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Bush's Strange Claim of Executive Privilege

Blackout at the EPA

by CHRISTOPHER BRAUCHLI

If there were only one agency (and there’s probably not) that has consistently enjoyed the benefits lavished on it by an ignorant president who continuously diminishes its standing in the world of science, it would be the Environmental Protection Agency.  No other agency has so thoroughly given in to the importunings of a president who lives in constant fear of what science might offer if left to its own devices, it being  a branch of knowledge that cannot be controlled by him or Dick Cheney.

A hint of things to come started with Mr. Bush’s refusal to sign the Kyoto Treaty on global warming. That was an issue he preferred not to address since it addressed something that to Mr. Bush’s way of thinking had no address since it wasn’t the problem others thought it was and, more especially, was a problem he was prepared to address quite differently from the rest of the world.

Then came Christie Whitman’s 2003 departure from the E.P.A. that she headed from the beginning of the Bush administration. Her tenure was marked by criticism from administration critics who thought she did too little to advance regulatory remedies to extant environmental issues, and administration insiders who thought she was doing too much. Irrespective of who was right, her departure marked the beginning of a change at the EPA that continued throughout the rest of the Bush years.

In October 2003 the Agency announced a new set of rules permitting power plants, oil companies and other industries to avoid requirements of the Clean Air Act of 1970 that says, among other things, that industrial plants that upgrade facilities must install modern pollution controls. The 2003 rules provided that so long as the upgrade did not cost more than 20% of the total cost of replacing the entire facility, it would be considered “routine maintenance” rather than an upgrade. In December of that year the EPA announced that mercury emissions from coal-burning power plants should not be regulated the same as other toxic air pollutants.  According to the New York Times the proposal would place legally mandated mercury regulation “under a less stringent section of the Clean Air Act that governs pollutants that cause smog and acid rain, which are not toxic to humans.”

In December 2006 we learned of another of the administration’s encounters with science that involved eliminating some of the libraries maintained by the EPA, as effective a way of silencing critics as there is. (Anticipating the departure of George Bush, presumably, on June 17, 2008 the EPA told Congress that the libraries that had been closed were being reopened and books returned whence they’d gone during the Bush sponsored knowledge blackout.)

Concurrent with the library closings the EPA announced a new protocol pertaining to national air-quality standards. Instead of having independent scientists and professional scientists within the EPA set safety standards for various pollutants, staff scientists were instructed to come up with what is called “policy-relevant” science and only after that has been constructed are the professionals permitted to comment.

The most recent skirmish between science and the EPA occurred in December of 2007.  California applied for a waiver from the provisions of the energy bill signed by Mr. Bush in December that established a federal goal to reduce automobile emissions by 40% by 2020.  California wanted to effect a 30 percent reduction by 2016.  EPA staffers believed the waiver should be granted as had other waivers sought by California.  Overruling staff, Stephen Johnson, the EPA administrator, said that California’s request did not “meet compelling and extraordinary conditions” and turned down the waiver.  

In response to that decision and a decision made in March 2007 to issue smog regulations that were less strict that those recommended by an EPA science advisory board the House Oversight and Government Reform Committee began an investigation.  Among other things it wanted to know if the White House had pressured Mr. Johnson.   

As part of its investigation the committee subpoenaed more than 10,000 documents.  Twenty-five of the sought after documents were withheld.  It is those that Mr. Waxman and his committee would like to review, believing they may permit the committee to discover the level of involvement, if any, by the White House in the EPA decision.  Mr. Bush refused to turn them over claiming executive privilege. Attorney General Michael Mukasey wrote a letter to the committee supporting the claim of executive privilege. He said the release of the documents could inhibit the candor of future deliberations among the president and others dealing with political issues. He could have argued that their release would have disclosed George Bush’s ignorance about matters environmental.  

That would be a convincing argument since most presidential observers would agree that if anyone were ever to be entitled to claim that ignorance is protected by executive privilege, it would be George Bush.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be reached at: Brauchli.56@postharvard.edu