Hearing of the Senate Environmental and Public Works Committee: Oversight of EPA's Decision to Deny the California Waiver (Panel I)

Interview

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SEN. SHELDON WHITEHOUSE (D-RI): Thank you, Madame Chair. I have a written opening statement that, to save time, I'd like to ask to be made a matter of record.

SEN. BOXER: Without objection, so ordered.

SEN. WHITEHOUSE: I'd simply like to take my time this morning to say three things. First, the state of Rhode Island is one of the waiver states, so this is a matter of real and direct importance to me. Second, I'm extremely glad that Chairman Boxer has held this hearing, because it strikes me that we have a pattern from EPA of ignore the science, overlook the law, deliver the goods. And that is a pattern that is very alarming and concerning.

And I'd like to just follow up on what Senator Sanders and Senator Klobuchar said. It is astonishing what unanimity there is around this issue. Just the other day, Chairman Boxer held a hearing in which the head of the association of state directors of health came before this committee, sat where you're sitting and presented to us a very powerful statement on global warming and climate change.

And I asked her, where's the minority view? She said there was no minority view.

We are unanimous on this subject, the directors of health of the states. Whether they're from Oklahoma or California or New Jersey, they are unanimous on the subject. And so it remains astounding to me that at the federal level of our government, we for some reason seem unable to unwind ourselves from the axle here and make progress on an issue of such importance.

So I think this is a very important hearing and I really appreciate Chairman Boxer's leadership in making it happen. Thank you.

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SEN. WHITEHOUSE: Thank you, Madame Chair.

Director, I'd like to ask you some questions about the process by which this decision came to you. And the first one is, did you direct the process, the internal administrative procedure by which this decision was brought to you and presented to you?

MR. JOHNSON: The process that the agency followed is the routine agency process for dealing with waivers, which include receipts, notice and comment, hearings, in fact, the governor asked for an additional hearing, which we did. Staff collected all of that, reviewed all that information and gave me a series of briefings. That is all, certainly in my experience, routine agency process.

SEN. WHITEHOUSE: Did the staff briefings include staff recommendations?

MR. JOHNSON: Yes.

SEN. WHITEHOUSE: How were those staff recommendations presented to you?

MR. JOHNSON: Well, first of all, the staff presented me with a range of options, and in that range of options all legally defensible, and within that there were certainly pros and cons for each of those.

Certainly the staff had their opinions, which I certainly appreciate. I listened to those. I listened to comments by members of Congress, the notice and comment. Certainly people within the administration had their view. But ultimately it came to me in making a decision and a judgment call on my part, and I made that decision.

SEN. WHITEHOUSE: And how was it presented to you by the staff and --

MR. JOHNSON: Again, as a --

SEN. WHITEHOUSE: Through what aspect of the -- I mean --

MR. JOHNSON: Well, a typical, typical process --

SEN. WHITEHOUSE: Office by office, who was involved?

MR. JOHNSON: Well, the typical process is that those offices across the agency who are involved in helping to draft and understand both the science and the legal part, as well as the policy, as well as what the Clean Air Act said -- those would typically be the offices involved in providing counsel and advice.

SEN. WHITEHOUSE: And they were in this case?

MR. JOHNSON: My -- yes, I -- my -- I recall they were, yes. Yes.

SEN. WHITEHOUSE: Is it customary, when decisions are brought to the director of the Environmental Protection Agency, for the staff to endeavor to consolidate a recommendation and work out their disagreements, if there are in fact disagreements, before they come to the director?

MR. JOHNSON: Well, what -- again, as -- what my experience has been, certainly, as administrator, is the staff identify what are the available options that are legally defensible and within the confines of the law, and that -- certainly identify what the pros and cons are for each of those. And then they understand and certainly I understand that the decision ends up being my decision.

And so, again, we had a fulsome process. I certainly fully understand the issues. We were talking about litigation, litigation risk, and certainly, in my experience in the agency, every decision and every option on virtually every issue that I've confronted, there's litigation risk. And of course that's, you know, again, ultimately my decision. Again, I made the decision. I believe it was the right decision. And I appreciate the great work of our staff --

SEN. WHITEHOUSE: And so there -- as I understand it, there are three elements, ultimately, to the process by which you made your decision. One was an options analysis, that the staff presented you with the pros and cons of various of the options that you had before you. The second was a recommendation that the staff made to you as to what your decision should be. And the third was your decision -- the ultimate decision for the agency. Is that correct?

MR. JOHNSON: Well, I would add an earlier step, because part of the briefing process for me was here is what law says, here's what the past practice has been -- past practices have been under Section 209 of the Clean Air Act. And so there was a -- I would call it a foundational briefing to say -- to set the stage for the decision- making.

SEN. WHITEHOUSE: With respect to the recommendation phase of the process, is it customary for you, as the administrator, to seek to have the different elements of your organization that are involved in one of these decisions, in preparing a matter for your decision, to try to come up with a consolidated recommendation to bring to your attention among the staff or your staff --

MR. JOHNSON: Well, what is typical for me, at least, and certainly my experience is that as the staff brief the options, then I frequently ask each of them if they would like to share what their opinion was. They can certainly pass. And certainly I also have those discussions with my policy advisers inside the agency.

SEN. WHITEHOUSE: And is that different from the portion of the administrative division-making process we talked about earlier, where they make a recommendation to you?

MR. JOHNSON: Not --

SEN. WHITEHOUSE: I assume you're sort of asking --

MR. JOHNSON: Not necessarily. Not necessarily.

SEN. WHITEHOUSE: Is that what you mean when you say you get a staff recommendation, is that you just, in the course of the options analysis, may or may not ask them for their opinions?

MR. JOHNSON: No. Often -- in some cases, there is a consolidated recommendation. In other cases, it's a -- it is a range of options for me to consider.

SEN. WHITEHOUSE: Who decides whether the staff is going to present you a consolidated recommendation or a range of options?

MR. JOHNSON: Typically, I leave that up to the head of the office that's working on the particular issue at hand. Again, certainly as an administrator I like to see the full range of options that are legally defensible, and --

SEN. WHITEHOUSE: Why wouldn't you as an administrator want, in every case, not only to see the full range of options, but also to force your staff, just as a matter of practice, to try to work together and make a consolidated recommendation for you? Wouldn't that be what you try every time?

MR. JOHNSON: Well, again, I like to hear the opinions and all of the options, but --

SEN. WHITEHOUSE: Nothing against those being heard.

MR. JOHNSON: -- again, under -- you know, under the law it's not a -- it's not a popularity decision. It's not a vote. It's ultimately my judgement and my decision. And I appreciate the great work our staff did.

SEN. WHITEHOUSE: I'll continue this later, if I may.

Thank you, Madame Chairman.

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SEN. WHITEHOUSE: Administrator, you just used the phrase "in my judgment" as the basis for your decision. The legislative history of this California waiver provision specifically says "nor is he to substitute his judgment for that of the state." Did you evaluate that piece of legislative history in this in any way? And if so, how can you come before this body and say that the basis for this is your judgment when that has been something that was effectively legislatively disabled in order to facilitate a free and open process administratively?

MR. JOHNSON: It's very simple, sir. The law -- and I'll quote -- says "authorization shall be granted if the administrator finds that" and then a list of three criteria. So that's not a --

SEN. WHITEHOUSE: But an administrative --

MR. JOHNSON: -- it is not a rubber stamp.

SEN. WHITEHOUSE: Okay.

MR. JOHNSON: It is a judgment that I have to evaluate the data, I have to evaluate all the issues that we've been talking about as to whether, in fact, one or more -- and it just takes one of the criteria not being met. And so, in my mind, when this is directing me to evaluate and make a judgment as to, that's the judgment that I'm referring to.

SEN. WHITEHOUSE: Well, the process that led to this, let me go back to that discussion we were having. You said that is is typical in your agency for there to be essentially four steps through this process: one, a process of briefing; second, a(n) options analysis with all the options reviewed and evaluated by your staff; third, a consolidated recommendation from your staff as to the decision that they recommend that you make; and finally, your decision. Correct?

MR. JOHNSON: Again, there are a lot of important sub-steps in that, such as here's the basis, we've got --

SEN. WHITEHOUSE: Was anything that I said wrong?

MR. JOHNSON: No, no. Let me just add to that, and add to that that a very important step --

SEN. WHITEHOUSE: Yeah, I'd like to get to some questions, so I don't want you to slow-walk me through this by going into the minutiae of administrative procedure, if you don't mind.

MR. JOHNSON: Well --

SEN. WHITEHOUSE: Is it correct that those are the four major elements that lead to your decisions?

MR. JOHNSON: You missed one, another element, and that is, evaluating -- summarizing and evaluating the notice and comment, the comments that came in.

SEN. WHITEHOUSE: Okay. Understood. Was there a consolidated recommendation made by your staff on this waiver question?

MR. JOHNSON: My -- as I recall, there was a series of --

SEN. WHITEHOUSE: It's a yes-or-no question.

MR. JOHNSON: I don't recall that there was a consolidated recommendation in the briefing papers.

SEN. WHITEHOUSE: Why, if it is typical in your agency for there to be a consolidated recommendation made by the staff, was there not a consolidated recommendation made by the staff on this particular question?

MR. JOHNSON: I thought I just answered the question by saying that I receive a wide range of briefings and option selections. Sometimes there's --

SEN. WHITEHOUSE: That's a different thing. That's the options analysis you talked about.

MR. JOHNSON: -- a consolidated recommendation -- sometimes there's a consolidated recommendation, sometimes there's not.

SEN. WHITEHOUSE: So it's not typical. I mean, you're telling me two things. You're saying that it's -- you just agreed with me -- and by the way, you are under oath. You just agreed with me that one of the key steps here was the consolidated recommendation by the staff. You just agreed with me that it was typical, that that was the standard process. Now you're saying, well, maybe sometimes, maybe not. You can't have it both ways.

What is the process --

MR. JOHNSON: Let me -- then let me --

SEN. WHITEHOUSE: -- for your agency, which is a big agency and runs with procedures?

MR. JOHNSON: Then let me correct the record so that it's clear. It begins with a notice and comment process. Then the staff --

SEN. WHITEHOUSE: Focus on the consolidated recommendation piece.

MR. JOHNSON: Again, there sometimes are consolidated recommendations, and those consolidated recommendations are in the form of here are the five options that we believe are legally defensible. Sometimes those consolidated recommendations are here is our recommendation.

SEN. WHITEHOUSE: What's the difference?

MR. JOHNSON: And sometimes it's a range, sometimes it's --

SEN. WHITEHOUSE: Yeah, but who decides that they're going to give you just the options analysis versus a consolidated staff recommendation?

MR. JOHNSON: Again, I leave it up to the head of the particular office that is evaluating the particular petition or regulation or whatever.

SEN. WHITEHOUSE: Isn't it just a matter of basic administrative discipline, with a multi-division agency like yours, to force them to the exercise of trying to get to a consolidated agency recommendation before you're asked to make a decision? This a basic --

MR. JOHNSON: Again, my point is, the consolidated agency recommendation might include one option or it might include three options, might include five options.

SEN. WHITEHOUSE: So the options analysis and the consolidated recommendation are the same thing now? We've just been through how they're separate steps; now you're saying that they're the same thing?

MR. JOHNSON: I'd be happy to be very clear for the record, because it's clear that -- you seem, to my perspective, to be confused on the steps. So I'd be happy to for the record.

SEN. WHITEHOUSE: I think it would be important to clarify very specifically what the typical steps are for your agency in presenting a matter to you for a decision, typically, and compare that to how that was done in this case, because what I'm hearing is that there typically is a consolidated recommendation that comes from the staff -- which make sense.

That is the way administrative agencies should ordinarily operate. And it is, in fact, to some degree, an administrator's responsibility to try to force his staff to come to a consolidated recommendation. That would seem to be the logical way to proceed. And you have said that you didn't do that in this case.

And given how peculiar the ultimate decision is, it raises the suggestion that there has been a manipulation of the agency process in this case in order to allow you to make a decision that is neither supported by the facts nor by the law nor by your own staff's recommendation.

It's a serious matter, and so I hope you'll give me a real answer to it and not just lots of, you know, gobbledygook about administrative law, which I'm pretty familiar with. I have a specific question, and I think I've made it pretty clear. And I'd like to make that for the record, so I don't take any further time.

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