THE BLOG
06/29/2008 05:12 am ET | Updated May 25, 2011

President Bush Claims Executive Privilege in EPA Investigation

President Bush has claimed executive privilege as his reason for denying Henry Waxman's House Oversight and Government Reform Committee access to documents that would prove whether he [President Bush] pressured the EPA to lower smog standards earlier this year:

President Bush has asserted executive privilege over thousands of pages of documents that would show whether the President and his staff complied with the Clean Air Act in overruling EPA Administrator Stephen Johnson on important environmental decisions.

The Bush Administration sent notice to Waxman 15 minutes before his committee was to vote on whether to compel the EPA administrator and a White House budget official to testify as to President Bush's involvement. Waxman's reaction: "I have a clear sense that their assertion of this privilege is self-serving and not based on the appropriate law and rules," came as he canceled the vote.

This latest salvo between Congress and the recalcitrant White House is part of an ongoing investigation into President Bush's intervention into smog standards (amidst refusals to supply officials for testimony in other matters - i.e. Karl Rove in the Valarie Plame matter):

"Never before has a president personally intervened at the 11th hour, exercising political power at the expense of the law and science, to force EPA to accept weaker air quality standards than the agency chief's expert scientific judgment had led him to adopt," said John Walke, clean air director at the Natural Resources Defense Council, a private advocacy group. "It is unprecedented and an unlawful act of political interference."

This comes as ongoing pressure and interference by Bush Administration officials was confirmed by EPA Scientists:

The Union of Concerned Scientists has released an online survey of thousands of EPA scientists in which over half the scientists cited political interference in their work and their findings.

"I don't think we've had a situation like this [claim of executive privilege] since Richard Nixon was president when the president of the United States may have been involved in acting contrary to law, and the evidence that would determine that question for Congress in exercising our oversight is being blocked by an assertion of executive privilege," Waxman stated.

Waxman (D-CA) said he will review Attorney General Mukasey's claim of right to executive privelige before deciding upon his response. He added that he would not stop in his efforts to require the head of the EPA, Stephen Johnson, and a White House Management and Budget official, Susan Dudley, to testify as to the president's interference in lowering the smog standard to a lesser level than recommended by experts, along with his refusal to comply with the committee's request in what has been described as an ongoing pattern of "an overly broad use of executive privilege."

It is difficult to understand what bearing executive privilege would have in the lowering of smog standards, which would seem to be of benefit only to Bush's business partners while harming the world. One wonders if we will hear excuses from the Bush Administration to answer that question or if will they continue to stonewall Congress and wait out their term in the hope (or intent) of a general election outcome that will continue this Republican administration's lack of transparency under John McCain.

Representative Waxman's full statement:

Opening Statement of Rep. Henry A. Waxman
Chairman, Committee on Oversight and Government Reform
Business Meeting Regarding the Contempt Resolution

June 20, 2008

For months, the Committee has been investigating EPA's decision to prevent California and other states from reducing greenhouse gas emissions from motor vehicles and its decision to adopt new ozone air quality standards weaker than those recommended by the agency's scientific experts.

These investigations have shown that the decisions in these important environmental matters were made not at EPA, but in the White House. In both cases, the scientists, the agency career staff, and EPA Administrator Johnson wanted to take stronger action to protect the environment. And in both cases, the White House rejected the agency's position.

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

In the case of the California motor vehicle standards, we learned that EPA's experts and career staff all supported granting the California petition. In a briefing prepared for Stephen Johnson, the Administrator ofthe Environmental Protection Agency, EPA's own lawyers said: "we don't believe there are any good arguments against granting the waiver. All of the arguments ... are likely to lose in court ifwe are sued."

Administrator Johnson listened and was prepared to support 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.

In the case of the ozone standards, the same pattern happened. We learned that EPA's expert advisory panel unanimously recommended a new standard for protecting the environment.

After considering all of the alternatives, Administrator Johnson agreed with the new approach. He was opposed, however, by industry and Susan Dudley, the Administrator of the White House's Office of Information and Regulatory Affairs. And 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 experts and Administrator Johnson and instructed EPA to abandon the new standard.

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

This Committee has a fundamental obligation to learn the truth about what actually happened on these critical health and environmental decisions. That is why we have been seeking documents in both cases that would provide important details about the President's role in directing Administrator Johnson's actions.

This morning I have been informed that the White House is asserting executive privilege over thousands of documents the Committee is seeking. This is an extraordinary step. Administrator Johnson has repeatedly insisted he reached his decisions on California's petition and the new ozone standard on his own, relying on his best judgment.

Today's assertion of executive privilege raises serious questions about Administrator Johnson's credibility and the involvement of the President. Without the remaining documents, it will be nearly impossible to fully understand the President's role in overruling the unanimous recommendations of EPA's own experts.

We had scheduled a vote on a contempt resolution for this morning for Mr. Johnson and Ms. Dudley. We will not have that vote in light of the executive privilege claim. I want to talk with my colleagues on both sides about this new development and consider all our options before deciding how we should proceed.

Link to the Committee's report:

House Oversight and Government Reform Committee

Earlier articles on this matter:

Bush Intervenes on Smog Ruling
EPA Sued (again) by 18 States
EPA Scientists Confirm Political Interference
EPA Sued Over Greenhouse Gas Emissions
EPA denies California Emissions Waiver

More on this topic at THE ENVIRONMENTALIST