EPA Asserts Executive Privilege against EmbarrassmentIt’s official! The EPA-California greenhouse gas affair has matured into the promised knock-down-drag-out fight it showed promise to become. That’s right, barely a month into it, and we’ve already got an assertion of executive privilege.
EPA Administrator Stephen Johnson, we know, is no shrinking violet. He has chutzpah in deep reserve. He showed that by denying California’s petition to limit greenhouse gas emissions from cars and trucks over the reportedly universal objection of his staff and with sure knowledge that his move would ultimately be reversed in court. His explanation? The Bush administration already has a comprehensive policy. So California’s meddling is not welcome.
Immediately after his decision, Johnson was set upon by two Californians with subpoena power: Sen. Barbara Boxer (D-CA), who chairs the Senate environmental committee, and Rep. Henry Waxman (D-CA), who chairs the House oversight committee. They demanded documents — documents that will reportedly show EPA staff advising Johnson he had to grant the waiver. But those documents have been a long time coming.
On Friday, Boxer’s committee got their first batch. But… many of the pages were completely blank. The AP reports that “everything except the titles was omitted from 16 pages of a 43-page Power Point presentation” included in the documents (one of the slides reportedly reads “EPA likely to lose suit” — I’m guessing that’s one of the whited-out ones).
The reason, EPA associate administrator Christopher P. Bliley wrote, was that the “EPA has identified an important Executive Branch confidentiality interest in a number of these documents” — code for executive privilege. Or executive privilege of a sort. Boxer and her staff could visit the EPA and see the complete unredacted documents, but they couldn’t keep copies of them.
Bliley gave three reasons for invoking that privilege (you can read his letter in full here). The first is a familiar one: a supposed “chilling effect” that would result from disclosing internal deliberations “in a broad setting.” But the second reason is one I haven’t seen before. It deserves to be quoted in full:
Second, further disclosure could result in needless public confusion about the Administrator’s decision that EPA will be denying California’s request. That is, many of the documents are pre-decisional and thus do not reflect the Agency’s full and complete thinking on the matter. Indeed, final decision documents have not yet been completed and made available to the public through publication in the Federal Register, so the public, if given access to the pre-decisional documents, would effectively be denied access to the full, complete rationale by the Agency.
Remember that the EPA’s staff reportedly unanimously recommended approving California’s waiver. Johnson arbitrarily overruled them, a decision so hasty and unilateral that the final decision documents have still not been released. No wonder the public would be confused.
The third reason, of course, is that fifteen states and a number of environmental groups are suing the EPA over Johnson’s decision, and the EPA doesn’t want to give them any help by turning over damaging documents.
Boxer isn’t happy, calling the EPA’s redactions an “unbelievable brush-off” and “an insult to the American people and a dereliction of duty.” She’ll get to tell Johnson to his face when he appears before her committee on Thursday.