interviewing officials involved in the rulemakings, we have found evidence that the

White House often ignored the facts and the law.

The first rulemaking was a response to California’s petition to

regulate greenhouse gas emissions from cars and light-duty trucks.

Under the Clean Air Act, EPA must approve California’s request

unless it finds the proposal is arbitrary, isn’t technically feasible,

or isn’t justified by compelling and extraordinary conditions.

The record is overwhelming that EPA’s experts and career staff

all supported granting the California petition. In one internal document, EPA’s own lawyer said: ‘‘We don’t believe that there are any

good arguments against granting the waiver. All of the arguments

are likely to lose in court if we are sued.’’

Administrator Johnson apparently listened to his own staff people. The committee has learned that before communicating with

the White House, the Administrator supported granting a partial

approval to California’s request, but then the White House intervened. In December, after secret communications with White

House officials, Administrator Johnson ignored the law and the evidence and denied California’s petition.

The second EPA rulemaking revised the air quality standards for

ozone air pollution to protect both human health and the environment.

In this case, EPA’s expert advisory committee, the Clean Air Scientific Advisory Committee, unanimously recommended a new

standard for protecting the environment. After considering all of

the alternatives, Administrator Johnson agreed with this new approach, which is called a seasonal standard. In a submission to the

White House, he described the case for the new standard as ‘‘compelling,’’ and he said that there was no evidence from the perspective of biological impact supporting the alternative standard favored by industry.

But once again the White House intervened. On the evening before the final rule was released, President Bush rejected the unanimous recommendation of both EPA’s scientific experts, lawyers,

and Administrator Johnson and instructed EPA to abandon the

new standard.

The committee’s investigation reveals that EPA officials were astounded by the President’s decision and said it wasn’t supported by

either the science or the law. One official wrote, ‘‘I have been working on National Ambient Air Quality Standards for over 30 years

and have yet to see anything like this.’’

Another wrote, ‘‘We could be in a position of having to fend off

contempt proceedings. The obligation to promulgate a rule, arguably, means to promulgate one that is nominally defensible.’’

And an EPA Associate Director observed, ‘‘This looks like pure

politics.’’

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The same thing happened in a third critical rulemaking. Last

April the Supreme Court directed EPA to determine whether CO2

emissions endanger health and the environment and must be regulated under the Clean Air Act. This is a Supreme Court decision,

and under Administrator Johnson EPA assembled a team of over

60 career officials to work on this hugely important regulation. The

staff determined that CO2 did endanger the environment and drafted proposed rules to reduce tailpipe emissions.

To his credit, Administrator Johnson listened to his staff and

sent an official ‘‘endangerment finding’’ to the White House. That

endangerment finding means that the regulation should go forward. Jason Burnett, the Associate Deputy Administrator, told the

committee that he personally transmitted the Administrator’s determination to the White House in December.

Yet once again the White House ignored the law, the science, and

Administrator Johnson. Two months ago EPA was forced to announce that the agency would go back to square one and start the

rulemaking process all over again.

In each of these rulemakings, the pattern is the same: The President apparently insisted on his judgment and overrode the unanimous recommendations of EPA’s scientific and legal experts.

Now, our investigation has not been able to find any evidence

that the President based his decisions on the science, the record,

or the law. Indeed, there is virtually no credible record of any kind

in support of the decisions.

I recognize and support the broad powers our Constitution vests

with the President of the United States. But the President does not

have absolute power, and he is not above the law. The President

may have a personal opinion about the new ozone standards, California’s regulation standards, and regulating CO2, but he is not allowed to elevate his views above the requirements of the law.

This is an important hearing, and I look forward to learning

more from our witnesses.

[The prepared statement of Chairman Henry A. Waxman follows:]

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Chairman WAXMAN. Before we proceed with hearing the witnesses, I want to recognize Mr. Issa, who is sitting in for Tom

Davis, the ranking member of the committee, with an opening

statement.

Mr. ISSA. Thank you, Mr. Chairman, and thank you for expressing the majority position extremely well. As we often say here in

Washington, we are all entitled to our opinions, just not our facts.

The appropriate role of the President was established in the Constitution and has been revisited on numerous occasions by all three

branches of Government. Presidents of both parties have asserted

the right to oversee and direct the actions and decisions of regulatory agencies. President Clinton offered a prime example of an

aggressive Executive who was constantly involved in directing regulatory actions. Indeed, the Executive order that gave rise to today’s hearing was issued by President Clinton in 1997.

I say this to remind the chairman that the goal of this hearing

is to investigate whether or not the President provided his opinions

to EPA Administrator Stephen Johnson. On the issue of National

Ambient Air Quality Standards [NAAQS], for ozone, it is pretty

open and shut. He did.

The President makes no pretense that he did not, as might have

been implied by the other opening statement. We knew that on

March 12, 2008, a memo sent from Susan Dudley informing Administrator Johnson of the President’s judgment on the secondary

NAAQS standard. That memorandum is part of EPA’s public docket on the ruling and has been available to staff since the initiation

of the ozone investigation. In fact, the smoking gun is on the Web

site.

Moreover, the President’s involvement in the ozone NAAQS discussion does not reflect any unusual or improper action. His involvement was pursuant to a process established by the Clinton

Executive order. That order openly declares the President’s role in

major rulemakings, namely, that the President will resolve disagreements between an agency and the Office of Management and

Budgets Office of Information Regulatory Affairs [OIRA].

Accordingly, according to the record, the President himself accepted OIRA’s conclusions; therefore, the President carried out his

constitutional responsibility consistent with the precedent an applicable Executive order and the Clean Air Act.

I would also like to remind members of this committee that a difference over policy outcomes does not necessarily make a policy

outcome fatally flawed, meaning that in fact we can disagree but

at the end of the day law is discretionary in this case, and when

followed, as it was by the President or any President, he may

choose among a variety of policy options.

It should not be surprising that the policy opinion chosen by a

President of one party differs from the policy opinion that a Member of Congress from another party would have chosen, nor should

it be a reason to cast blameless aspersions or discredit the deliberative process used to arrive at that decision. From the beginning

EPA had proposed the option of either setting a secondary standard equal to the primary standard or alternately adopting a more

biologically relevant standard, the so-called W–126 standard of 21

parts per million per hour.

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Given the legitimate role of the President in this decision and the

legitimate choices before him, it appears this kind of oversight simply seeks to bully the President into making a decision supported

by some Members of Congress. This is raw politics. The majority

supposes that the unwelcome decision is an unlawful one. The

President concluded within his discretion, the ozone standard

should be set at 0.075 because of the uncertainty of any benefit at

a lower level.

Democrats can have a different judgment about the uncertainties

and their benefits, but that does not make the President’s decision

improper in any way. If some Democrats want a stricter ozone

standard, they could pass legislation to impose one. They have not

done this and do not appear to be ready to do so, at least in part

because some Members of their party disagree.

Finally, with respect to the proper role of the Clean Air Scientific

Advisory Board, in plain language the Clean Air Act expressly

states that CASAC is advisory, not a standard-setting panel and

not a policymaking panel. Under no circumstances does the Clean

Air Act require the Administrator to simply rubber-stamp CASAC’s

findings. The Advisory Committee is directed to review the science

and make recommendations to the Administrator.

By definition, ‘‘recommendations’’ can be rejected. With respect to

the ozone NAAQS standard in particular, there is no bright line in

the science today regardless of those who would like to seek one

that shows that above-level ozone is unhealthy and below the level

it is somehow of no danger.

Accordingly, setting the NAAQS level for ozone is necessarily a

policy judgment entrusted to the Administrator and claiming that

science dictates a certain outcome is contrary to both science and

law. It is worth noting the EPA has spent over 3,200 staff hours

in producing over 65,000 pages of documents in their effort to comply with the committee’s demands.

OIRA has been similarly responsive, turning over somewhere between 6,800 and 7,900 document pages, and participated in half a

dozen in-person meetings in conference calls in support of accommodating this committee’s needs. Throughout the process the majority has praised the EPA in their efforts to accommodate the committee’s demanding production schedule and acknowledge the

logistical difficulties involved in such a voluminous document production.

Finally, I understand the committee has recently released a

memorandum summarizing the majority’s findings with respect to

both ozone investigation as well as the California waiver investigation. The minority has also drafted a separate memorandum based

on our own independent evaluation of the facts. I ask that the minority documents be inserted into the record at this time.

Chairman WAXMAN. Without objection, all of the memoranda provided by the majority and minority staff will be made part of the

record.

[The information referred to follows:]

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Mr. ISSA. Thank you very much, Mr. Chairman. I look forward

to this fact-finding hearing. I believe it is appropriate to ask when

there are differences in opinions, because I believe Congress has an

oversight role, but as I said in my opening statement, it is very

clear the President was within his discretion in this case, based on

the facts presently available.

With that, I yield back.

Chairman WAXMAN. Thank you, Mr. Issa.

We are pleased to welcome three participants on our panel. We

will hear from Stephen Johnson, who has served as the Administrator of the Environmental Protection Agency since May 2005. He

has been working at EPA in different capacities for the past 27

years.

Susan Dudley was appointed as Administrator of the Office of Information and Regulatory Affairs in the White House’s Office of

Management and Budget in April 2007. Prior to her current position, Ms. Dudley worked at the Mercatus Center at George Mason

University and as a consultant at Economists, Inc.

Dr. Rogene Henderson is currently the Chair of EPA’s Clean Air

Scientific Advisory Committee and is a senior scientist emeritus at

the Lovelace Respiratory Research Institute. She is an expert on

air quality and has had a distinguished career serving on multiple

boards and committees related to the topic. I would like to extend

a special thank you to Dr. Henderson for the accommodations she

has made to make herself available for this hearing. Thank you

very much.

This hearing has been postponed twice, and each time Dr. Henderson rescheduled her flight and canceled her plans to make sure

she was available. I believe she even canceled a vacation which I

am sorry to hear about. Thank you very much for being here.

It is the policy of this committee that all witnesses that testify

before us do so under oath, so if the three of you would please

stand and raise your hands I would appreciate it.

[Witnesses sworn.]

Chairman WAXMAN. The record will indicate that each of the witnesses answered in the affirmative.

Mr. Johnson, or all three of you, your prepared statements that

you have submitted to us in advance will be made part of the

record. We would like to call on you for your oral presentation. We

usually like to keep that within around 5 minutes, if possible. We

will have a clock running. It will be green, and then the last

minute will be yellow, and then when the time has expired, it will

be red.

I will not cutoff any of you from your presentation, but if you are

mindful that the time has expired, we would like you to keep that

in mind and try to summarize.

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STATEMENTS OF STEPHEN L. JOHNSON, ADMINISTRATOR, U.S.

ENVIRONMENTAL PROTECTION AGENCY; SUSAN E. DUDLEY,

ADMINISTRATOR, OFFICE OF INFORMATION AND REGULATORY AFFAIRS; AND ROGENE F. HENDERSON, CHAIR,

CLEAN AIR SCIENTIFIC ADVISORY COMMITTEE

STATEMENT OF STEPHEN L. JOHNSON

Mr. JOHNSON. Good afternoon, Chairman Waxman, and members

of the committee. I am pleased to be here to discuss EPA’s decision

to significantly strengthen the National Ambient Air Quality

Standard [NAAQS], for ground-level ozone.

It is also a pleasure to appear alongside Dr. Rogene Henderson,

Chair of EPA’s Clean Air Scientific Advisory Committee [CASAC].

Former EPA Administrator Levitt appointed Dr. Henderson to this

position in 2004 and in 2006 I invited her to continue serving in

this important role.

Since 1980, ozone levels have been cut nation-wide by more than

20 percent, even while our economy has more than doubled. As

many of the Bush administration’s recent rules to reduce air pollution take effect, we expect that trend to continue.

While air quality has been improving so has our scientific knowledge of the relationship between pollution, public health, and our

planet. As we learn more, science and the law require that we

make changes. That is what we have done with regard to ozone.

This afternoon, I would like to describe my decisions on the

ozone standards, first for the primary standard designed to protect

public health, and, second, for the secondary standard designed to

protect public welfare. Since EPA last updated ozone standards in

1997, more than 1,700 new studies have been published about

ozone’s effects on human health. Many of these studies strengthen

the linkages between ozone exposure and effects such as reduced

lung function or aggravated asthma.

In a large number of new studies showed that ozone is both more

damaging and harmful at lower concentrations than scientists understood. After evaluating the results of these studies, along with

recommendations of staff, my Clean Air Scientific Advisory Committee and public comments, I concluded that the 1997 standard no

longer met the Clean Air Act requirement to protect public health

with an adequate margin of safety. To provide that protection at

a level that is requisite to protect public health, I selected a level

of 0.075 parts per million for the primary standard as the most

stringent 8-hour standard for ozone in our Nation’s history, it will

provide significant public health benefits to millions of Americans.

Advances in science also provided significant new evidence about

ozone’s impact on the environment, particularly on sensitive plants

and trees. When I proposed the standards last June, I presented

two options: one, setting the standard identical to the primary as

has been the practice for many years; or, two, setting a 3-month

standard to address the cumulative effects of plant exposure to

ozone over the growing season. Each of these alternatives had

strengths and also had weaknesses.

Selecting a secondary standard was difficult, as the record of this

rulemaking shows. In making the decision, I reviewed the 1997

NAAQS decision and the scientific evidence available since then. I

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considered recommendations from CASAC and my staff. I read

comments from the public, and as a matter of good government and

as required by Executive Order 12866, I coordinated with others in

the executive branch about the two options before me. I weighed

all of this information in making my final decision, which was to

set the standard identical to the primary standard at 0.075 per million.

This stronger standard will provide significantly increased protection for plants and trees. In my 3 years as Administrator, I have

strengthened two air quality standards, one for particulate matter

and one for ozone. Earlier this month, I proposed to strengthen our

Nation’s air quality standards for lead. This is the first time in 30

years.

In the process of navigating the requirements of the Clean Air

Act, I have come to see both the strengths and limitations of this

law, and, I believe, the need to change it for the better. I believe

it is time to modernize the Clean Air Act to improve public health.

When I announced the revisals on standards March 12th, I also announced four principles upon which the administration will seek

proposals to modernize the Clean Air Act. Congress has adopted

these principles and other environmental statutes such as the Safe

Drinking Water Act.

The Clean Water Act is an important act for us to review. The

Clean Air Act is not a relic to be displayed in the Smithsonian but

a living document that must be refurbished to continue realizing

results. I look forward to working with you in our efforts to improve this important law and to continue our progress toward clear

air across the Nation.

Thank you, Mr. Chairman. I would be happy to answer any questions.

[The prepared statement of Mr. Johnson follows:]

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Chairman WAXMAN. Thank you very much, Mr. Johnson.

Ms. Dudley.

STATEMENT OF SUSAN E. DUDLEY

Ms. DUDLEY. Chairman Waxman, and Ranking Member Issa,

and distinguished members of the committee, thank you for inviting me and giving me the opportunity to testify today regarding the

role of the Executive Office of the President, NEPA’s ozone NAAQS

rulemaking.

In the interest of public transparency, both OMB and EPA placed

in the correspondence related to this rulemaking in the public

record to ensure clear presentation of the issues involved, Pursuant

to Executive Order 12866 issued in 1993 by President Clinton,

OIRA oversees the regulatory process for the executive branch by

coordinating interagency review of significant regulatory actions. In

most cases OIRA is able to work with the regulatory agency to resolve any issues that arise during the interagency review process.

For those rare circumstances when such resolution is not possible,

the Executive order provides a process for conflict resolution by the

President with the assistance of the Chief of Staff.

EPA’s ozone NAAQS is a significant regulation under E.O. 12866

and such was submitted to OIRA on February 22, 2008. In the

course of interagency review, concerns were raised with the secondary, the welfare-based standard. These concerns focused on the

form of the standard, not the level. EPA’s proposed rule had sought

comment on two alternative forms. Both were scientifically and legally valid, one set equal to the primary standard and another

based on measured ozone levels over a season. The draft final rule

would have relied on the seasonal form of the secondary standard.

Establishing a separate seasonal standard would have deviated

from EPA’s past practice which has been to set the secondary ozone

NAAQS equal to the primary NAAQS. The draft initially submitted

for review did not clearly support a conclusion that a secondary

standard was requisite to protect the public welfare. First, as EPA

observed in the preamble to the 2007 proposed rules, a secondary

standard set at a level identical to the proposed new primary

standard would provide a significant degree of additional protection

for vegetation as compared to the current standard established in

1997.

Second, EPA’s analysis indicated that the draft secondary standard accumulated over a season would not be more protective of

vegetation than one set equal to the primary public health based

standard. On the contrary, EPA recognized the seasonal standard

in the final draft was generally less stringent than the primary

standard.

Given the public interest in this regulatory proceeding, I wanted

to ensure that these concerns were laid out clearly to avoid misunderstandings, so I conveyed them to Administrator Johnson in

memorandum dated March 6th. On March 7th, EPA Deputy Administrator Peacock responded in writing. Then, pursuant to the

appeals procedure, the Executive order, EPA sought further consideration of this disagreement regarding the form of the secondary

standard.

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Following the established Presidential Review process, the President concluded that, consistent with administration policy, added

protection should be afforded to the public welfare by strengthening the secondary ozone standard and setting it equal to the new

primary standard.

On March 12th, I sent a memorandum to Administrator Johnson

memorializing this process. As the preamble to the final rule

states: ‘‘While the Administrator fully considered the President’s

views, the Administrator’s decision and the reason for it are based

on and supported by the record in this rulemaking.’’

So, in summary, let me reiterate three key points. First, in the

course of interagency review of EPA’s final ozone, both OMB and

EPA have been forthright in making key correspondence regarding

initial disagreements over the form of the secondary standard

available to the public.

Second, the focus of my correspondence with EPA was not the

primary health-based standard, but the secondary, welfare-based

standard. No changes were made to the level or form of the healthbased standard.

Third, discussions regarding the secondary standard related exclusively to the form of the secondary standard and did not affect

the level of protection from ozone exposure provided to vegetation.

Contrary to some media accounts, the 8-hour form ultimately selected by the EPA Administrator is not lower or less protective

than the alternative seasonal form of the standard.

Thank you for the opportunity to testify.

[The prepared statement of Ms. Dudley follows:]

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Chairman WAXMAN. Dr. Henderson.

STATEMENT OF ROGENE F. HENDERSON

Ms. HENDERSON. Thank you for asking me to testify before this

committee. I am testifying as the current Chair of the USEPA’s

Clean Air Scientific Advisory Committee [CASAC], which is a congressionally mandated committee that advises and makes recommendations to the EPA Administrator concerning the scientific

basis for setting air quality standards. The CASAC ozone panel included 25 members, all of whom were carefully vetted for their scientific qualifications and for any potential conflicts of interest.

The questions addressed by the ozone panel was the same as for

any criteria pollutants. In light of newly available information, are

the existing standards adequate to protect public health with a

margin of safety in terms of the primary standard or to protect

public welfare in terms of the secondary standard.

The ozone panel met with EPA staff in public meetings seven

times to review eight documents over a 2-year period. Public comments were solicited at each of our meetings. Highly productive

discussions were held between EPA staff, the public and CASAC in

our efforts to develop the best scientific advice to provide the Administrator.

A major product of these extended discussions was the unanimous recommendation that the primary standard should be lowered from a level of 84 parts per billion to a level between 60 and

70 parts per billion. Note that the recommendation was in terms

of a range. There is enough uncertainty at this low a concentration

of ozone that CASAC can only recommend a range of values they

consider to be protective of public health. It is a policy decision for

the Administrator to determine where within that range to set the

standard.

Our scientific advice was not accepted. The primary standard

was lowered but only to 75 parts per billion. The CASAC panel

does not endorse the new primary standard as being sufficient protective of public health with a margin of safety as explicitly required by the Clean Air Act.

Moving on to the secondary standard, which includes protecting

our ecology, the panel was in unanimous agreement that we now

have enough information to be able to set a cumulative seasonal

secondary standard rather than having to default to using the primary standard. It is both common sense and fully justified scientifically to set a secondary standard separate from the primary standard, since, unlike humans, vegetation is affected by cumulative exposures to ozone during the growing season and during daylight

hours.

It is also in agreement with the National Research Council’s

2004 Report on Managing Air Quality in the United States in

which they strongly recommend that the EPA move away from

having identical primary and secondary standards to setting a reasonable secondary standard because there is growing evidence that

some vegetation is more sensitive to pollutants than are humans.

Nevertheless, in March, Ms. Dudley of the OMB sent a memo to

Administrator Johnson saying the form of the secondary standard

should not be changed. This memo was clearly refused in a knowlVerDate 11-MAY-2000 12:34 Feb 23, 2009 Jkt 000000 PO 00000 Frm 00090 Fmt 6633 Sfmt 6633 C:\DOCS\47126.TXT KATIE PsN: KATIE
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edgeable, well-written reply from Deputy Administrator Marcus

Peacock. In reply, Ms. Dudley stated that President Bush had decided against having a secondary standard that was different from

a primary standard. In defense of this decision, the White House

said the decision was based on following the law. There is no law

against having a different standards, as evidenced by the precedent

set in 1971 when separate secondary standards were set for both

particulate matter and sulfur oxides.

Equally perplexing is the fact that the OMB objections were to

the proposed form of the secondary standard, which is a scientific

matter and not to the level of the proposed standard, which includes policy decisions. CASAC has been accused of wandering

from scientific issues into policy. In this case, policymakers wandered into scientific issues, and they did not do it well. Wilful ignorance triumphed over sound science.

Certainly the Administrator is the one who decides what standard to set, and CASAC’s role is only advisory in nature. However,

if the Administrator sets the standard outside the range recommended by his Science Advisory Committee, a strong reason for

doing so should be given. The Administrator has said his decision

was based on his own judgment.

Congress may want to ask, on whose advice is the Administrator

basing his judgments? The Clean Air Act mandates that one source

be the CASAC whose work is done transparently in public by vetted members. By contract, the advice that appears to be trumping

the CASAC advice is not transparent. The OMB and the White

House set the secondary standard in effect rather than the EPA

Administrator.

In closing, I wold like to quote from Dr. Paul Gilman, who is the

former Assistant Administrator for Research and a Science Advisor

for the EPA, in a statement he made before a recent hearing of the

Senate Committee on Environment and Public Works. ‘‘Our best insurance that the science, the scientific judgment, and policymaking

are as good as they can be is that the process is transparent,

participatory, peer-reviewed, and followed with informed oversight.

Setting the standards by fiat behind closed doors is not in our best

interest.’’

Thank you.

[The prepared statement of Dr. Henderson follows:]

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Chairman WAXMAN. Thank you very much, Dr. Henderson.

We will now proceed to questions and, by agreement with the minority, we will have 12 minutes on each side to begin, 12 controlled

by the chairman and 12 controlled by Mr. Issa. Then we will proceed to the 5-minute rule. Without objection that will be the order.

Let me start off, Administrator Johnson. My concern is that the

decisions at EPA are not being based on the science and they are

not being based on the law. They are being made at the White

House, and they are being made for political reasons. My concern

is that this is happening over and over again. It appears to be what

happened on the ozone rule. It appears to be what happened when

you rejected California’s efforts to regulate carbon dioxide from vehicles, and it appears to be what happened when EPA tried to regulate carbon dioxide itself after the Supreme Court decision.

Dr. Henderson, let me start with you. You are the Chair of the

Clean Air Scientific Advisory Committee, and you reviewed the

new ozone standards that were recently announced by EPA. Are

the standards that Administrator Johnson set consistent with the

science?

Ms. HENDERSON. It is not consistent with the CASAC’s recommendations which are based on science.

Chairman WAXMAN. Well, did CASAC give a range so that there

was some discretion left that you thought would fit with the science

that you knew?

Ms. HENDERSON. Yes. The CASAC always recommends a range,

never a bright line. We know that there is uncertainty at these low

levels of ozone, so with careful consideration of the uncertainties

and what we know from the scientific work that has been done

since the last ozone standard was set, we recommend a range within which the Administrator could set a level that would be protective of public health with a margin of safety.

Chairman WAXMAN. And did the Administrator select within the

range recommended by the Scientific Advisory Committee?

Ms. HENDERSON. No, he did not.

Chairman WAXMAN. Now, in essence, you are saying that Administrator Johnson did not follow the science, is that correct?

Ms. HENDERSON. That is correct.

Chairman WAXMAN. Now, Administrator Johnson, I want to give

you a change to respond. Dr. Henderson says you didn’t follow the

science. Do you agree with that?

Mr. JOHNSON. Well, I would respectfully disagree with that characterization. One is that I did agree with our CASAC that the current standard was not requisite to protect public health with an

adequate margin of safety, hence we were in agreement together.

I should note that not all comments agreed with that conclusion.

Second is that not only do I have the advice—and I appreciate

and certainly respect the advice of CASAC and Dr. Henderson’s

role as the Chair—but also I have the responsibility to listen to

what my staff say and, of course, evaluate all of the public comments after all the comments are in. I made the decision based

upon all of the science before me that 0.075 was requisite to protect

public health with an adequate margin of safety.

Chairman WAXMAN. Excuse me, you answered my question. You

think you set it within the protection of the science.

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Mr. JOHNSON. Absolutely.

Chairman WAXMAN. OK. Now, the record shows your views about

the science and the law were constantly being reversed by the

White House. Your professional views may be scientifically and legally correct, but they are not the ones that are prevailing comments to the White House that the secondary standard for ozone,

the one that protects the environment, be set based on cumulative

seasonal exposure, isn’t that right?

Mr. JOHNSON. Well, more accurately, Mr. Chairman, would be

that there are two options. There was one that the Agency preferred as part of the deliberation, and it was clear that there were

others in the administration who felt the other was a preferred option. Of course, as I believe good government, we went through the

process as outlined by President Clinton’s Executive order, and the

President provided input. Ultimately, I made the decision, and

made the decision to set a secondary standard that is the most protective secondary standard in our Nation’s history.

Chairman WAXMAN. You, as the head of EPA, recommended a

proposal. OMB and the White House looked at that proposal and

said to you, we don’t want that proposal. Then you made the decision that they recommended.

When you sent your draft final rule to the White House in February, it said that the evidence for seasonal standard was compelling and that a seasonal standard was necessary to ensure the requisite degree of protection. But the White House then objected to

that proposal, and you changed it. Is that what happened?

Mr. JOHNSON. Well, I think, more accurately, was is that certainly it agreed with CASAC that a cumulative seasonal metric is

the most biologically relevant form for vegetation; however, at the

time we certainly noticed——

Chairman WAXMAN. I really want a direct answer to the question. You submitted a rule to the White House, and the White

House said they wanted a different rule, and then you decided

what the White House suggested to you.

Mr. JOHNSON. Well, there was a difference of opinion between

two——

Chairman WAXMAN. No, no. Yes or no. Yes or no?

Mr. JOHNSON. Well, I don’t believe it is a yes or no question, sir.

Chairman WAXMAN. Well, you gave them one option and they

gave you the other, and the one you accepted was theirs.

Mr. JOHNSON. We had two options on the table. There was one

that was preferred by EPA, one that was preferred by OMB and

perhaps others, and it went through an Executive order process. I

think that is good government.

Chairman WAXMAN. OK. Well, this is not a minor change; it was

a major reversal that I believe was not supported by the record.

Your own staff said it was pure politics and that they have never

seen anything like it in 30 years of working on air quality standards.

An agency lawyer worried that the final decision was not even

nominally defensible, and this wasn’t the only time you have been

reversed by the White House. It seems to be happening over and

over again.

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Your Associate Deputy Administrator, Jason Burnett, told the

committee that last fall you supported granting California’s petition to regulate carbon dioxide emissions from vehicles. According

to Mr. Burnett, you changed your position after you talked with the

White House. Is that accurate?

Mr. JOHNSON. I don’t believe that is a fair characterization, Mr.

Chairman. I think, certainly, as you look through the thousands

and thousands of pages, including his deposition, that shows a very

deliberate process going through where I evaluated all options from

moving from a full approval to denial and options in between.

Chairman WAXMAN. And you recommended it be in between. You

didn’t agree that there should be a complete granting of what California wanted, which was a waiver to do exactly what they wanted.

You wanted a partial waiver so that it would go into effect through

a period of time, and that was sent to the White House.

Mr. Burnett told us under oath that he thought a partial grant—

he, meaning you—thought that a partial grant of California was

the best course of action.

Well, that is what happened in this instance. The same thing

happened the third time. According to your staff, you decided last

fall that EPA should issue its own greenhouse gas rules, and you

submitted a proposing endangerment finding to the White House.

You also circulated a proposal to other agencies to regulate tailpipe

emissions of carbon dioxide. Is that accurate?

Mr. JOHNSON. It is true that we have a draft of endangerment

finding that was part of the rulemaking process before the Energy

Independence and Security Act was passed.

Chairman WAXMAN. And you also recommended that other agencies regulate tailpipe emissions of carbon dioxide.

Mr. JOHNSON. Well, that was part of a draft decision that has not

gone through interagency process.

Chairman WAXMAN. But you recommended it to the Department

of Transportation.

Mr. JOHNSON. Well, again, it was so deliberative and they had

not reviewed it, and again, it was before the Energy Independence

and Security Act, which then changed the course of action for EPA,

and that is writing a regulation for renewable fuel standard.

Chairman WAXMAN. We interviewed——

Mr. JOHNSON. Excuse me. I am just working, as required, working with the Department of Transportation as they updated——

Chairman WAXMAN. Well, we interviewed seven senior career

EPA officials earlier this year, and they all told us the same thing.

You supported Federal regulations for carbon dioxide emissions

and submitted an endangerment finding to the White House. They

said the proposal was sent to the White House in the first or second week of December. They told us that after you submitted your

recommendations to the White House, they were told to stop all

work on the regulations. This policy reversal became official in

March when you announced that EPA was going to start the regulatory process all over again.

My concern, Administrator Johnson, is that you’ve become essentially a figurehead. Three times in the last 6 months you have recommended to the White House that EPA take the steps to address

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climate change and protect the environment. In each case, your positions were overruled.

Now, your positions were right on the science and the law, yet

in each case you backed down. You received your instructions from

the White House. Now that is not how our Government is supposed

to work. Congress passes the laws and the executive branch is supposed to faithfully administer them.

But what we see happening at EPA is that when you try to follow the law and the science, you are overridden. The attitude in

the White House seems to be that President Bush can ignore the

environmental laws that Congress wrote and do whatever he pleases.

Now, my questions are about the process and the results. Let’s

go to this ozone decision. EPA is required under the law to set an

ozone standard to protect public health and a secondary ozone

standard to protect crops, forests, and other aspects of public, and

we just went over that very briefly.

After years of scientific review, you sent the draft final ozone

standard to the White House for review. To protect the environment your draft recommended that EPA establish a new standard,

one that would protect plants from cumulative exposure over growing season. The document to the White House stated that you

found the evidence for the new standard to be compelling and necessary. You also wrote that you found no evidence to support the

alternative standard favored by industry.

When the final rule was issued on March 12th, you made a complete reversal on the environmental standard, you abandoned the

seasonal approach, and you adopted the short-term approach that

industry favored. These changes were made at the last minute pursuant to instructions from White House. According to the record,

they were personally directed by the President.

Administrator Johnson, your statement that there was compelling evidence in support of the seasonal standard was dropped in

the final rule. So was your statement that there was no biological

evidence supporting the industry standard. Why were these statements deleted from the rule?

Mr. JOHNSON. Well, Mr. Chairman, as we prepared for making

a decision—as I prepared making a decision on the secondary

standard, again, we proposed two options, and I think the important point to note is it was not an issue of a level of protectiveness.

Either form provided additional level of protectiveness for public

welfare.

Chairman WAXMAN. Did the White House provide you with new

scientific evidence to change your mind?

Mr. JOHNSON. Well, Mr. Chairman, certainly during the review,

it was part of the Executive order. OMB certainly issued a concern,

‘‘The draft is not adequate to support such a decision.’’ And as I

evaluated their comments and, certainly, the President’s comment

and reviewed it, I made the decision to establish the secondary

standard——

Chairman WAXMAN. I understand you made that decision.

Mr. JOHNSON [continuing]. After I made the primary standard.

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Chairman WAXMAN. But the Clean Air Act is clear in setting

ozone standards. The Agency is required to use the best science

and set a standard that protects health and environment.

Did the White House do this? Did the administration listen to

the scientists, or did they reject the science and set standards that

will not protect health and the environment?

Mr. JOHNSON. No. Again, as I said, both forms were protective

of the environment. The question is, what is the form? It is not the

standard. And, in fact, for the secondary standard, some of the

issues that I was facing in terms of uncertainty with adopting a

separate standard, a cumulative 3-months so-called W–126 form,

was, for example, crop yield data was derived largely from data

generated 20 years ago.

In addition, the degree of risk attributable to varying levels of

ozone exposure, there were uncertainties. Degree of protection that

any specific cumulative seasonal standard would produce an associated potential for error in determining the standard and what

would be providing a requisite degree of protection, all of those

were among the uncertainties that, certainly, as I factored into my

decision played a role. That is why I chose the primary form with

input in this case from the President.

I am very proud of the process. It has been a very transparent

process where Susan’s memo, Marcus’ memo, and in fact a letter

citing what the President’s input to me is a final decision. I think

that is good government, and I think that is the way we ought to

operate.

Chairman WAXMAN. Thank you very much, Mr. Johnson.

Mr. Issa.

Mr. ISSA. Thank you, Mr. Chairman. I will continue where the

chairman left off because I think it is a good line of questioning.

Administrator Johnson, you, if I understand correctly, are a career professional, is that right?

Mr. JOHNSON. That is correct.

Mr. ISSA. When did you join the EPA?

Mr. JOHNSON. In 1980.

Mr. ISSA. In 1980.

Mr. JOHNSON. Well, actually, I came to EPA, left and then came

back, but my service computation date is 1980.

Mr. ISSA. Longer than some of the staff behind me have been

alive, so we will say you have been there a long time, and you are

not a political appointee. I mean, even though you sit now in an

appointed position, you are a career professional, is that right?

Mr. JOHNSON. I am a career professional who also is a political

appointee, and I am proud of both of those mantles.

Mr. ISSA. But you were selected because of your long tenure with

the EPA, clearly.

Mr. JOHNSON. I believe the President, in fact, it was said that he

wanted the most experienced, best person for the job, and I am

honored to be serving our Nation and the President in that capacity.

Mr. ISSA. Well, let’s run through a little of that experience. First

of all, I assume you were at the EPA when California asked for a

waiver from the need for MTBE or other oxygenates and try to use

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things that wouldn’t destroy our water or wood corrosive, do you

remember that?

Mr. JOHNSON. I do remember that, yes, sir.

Mr. ISSA. Do you remember that was denied by the Clinton administration?

Mr. JOHNSON. I do.

Mr. ISSA. So when it came to California meeting its own high

clean air standards and not being at the back of the ethanol lobby,

the administration under President Clinton was not willing to

grant that waiver, right?

Mr. JOHNSON. Well, I must say that is tangential because I was

not in the Air Office or working on air issues, but I am aware of

that fact.

Mr. ISSA. And California’s request for a waiver was, they were

going to comply with all of the standards; they simply weren’t

going to use things that poisoned our water or required that corn

farmers in the Midwest get a special benefit.

So the strange thing is, you know, today we are asking about a

reduction, and I want to go into that. I am trying to figure out

what good deed can possibly go unpunished. Let me run you

through that.

You were also there in—and I apologize, I said 1997—it was a

typo. The Executive order of President Clinton’s was at the beginning of his administration in 1993, isn’t that true?

Mr. JOHNSON. That is correct.

Mr. ISSA. And didn’t he essentially assign that to Vice President

Al Gore as sort of the go-to on air quality, if you remember?

Mr. JOHNSON. I don’t remember, sir.

Mr. ISSA. I don’t forget on that one. But I certainly think that

is within the administration’s right. In this case, President Bush

has kept that to himself.

But in 1993, if I understand correctly, the ozone level was 1.0 or

120 parts where today it is going to be 75. That was the air quality

prior to the 1997 ruling, is that right?

Mr. JOHNSON. Yes.

Mr. ISSA. And so in 1997 it was reduced from 120 to 84. Since

1997 when it was reduced to 0.084, has Mr. Waxman’s district ever

been in compliance? Does Hollywood or L.A. meet that 0.084?

Mr. JOHNSON. No, sir, not.

Mr. ISSA. OK. So we have had a standard, and many parts of

California have never reached that standard. Many parts of America have never reached that standard, is that correct?

Mr. JOHNSON. There are a number of parts of America that have

not, that is correct.

Mr. ISSA. And doesn’t it make the science a little inexact to figure out where the safety level is if, in fact, people are above the

existing standard and you are going to lower it even further? Isn’t

that one of the variables you have to deal with?

Mr. JOHNSON. Well, the law actually prohibits me from considering costs or considering whether or not the standard is actually

able to be implemented. Of course, that is one of the reasons why,

among a number of reasons why, that I think that it is worthy of

congressional debate.

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I believe there is an opportunity to improve the Clean Air Act.

I think that it is unconscionable that we have a standard that we

have gone through years of scientific evaluation to say this is protective of public health and then communities not even being in

compliance with that for 20 or plus years. I think it is worthy of

congressional debate, and I believe that there are other approaches

that could achieve public health protection sooner.

Mr. ISSA. So, particularly, when it comes to CO2, if I understand

your recommendation, it is time for Congress to act to create a

more responsive law that would allow for compliance, offsets,

things to deal, to be honest with the chairman and myself as Californians, the fact that we have some containment areas that just

simply never complied.

Mr. JOHNSON. Well, sir, I wholeheartedly agree. My experience

in 27 years with a very complex statute as the Clean Air Act is,

dealing with global air pollutant with many, many, many issues,

my experience says that a legislative fix is the more efficient and

effective way because, my experience says, with these complex laws

subject to years and years of litigation.

I believe that global climate change needs to be addressed. I believe the greenhouse gas emissions need to be addressed, and I

think the most efficient and effective way is through a legislative

fix. Having said that, I am initiating the rulemaking process by

issuing an advance notice of proposed rulemaking of, later this

spring.

Mr. ISSA. Well, I appreciate that. Just to finish on my numbers

game here a little bit, you mentioned in your opening statement we

are down about 20 percent over several decades, most of your career. If I do the numbers, coming from 120 parts to 84 parts, it was

about 33 percent reduction. So if we are down 20 percent, we obviously didn’t hit—we didn’t go from the 120 to the 84.

Now if I understand correctly, going to 0.75 is about an 11 percent reduction, and going to 0.070 would be about a 16 percent. So

today we appear to be having a hearing about whether a reduction

of 11 percent is somehow anti people’s breathing versus a reduction

of 16 percent would somehow make it OK. Is that pretty much

what I should be understanding today?

Mr. JOHNSON. Well, that is certainly a view. Again, ultimately,

when I made the decision on both the primary and the secondary

both in regard to the primary, public health, I determined that the

existing standard was not protective. It was not requisite to protect

public health with an adequate margin of safety and wholeheartedly agreed with CASAC that it needed to be reduced.

I made the decision to reduce it and to make it more health protective. In fact, again this is the Nation’s most health-protective 8-

hours ozone standard in the history of the Nation, and that

shouldn’t go unnoticed.

Mr. ISSA. I appreciate that, and I agree. If I understand correctly,

though, basically, if 2, 3, 4 years from now after we have achieved

a portion of this 11 percent reduction that is presently being ordered, there is nothing that stops this process, with Dr. Henderson’s help and so on, from seeing that there is an even lower level

bolstering the science and ordering a lower level. There is nothing

whatsoever stopping it from happening at any time, is that correct?

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Mr. JOHNSON. Well, it is not only not stopping it, we are actually

directed by law and it is part of the 77 amendments to the Clean

Air Act, we are required every 5 years to review each and every

one of these standards.

Of course, one of the challenges for the Agency since that amendment in 1977, the Agency has never met the 5-year requirement,

and, of course, that is why we believe that there are changes and

improvements in the way we actually go through the NAAQS process: to preserve science as well as to improve the timeliness of

what we are doing.

So we are required to make these evaluations and keep up with

what the current state of the science is.

Mr. ISSA. I appreciate it. I would like to yield for a few minutes

to Mr. Bilbray, as he needs it.

Mr. BILBRAY. Thank you.

Mr. Johnson, I don’t come from a business background, and I

don’t come as a lawyer. I come from the regulatory background. I

served on Air Resources Board in California, I served in the air district, San Diego, on the few—in fact the only—air district I know

in California that has actually had its standards dropped recently,

I mean its category dropped because we were so successful.

You talked about since 1980 a 20 percent reduction in emissions

just in California during that time with 20 percent reduction, and

I think our California numbers will be less, I think more of a drop.

We have had a 50 percent increase in population. And that is one

thing I hope that when we talk about the threat to the public

health, we think about the fact that sheer population has been ignored from the entire environmental impact of those sheer numbers and that has to be considered.

Doctor, you serve on one of the most critical bodies when it

comes to environmental strategies, and I was very happy to work

with our scientific body at ARB. California’s program has been very

successful because of the use of science.

Back in the 1990’s when California petitioned a waiver from the

oxygen mandate, the mandate that we put ethanol or MTB into our

gasoline, was your committee review that mandate?

Ms. HENDERSON. No, because we an air committee, so we did not.

Mr. BILBRAY. Well, this was an air committee. This was coming

from the——

Ms. HENDERSON. This was from the Air Board?

Mr. BILBRAY. This was coming from the Air Resources Board.

Ms. HENDERSON. I became chair of this committee back in 2004,

so it did not occur during my chairmanship.

Mr. BILBRAY. OK. Let me just tell you something. By 1994, California had recognized and our scientists had recognized that ethanol and methanol in our gasoline was not only not beneficial but

was an environmental detriment, not just for water but air pollution.

We formally requested this in 1994. I, for one, authored the bill

that every Californian except one signed onto, to allow us to burn

a cleaner, cheaper fuel for California. But we were blocked.

Mr. Johnson, what was the rationale of the Clinton administration for blocking the request for a waiver for cleaner fuel for the

consumers of California and for the environment of California?

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What was their justification requiring us to put MTBE in our fuel

and ethanol in our fuel when the best scientists in air pollution

that reviewed the process said there was no scientific reason to do

it?

Mr. JOHNSON. Well, sir, I am with Dr. Rogene, it was actually

before my time, but certainly I know I have staff and can get back

for the record to respond to that.

Mr. BILBRAY. Well, I will tell you, now that we have people that

are administrators of EPA at that time who was over at California.

And, Mr. Chairman, I am just telling you, I was outraged at that

time that the Clinton administration, in my opinion, was bending

to political pressure that was influenced by contributions at that

time, and I think that we ought to recognize that, yes, there is

undue influence on administrations.

But no one administration has a monopoly there, and I wish that

both Republicans and Democrats could have stood up for the environment against the political pressure, not only in the White House

but here in the legislative body. To this day for us to point fingers

at one administration when we went for almost a decade requesting a waiver based on the environment, and it was denied by

Washington to the people of the State of California who, I think we

all admit, have done extraordinary things to protect the environment.

Thank you very much.

Mr. ISSA. Administrator Dudley, continuing on, let me ask you a

question. Could you explain to the committee why the regulations

of carbon dioxide is such a unique pollutant that it requires a new

regulatory paradigm and doesn’t fit into the old regulatory structures of the Clean Air Act?

Ms. DUDLEY. I think that Administrator Johnson mentioned this

a bit in his previous remarks, too. CO2 is a global pollutant. It

doesn’t matter where it is emitted, the effects will be felt regardless

of whether it is emitted here or in China. In order to achieve the

reductions that we think we need requires new technology, so massive incentives for new technology.

So the Clean Air Act, which was mostly recently updated in

1990, just was never designed for it and really isn’t well-suited to

it.

Chairman WAXMAN. Thank you, Mr. Issa.

Mr. ISSA. Could we ask that Administrator Johnson also answer

it, if you don’t mind, Mr. Chairman? He has something.

Mr. JOHNSON. Yes. I would just say that one of the, I think, important reasons for the advanced notice of proposed rulemaking is

that the Massachusetts versus EPA decision was in the context of

automobiles and light trucks. The way the Clean Air Act operates

is that decision in endangerment not only affects that narrow area

of mobile sources but all mobile sources and, in fact, spills over into

Title I and all stationary sources as well.

So when I moved forward with an advanced notice for proposed

rulemaking, it is actually expanding and looking at the entire, all

sources, potential sources, of carbon dioxide and other greenhouse

gases. I think that it is important for us as an agency, to understand all of those issues, and I think it will also help Congress,

you, as you debate this very important issue.

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As I have said I believe, given my experience, a legislative approach is a much better approach than working through the intricacies of the Clean Air Act, and with the likely litigation that

would ensue.

Chairman WAXMAN. You might prefer another law, but there was

a law. There is a law, the Clean Air Act adopted by Congress, and

the U.S. Supreme Court said that EPA is supposed to regulate carbon emissions under that law. Even if you would like another law,

you have to enforce the law that is there.

Mr. JOHNSON. Well, and that is why I am proceeding with an advanced notice of proposed rulemaking, which is the first step in the

regulatory process.

Chairman WAXMAN. Mr. Tierney.

Mr. TIERNEY. Thank you, Mr. Chairman.

Dr. Henderson, in your written testimony you address the decision to set an environmental standard for ozone that is higher than

the standard that scientific experts recommended. You stated, ‘‘Wilful ignorance triumphed over sound science.’’

Those are strong words. Would you explain for us?

Ms. HENDERSON. I was referring, really, to the secondary standard because in the case of the secondary standard, we were really

excited that we now have enough information to use a different

form for the secondary standard. In the past, we have had to default to the primary standard because we didn’t have the right information.

Then, to get so close to having the form changed and then at the

last minute, with no explanation, really, of why it was done, that

form was squelched. The new form was squelched by the White

House because President Bush said we couldn’t have a different

secondary standard from the primary standard.

Now, that is ignorance to me. That is wilful ignorance because

I do not think the OMB really hadn’t read the Clean Air Act to

know that you can set that. I don’t think the OMP really hadn’t

read the EPA staff documents that carefully explained why we

were focusing on vegetation as the welfare effect of concern.

So that is what my ‘‘wilful ignorance’’ meant. It bothers me, with

all the hard work that went into this by the EPA staff and by

CASAC to develop this different form for a secondary standard that

someone can just, for no transparent reason, say, no, can’t do that.

That is what I meant by wilful ignorance.

Mr. TIERNEY. Thank you very much.

Mr. Johnson, do you want to respond?

Mr. JOHNSON. Well, again, the record clearly indicates that this

was a difficult decision and that these were two, both viable, options. Again, an important piece is that the level of protectiveness

was essentially equivalent whether a W–126 form or identical to

the 8-hour ozone——

Mr. TIERNEY. That is interesting you should say that because

what I see is there was no new evidence—at least you couldn’t give

an answer to Mr. Waxman—no new evidence from the White

House at all on that issue. Before you had found evidence to be

compelling, in your own words, and necessary, in your own words,

and, in your own words, found no evidence to support the alternative standard that was favored by industry.

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So, Mr. Johnson, you say that the final decision was justified, but

looking at your own words—and let’s look at some of the words of

your own staff, what they had to say about it. If you look through

the documents that were provided by EPA as part of the investigation, and it is stunning; stunning to see how EPA staff reacted to

the rejection of the seasonal standard recommended by Dr. Henderson.

An EPA Associate Director comments, ‘‘Looks like pure politics.’’

An EPA lawyer wrote, ‘‘We could be in a position of having to

fend off contempt proceedings. The obligation to promulgate a rule

arguably means to promulgate one that is nominally defensible.’’

One EPA manager told his colleagues that he offered ‘‘sympathies to all for all the work that went down the drain.’’

Another career official stated, ‘‘I have been working on NAAQS

for over 30 years and have yet to see anything like this.’’

Yet another Agency official responded by saying, ‘‘I know how incredibly frustrating and disgusted we all are at the moment.’’

So, Mr. Johnson, I think what is happening with the EPA is

pretty unacceptable. It is the Administrator’s job to implement our

Nation’s environmental laws and to protect the public health and

welfare. It has to be based on the best evidence, By your own

words, the evidence was compelling, it was necessary that the

standard be different and the new form be instituted. So it looked

to me that by your own words and by your staff’s words, you are

not doing your job.

Recently, the Union of Concerned Scientists released the results

of a survey of nearly 1,600 EPA scientists. The survey revealed

that EPA scientists face significant political interference with their

work. Nearly 1,000 EPA scientists said they personally experienced

at least one incident of political interference during the past 5

years. Over 500 EPA scientists knew of many or some cases where

the EPA political appointees had inappropriately involved themselves in scientific decisions.

Mr. Johnson, are you concerned at all that hundreds of EPA scientists are reporting incidences of political interference with their

work?

Mr. JOHNSON. Well, sir, I am proud of the fact that EPA has consistently ranked in the top 10 places for Federal employment. As

a career——

Mr. TIERNEY. Are you concerned, as my question was, are you

concerned that hundreds of EPA scientists are reporting political

interference in their work?

Mr. JOHNSON. Well, I would like to quote to you, if I may, a

quote from Dr. Paul Gilman, who just recently testified. ‘‘EPA has

become too politicized in its actions, too eager to pursue narrow political goals and too willing to ignore congressional intent. At least

a dozen former EPA officials who played roles in setting policy now

work as industry consultants, or’’—this is also quoted, Orlando

Sentinel—‘‘Science is as politicized in America as it was in the Soviet Union and Nazi Germany, and EPA is a prime example.’’

He then goes to say, ‘‘I want to make this point that these headlines all came prior to the current Administration and pertained to

the previous administration.’’

So, sir——

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Mr. TIERNEY. So that is just an excellent defense, Mr. Johnson.

Mr. JOHNSON. So, sir——

Mr. TIERNEY. So apparently because you think something was

politicized in a previous administration, politicizing in this administration is laudable.

Mr. JOHNSON. No, that is an inappropriate conclusion, sir.

Mr. TIERNEY. My question to you was, are you proud of the fact,

or are you concerned of the fact that hundreds of EPA scientists

are reporting political interference with the work now, not in the

past administration—we can have a hearing on that some other

time. Are you proud of what is going on now?

Mr. JOHNSON. I am very proud of the work of the Agency and all

the thousands of scientists that we have and includes 17,000 employees at EPA.

Mr. TIERNEY. Well, I take it some——

Mr. JOHNSON. And, Mr. Tierney, I will say just I will share my

experience as a scientist growing up in the Agency that there are

those times that scientists agree with the ultimate decision; there

are times that they don’t, and I understand that.

As my role as Administrator is to evaluate the science and evaluate the policy under what the law directs me to do and make the

best decision, that is what I have been doing, and that is what I

continue to do.

Mr. TIERNEY. Clearly, that is not what happened here, Mr. Johnson.

Chairman WAXMAN. The gentleman’s time has——

Mr. TIERNEY. By your own admission.

Chairman WAXMAN. Time has expired.

Mr. Bilbray.

Mr. BILBRAY. Yes, Mr. Chairman. I have to say—let me just followup on this issue of a survey by scientists that there was an

undue political influence here.

Mr. Johnson, is it fair for me to say that there were 55 requests

for comment sent out by the Union of Concerned Scientists?

Mr. JOHNSON. I don’t——

Mr. BILBRAY. 5,500; 5,500, I am sorry.

Mr. JOHNSON. Yes. I don’t know the numbers of what was done

or what wasn’t. I am aware that, in fact, the survey was received

by political appointees and non-scientists, so I have no idea what

criteria they used for sending the survey out.

Mr. BILBRAY. That I have, sir. Fifty-five hundred out there.

About 1,500 came in, and of that we are looking at maybe half of

them had concerns, and there might have been—my concern was

that for this to be used in this hearing as some kind of scientific

document, and I say anybody who would like to take a look at this

and said it is not a scientific document, it doesn’t just—no pollster

in the world would accept this. Any elected official that would accept it as being a standard, I think, would be appalled by it, but

we will talk about with the next panel.

Doctor, my question to you is, in your analysis, you know, you

talked about the vegetation and the ecosystem. Was there a consideration of economic value considered in that standard?

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issues, and what we are asked to do is give advice and recVerDate 11-MAY-2000 12:34 Feb 23, 2009 Jkt 000000 PO 00000 Frm 00123 Fmt 6633 Sfmt 6633 C:\DOCS\47126.TXT KATIE PsN: KATIE
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ommendations on what will be protective of vegetation and the welfare without regard to the costs or the ease of implementation.

So what we did consider was what was biologically relevant and

what was recommended by the National Research Council. Also, I

have a concern for the effect of ozone on vegetation as well as on

people. When you continually emphasize the primary standard,

where do you monitor? You monitor where the people are in urban

areas. But we are neglecting the rural areas where our food crops

and plants are grown, and when you need to have information,

well, how does ozone affect those crops, and how protective do we

need to be for that?

Mr. BILBRAY. Doctor, how long have you been chairman of this

body?

Ms. HENDERSON. I am in my 4th year. I go off in October.

Mr. BILBRAY. OK. I am concerned because when I talk about economic value, you went immediately to a defensive based on the cost

of implementing strategies. You didn’t talk about the economic

value of the crops that might have been destroyed.

Ms. HENDERSON. Well, I—forgive me.

Mr. BILBRAY. You shifted and went way off of where I was talking about, and I have to understand that, you know, that economic

value is something regulatory agencies do all the time.

Ms. HENDERSON. Certainly, and there is a, I believe—what do

they call it—a regulatory impact assessment done after our assessment.

Mr. BILBRAY. My question to you, then, if you did not make that,

what criteria did you use to set that on the impacts?

Ms. HENDERSON. To set the form?

Mr. BILBRAY. Yes. What standards have you used?

Ms. HENDERSON. The form was purely a scientific issue. I am not

an ecologist, but we have very good ecologists on our panel, and

they are the ones who develop the form.

I mentioned Ellis Kelling [phonetically], a member of the National Academy of Sciences and others. They know what they are

doing, so they developed the form.

Mr. BILBRAY. OK. I am just concerned that, you know, Ms. Dudley and Johnson, this issue of economic values both in the impact

of not doing something and—I am sorry, the doctor went off just

worried about enforcement, but also enforcement—isn’t there a consideration if you have an economic value impact from both sides:

first of all, lack of action and action?

Mr. JOHNSON. Well, again, under the Clean Air Act and under

establishing NAAQS, I am not allowed to consider costs or whether

in fact it can be implemented or not. So I have to base my decisions

based upon what the science says. Of course, I think it is also important to note that with all science there are uncertainties, and

there is a range of uncertainties. So, then, science, policy, and then

ultimately judgment needs to be exercised to make an appropriate

decision.

Mr. BILBRAY. Well, isn’t, in the statute, the term ‘‘economic

value’’ actually integrated right into the statute? Isn’t there a reference there?

Ms. DUDLEY. I have it in front of me.

Mr. BILBRAY. Go ahead, ma’am.

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Ms. DUDLEY. It says, ‘‘Welfare includes but is not limited to effects on soils, water, crops, vegetation, man-made materials, animals, wildlife, weather, visibility and climate, damage to and deterioration of property, hazards to transportation, as well as effects

on economic values and on personal comfort and well-being.’’

Mr. BILBRAY. Well, let me just say that is a consideration with

setting standards. I sure wish we would set the same standard before we start putting poison in our field, too.

Chairman WAXMAN. Thank you, Mr. Bilbray.

Mr. Higgins.

Mr. HIGGINS. Thank you, Mr. Chairman. I would like to focus on

the primary standard and health impacts. I think this is really important because it affects lives, health, and the well-being of people

across the Nation.

There are health risks we have some control over, but unhealthy

air affects each and every one of us. Breathing in this life is not

an option. Ozone is a dangerous pollutant. It hurts our lungs, worsens coughs and asthma, and makes us more vulnerable to colds

and flu. When ozone layers are high, more people go to the hospital, more children miss school, and more adults miss work, and

more people die.

Dr. Henderson, will the standards set by EPA adequately protect

Americans from ozone pollution?

Ms. HENDERSON. The CASAC panel does not agree that the

standard that was set is sufficiently protective of public health,

particularly in regard to a margin of safety. Our concern is for particularly asthmatic children whose asthma is aggravated by the

higher ozone levels and for what you——

Mr. HIGGINS. So the answer is no?

Ms. HENDERSON. The answer is no. I should be more succinct.

No.

Mr. HIGGINS. Administrator Johnson, how do you respond to Dr.

Henderson’s concerns?

Mr. JOHNSON. Well, I disagree that I set the standard that is requisite to protect public health with an inadequate margin of safety.

That is the statutory requirement, and that is what the science in

my judgment indicates.

I think it is also, and as you can read in our final agency decision

document, and we go in great detail, and in fact we—I think it is

a good idea and we are also required to respond to CASAC’s recommendations.

There was one study that was a pivotal study, a clinical study

conducted by Dr. Adams, and that his study he was the only one

that had gone and studied to the level of 0.060, which was at the

lower end of the CASAC range. Dr. Adams actually wrote to the

Agency twice questioning the use of his study in saying that we

were misusing his study, that there were too many scientific uncertainties at that level.

So that, and for other reasons which are documented in our decision document, I disagreed with CASAC on the actual level and

agreed—but I did agree that the current standard was not requisite to protect public health, and that is why I reduced it from

0.084 to 0.075.

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Mr. HIGGINS. Well, look, yes, I want to address an inconsistency

within EPA’s analysis. I believe there is a major inconsistency

here. EPA developed a regulatory impact analysis comparing the

standard you chose to the standard recommended by Dr. Henderson. EPA projected that your weaker standard will produce the following results each year: Between 500 and 3,500 premature

deaths, 1,400 non-fatal heart attacks, almost 10,000 asthma attacks or asthma symptoms, 7,500 emergency room and hospital visits, 67,000 lost work days, and almost a million lost school days.

Mr. Johnson, why didn’t you listen to your own staff and set a

more stringent standard to avoid these harms?

Mr. JOHNSON. Again, the Clean Air Act does not require a primary standard to be set at zero risk, and to achieve that which you

are referring would have to be set at a zero, probably zero level.

The Clean Air Act does not require that.

The standard of the law is requisite to protect public health within an adequate margin of safety, and through court decisions, that

standard is neither more or less stringent than necessary.

Mr. HIGGINS. Yes.

Mr. JOHNSON. And then that is my judgment, and I made the

judgment that we needed to strengthen the standard, and I

strengthened the standard which is the Nation’s most health-protective 8-hour ozone standard in our history. And I am very proud

of that.

Mr. HIGGINS. The public health experts aren’t uncertain about

the harm from ozone. The most eminent public health organizations in America agreed upon the Science Advisory Committee’s

recommendations, and this included the American Academy of Pediatrics, the American Medical Association, the American Heart

Association, among others.

I have a letter from the American Lung Association to this committee strongly critiquing EPA’s rule, and I ask unanimous consent

to enter it into the record.

Chairman WAXMAN. Without objection that will be ordered.

[The information referred to follows:]

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Mr. HIGGINS. The American Lung Association says, ‘‘If EPA had

followed the law, we could have cut the risk of life-threatening pollution to millions of Americans nationwide.

Administrator Johnson, last question. Your decision seems to be

inconsistent with the mainstream thinking. It rejects the recommendations of your expert panel, your own staff, the outside

public health organizations. It is just not credible to argue that

your decision is based on science.

Mr. JOHNSON. Well, I disagree with that, and we certainly have

in excess of 400 pages of document that goes in great detail describing the science behind my decision, and that it is the most

health protective standard in the Nation’s history.

I might add, as I met with all the public health officials, and I

met with others so that I could have their input, and I think that

is important as part of the process in me making a decision.

As I mentioned in my oral testimony, I have just proposed a new

health protective standard for lead, and I have taken it a step further because CASAC recommended a particular range. But as part

of the evaluation the Centers for Disease Control have said that

there is no safe level of lead. So CASAC did not recommend, but

I felt it was important as a public health official to ask the question: Should we be setting the standard for lead at zero?

Chairman WAXMAN. Mr. Higgins, your——

Mr. JOHNSON. So those are the kinds of decisions that I have to

make, and I see input. Again, I appreciate the Council of CASAC,

my staff, the notice and comment, the public hearings all of which,

but, ultimately, I need to make a tough decision.

Mr. HIGGINS. I yield back, Mr. Chairman.

Chairman WAXMAN. The gentleman’s time has expired.

Mr. Platts.

Mr. PLATTS. Thank you, Mr. Chairman. I appreciate you holding

this hearing, and I apologize that a scheduling conflict prevents me

from remaining, but I would like to yield the balance of my time

to the gentleman from California, Mr. Issa.

Mr. ISSA. I thank the gentleman.

You know, if we could put the map up on the board, I think we

have——

Chairman WAXMAN. Mr. Platts.

Mr. ISSA. Oh, would you ask Todd to stay for a few minutes?

Chairman WAXMAN. Mr. Platts is yielding his time. He must stay

here. Go ahead.

Mr. ISSA. OK. If you could put the map up on the board, and this

will primarily concern, I think, most both Administrator Dudley

and Administrator Johnson, but if you will look at the chart, these

are counties with monitor violations in 2008, primary ozone at the

0.75 parts per million, and secondary standard of 0.21.

Now, my understanding is that every area that is dark, which includes, unfortunately, most of California. There is no effective difference whether you set the standard for secondary higher or

lower, is that correct? That basically, the ones that are in compliance will be in compliance at either level; the ones that are not in

compliance will not be in compliance at either level. Is that roughly

true, based on the map you see up there, if you are familiar with

it?

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Mr. JOHNSON. Based upon analysis that our staff did that whether the form was the W–126 form or the following identical to the

8-hours ozone standard, based upon the decision that I made to be

protective that it didn’t matter either way.

Mr. ISSA. OK, following up on that——

Mr. JOHNSON. But, clearly—excuse me, sir.

Mr. ISSA. Yes.

Mr. JOHNSON. But clearly, for the primary standard there were

many counties based upon monitoring data that would be out of

compliance within the new primary health protective standard.

Mr. ISSA. I realize that and, of course, if California’s out of compliance, in such a large area they are going to be in either case.

I would note that the food basket of California appears to be producing a tremendous amount of crops for us with already noncompliant ozone layers.

Dr. Henderson, can you explain, essentially, why productivity

has increased dramatically in most of America, whether it is corn,

wheat, rice, or the vegetables grown in California during a time in

which ozone levels were far above what you are saying you would

like them to be?

Ms. HENDERSON. Well, it would be a mistake for me to try to calculate all the factors that go into food production.

What I was trying to mention was we could do a better job of

air quality management in rural areas if we had some kind of handle on what the ozone levels are and if they are at a level that can

affect the foliage.

Mr. ISSA. OK, but back to Administrator Johnson, you didn’t find

that setting a different standard would have made any difference.

In other words, the economic value that you are required by statute

to—and, Administrator Dudley, you, too—you are required to look

at this economic value. If I read this map correctly, there is not

economic value to the different standard because it doesn’t, in fact,

change the compliance. Is that correct?

Mr. JOHNSON. You have to be very precise. Based upon the data

sets analyzed between 2003 to 2005, and then 2004 to 2006 from

currently monitored counties, no additional counties would have

been out of attainment under the seasonal secondary standard initially proposed by EPA.

Mr. ISSA. OK. Could we put the chart up that comes next? This

is the chart of levels for the 12-hour standard, the so-called W–126

standard. I think all of you are familiar with this.

When I read it, looking at the difference between the 0.075 and

the 0.070, under the 126 standard, 21 parts per million, I see no

change again. Is that essentially a more graphic way to show that,

in fact, there would have been no benefit had we implemented the

lower standard? The secondary standard.

Mr. JOHNSON. Yes.

Mr. ISSA. So, Dr. Henderson, if I accept science—and I do—and

that your conclusions are well-intended but without the economic

value consideration, would you agree, based on no counties changing, the 126, that in fact it was within the Administrator’s purview

to judge that and to come up with at least the standard for now

of 0.075?

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Ms. HENDERSON. I am mixing whether you are talking about the

secondary standard or the primary standard.

Mr. ISSA. Well, I am going to the secondary standard, but let me

put it another way. Your advisory role is for the Administrator to

accept or reject that, in fact, it is advisory even though it is scientific based, and you have standards different than he does. You

said yourself you do not evaluate this economic value where he

does. Is that correct?

Ms. HENDERSON. It is certainly within his purview. He is the one

who decides. We are advisory only. In the case of the secondary

standard, I think the decider was President Bush. And that is

within his purview, I mean.

Mr. ISSA. Thank you. Thank you for allowing me to clear up the

difference in scope, Mr. Chairman.

Chairman WAXMAN. Mr. Hodes.

Mr. HODES. Thank you, Mr. Chairman. The law is very clear that

EPA may not consider costs in setting a National Air Quality

Standard to protect the environment. The Supreme Court specifically addressed the issue in 2001. The court wrote that if EPA established a standard by ‘‘secretly considering the costs without telling anyone,’’ it would be grounds for throwing out the standard because the Administrator had not followed the law.

I am concerned that this is exactly what happened in this case.

The record before this committee shows that the unanimous recommendation of the Clean Air Scientific Advisory Committee was

rejected by you, Mr. Johnson, apparently on the basis of White

House opinion or desire to which you apparently exceeded, given

the change in your position from February 22nd to March 12th, for

which is there is no explanation that is reasonable other than what

the White House told you to do, and much weaker standards were

finally selected.

I want to know, Mr. Johnson, during the Agency’s consultation

with the White House, did White House officials express concerns

about the costs of implementing the ozone standards?

Mr. JOHNSON. Sir, are you referring to the primary or the secondary standard?

Mr. HODES. Either one. Did they express concerns about the

costs of implementing the ozone standards with respect to either

primary or secondary? And I will just point out for you that your

Administrator, Mr. Peacock, said that it is clear that the prohibition extends even to secondary standards.

Mr. JOHNSON. That is my belief, and that is the way I operated

in my decisionmaking.

Mr. HODES. Did the White House express concerns about the

costs of implementing either the primary or secondary standards in

your consultations with the White House?

Mr. JOHNSON. As I said, for making a decision, it is my decision

and my decision alone, made independently, and I cannot consider

and did not consider costs nor whether it was implementable.

Chairman WAXMAN. Mr. Hodes, I don’t think he has answered

your question.

Mr. HODES. I know. I am sorry, Mr. Johnson. Here is my question: Not what you consider, I am asking you, Mr. Johnson, during

the consultations you had with the White House, did the White

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House officials express concerns to you or your agency about the

costs of implementing the ozone standards.

Mr. JOHNSON. Well, if I did recall, I am not sure that it would

be appropriate for me to get into what—who said what at what

point in time. In fact, I believe that it is important for me and others, future administrators, to be able to have candid discussions

with members of the executive branch, and, as I said, I made the

decision. I made the decision without consideration of cost, and

that is the important——

Mr. HODES. Let’s stop there because I want to pursue this, and

I want an answer to my question. When I hear a witness start

talking to me about ‘‘if I did recall,’’ I wonder whether or not the

witness is being evasive. Do you recall having discussions with the

White House concerning costs of implementing the standards?

Mr. JOHNSON. I have routine conversations with members of the

executive branch.

Mr. HODES. Sir, it is a simple yes or no answer. Do you recall?

Mr. JOHNSON. It is not a simple yes or no answer because I have

routine conversations on a multitude of issues, and I am saying is

that with, on this issue, I made the decision. I understand what the

law directs me to do, and that is not consider costs and I did not

consider costs.

Mr. HODES. Let me go back. Do you recall, sir—search your

memory—having conversations with the White House about costs

in implementing the standards?

Mr. JOHNSON. If I did recall, it would not be appropriate for me

to discuss the nature of those conversations.

Mr. HODES. So you won’t tell me whether you do or do not recall?

Mr. JOHNSON. As I said, it was not part of my decisionmaking.

Mr. HODES. That is not my——

Mr. JOHNSON. That is the important piece, sir.

Mr. HODES. With all due respect, I am asking the questions and

you are answering them.

Mr. JOHNSON. I am answering and you don’t like the answers.

Mr. HODES. No. What I want to know is, do you recall or don’t

you recall?

Mr. JOHNSON. I said even if I did recall, it is not appropriate for

me to get into the nature of discussions I have within the executive

branch.

Mr. HODES. And the basis of your refusal to answer the question,

is it your lack of recollection or some assertion of privilege?

Mr. JOHNSON. I am not asserting any privilege at this time, but

I think that it is important, and I think that it is important that

I and future administrators have the ability to had candid conversations. I also believe that is important, and certainly as the

Agency deliberates on issues that are before us, and I think that

is an important privilege, and also I think that it is an important

principle that I need to maintain for me and for future administrators.

Mr. HODES. I will try this one last time. You understand, sir, you

are under oath before this committee?

Mr. JOHNSON. Oh, I understand that, sir.

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Mr. HODES. Do you or don’t you recall having conversations with

the White House about whether or not costs were considered by the

White House?

Mr. JOHNSON. As I said, that whether or not I recall or don’t recall, I don’t believe that it is appropriate for me to discuss the nature of those conversations. I believe it is appropriate for me to be

able to have candid conversations, and I also said under oath that

I did not consider costs in making my decisions.

Chairman WAXMAN. Thank you, Mr. Hodes. Your time has expired.

Mr. Sarbanes.

Mr. SARBANES. Thank you, Mr. Chairman.

Ms. Dudley, I am going to give you some equal time here. I was

intrigued by your memo that came, let me see if I can find it, on

March 6th, which was 6 days before this deadline, you sent a

memo to EPA where you said, ‘‘The draft does not provide’’—this

is the draft EPA report—‘‘does not provide any evidence that a separate secondary standard would be more protective than one set

equal to the draft primary standard.’’ Explain that.

Ms. DUDLEY. The air quality that would be achieved by setting

the secondary standard based on that seasonal form averaging it

over 3 months or setting it equal to the primary, the level of air

quality is the same. I think it gets back to the maps that were up

there.

But what we care about is air quality, and the air quality that

vegetation and humans are exposed to, the two standards from all

the analysis that EPA did would have the same effect.

Mr. SARBANES. I am incredulous that you could claim there

wasn’t any evidence when in the draft, original draft, the Administrator indicated that he found evidence compelling that ozone-related effects on vegetation are best characterized by an exposure

index that is cumulative and seasonal in nature, and that conclusion on the part of the Administrator was reflective of what the expert panel had concluded, and what months if not years of research

and work on the part of the EPA staff had concluded.

So again, I mean I could see you asserting perhaps that it does

not provide adequate evidence or sufficient evidence, but to suggest

that it didn’t provide any evidence, that there was no evidence that

this secondary standard that was originally being ut forward would

be the appropriate one doesn’t seem to jibe with all of the other testimony and documentation that we have.

Ms. DUDLEY. There are two different issues here. One is that

whether vegetation responds over a season rather than over a day,

and EPA did present evidence to that. EPA also presented evidence

that the current standards—or the previous standard may not be

protective of vegetation.

But at the end of the day, regardless of which form you used, air

quality would be reduced so that vegetation would be exposed to

the same air quality. That is the bottom line, so that the form of

the standard will not affect the air quality. It won’t affect what

people have to do to come into compliance with the standard, and

it won’t affect the air quality in those counties that are affected by

the standard.

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Mr. SARBANES. Well, what you are saying strikes me as doubletalk in the context of what we heard in the original draft from the

Administrator, and certainly the reaction of the staff and the experts to the ultimate decision to abandon the more cumulative

standard in favor of the same standard as the primary was intense,

and it was lamented at all levels within the staff which to me suggests that there was sufficient evidence. Certainly, there was evidence that would be the most appropriate route to take.

Administrator Johnson, I just want to say to you that I am offended—and I am not trying to be facetious here, I actually mean

this—I am offended on your behalf by the White House’s handling

of this matter, because right up to the end you were going with the

science. In fact, I commend you for the fact that after you started

to see the writing on the wall on March 6th, you nevertheless, and

then at that point, had the ability, I guess, to begin regrouping.

You nevertheless pushed forward right up to the point of the deadline when the rug was essentially pulled out from under you, or

you received this countermand, this final countermand or overwrite

from the White House.

I am going to ask you a question which again I don’t mean to

be facetious. You are somebody who was in the Agency for many

years, you had this opportunity to take the top spot there. I am curious, when you did that, did the President in speaking with you

about taking this job, or the White House in speaking with you

about it, did they indicate to you that there would be times when

the science would be overridden for political purposes? And you

would essentially have to carry that water for the White House?

How clear were they about these instances occurring.

Mr. JOHNSON. Sir, my charge and certainly my oath of office was

to carry out the mandates and the laws that I am responsible for

under the Environmental Protection Agency. That was the charge.

The President sent further and said, Steve, I want you to accelerate the pace of environmental protection while you help maintain

the Nation’s economic competitiveness. That was the charge that

was given. I have certainly been very public about that.

I have been carrying out those duties to the best of my ability,

looking at sound science, and, as I said, science isn’t pure. There

are many uncertainties and science requires policy judgments and,

of course, then there are a variety of other issues that come into

play depending upon the statute.

Mr. SARBANES. Well, with all due respect, I can’t imagine a clearer example of where your charge to carry out the law in respect to

science could come into conflict with what the President’s and

White House’s edict was in this particular matter.

I yield back.

Chairman WAXMAN. The gentleman’s time has expired.

Mr. Welch.

Mr. WELCH. Thank you, Mr. Chairman.

Mr. Johnson, my understanding is Jason Burnett is a senior

member of the EPA.

Mr. JOHNSON. Yes.

Mr. WELCH. And he is a trusted and respected advisor, is that

right?

Mr. JOHNSON. Yes.

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Mr. WELCH. A person on whom you had confidence, have confidence?

Mr. JOHNSON. Yes.

Mr. WELCH. Is that correct? He, as you know, has been deposed,

and he testified that, according to him in his testimony, you favored granting this California waiver in full in August and September. Is Mr. Burnett correct?

Mr. JOHNSON. Well, I think that he is correct in characterizing

that over time, as I was briefed——

Mr. WELCH. Let’s keep it simple. I mean, I understand this is a

process. My question, and I am really going to try to frame a question that is clear, that allows you to answer it as clearly and as

succinctly as possible. I do appreciate that this is a process, and

you have many things that come in so what happens today isn’t

necessarily what is the wise decision tomorrow, OK?

But is he correct in his recollection, according to his testimony,

that in August and September, you were leaning toward a full

waiver?

Mr. JOHNSON. Well, I don’t recall the August and September

timeframe, but I can say with confidence that I was considering all

options, including a full grant and also a full denial, and options

in between. And I think my recollection is, as I read the transcript

last night, and I think he also states that as well.

Mr. WELCH. Mr. Burnett said—it was very clearly—that in August and September you were favoring granting a waiver in full.

We have to move on here. I only have 5 minutes, so you read it

last night. That is what he said.

Chairman WAXMAN. Well, the issue isn’t what Mr. Burnett said;

the issue is whether it is accurate or not.

Mr. JOHNSON. Well, as I said, is that I considered each one of the

options.

Mr. WELCH. All right, let me go through this.

Mr. JOHNSON. I don’t recall the particular time, but I did

consider——

Mr. WELCH. But that is obvious. It is obvious that you did. Here

is what he said. I think you have more or less acknowledged that

in August and September he was correct, you were leaning toward

a full waiver. He said that over time you began to think of a partial

grant. Is he right there?

Mr. JOHNSON. I considered a partial grant, that is correct.

Mr. WELCH. All right. Then on December 19th you issued a denial.

Mr. JOHNSON. Yes.

Mr. WELCH. Was that after you had been to the White House to

have conversations about this issue?

Mr. JOHNSON. Well, again, I have routine conversations with the

White House throughout the calendar. Again, this was my——

Mr. WELCH. Did you have any——

Mr. JOHNSON. This was the decision.

Mr. WELCH. Did you have anything——

Mr. JOHNSON. I understand——

Chairman WAXMAN. Mr. Johnson, we would appreciate it if you

answer the questions.

Mr. JOHNSON. Yes, I am trying.

137

Mr. WELCH. Did you have a meeting with the President about

this?

Mr. JOHNSON. I have routine meetings with the executive branch,

including the President.

Mr. WELCH. OK. What part of my question don’t you understand? Did you have a meeting with the President about this issue

of the EPA waiver?

Mr. JOHNSON. When and where and if I have meetings with the

President are—I said I have routine meetings with members of the

executive branch. Those meetings I believe are in confidence.

Mr. WELCH. Is there something——

Mr. JOHNSON. And as I said, I made the decision. It was my decision alone.

Mr. WELCH. Mr. Johnson, you described this process is transparent and open, correct?

Mr. JOHNSON. Yes.

Mr. WELCH. And you are proud of the process?

Mr. JOHNSON. I am. This was an excellent process. As you can

see from the thousands of pages.

Mr. WELCH. Does transparent mean if we can’t know whether

you, in fact, met with the President and discussed with him this

issue?

Mr. JOHNSON. I believe that as Administrator that I need to have

the ability to have private meetings with the President and members of the executive branch.

Mr. WELCH. Did I just ask you what the content was of your

meeting with the President?

Mr. JOHNSON. I said I have already acknowledged that I have

routine meetings with the President and members of the executive

branch. I think that is good government.

Mr. WELCH. Yes, but a few things: In your September 12th briefing, there were slides that were presented that included a statement from our staff that the clearest and most defensible option

would be to grant the waiver. Is that true?

Mr. JOHNSON. I don’t recall that particular slide. I know that

there was a wide range of options and that they were all legally

defensible.

Mr. WELCH. There were staff evaluations at the September meeting—this is all in the record. This is not disputable.

Mr. JOHNSON. I said I don’t remember that particular document.

Mr. WELCH. So we can pretend to the people listening that this

is an established fact, but let’s——

Mr. JOHNSON. Sir, there were how many thousands of pages of

documents that were submitted to you?

Mr. WELCH [continuing]. September 12th briefing it said California has extraordinary ozone conditions, that greenhouse gas standards are reasonably viewed as necessary to address climate change,

and opponents to the waiver have not met their burden of showing

the California standards won’t benefit climate change and ozone

conditions.

Are you aware that in these evaluations they originally contained

those remarks in writing until they were removed at the insistence

of Mr. Meyers?

138

Mr. JOHNSON. I don’t recall that situation, and I don’t necessarily

see documents that are drafted by individual staffs.

Mr. WELCH. But you were at the meeting.

Mr. JOHNSON. Oh, I don’t necessarily see all the workings of

drafting and redrafting before that it reaches my desk. That is the

point.

Mr. WELCH. This is sounding like some of the meetings you were

at you were present, and some of the meetings you are at, you are

not. September 20th and 21st briefing, this is your briefing. I

mean, it is not somebody else’s.

Did the EPA staff make it clear that the statutory criteria for

granting the waiver had been met? That is a threshold question,

correct?

Mr. JOHNSON. There were a wide range of options, and there

were opinions that were provided to me that as part of the record.

As I said——

Mr. WELCH. It is a little frustrating.

Mr. JOHNSON. Well, it shouldn’t be frustrating——

Mr. WELCH. Well, it is.

Mr. JOHNSON [continuing]. Because there is a 50-page

document——

Mr. WELCH. No, no, it is a simple——

Mr. JOHNSON [continuing]. Describing my decision and the scientific basis on what the law requires me to decide, which I decided.

Chairman WAXMAN. Mr. Welch, your time has expired.

Mr. Johnson, you admitted you had a conversation with the

President on the California waiver. That wasn’t an issue.

Now, you are refusing to say whether you had a conversation

with the President on the ozone waiver. What is the difference?

Mr. JOHNSON. As I said, I have routine conversations with the

President as well as members of the executive branch, and I believe that those——

Chairman WAXMAN. Let me get the record straight.

Mr. ISSA. Could we have regular order?

Chairman WAXMAN. The chairman is pursuing regular order.

You said for the record that you had a conversation with the President on the ozone layer?

Mr. JOHNSON. I don’t recall making that——

Chairman WAXMAN. On the ozone ruling?

Mr. JOHNSON. I don’t recall making that comment myself.

Chairman WAXMAN. Do you recall making a comment that you

have had a conversation with the President on any of these three

rules that we have been looking at?

Mr. JOHNSON. As I said, what I do recall and I believe is an accurate reflection of what I have said, is that I have routine conversations with members of the executive branch, including the President on a wide range of issues.

Chairman WAXMAN. OK, I am not going to pursue this because

I will have another opportunity, but it seems to me you are being

awfully evasive, and I don’t know why you cannot tell this committee whether you in fact had a discussion about this rule or that

rule or the other rule. We are only talking about three different

139

rules. Either you did or you didn’t. I don’t know why you cannot

tell us that information.

No one is asking you what was said. We are just asking you

whether you had a conversation, and the answer is not acceptable

to say, I have had conversations with the President and others on

a routine basis, and I am not going to tell you whether I had a conversation on these subjects. What else do you talk to him about?

Mr. JOHNSON. As I have said, I have routine conversations

on——

Chairman WAXMAN. In those routine conversations, did you talk

about the ozone——

Mr. JOHNSON [continuing]. On a wide range of topics.

Mr. ISSA. Mr. Chairman, I must insist that we go to regular

order.

Chairman WAXMAN. The gentleman is not in order at this time.

Mr. ISSA. Mr. Chairman, the rules of the House——

Chairman WAXMAN. The gentleman will cease.

Mr. ISSA. The rules of the House call for an alternating 5 minutes on——

Chairman WAXMAN. The gentleman will cease.

Mr. ISSA [continuing]. On what time does the chairman speak.

The point of order, Mr. Chairman, on what time does the chairman

speak and ask these questions.

Chairman WAXMAN. The Chair has the prerogative to pursue for

the record a clarification and I am pursuing it.

Mr. ISSA. Mr. Chairman, where in the rules is that stated? Could

I see a copy of the rules that allow it, because as I said, the rules

of the House, Mr. Chairman——

Chairman WAXMAN. We will furnish you with a copy at the appropriate time.

Mr. ISSA. Mr. Chairman, there are multiple Members that could

yield to you time. I would ask that you——

Chairman WAXMAN. I will have you physically removed from this

meeting if you don’t stop. I want to know an answer to the question.

Did you have a discussion with the President on any one of these

three rules?

Mr. JOHNSON. Mr. Chairman, as I said, I have routine conversations with the President and the executive branch on all, on many

matters before the Agency of particular importance. I don’t believe

that it is appropriate for me to get into the details of what those

conversations are or are not. I think that is an important privilege

that and opportunity that we have.

Chairman WAXMAN. Are you asserting executive privilege?

Mr. JOHNSON. Not at this time, sir.

Chairman WAXMAN. OK, Ms. Watson is now recognized.

Ms. WATSON. Thank you, and let me try this: Mr. Johnson, in

December 2007, you announced that EPA would deny California’s

petition—and I am a Californian—for a Clean Air Act waiver to enforce its standards to reduce greenhouse gas pollution from cars

and trucks. In our previous investigations of the White House’s manipulation of climate change science, we learned that the Office of

the Vice President was involved in these activities.

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Because the California waiver directly relates to climate change,

I would like to ask you about the Vice President’s role in the California waiver decision. It is very important to me. Was the Vice

President’s Office involved with the deliberations on the California

waiver?

Mr. JOHNSON. Not to my knowledge, no.

Ms. WATSON. Your answer is no, OK. According to press accounts, the Vice President was involved in the issue and the Press

has reported that the CEO of Ford and Chrysler met with Vice

President Cheney prior to the denial and urged the administration

to reject the waiver. Did the Vice President or his staff put any

pressure on you or your staff to deny the California waiver request?

Mr. JOHNSON. No.

Ms. WATSON. Did the Vice President or his staff tell you they opposed the California waiver?

Mr. JOHNSON. Not that I recall.

Ms. WATSON. Mr. Johnson, we are looking at a mysterious, lastminute reversal of your position on the California waiver. We need

to fully understand the reasons for that sudden change of course.

Transparency is what we are trying to get to, and it would be fundamentally wrong if you reversed your decision because of the

meeting the Vice President had with the auto industry. It would

violate the Clean Air Act if a denial resulted from any pressure

from the Vice President’s office.

But the committee won’t know the truth if you do not tell us and,

in terms of being transparent, we want to know why there was a

reversal. We asked for the waiver because living in California, having worked for 20 years in the legislature, we did a lot to clean up

our air. In fact, it took us 14 years for the smoking policies that

stopped smoking on airplanes in California air space, and now it

is the practice around the globe.

So we kind of know what we are doing when we ask for a waiver.

So if you could be transparent, was there any pressure put on you

at all to change your own recommendations, to reverse your own

recommendations.

Mr. JOHNSON. Well, then I would with due respect beg to differ

with your characterization. I didn’t reverse any decision; I made

the decision, and the decision was documented in the letter of what

I intended to do—to the Governor—in December, and later on then,

as I said, the approximately 50-page document goes into great detail on my decision.

It was my decision, it was mine alone, and as I note in the document that climate change is a problem that is not unique to California. My decision is grounded in the law and the facts that were

before me.

Ms. WATSON. We have your words down in the record, but was

there any input from the White House that influenced your final

decision to deny us a request for a waiver?

Mr. JOHNSON. Again, my decision was based upon the law and

the facts in Section 209.

Ms. WATSON. No, let me clarify and speak real clearly.

Mr. JOHNSON. Please.

141

Ms. WATSON. So you can answer me directly, was there any

input from the White House, either the President or Vice President, that influenced your decision?

Mr. JOHNSON. Again, I have routine conversations with the executive branch and——

Ms. WATSON. All right, you will not answer——

Mr. JOHNSON [continuing]. And I made the decision——

Ms. WATSON. Hold on. Hold on, I am asking some questions. I

have gone through this for the last hour. Yes or no.

Mr. JOHNSON. As I said, I have routine conversations——

Ms. WATSON. No. That doesn’t——

Mr. JOHNSON. Well, again——

Ms. WATSON. Right, we are talking about transparency.

Mr. JOHNSON. As I said——

Ms. WATSON. Yes or no?

Mr. JOHNSON. The answer is no, they did not make the decision.

The answer is yes, I made the decision.

Ms. WATSON. I didn’t ask did you do that. Maybe my English is

not clear. Let me see if I can restate it.

Mr. JOHNSON. Please.

Ms. WATSON. Yes. You have these routine conversations.

Mr. JOHNSON. Yes.

Ms. WATSON. Was there anything—you don’t have to give me the

content—was there anything in the conversation, any input from

either the President or the Vice President—and the Vice President

in particular, because we do have a record of conversations with an

industry that adds to the pollution in the air, was there any input

from the Vice President that impacted on your decision to deny

California its waiver?

Mr. JOHNSON. Specifically, for the Vice President I don’t recall

any.

Ms. WATSON. Your answer is that you don’t recall.

Mr. JOHNSON. I said no, I don’t recall any.

Ms. WATSON. OK, thank you. Thank you very much.

Chairman WAXMAN. Mr. Issa expressed that I was being unfair

by taking additional time out of order, and I, in order to be fair,

will yield him at this point 3 minutes so he can pursue further

questions.

Mr. ISSA. Thank you, Mr. Chairman, and I appreciate the balance.

In a nutshell, Administrator Johnson, you are aware that Members of Congress enjoy the speeches and debate exemption—it is

been well documented—that what we do and say in order to make

our decisions and how we come to the floor is protected from, basically, discovery by your branch. So it probably shouldn’t come as

a surprise, or should come as a surprise to you that we are surprised that you are not going to tell us whether or not there were

conversations within the executive branch that led to your independent decision.

So I hope you will take that as an I-understand-it-even-if-othersdon’t.

In a nutshell, you serve at the pleasure of the President, is that

correct?

Mr. JOHNSON. That is correct.

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Mr. ISSA. But the President doesn’t have the right to order you;

he only has the right to either accept what you do, statutorily,

make independent judgment if he has statutory, or fire you. Isn’t

that essentially correct?

Mr. JOHNSON. Essentially, that is——

Mr. ISSA. OK, so you have independent authority subject to that

portion of the pleasure, and you have asserted that in order to

make your decision.

I would like to quote a well-known gentleman, Chairman Dingell,

who declared that this regulation of CO2 was a glorious mess. Do

you agree with Chairman Dingell that under the current law taking a common material that is going to be everywhere and diffuses

quickly, and regulating it under the existing Clean Air Act, will be

a glorious mess?

Mr. JOHNSON. I believe that there are many intricacies and complications with the Clean Air Act, and my personal opinion is that,

given the likely years and years of litigation that would ensue, I

prefer a legislative approach. However, as the chairman duly noted,

I had responsibilities to administer the Clean Air Act, and that is

what I am doing by beginning with an advance notice of proposed

rulemaking, which will certain help the Agency as it sorts through

the intricacies of the Clean Air Act and, I trust, will also help

Members of Congress.

Mr. ISSA. Now, in your consideration of granting a waiver to

California, did it occur to you at least as to CO2 that when you

haven’t yet set levels on something you have just now been told

through the courts you have the ability to set a level on, an independent request would be premature and inappropriate.

Is that part of your consideration in how do you grant a waiver

before you have even determined what the basis? You might, in

fact, regulate to a level much lower than what California would?

Mr. JOHNSON. Well, actually, the Section 209 of the Clean Air

Act actually identifies three very specific criteria, and that has to

be the sole basis of my evaluation of any waiver petition. In my

judgment, California did not need the second criteria, which is a

compelling and extraordinary conditions. I go into great detail describing why I do not believe, in my judgment, they met those conditions.

Chairman WAXMAN. Mr. Cummings.

Mr. CUMMINGS. Thank you very much, Mr. Chairman.

Administrator, let me ask you this: I found it interesting that

when the chairman was asking you about meetings with the President, you did not provide a direct answer. You talked about all

these wonderful times that you have, and then when Ms. Watson

asked you about the Vice President, you did answer and say that

you didn’t have meetings with regard to the California standards.

I just want to make sure I understand why it sounds like there

was a different standard there for you.

Mr. JOHNSON. It is not a different standard, sir, but, as I said,

I have routine meetings with the executive branch, including the

President. Asked specifically about the Vice President, and to best

of my recall I did not have any conversations with him. I was just

trying to respond to——

Mr. CUMMINGS. And all with regard to this, is that right?

143

Mr. JOHNSON. With regard to the California waiver, that is correct. So I was just trying to clear that up.

Mr. CUMMINGS. Yes. Well, I am glad you did. I just, you know,

one of the things, this stuff is personal for me because I have asthma. In my district in Baltimore, we have a high rate of asthma,

and the taxpayers pay you. They pay you as they pay us. We, in

Maryland, are anxious to adopt the same standards that California

has, and so, you know, we are curious as to how our Administrator,

our man in the EPA, how he makes his decisions.

So, you know, during the time that the EPA, as Administrator

many of your decisions have provoked widespread public criticism

and even outrage. In response, you have said, ‘‘It is not a popularity contest,’’ and you said, ‘‘In the end, it is the judgment, and

each of these decisions is my decision and my decision alone.’’ Do

you remember saying that?

Mr. JOHNSON. I do remember saying that, and I agree with that.

Mr. CUMMINGS. But you don’t get to decide whatever you want.

You must base your decisions on the scientific data and the criteria

that Congress established in law. The final decisions are made by

the courts to determine whether your decision is conformed to the

law. All too frequently their answer has been no.

Chairman Waxman asked you recently about EPA, as to EPA for

the full litigation record on the Clean Air Act decisions issued by

this administration. It is not a pretty picture. Out of the 26 cases

decided by the D.C. Circuit, EPA lost two-thirds in whole or in

part.

Did you know that?

Mr. JOHNSON. Yes, I do, and our then General Counsel Roger

Martella sent, I believe, a letter to the chairman detailing all of the

court cases which do not reflect that kind of percentage. So, yes,

I am concerned when we lose cases, and that is why I am going

my very best job to make sure that not only are our decisions, my

decisions, based upon sound science but on good laws as well.

Mr. CUMMINGS. Well, I am glad you said that, because these

losses include some of this administration’s highest profile environmental rules. In 11 cases, the court said that the EPA’s position

was barred by the plain language of the law, which is the legal

equivalent of a shutout.

To date, the D.C. Circuit has reviewed eight of your decisions

and has entirely or partially rejected half. Does this track record

concern you?

Mr. JOHNSON. Yes. Any time that the Agency loses a lawsuit, I

think that is important, and that is of concern to me.

Mr. CUMMINGS. And I know EPA has fine lawyers. My concern

is whether you and the White House are listening to them.

Mr. JOHNSON. Well, sir, I listen to all of my staff, including a

great legal staff. As I said, I base my decisions on science and on

the law and on the facts that are before me.

Mr. CUMMINGS. Now, the committee’s investigation of your denial

of the California waiver decision revealed that legal staff warned

that a denial would likely—that you would likely lose, but you disregarded their advice even when EPA has lost in court the first

time. That hasn’t stopped the administration from trying again.

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This summer EPA plans to issue a third New Source Review

rule, which would allow dirty power plants to upgrade and increase

air pollution without installing pollution control equipment. The

D.C. Circuit overturned the administration’s second New Source

Review rule as well as part of the first, and the Supreme Court has

already rejected the legal theory EPA is relying on.

Has your legal staff warned you that this rule would be highly

vulnerable to legal challenge?

Mr. JOHNSON. Well, since the rule is pending before the Agency,

that is an important issue that we are currently debating.

Mr. CUMMINGS. Thank you, Mr. Chairman.

Chairman WAXMAN. Thank you, Mr. Cummings.

Mr. Cannon.

Mr. CANNON. Thank you, Mr. Chairman. This has been an interesting and relatively intense hearing. I would like to give Mr. Johnson the opportunity just to sort of respond to some questions that

he has time to respond to, so we can actually make some sense out

of those.

On December 19, 2007, Mr. Johnson, you announced that you

would be denying California’s waiver request, and on February 29,

2008, you released the complete decision document explaining the

decision. Were you advised that the decision to deny California’s

waiver request was supported by the law?

Mr. JOHNSON. Yes.

Mr. CANNON. Would you like to elaborate on that a little bit?

Mr. JOHNSON. Well, the staff presented me a wide range of options. We went through each of those options, and each one, those

that were not defensible, were eliminated, and the ones that were

presented, options were presented to me, including denial were presented, and ultimately that is the decision that I made.

Mr. CANNON. So there were some options perhaps out there that

didn’t make it to you because they were not legally justifiable.

Mr. JOHNSON. Again, I don’t know which ones were or were not,

but certainly the ones that were presented to me were legally defensible, including a denial.

Mr. CANNON. Were you advised that the decision to deny the

waiver we requested was supported by the facts of the record as

well as the law?

Mr. JOHNSON. Yes. In fact we have an approximately 50-page decision document that goes into great detail, detailing my decision

and based upon all of the facts.

Mr. CANNON. So you were presented with options that were justified by the law and the facts, and then you made a decision, and

that decision was then substantiated by the law and the facts in

your decision?

Mr. JOHNSON. Yes.

Mr. CANNON. Was denying California’s waiver request one of the

options that was included as one of the options included by your

staff?

Mr. JOHNSON. That is correct.

Mr. CANNON. Do you have any reason to believe your staff would

present you with an option that was not supported by the law or

the facts of the record?

Mr. JOHNSON. I do not.

145

Mr. CANNON. Is there anything else you would like to say about

this issue since you have been hectored to——

Mr. JOHNSON. Well, sir, I know that the chairman and other

members of the committee disagree with my decision, and I understand that. These decisions are not easy decisions, but I made the

right decision. I made the decision based upon the facts, based

upon the law, what the law directs me to, and I stand by that. It

was my decision and my decision alone.

Mr. CANNON. Thank you. You just answered the next question I

was about to ask. It was your decision. Do you stand by that decision today?

Mr. JOHNSON. Absolutely.

Mr. CANNON. You know, I personally have some bona fides. I

worked in the Reagan administration after the Surface Mining Law

had been passed, and the first of the regulations had been done

under the Carter administration. The second had been done under

Secretary Jim Watt, and both were probably extreme. It is very difficult to find a middle path that actually works, works for industry

and works for the American people and works for the environment.

I just want you to understand that some of us understand how

difficult these things are, especially difficult when the world

changes and technology has changed the world around us. It has

changed the world in which we can regulate and manage regulation. And to suggest that we could never do anything new, whether

you are Democrat or Republican, would bind us, tie us up in a way

that would not make any sense at all. In fact, I would hope that

in America we would start looking at how we can actually move

away from Federal, centralized regulation to more local regulation

throughout the country.

I think our information technology gives us that opportunity. Our

understanding that the science of pollution and what is harmful to

our bodies, what is harmful to the environment, is moving rapidly

forward, and I would hope that the hectoring that you have felt

today will not be perpetuated in the future by whoever replaces you

and others but, rather, is a thoughtful review of what happens so

that we can help guide these sort of bumpers instead of being

sledge hammers about it.

Mr. JOHNSON. Well, sir, I appreciate that, and I also respect the

role of Congress and important role in oversight, and I am very

supportive of oversight responsibility, and I am also supportive of

transparency. But, as you can well imagine, I have to also be supportive of the ability to have candid conversations, have advice so

that I can make decisions that are independent decisions, whether

that be independent decisions from Congress or independent decisions, again under the law, or independent decisions from the

White House, or anybody else.

I do respect the oversight responsibility, and I believe that the

thousands of pages and the depositions and all the rest demonstrate to me that I went through a very thoughtful, I went

through excruciating number of briefings and details so that I

could be best equipped to make the most informed decision.

So again, I appreciate the opportunity to be here, Mr. Chairman,

and thank you for those remarks.

146

Mr. CANNON. Thank you, Mr. Chairman. I assume my time has

expired.

May I just thank Ms. Dudley for being here? Her office is also

under the jurisdiction of the committee that I am the ranking

member of on Judiciary. We have spent some time together. I appreciate her being here, and perhaps some other time we can ask

more questions of you, Ms. Dudley.

I thank you, Mr. Chairman. I yield back.

Chairman WAXMAN. Thank you, Mr. Cannon.

Ms. WATSON. Mr. Chairman, a question to you.

Chairman WAXMAN. Yes?

Ms. WATSON. Is it possible for us to get a copy? Mr. Johnson has

spoken of the 50-page report, and I think it is in the public domain.

Can we access a copy of that?

Chairman WAXMAN. We will make it available to you.

Ms. WATSON. All right. Thank you very much.

Chairman WAXMAN. I would like to recognize myself. The Constitution is clear. Congress passes the laws and the executive

branch must faithfully execute them.

Administrator Johnson, we knew what your professional positions were as the head of EPA. You had a record. You heard from

an advisory committee, you heard from your staff, you got input

from all sorts of groups, environmentalists and industry. That is all

appropriate that you get all this input in to make the decisions.

We knew what your decision was on three areas: ozone, the California waiver, and the greenhouse gas question. Or at least we

know what you sent to the White House.

And then you reversed yourself after you had a candid conversation with the White House that would indicate you are getting

input from the President, which you may think is important. But

it also may indicate that the President is really making the decisions. What we need to do our oversight job is to find out on what

basis he is telling you that you ought to make a different decision

than what you initially proposed.

Now, in the case of ozone the Clean Air Act clearly states that

air quality standards must be set by you using your best judgment

based on the latest scientific information. The law does not provide

that it is the President’s decision; it says that it is your decision.

Now, I understand some Constitutional scholars would say when

Congress grants an agency authority, the President is granted that

authority as well. Other scholars disagree. We don’t have to resolve

that issue, but in the setting of ozone standards, the science and

staff work all pointed in one direction: Set a secondary standard

that uses a seasonal form.

EPA’s record is clear, but in literally the last hours of the rulemaking process when you faced the deadline in which you have to

come out with a rule, the President helped you see that you ought

to reverse what EPA and what you had suggested, and the record

does not explain how the President made his decision.

Now, we issued a subpoena both to Administrator Johnson and

Administrator Dudley to provide documents that will help the committee understand how this decision was made.

Ms. Dudley, the subpoena required you to produce the documents

by April 18th.

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Mr. Johnson, you were required to produce the documents by

May 6th. Unfortunately, you both continued to withhold documents.

I wrote to both of you on Friday. I informed you that unless there

is an assertion of executive privilege, you must produce the documents at this hearing today. Administrator Johnson, has the President asserted executive privilege over the documents responsive to

the subpoena?

Mr. JOHNSON. My understanding, sir, that executive privilege is

not something to be invoked lightly, and that constitutional confrontations between the legislative and executive branches should

be avoided whenever possible.

At this time I am not making an assertion of executive privilege

today. Instead, I am committing that to you that my staff remains

available and willing to continue our discussions about how to

reach a mutually agreeable resolution regarding the remaining documents.

My staff earlier, right before the hearing, delivered a number of

additional documents on the ozone max.

Chairman WAXMAN. Administrator Dudley, has the President asserted executive privilege over the documents that we requested of

you pursuant to a subpoena?

Ms. DUDLEY. I know that our lawyers have been discussing the

documents. We have produced over 7,000 pages and, in fact, I have

a letter delivered to you from OMB General Counsel today which,

with permission, I would like to put on the record.

Chairman WAXMAN. Without objection, we will have it in the

record.

[The information referred to follows:]

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Chairman WAXMAN. Well, during my 2-year tenure as chairman

of this committee, we have established a track record of making

reasonable accommodations to executive branch interests that have

arisen in committee investigations. In this case, you are trying to

shield the White House from reasonable oversight, and that is not

a reasonable position or an accepted one.

The precedents are clear: Unless there is a valid claim of executive privilege, you need to turn over the documents. As Chairman

Burton recognized when he was chairman: ‘‘The only privilege

under which the President may withhold subpoena documents is an

executive privilege.’’

Ranking Member Davis took the same position. In this investigation there has been no assertion of executive privilege, and the documents the committee seeks are central to understanding whether

the President has complied with the law. This is a serious issue,

and your defiance of the subpoena is a serious matter that the committee is going to have to address.

An example of this is whether, in establishing the ozone rule

whether costs were taken into consideration in a surreptitious way,

and we know what the Supreme Court has to say about that matter, and we also know that Ms. Dudley has a March 6th memo

from the White House that was sent to EPA where she criticized

EPA for failing to respond to economic values in setting the environmental standard.

One of her objections seems to be the EPA proposal would be too

costly to industry. We want to know more about that. We want to

know on what basis that position is reached and others. So what

I am telling you both, that unless you assert executive privilege,

this committee has always stood by the fact that we expect the

compliance with the subpoena.

Mr. Issa.

Mr. ISSA. Thank you, Mr. Chairman.

Chairman WAXMAN. I have taken 5 minutes and 41 seconds. The

minute will be given 5 minutes and——

Mr. ISSA. Thank you, Mr. Chairman.

I would like to followup on that. The President’s involvement in

the ozone proceeding, as I understand it, is not only allowed, and

it is not improper influence but, in fact, is consistent with President Clinton’s even greater involvement in setting the 1997 standard, isn’t that correct?

Mr. JOHNSON. That is correct.

Mr. ISSA. And I wasn’t here in 1997, but I don’t believe that the

deliberative process between the Agency, that internal process, was

ever demanded that it be exposed. Do any of you know if there was

a record under one of the previous chairmen where they demanded

to know everything that led to President Clinton assisting in the

decisionmaking process finally made by the EPA but his input into

that standard in 1997?

Mr. JOHNSON. I don’t know.

Mr. ISSA. I don’t think there was, and I think we may be working

with slightly different standards of what is appropriate.

Chairman WAXMAN. Will, the gentleman yield?

Mr. ISSA. Of course, Mr. Chairman.

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Chairman WAXMAN. Well, I do want to indicate that these standards that you are talking about were exhaustively examined by

Congress. In the 105th Congress, there were approximately 30 days

of hearings in at least 10 committees on this topic. EPA Administrator Carol Browner personally testified over a dozen times regarding the standards. Our own committee conducted an investigation about the matter as well.

Mr. McIntosh, who was the subcommittee chairman, requested

OMB produce all records related to OIRA’s view of the proposed

rules in response to this and other requests. OMB produced thousands of pages in documents, including internal White House communications, and apparently withheld only two memoranda to the

President from senior advisors within the executive branch of the

President.

So this record demonstrates that Congress, especially our committee, spared no effort in conducting oversight over the Clinton

rulemaking. It also shows that the Clinton administration was extraordinarily responsive to our committee’s extensive demands for

interviews and documents.

Mr. ISSA. Well, and I appreciate the reclaiming of my time. It

certainly shows that we have a long tradition of looking into it and

that we also have a long tradition of recognizing that the President

has a role to set, to participate in the standard-setting, both President Clinton and now President Bush.

I would like to get to one closing matter, because I think we have

sort of made the point with the inclusions of these graphs and so

on that the difference in the secondary standard would have made

no difference. So I think we will go on to out of ozone and on to

CO2.

Administrator Johnson, if you were to have granted California’s

waiver request, and if California went into global cap-and-trade,

and if California reduced its CO2, assuming that China and India

continue to produce new coal facilities that have absolutely no

scrubbers, that are just putting out CO2, would it really be all that

significant when you look at the present level in California reduced

by, let’s say, 20 or 30 percent versus the new coal plants being put

up on a weekly basis in China?

Mr. JOHNSON. Well, if I may, those are not the criteria on which

I had to base the California waiver.

Mr. ISSA. No, no, I understand that, but you are obviously——

Mr. JOHNSON. So I based that on were there the criteria that

were in the law.

Now, asking the other question, the challenge that we have as

a Nation and as we have across all the States, including my home

State of Maryland, is that all contributes to global climate change.

So, in fact, what is happening in Maryland over what is happening

in Florida or New York or wherever, is all contributing to——

Mr. ISSA. OK. And I want to focus on that because, although it

is not the primary portion of this hearing, I think as we close t his

hearing as to this panel, I think it is important. We have to get

down the amount of CO2 going into the atmosphere on a worldwide

basis if we are going to be effective in reducing CO2 worldwide,

thus assuming that the scientists’ predictions are right that if we

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continuing putting more CO2 in, we will, by definition, be contributing to global warming.

We make that assumption. This committee has studied it, extensively. Based on that assumption, isn’t it a global issue, one that

requires treaties and a reduction on a global basis if we are going

to be effective?

Mr. JOHNSON. I believe it requires that each of the nations,

whether you are a rapidly developing economy like China or India,

or the United States or European Union, to be leaders and to move

forward, and that each situation is different. Fifty percent of our

electricity comes from coal; Australia it is 82 percent; France is

much less than that, it is less than 10 percent.

Mr. ISSA. One final question, because I think we have made that

point. You have a responsibility as a Federal officer to all Americans, and if I understand the standard under which you rejected

California’s waiver, part of that is an equal protection, that States

are not allowed to arbitrarily have separate standards without

need because in fact you are protecting all of us and our commerce

against arbitrary changes in standards by States.

Isn’t that true?

Mr. JOHNSON. Well, again, the three criteria that focus specifically on California, other States are not allowed to take any other

action themselves unless the waiver was granted, and then they

can adopt what the California standard is.

The issue that was before me was, was there compelling and extraordinary conditions, and my decision—again part of those 50

pages—clearly shows, and the science clearly shows, whether it is

sea level rise—sea level rise is more of a problem for the East

Coast than it is for the West Coast. Acceleration of temperature or

higher temperatures, yes, California experiences higher temperatures but there are other parts of the country that make it worse.

And so, as looked at, the criteria, particularly compelling and extraordinary, in my judgment based upon the science, did not meet

the standard.

Mr. ISSA. Thank you, and thank you for this hearing, Mr. Chairman. I yield back.

Chairman WAXMAN. Thank you, Mr. Issa.

We have another panel of four witnesses. If Members would permit, I would like to move on to the next panel.

Mr. Bilbray.

Mr. BILBRAY. Mr. Chairman, can I just followup, just quickly, on

one item?

The standard that we are complaining about with the ozone

standard, the Science Committee was saying it should be at 0.07,

right, minimum? Or maximum?

Ms. HENDERSON. Maximum, but we gave a range of 0.06 to 0.07.

Mr. BILBRAY. California’s standard, Mr. Johnson, is sitting at the

maximum that it was recommended. Now, traditionally, has there

been ever a time—and I am trying to remember it my 30 years of

involvement in this issue—has there ever really been too many regulations where the Federal standard has been more, you know,

more stringent than the California standard?

Mr. JOHNSON. I don’t recall.

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Mr. BILBRAY. I just want to say, when we argue about this, we

are talking 5 to 7 percent. But I think we admit that—I know you

are going to get sick and tired of hearing me talk about California,

and when we get to greenhouse, I will beat our breast about importing all the electricity but not wanting to have the coal plants.

But what I am saying, it is in all fairness, we are so close on this

issue it is not the huge element, and I would ask our toxicologist

how many deaths per million are we talking about here which we

usually talk about.

So I yield. Mr. Chairman, I just want to say that there are some

big issues out there, and I wish that we would be setting some

standards here like stop burning coal here in the capital or buying

coal electricity for the capital here. And I hope that we can work

together at getting a waiver for California on the greenhouse and

the fuel mixture and work on making the capital truly greenhouse

neutral, CO2 neutral, rather than these phony offsets, and I look

forward to working with it, Mr. Chairman. With your extensive

background on it, I think we have some great opportunities if we

just work together on this.

So thank you very much for the added time.

Chairman WAXMAN. Thank you, Mr. Bilbray.

Ms. Watson, I understand you wanted an equal amount of time.

Would 2 minutes that we will yield to you, if you wish to pursue

it with some documents for the record?

Ms. WATSON. Yes, because my State is involved, and we have

tried to address pollution there, the largest State, 38 million people

and all their cars. I think every family has 13 cars. So this is really

important to me, and I am taking it personally, too.

When EPA makes decisions that don’t meet the law and loses in

court, environmental protection is delayed and the public indeed is

hurt. These aren’t the only cause to problems. A State must adopt

each new Federal requirement into State law, and those efforts are

wasted as well.

Now I have their letters that are addressed to the chairman from

Leo Drozdoff, the Administrator of the Division of Environmental

Protection for the State of Nevada. Now, this isn’t a partisan issue

for Nevada has a Republican Governor. Administrator Drozdoff

says, ‘‘We appreciate your efforts to identify and quantify the impact of EPA’s failed rulemaking attempts. Every time we are forced

to develop programs that are clearly in conflict with the Federal

environmental law, it is an opportunity wasted and environmental

protections delayed. The resource implications to a small State like

ours and the negative effect on our relationship with the EPA are

enormous. These impacts will be felt for years and years to come.’’

This is an extraordinary protest from a State Energy Policy Act,

and, Mr. Chairman, I would like to have unanimous consent to

enter this letter into the record.

Chairman WAXMAN. Without objection, that will be the order.

[The information referred to follows:]

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Chairman WAXMAN. The gentlelady’s time has expired.

Mr. Cannon requested time as well.

Mr. CANNON. Thank you, Mr. Chairman. First of all, let me just

point out that you made the comment that on the ozone rule that

you wondered if costs were taken into account in a surreptitious or

inappropriate way. I think that is vitally important. That is the

work of this committee is to oversee those kinds of things. I would

hope that we would be able to find those problems, not just suggest

the existence of such problems.

Just finally, Mr. Johnson, suppose California had been allowed

to have their CO2 lower standard, had the waiver granted, would

that have made any difference as to CO2 in California or in the

country? Any significant difference?

Mr. JOHNSON. Well, it is an issue of debate, but certainly based

upon what we know is that we have both a national and a global

problem, and so automobiles and improving efficiency there certainly help, but since it is a global air pollutant, it is highly questionable how much effect it would really have. So again I have to

say for the record, those are not the criteria.

Mr. CANNON. Right.

Mr. JOHNSON. The criteria I had to look at were, are there compelling and extraordinary conditions in California.

Mr. CANNON. But the request for the waiver had to be more symbolic than substantive?

Mr. JOHNSON. Well, again, it was a formal waiver request, and

certainly we did due diligence and held two hearings. I had many,

many briefings and certainly having a 50-page, or approximately

50-page, decision document on waiver is unusual, if nothing else,

in its size and all of the issues that are there.

Mr. CANNON. Thank you, Mr. Chairman. I yield back.

Chairman WAXMAN. Thank you.

Mr. Johnson, as we end your participation at this hearing, I want

to tell you something very clearly. This hearing isn’t about what

you decide, it is about how you decide and the integrity of the process. I don’t think you ought to leave this room satisfied that you

have deflected questions and avoided telling us information that we

are entitled to have.

Judging by some of the responses I think you have given us

today, I expect you to regard this part of the process with derision

from many of us. We walk away from this hearing astounded that

you, as a career EPA employee, are willing to be part of a process

that makes a mockery of the rulemaking process, and that you are

willing to come here and pretend that what really happened didn’t

happen.

In this case, we have the record to guide us. It tells us how

EPA’s best legal and scientific experts supported granting California’s petition and adopting a new ozone standard for the environment. The record tells us you ultimately agreed with EPA’s experts

and gave those recommendations to the White House, and we know

the White House overruled you.

Yet your testimony pretends that none of this happened, and it

pretends you have reached the ultimate decisions independently

and with a scientific and legal basis. Your staff knows this isn’t

true, and we know that it isn’t true. As someone who has long

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fought for EPA and strong environmental protections, I can’t adequately express how deeply this saddens me and how poorly it reflects on the EPA.

I thank the three of you for being here, and we are going to move

on to our next witnesses. I call forward our second panel, Dr.

Francesca Grifo. Dr. Grifo is a senior scientist and director of the

Union of Concerned Scientists, Scientific Integrity Program. She

has over 20 years of experience directing science based projects and

programs. She holds a Ph.D. in Botany from Cornell University.

Michael Goo is the climate legislative director for the Natural

Resources Defense Council. He has previously served as majority

counsel for the Senate Committee on Environment and Public

Works, minority counsel for the House Energy and Commerce Committee, and as Acting Assistant General Counsel at EPA.

Dr. Roger McClellan currently advises public and private organizations on issues related to air quality. He has previously served

as Chair of EPA’s Clean Air Scientific Advisory Committee and as

president of the Chemical Industry Institute of Technology.

Alan Raul is a partner with Sidley Austin, and is Chair of the

firm’s Information, Law, and Privacy Practice Group, and he is also

a member of the firm’s Government and Internal Investigations

Group and Appellate Group as well.

I welcome you to our hearing. It is the practice of this committee

that all witnesses testify under oath, so I would like to ask each

or you to please stand while I ask you to raise your right hands.

[Witnesses sworn.]

Chairman WAXMAN. The record will indicate each of the witnesses answered in the affirmative.

Dr. Grifo, we want to call on you first.

For all of you, your prepared statements are in the record in full.

We would like to ask you to try to limit your oral presentations to

5 minutes. The clock will indicate when it is red that the 5-minutes

have expired. Please go ahead.

STATEMENTS OF FRANCESCA GRIFO, SENIOR SCIENTIST,

UNION OF CONCERNED SCIENTISTS; MICHAEL GOO, CLIMATE LEGISLATIVE DIRECTOR, NATURAL RESOURCES DEFENSE COUNCIL; ROGER O. MCCLELLAN, ADVISOR, TOXICOLOGY AND HUMAN HEALTH RISK ANALYSIS; AND ALAN

CHARLES RAUL, PARTNER, SIDLEY AUSTIN LLP

STATEMENT OF FRANCESCA GRIFO

Ms. GRIFO. Good afternoon, and thank you, Mr. Chairman, and

thank you to the committee. I am a senior scientist, as you said,

and director of the Scientific Integrity Program as the Union of

Concerned Scientists, a leading science-based non-profit working

for a healthy environment and a safer world.

I would like to thank the committee for the opportunity to speak

to you this afternoon about the problem of political interference in

the work of Federal Government scientists. The United States has

enjoyed prosperity and health in large part because of its strong

and sustained commitment to independent science.

As the Nation faces new challenges at home and growing competitiveness abroad, the need for a robust Federal scientific enterVerDate 11-MAY-2000 12:34 Feb 23, 2009 Jkt 000000 PO 00000 Frm 00170 Fmt 6633 Sfmt 6633 C:\DOCS\47126.TXT KATIE PsN: KATIE
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prise remains critical. Unfortunately, an epidemic of political interference in Federal science threatens this legacy. Political interference in EPA’s decision regarding the air quality standard for

ground-level ozone is emblematic of the problem of manipulation,

suppression, and distortion of science at the EPA.

You have already heard that EPA Administrator Stephen Johnson issued the final ozone standard at an arbitrary level inconsistent with the analysis of EPA scientists and independent science advisors and, ultimately, not sufficiently protective of public health.

You have heard that the White House pressured the EPA to consider economic costs associated with tightening the ozone standard.

The law, as affirmed by a 2001 Supreme Court decision requires

the standard be based solely on best available science. EPA leadership failed to meet that objective.

The White House’s interference or meddling in the ozone decision

is not a stand-alone incident. Time and time again White House officials or EPA political appointees have stepped in to second guess,

manipulate, or suppress the work of EPA scientists, threatening

the Agency’s ability to protect human health and the environment.

In our investigation of EPA scientists, our survey conducted by

Iowa State University together with us, hundreds of scientists report direct interference in their scientific work, fears of retaliation

and systemic disregard for the expertise of EPA’s Advisory Committee. Our survey found that 889 scientists reported personally

experiencing one of these events in the last 5 years. In essay responses, nearly 100 EPA scientists self-identified OMB, Office of

Management and Budget, as the primary culprit in this interference. It is important to note that we didn’t ask them about

OMB. The question was much broader; they volunteered that.

Two hundred and thirty-two scientists had personally experienced frequent or occasional changes or edits during review that

changed the meaning of scientific findings, not just routine edits

but those that change the meaning. Two hundred and eighty-five

scientists had personally experienced frequent or occasional selective or incomplete use of data to justify a specific regulatory outcome.

A hundred and fifty-three scientists had personally experienced

frequent or occasional pressure to ignore impacts of a regulation on

sensitive populations. Five hundred and thirty-six scientists felt

that the Agency occasionally, seldom, or never heeds advice from

independent scientific advisory committees. This result was markedly worse at the Office of Air Quality Planning and Standards

which works closely with the advisory committees to set the

NAAQS. Half of these respondents felt the EPA did not heed the

advice of the advisory committees.

The White House has rewritten EPA’s scientific documents concerning climate change, pressured EPA scientists to support predetermined conclusions regarding the health effects of toxic mercury pollution, and pushed for rules that politicize the scientific

findings contained in the OIRA’s toxic data base. Science has been

mis-used on air pollution, asbestos, fuel efficiency, mountaintop removal mining, oil extraction, pesticides, plywood plant pollution,

toxic selenium contamination, and on and on.

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Fortunately, this is not a problem without a solution. A suite of

reforms are detailed in our report Interference at the EPA, but

here are the most timely. The House and Senate overwhelmingly

approved by partisan legislation to strengthen whistleblower protections for Federal employees. It is crucial that the final legislation now in Conference Committee contains specific protections for

scientists who expose efforts to suppress or alter Federal research.

The EPA should increase openness in its decisionmaking process.

If research results in analysis by EPA scientists are made public

before they drop into, as the GAO put it, the black box of OMB,

attempts to distort science will be exposed. The expanded breadth

of the OMB must be pushed back. Questioning the scientific consensus of Agency experts is not OMB’s proper role.

EPA should adopt media communication and scientific publication policies that ensure taxpayer-funded scientists and their research are accessible to Congress and the public, and scientists

need to be made proactively aware of these rights.

Finally, there are two actions that can take place immediately:

Administrator Johnson should send a clear message to all political

appointees that he will not tolerate any attempts to alter or suppress Federal Research just as EPA Administrator William

Ruckelshaus did 25 years ago. Administrator Johnson should

pledge to operate EPA in a fish bowl.

We would welcome a dialog with Administrator Johnson, although as of this morning he has not responded to repeated requests to begin that conversation. We look forward to continuing

our work with the 110th Congress to restore scientific integrity to

Federal policymaking.

Thank you.

[The prepared statement of Dr. Grifo follows:]

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Ms. WATSON [presiding]. Thank you, Dr. Grifo.

Mr. Michael Goo.

STATEMENT OF MICHAEL GOO

Mr. GOO. Thank you, Chairman Waxman, and Ranking Member

Davis and Mr. Issa for the opportunity for the opportunity to testify here regarding EPA’s new National Ambient Air Quality

Standards for Ozone.

My name is Michael Goo. I am the climate legislative director for

the Natural Resources Defense Council. NRDC is a national nonprofit organization of scientists, lawyers, and environmental specialists dedicated to protecting public health and the environment.

Before I turn to my scripted statement, I just wanted to make

a couple of points here about some of what we have heard today.

And Mr. Johnson won’t admit talking to the White House about the

ozone decision, but we have the EPA talking points from the meeting with the President, and they say that the seasonal form is the

most scientifically defensible, and they say that the seasonal form

is the most legally defensible.

And the question that we have is, what caused the Administrator

to change his mind, quite literally overnight, so that the EPA staff

had to scramble around to change the document within 24 hours?

And then just to also respond to a point, a chart was put up. Administrator Dudley said that there would be no more attainment

areas with the secondary standard set the same as a primary

standard, but it is not just the form that regulates the stringency

of the standard, it is also the level.

The CASAC—and I am not quite sure, Dr. Henderson didn’t have

the opportunity to comment on this—but the CASAC said that the

level should be between 15 and 17, and the level was actually set

at 21. Of course, therefore, it wasn’t as much more protective than

the primary standard.

Now let me turn to my prepared remarks. The first I just want

to make with regard to ozone is that we now know that ozone kills

people. We say that ozone results in excess or premature mortality.

That is a fancy way of saying that smog kills people. Ozone pollution, also, so it is a host of other health effects—susceptibility to

infection, asthma attacks, school absences, emergency room visits,

and even overnight admission into the hospital—and these are real

effects with real consequences for us, for our children, for our elderly, and our infirm.

The second point I wish to emphasize is that ozone pollution is

ubiquitous. According to EPA, approximately 140 million Americans live in areas that violate the 1997 8-hour standard, including

more than 16 million children, more than 6 million people age 75

and older, and more than 9 million people who suffer from asthma.

Putting these two facts together, it is clear that ozone is a major

public health problem in the United States.

In my testimony, I have characterized the decision of the Administrator as a shameful distortion of the scientific and regulatory

process for setting National Ambient Air Quality Standards. I say

that from my vantage point as a former EPA attorney who spent

more than 4 years developing and defending the standards set

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forth in the Clinton administration, which were ultimately upheld

by the U.S. Supreme Court.

Prior to this administration in an unbroken line of cases extending back nearly 40 years, these standards were repeatedly upheld

by the courts, and since its creation in 1977, nearly every Administrator prior to this one has made decisions regarding the National

Ambient Air Quality Standards within the scientific boundaries set

by the Clean Air Scientific Advisory Committee.

This Administrator, despite very clear recommendations from

CASAC, chose to disregard its advice. The Administrator had before him an enormous opportunity to advance the cause of public

health protection in the United States. He had a voluminous scientific record documenting health effects at levels below the existing standard.

He had a unanimous recommendation from CASAC, and he has

a very clear directive from the Congress and the courts that he

must set the standard to protect public health with an adequate

margin of safety, erring on the side of caution. In short, he had all

the elements that he needed to set a highly defensible standard

that would have protected public health with an adequate margin

of safety, and it distresses me to report that the Administrator

squandered that opportunity.

The record is clear. The Administrator’s decision is not based on

the latest scientific evidence; it is not based on the recommendations of CASAC; it does not protect public health; and it does not

include a margin of safety.

Somebody tried to defend this decision as a reasonable policy decision or attempt to justify the decision on the basis of vague notions of uncertainty, but to say something is a policy judgment, or

to say that a decision is based on uncertainty has little by way of

actual rationale.

The question is, what is the policy, and in what direction does

any alleged uncertainty cut? Is the policy to honor the latest scientific evidence and the recommendation of CASAC erring on the

side of safety? I would submit that the record before us makes clear

the answers to those questions.

In the end, these standards will be replaced by ones that reflect

the science and the law, but in the meantime our citizens’ lungs

and their health will suffer as a result.

Chairman Waxman, I commend your efforts and the efforts of

your staff to bring this deplorable situation into the light of day.

Thank you.

[The prepared statement of Mr. Goo follows:]

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Chairman WAXMAN [presiding]. Thank you very much.

Dr. McClellan.

STATEMENT OF ROGER MCCLELLAN

Mr. MCCLELLAN. Good afternoon, Mr. Chairman, and distinguished members of the committee. I am Roger McClellan, an independent advisor in air quality issues. My home is in Albuquerque,

NM. I appreciate the invitation to present my views on EPA’s recent review and revision of the National Ambient Air Quality

Standards for ozone. I ask that my written testimony be entered

in the record as though read in its entirety.

Let me summarize. For more than four decades I have been contributing to the development of science needed to address important societal issues concerned with air quality. I am proud to have

served on many EPA scientific advisory committees from the origin

of the agency to the present time under administrations of both

parties.

This included service on the Clean Air Scientific Advisory Committee, which I chaired 1988–1992, and on panels that have considered all the criteria air pollutants. I served on the Ozone Panel

that advised a 1997 standard. I did not serve on the most recent

Ozone Panel, however, I have closely followed the standard-setting

process that led to the final rule announced by Administrator Johnson on March 12, 2008, focusing on the primary or health-based

standard.

As you know, every standard has four interrelated elements: an

indicator, an averaging time, a numerical level, and a statistical

form. It is important that these always be considered in their entirety.

Throughout the review process leading up to the final rule, there

has been debate over the numerical level of the 8-hour or averaging

time standard with ozone as the indicator. In my opinion, much of

the debate was premature and focused on the outcome desired by

some parties, a lowering of the standard even before the review of

the science was complete. This resulted in a blurring of the boundary between the role of science and judgment in the setting of the

standard.

With publication of the proposed rule for the ozone standard, the

debate intensified. That included repeated reference to the CASAC

recommendation the primary standard be set within a specific narrow numerical range, 0.060 to 0.070 ppm. In my opinion, the

CASAC panel moved from the science arena into the policy arena

with its strident advocacy of an upper bright line value of 0.070

ppm for the primary standard.

CASAC’s selection of this narrow range and an upper bright line

value followed the template that CASAC had been used, used with

the pm 2.5 standard. In that case CASAC, the panel I served on,

advocated setting the pm 2.5 annual standard setting at 13 to 14

micrograms per cubic meter—a view that I dissented from—and

the 24-hour standard at 25 to 35 micrograms per cubic meter.

The Administrator made policy judgments in setting the 24-hour

standard at a level of 35 micrograms per cubic meter, a drastic reduction from the previous, and reaffirmation of the annual standard at a level of 15 micrograms per cubic meter.

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CASAC argued, with the exception of myself or another, that he

had made a political choice and ignored the science. In the case of

ozone, Administrator Johnson made a policy judgment. set the

ozone standard at 0.075 ppm average over 8 hours. The value was

actually consistent with the original advice of his own staff, 0.075

ppm up to a level slightly below the current standard which we

know was 0.080, but with rounding could have been up to 0.084.

Again, CASAC argued he made a political decision and ignored

the science In my view, the CASAC panels have not fully understood nor communicated the extent to which the recommendations

they communicated to the Administrator represented their interpretation of the science and their personal policy preferences on the

numerical level of the standard.

Even before the final rule for ozone was announced, CASAC

scheduled the teleconference to develop unsolicited advice to the

Administrator. This clearly moved CASAC from the scientific advisory arena into the political arena. This was evidenced by panel

members noting the importance of getting the record right for the

courts and the suggestion that the Administrator should have resigned rather than cooperate with OMB and the White House.

The panel’s letter on that teleconference continues to suggest

that somehow science and scientists alone can establish the appropriate standard or, at a minimum, dictate the upper bound acceptable for a policy decision. The Clean Air Act does not call for a

standard-setting committee with the Administrator merely serving

as a rubber stamp for the committee’s judgments. The Clean Air

Act wisely calls for a Clean Air Scientific Advisory Committee to

provide advice to the Administrator on policy judgments that under

the Clean Air Act are the exclusive responsibility of the Administrator.

In my opinion, the Administrator has appropriately exercised his

authority in making policy judgments on both the revised pm 2.5

and ozone standards, making selections from among an array of

scient-based options. The basis for his policy decisions are well documented in both final rules, including consideration of both the

science and personal judgments of CASAC. They are also consistent

with the Supreme Court’s interpretation of the Clean Air Act.

He did not consider cost, however, he did exercise judgment appropriately in deciding how low is low enough in setting the numerical level of both standards from among an array of sciencebased options. There is no scientific methodology that can be used

as a substitute for the Administrator’s judgment.

I welcome the opportunity to address any questions you may

have.

[The prepared statement of Mr. McClellan follows:]

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Chairman WAXMAN. Thank you, Mr. McClellan.

Mr. Raul.

STATEMENT OF ALAN CHARLES RAUL

Mr. RAUL. Mr. Chairman, Mr. Issa, members of the committee,

thank you for inviting me to testify today to provide my views on

the authority of the President to influence the decisions of his subordinates in the executive branch. It is an honor to appear before

you.

I am testifying today in a personal capacity based on my interest

and background in administrative and constitutional Law. I am

currently engaged in private law practice and have previously

served as General Counsel of the U.S. Department of Agriculture,

General Counsel of the Office of Management and Budget, and as

Associate Counsel to the President.

Until recently, I also served in a part-time capacity as vice chairman of the Privacy and Civil Liberties Oversight Board.

My views here are focused only on the general issue of Presidential authority to influence and direct the regulatory actions and

decisions of the executive branch under Article II of the Constitution. It is my view that the President is and should be in control

of the executive branch, but, importantly, this does not derogate or

diminish Congress’ power to set policy by legislation and to oversee

the Executive’s execution of the laws.

Rather, the unitary Executive means that it must be the President and not some relatively unknown subordinate, narrow agency,

or obscure technical committee who is responsible to the public to

take care that the laws are well and faithfully executed. In short,

the unitary executive concept promotes more effective rulemaking

by bringing a broader perspective to bear on important regulatory

decisions and enhances democratic accountability for regulatory decisionmaking by pinning responsibility on the President to answer

to the public for important regulatory actions taken by his or her

administration.

Setting standards requisite to protect public health and welfare

is inherently a policy exercise because Congress and the courts acknowledge that government regulations cannot, and need not,

achieve zero risk. Indeed, it is the President’s responsibility, not

just his right, to ensure that executive branch regulatory decisions,

to the extent Congress has left the Executive with some discretion,

reflect the President’s own policy judgments. That way the public

can hold the President accountable for important regulatory judgments or, alternatively, look to Congress for stronger, smarter, or

more specific laws.

If the EPA Administrator does not agree with the President, he

or she may resign or be replaced, but there are no grounds to complain that the President’s position is undue interference. The reasons why the Constitution established a powerful President are

well known. In short, the Framers were acutely conscious of the debilitating weaknesses that resulted from Executive by Committee

during the Revolutionary War and under the Articles of Confederation. They clearly understood that putting one person in charge

of the executive branch would promote accountability.

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The Constitution adopted a unitary Executive in order that the

American people would know exactly whom to credit or whom to

blame if the laws were not faithfully and effectively discharged. If

responsibility is diffused, then the ability of the public to influence

and choose their government is diluted, and Presidents of both parties have asserted the right to oversee and direct the actions and

decisions of their regulatory agencies.

Former Chief Judge of the D.C. Circuit, Patricia Wald, who

served as Assistant Attorney General for Legislative Affairs in the

Carter administration and was appointed to the D.C. Circuit by

President Carter, strongly supported the power of the President to

direct his or her subordinates in the executive branch. In 1981, she

offered the leading opinion on Presidential Control over Rulemaking, Sierra Club v. Cassel. Interestingly, Judge Wald was

joined in that opinion by then Judge, now Justice Ruth Bader Ginsburg.

Judge Wald addressed arguments advanced by environmental

plaintiffs who claimed that President Carter had improperly interfered with EPA rulemaking in order to impose weaker pollution

controls than the technical staff at EPA desired. She categorically

rejected this criticism of President Carter’s decisive role. Echoing

Alexander Hamilton, Judge Wald opined that preserving the President’s flexibility to direct his or her subordinates was so important

that it was not legally required for the executive branch to publicly

disclose the details of White House and Presidential contacts.

Similarly, President Clinton further codified and solidified the

process and desirability of Presidential control over executive

branch rulemaking, and you have heard testimony earlier today

about Executive Order 12866, which required that Agency regulations be consistent be consistent with the President’s priorities and

the principles set forth in the Executive order.

As you heard also, President Clinton, himself, was personally involved in improving the 1997 ozone standard that was a precursor

of the standard involved today, and just as is the case with the current ozone rule, as was the case with President Carter’s sulfur and

particulate matter rules that Judge Wald addressed, EPA ultimately chose in 1997 a pollution standard that was more lenient

than the one favored by Agency staff and recommended by the

CASAC Committee of Scientific Advisors.

I would submit that it makes sense as a matter of public policy

to acknowledge and respect the President’s ultimate dominion over

the executive branch. If Federal Regulations do not serve the public

well, either because they are too restrictive or too permissive, or

simply not well designed, the President and Congress, of course,

should take the blame. If the regulations are reasonable and accomplish the public’s goals efficiently, then the President and Congress should receive the credit.

Technical advisors are essential to the rulemaking process, but

the buck has to stop with the person who answers to the people.

That is the President.

Thank you for considering my views.

[The prepared statement of Mr. Raul follows:]

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Chairman WAXMAN. Thank you very much, Mr. Raul.

We will now proceed to questions, and to start off the questioning, I want to recognize Ms. Watson.

Ms. WATSON. Thank you so much, Mr. Chairman. And, Mr. Goo,

I felt your passion in your testimony. I am very passionate, too, because my grandfather, in coming here—once into California I am

speaking of—and once he got here he found he had to go over and

live in Arizona. When he came back, he fell dead in the streets

leaving a widow with seven children. The oldest is my mother. So

that was before we had the Clean Air Act.

I spent 17 years as the Chair of Health and Human Services in

the California State Senate. We fought viciously with those who did

not want to clean up the air because they felt it would impact on,

I guess, their profits.

So you have expressed grave concerns that Administrator Johnson’s decisions on the new ozone standards were not based on

science and the law. In your view, is this failure to base an EPA

decision on science and the law an isolated incident? And could you

put this in context in terms of this administration’s overall record

of implementing the Clean Air Act?

Mr. GOO. I would be glad to, Congresswoman Watson. This is not

an isolated instance at all, far from it. What we have seen in the

past 8 years is a concerted attempt to effectively dismantle the

Clean Air Act through implementation and enforcement, and we

have seen it in a number of instances from new source review to

Mercury pollution, to the National Ambient Air Quality Standards

and their position on greenhouse gases.

As I mentioned and as you note, air pollution is very serious

business here in the United States. More Americans die from air

pollution than die from drunk driving and HIV/AIDS put together,

and most of that is from particulate air pollution, which I would

mention as a good example of the same kind of decisionmaking

that we have seen where the Administrator chose to disregard the

clear advice of the Clean Air Scientific Advisory Committee.

The very next decision that we will be seeing in the National

Ambient Air Quality Standards area will be with regard to lead

and known toxic air pollutants. We are concerned that the next decision with regards to lead may resemble the past two National

Ambient Air Quality Standards.

Ms. WATSON. Let me just ask you this. Have you seen this disregard for the scientific input as a problem for the Agency over a

period of time?

Mr. GOO. I think over the last 8 years, this has been a very difficult time for people at the Agency. If you look at the depositions

and you look at the record that Chairman Waxman has compiled,

you see that any number of staff, career staff attorneys, were saying things like, I have never seen this in the last 30 years. It has

been extremely distressing.

The career staff at EP are extremely dedicated, and they are

dedicated to the science and to pubic health protection. They have

not been well served in this administration.

Ms. WATSON. Well, I want to thank you very much. I feel the

same exact way. California is my State, and I want to thank you.

The Clean Air Act says that the EPA must use its understanding

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of science to protect people’s health and lives from air pollution.

Disregarding the law and the science subjects people in our environment to grave harm.

My family was affected by the fact that we didn’t have these

standards, and I lost a grandfather whom I never knew. So the rejection of our request in California hit us very, very hard.

Thank you very much, Mr. Chairman, for this time.

Chairman WAXMAN. Thank you, Ms. Watson.

Mr. Cannon.

Mr. CANNON. Thank you, Mr. Chairman. Mr. Goo, how many

people die of AIDS each year?

Mr. GOO. I don’t have the precise figure, but I will get it for you.

More than 45,000 people die of particulate matter pollution from

power plants alone in the United States each year.

Mr. CANNON. We are going on with a very short number of minutes, sir, 2 minutes each, so if you don’t mind, I am just going to

ask some pretty quick and clear questions.

Dr. Grifo, how many members are there in the Union of Concerned Scientists?

Ms. GRIFO. We have members who are citizens and scientists

from across the country, roughly 200,000 that work actively with

us.

Mr. CANNON. How many of those are scientists, have a Ph.D. in

science?

Ms. GRIFO. I can tell you that for our particular issue, the scientific integrity issue, we have an activist list of 15,000 scientists

from across the country. The broader one, I can get you that exact

number.

Mr. CANNON. I would actually appreciate that, and how many of

the members, broader membership of UCS, are Government employees?

Ms. GRIFO. I don’t know, but I can potentially find that out.

Mr. CANNON. I would appreciate that. And of those who are active scientists but not Government employees, do you have any

idea how many receive Government contracts?

Ms. GRIFO. I am sorry?

Mr. CANNON. How many receive contracts or money from the

Federal Government to do research?

Ms. GRIFO. I don’t have any way of knowing that, sir. We do not

take any Government money at the Union of Concerned Scientists.

Mr. CANNON. I know you don’t, but many of your scientists do.

Let me just point out that when you have a taxpayer-funded research, and priorities change because times change, you are going

to have complaints from scientists.

Are you familiar with the Congressional Research Service’s review of the study that you quoted in your testimony?

Ms. GRIFO. I got it about 15 minutes ago.

Mr. CANNON. You should read it, because I think it points out

that your study is——

Ms. GRIFO. I did read it, and I am happy to respond to anything

in it. It is all completely refutable.

Mr. CANNON. Pardon me?

Ms. GRIFO. I have. I am happy to respond to any of this.

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Mr. CANNON. It would be hard for you to respond. I have too

short a time, but you are talking about 5,810 people that were surveyed, were asked questions that were EPA scientists. You had

about almost 1,600 respondents and 700 complaints. I think that

this whole—you should look at that, because I think it deeply undermines the credibility of your statistical inclusions about this administration and the integrity of science, which I think is largely

driven by financial interests, and the transition that is happening

in society, and the change priorities that we have in America.

Thank you, and, Mr. Chairman, I yield back.

Ms. GRIFO. If I may respond. I would like to direct you to page

5 of the CRS Report where it says, ‘‘Consequently, there are no

issues related to sampling errors as there was no probability sample.’’ Page 6 of the CRS Report where it says, ‘‘This is not an issue

here, however, this is not a sample survey but a census.’’ And page

7 of the CRS Report where it says, ‘‘The UCS Report does provide

sufficient information for any analyst to examine it and highlight

some of those limitations.’’

Chairman WAXMAN. Mr. Bilbray.

Mr. BILBRAY. Thank you, Mr. Chairman. Mr. Chairman, let me

first point out that I support the waiver for greenhouse gases for

California, and I look forward to working with you at offering some

legislation that will authorize that and the Clean Fuel Strategies

of California and exempt us from the Federal restrictions.

But I think we need to recognize that a lot of people—this would

be the first time a State would have the ability to regulate outside

of its jurisdiction because in our California strategies, we are talking about restricting the importation of certain electricity across

the State boundary, which is absolutely new, and we need to take

a look at that.

Now the Concerned Scientists. I want to pose a question here.

There were 71 issues that you took with decisions that the administration had, and you feel that there was undue political influence

on these decisions?

Ms. GRIFO. I am sorry, what are you referring to?

Mr. BILBRAY. You listed 71 different times that you felt there

was undue political influence and some political agenda pushed by

the administration in their decisions, in your testimony.

Ms. GRIFO. Seventy-one? I don’t think I used the number 71.

Mr. BILBRAY. Well, there’s a list on your testimony. My question

is, in all of this, have the Concerned Scientists taken a position

about the use of ethanol in our fuel stream and its environmental

and health risk?

Ms. GRIFO. Sir, that is a different program at the Union of Concerned Scientists, and I can certainly put you in touch with them.

Mr. BILBRAY. Well, ma’am, let me just tell you something. I have

71 here that has been given to me by your testimony. There is——

Ms. GRIFO. Can you point what the 71 is?

Mr. BILBRAY. Page 25.

Ms. GRIFO. Oh, in the A to Z. It is actually almost 90 now, yes.

Mr. BILBRAY. OK, 90. In that list, I don’t see ethanol and its environmental damage that the largest State in the Union is trying

to outlaw, eliminate, and you guys have sort of walked away from

it, but in the same population issue I see, you know, four or five

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issues on abortion or birth control in here. I have to be frank with

you—as how you walk away something that is as much of an environmental problem as ethanol, but then talk about the morningafter pill, or abstinence programs as being your major concern.

I will challenge you to abandon your political prepositions and

work with us at addressing real science and threat issues. But this

testimony here, this and what I would say was the lack of scientific

way of approaching your so-called survey, wouldn’t you agree that

if you were doing this kind of survey, you would, from a scientific

point of view, there is no way an environmental regulatory agency

would accept that survey as being a substantive document.

Ms. GRIFO. First of all, I think the CRS did accept it as a substantive document. That is the thrust of what is said here, and

each of the pieces in here—well, we can go through them one by

one, and I am happy to talk about them.

But the point of the A to Z guide is, if you have documentation

of political interference in science, I would love to see it. Everything in the A to Z guide has primary documentation. If you have

it, we will analyze it, and we will put it up there.

Mr. BILBRAY. Well, then, I would ask that over almost 20 years

a group that claims to be scientific, where do you stand on forcing

the State of California continue to burn ethanol as fuel when the

science says it is bad?

Ms. GRIFO. That is not the issue of this hearing, I am sorry.

Chairman WAXMAN. Mr. Issa.

Mr. ISSA. Thank you, Mr. Chairman, and I will be brief. I would

ask unanimous consent that the Congressional Research Service

Report be, in fact, put into the record.

Chairman WAXMAN. Without objection, that will be the order.

[The information referred to follows:]

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Mr. ISSA. And I, for one, will take CRS’s independent study and

certainly would welcome the Union of Concerned Scientists to submit to us where they think that somehow it is factually wrong.

However, I would suggest in the future that if you want to do a

survey, do a survey, but if you want to do polling, that there are

science practices that would allow for it.

Really, I would just like to take this limited amount of time and

say to Dr. McClellan, you are here—and to Mr. Raul—you are both

here on your own dime, you are both experts, and, historically, can

you give us, briefly, in the remaining time a contrast between

today and the period of time in which you served. because, quite

candidly, I wasn’t here during the Clinton administration and then

a Republican majority.

But I would like to have a contrast because I would like to understand, do you believe that there is somehow a rabid change in

the way the administration works with your former agencies, or is

it substantially the same, and we are simply seeing it different because we see it through different eyes?

Mr. MCCLELLAN. Thank you for the question. I would be very

pleased to address that.

As I noted in my opening remarks, I have been associated with

the EPA and its advisory structure from the beginning of the Agency. At the time the Agency was created, I was chair of a committee,

which was Advisory to the U.S. Public Health Service. That function was brought into EPA, and thus I became a part of the Science

Advisory Board at its beginning.

I will have to say that controversy has been a part of the fabric

of the EPA since its origins, and it has been a part since the passage of the Clean Air Act, which preceded the Agency. Indeed, one

of the first activities I participated in was a visit to Research Triangle Park in the early 1970’s as we were putting in place the first

Air Quality Standards. We went there based on concerns that came

to the surface with a headline story in the L.A. Times about the

question of whether scientists were being pressured to come to a

particular viewpoint.

Periodically, over time we have seen these controversies. It is

natural because you have science, and scientists are not without

their own emotions and their own judgment. We are passionate

about the use of our science.

Mr. ISSA. I appreciate, and——

Mr. MCCLELLAN. I don’t see a big spike.

Mr. ISSA. Thank you. And Mr. Raul, just very briefly so we can

go to a vote, I am afraid.

Mr. RAUL. Well, I think there has not been as much change as

it may appear, listening to only one hearing. I think President

George W. Bush has not been a potted plant with respect to environmental rulemaking in his administration, nor have his predecessor Presidents been potted plants. President Clinton was very

involved, President Reagan, President Carter, all very involved in

rulemaking.

President Reagan, of course——

Chairman WAXMAN. We are going to have to——

Mr. RAUL. Sure.

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Chairman WAXMAN. I think if you would put the rest in for the

record, I would very much appreciate it.

Mr. ISSA. Thank you very much, Mr. Chairman.

Chairman WAXMAN. Mr. Raul, even though you assert that the

President can direct the Administrator’s decision, do you agree that

the President must follow the law?

Mr. RAUL. Absolutely, Mr. Chairman.

Chairman WAXMAN. And so when the President intervenes and

makes a decision on the secondary—or when he intervened and

made a decision on the secondary ozone standard, does the decision

still have to meet the requirements of the Clean Air Act?

Mr. RAUL. Absolutely.

Chairman WAXMAN. And the Clean Air Act requires the EPA Administrator to identify the level of air quality requisite to protect

the public welfare from any known or anticipated adverse effects

associated with the presence of such air pollutants in the ambient

air.

Mr. Goo, is it your position that scientific evidence available to

the Administrator and the President that the secondary ozone

standard was set at a level requisite to protect the public welfare?

Mr. GOO. No, it is not my opinion. The unanimous recommendation of CASAC was that the form of the standard, not the 8-hour

standard, the basic point here is that plants and foliage respond

differently than human lungs do. The 8-hour standard was set to

protect human lungs and human respiratory function. The secondary standard——

Chairman WAXMAN. Well, whoever set that standard, whether it

was in fact the President or the Administrator, you don’t think it

fits with the science?

Mr. GOO. That is correct, Mr. Chairman.

Chairman WAXMAN. And therefore the Clean Air Act.

Mr. GOO. Right.

Chairman WAXMAN. And, Dr. Grifo, your survey is important because it provides us with a big picture of political interference with

the work of scientists at EPA. Almost 1,600 EPA scientists filled

out survey questionnaires and sent them to the Union of Concerned

Scientists, and the cases where EPA political appointees had inappropriately involved themselves in scientific decisions, or interference with political appointees from other parts of the administration like the White House and EPA scientists, who were directed

to inappropriately exclude or alter technical information from EPA

scientific documents.

This survey shows that there has been a serious problem of political interference with the EPA scientists working under the Bush

administration. That I think is unacceptable and has to stop.

I thank the four of you very much for your testimony, and we

will keep the record open in case there are other thoughts you

want to submit to us for the record, or questions that Members

may seek to ask.

That concludes our hearing. We stand adjourned.

[Whereupon, at 4:58 p.m., the committee was adjourned.]

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