Free Flow of Information Act of 2007--Motion to Proceed--Resumed

Floor Speech

FREE FLOW OF INFORMATION ACT OF 2007--MOTION TO PROCEED--Resumed -- (Senate - July 29, 2008)

BREAK IN TRANSCRIPT

EPA ADMINISTRATOR STEPHEN L. JOHNSON

Mr. WHITEHOUSE. Madam President, I rise to speak about a matter that I very much regret being here to discuss, but events have driven me to this point and, with me, the chairman of the Environment and Public Works Committee, Mrs. Boxer, Senator Klobuchar, and others as well.

For most of its nearly four-decade history, Americans could look to the Environmental Protection Agency for independent leadership, grounded in science and the rule of law. It was an agency whose clear mission was to protect our environment and health.

At its very founding, EPA's first Administrator, William Ruckelshaus, stated unequivocally:

EPA is an independent agency. It has no obligation to promote agriculture or commerce; only the critical obligation to protect and enhance the environment.

During the tenure of Administrator Stephen Johnson, we have seen that clear mission darkened by the shadowy handiwork of the Bush White House, trampling on science, ignoring the facts, flouting the law, defying Congress and the courts, while kneeling before industry polluters, and all for rank and venal purposes. Under Administrator Johnson, EPA is an agency in distress, in dishonor, and in bad hands.

Events last week have shed new light on the extent of the damage done to this great agency, but the evidence of Mr. Johnson's dismal record has been growing for many months. The charges are serious and fall in three separate categories: his repeated decisions putting the interests of corporate polluters before science and the law, even when it puts at risk our environment and the health of American people; his deliberate actions to degrade the procedures and institutional safeguards that sustain the agency; and his apparent dishonesty to us in testimony before Congress.

The particulars are these. Count 1: On pollution from ozone, the EPA, under Administrator Johnson, departed from the consistent recommendations of agency scientists, public health officials, and the agency's own scientific advisory committees and instead set an ozone standard that favored polluters. The standard he set was inadequate to protect the public, especially children and the elderly, from the harmful effects of ozone pollution, from asthma and lung disease.

Indeed, it was so inadequate that EPA's own Clean Air Scientific Advisory Committee took the unique step of writing to the Administrator to state that they ``do not endorse the new primary ozone standard as being sufficiently protective of the public health'' and that the EPA's decision ``fail[ed] to satisfy the explicit stipulations of the Clean Air Act that you ensure an adequate margin of safety for all individuals, including sensitive populations.''

Setting this inadequate ozone standard against the evidence was a dereliction of Administrator Johnson's duty to the Agency he leads and of EPA's duty to protect the health of the American people.

Count 2: On pollution from lead, Administrator Johnson has proposed a standard that fails to sufficiently strengthen the regulation aimed at limiting exposure to lead pollution.

Lead has poisoned tens of thousands of children in Rhode Island and many more all over the country. Both an independent scientific review panel and EPA's own scientific staff recommended a lead standard of no greater than 0.2 micrograms per cubic meter. Yet Administrator Johnson proposed a range of 0.1 up to .05 micrograms--2 1/2 times.

Mr. Johnson further diluted even that lax standard by using what public health advocates have labeled ``statistical trickery''--statistical trickery--allowing polluters a longer period of time over which to average the amount of lead they discharge into the air.

Again, by not adequately protecting children from lead, Administrator Johnson was derelict in his duty to his Agency.

Count 3: On pollution from soot, technically called ``particulate matter,'' Administrator Johnson bowed to pressure from industry and failed to strengthen a decade-old standard limiting particulate matter pollution from smokestacks.

Again, the Agency's own scientific advisory committees had called for a tougher standard to protect public health. Again, Administrator Johnson yielded to polluters. Again, Administrator Johnson failed in his duty to the Agency he leads.

Count 4: On vehicle tailpipe emissions, Administrator Johnson denied a waiver that would have allowed the State of California, my State of Rhode Island, and many other States to enact strict restrictions on global warming pollution from automobiles.

EPA staff indicated in briefing materials that ``we don't believe there are any good arguments against granting the waiver.'' EPA lawyers cautioned the Administrator that all of the arguments against granting the waiver were ``likely to lose in court.'' Yet Administrator Johnson issued an unprecedented denial of that waiver.

I will separately discuss my grave concerns about the Administrator's testimony on this matter. I believe he has lied to us. But for this purpose now, looking only at the substantive outcome, in ignoring the law, the dictates of science, the recommendations of his regulatory and legal staff, the role of Congress, the wishes of the States, and the welfare of the American people, Administrator Johnson failed again in his duty to the Agency he leads.

Count 5: On global warming pollution, in defiance of the Supreme Court's decision in Massachusetts v. EPA, Administrator Johnson has failed to take action after the Court's ruling that EPA has the authority, under the Clean Air Act, to regulate greenhouse gas emissions that pollute our air and warm our planet.

It is now nearly 18 months since the Court's decision, and the EPA has shown no indication it will act before President Bush leaves office. In ignoring a ruling of this Nation's highest Court empowering him to act on a matter important to the public health of Americans, Administrator Johnson again failed in his duty to the Agency he leads.

But it was not enough for Administrator Johnson to rule for the polluters on pollutant after pollutant.

Administrator Johnson has also systematically dismantled institutional safeguards and processes that protect his Agency's integrity and guide its mission.

Jonathan Cannon served at EPA during the Reagan, George H.W. Bush, and Clinton administrations. He warns of ``extreme friction within the agency and institutional damage ..... demoralizing the legal staff, and ..... further separating staff from the political leadership at the agency.'' We saw similar sabotage of institutional safeguards in the Gonzales Department of Justice, and this institutional damage raises four further charges, taking us to count six.

On the question of the Agency's legal integrity, under Administrator Johnson, the EPA offered legal arguments for its insufficient pollutant standards so shallow they provoked ridicule by the courts that heard them. When EPA tried to defend its weak mercury cap-and-trade system, the DC Circuit Court of Appeals--which, as we know, is hardly a liberal bench--accused the Agency if employing the ``logic of the Queen of Hearts'' in attempting to evade the intent of Congress and the clear meaning of the Clean Air Act.

The same court said EPA's argument under the Clean Air Act allowing power companies to avoid upgrading their pollution control technologies made sense only in ``a Humpty Dumpty world.'' In adopting ``Wonderland'' legal analysis that contravenes the clear will of Congress and embarrasses his Agency before the courts, Administrator Johnson failed again in his duty to uphold the mission of the Agency he leads.

Count 7: On the integrity of EPA's scientific advisory boards, Administrator Johnson did not just ignore these boards' recommendations, he willingly allowed those panels to be infiltrated by the very industries they are meant to regulate and control.

For example, an employee of ExxonMobil served on the panel to assess the carcinogenicity of ethyl oxide--a chemical manufactured by ExxonMobil.

Another scientist received research support from Dow Agro and served on that panel, even though ethyl oxide is also manufactured by Dow Agro.

A scientist whose research was funded by American Cyanamid and CYTEC sits on the EPA panel on acrylamide, which is manufactured by American Cyanamid and marketed by CYTEC. EPA did not see any conflict of interest.

But at the beck and call of the American Chemistry Council, an industry lobby group, Administrator Johnson removed Dr. Deborah Rice, a prominent toxicologist, from a scientific review board investigating chemicals used in common plastic goods.

The industry argued that she had a conflict of interest.

Incredibly, the conflict of interest was that, at a public hearing in the State of Maine, as a representative of the State's Government, Dr. Rice had stated her professional opinion regarding the dangers associated with these chemicals. The industry did not like her professional opinion. Not only was Dr. Rice removed from the panel, but in a particularly Orwellian maneuver, the fact that she had ever been on the panel was stricken from the advisory committee's records.

In packing EPA's scientific panels to please industry polluters, Administrator Johnson is guilty of a particularly chilling dereliction of his duty to the Agency he leads.

Count 8: A report issued on April 23 by the Union of Concerned Scientists, entitled ``Interference at the EPA,'' uncovered widespread political influence in EPA decisions. The report found that 60 percent of EPA career scientists surveyed had personally experienced at least one incident of political interference during the past 5 years--60 percent of the career scientists. It is a plague over there.

The report documented, among other things, that many EPA scientists have been directed to inappropriately exclude or alter information from EPA science documents, or have had their work edited in a manner that resulted in changes to their scientific findings.

The survey also revealed that EPA scientists have often objected to or resigned or removed themselves from EPA projects because of that pressure to change scientific findings.

Allowing this corrosive political influence to persist among the career scientists at EPA is yet another dereliction of Administrator Johnson's duty to the Agency he leads.

Count 9: Administrator Johnson has twisted the very administrative procedures of the Environmental Protection Agency to allow the White House Office of Management and Budget secret influence over Agency decisionmaking.

For example, the IRIS process for determining the toxicity of chemicals that all of us are exposed to allows OMB three separate chances to exert its dark influence: at the beginning, in the middle, and again at the end of the Agency's process. In the words of the GAO, this process is ``inconsistent with the principle of sound science that relies on, among other things, transparency.''

This is not just a potential concern. The current chair of EPA's Clean Air Scientific Advisory Panel has testified that the ozone standard was ``[set] ..... by fiat behind closed doors,'' has testified that the entire Agency's scientific process was ``for naught,'' and testified that ``the OMB and the White House set the standard, even though theoretically it was set by the EPA Administrator.'' She testified that as a result, ``willful ignorance triumphed over sound science.'' That is her testimony.

In manipulating his Agency's processes to let willful ignorance triumph over sound science, Administrator Johnson has again been derelict in his duties to this once proud Agency.

The third and final category of charges relates to Johnson's relationship to Congress. In defiance of his charge under the Constitution of the United States, Administrator Johnson has personally repeatedly refused to cooperate with Congress in our efforts to conduct proper oversight over the executive branch.

The Senate Environment and Public Works Committee has repeatedly requested documents in connection with EPA's denial of the California waiver and its failure to adequately regulate ozone pollution in our efforts to determine whether the White House improperly influenced these decisions.

Administrator Johnson has rebuffed these proper requests. He has repeatedly declined to appear before the EPW Committee to explain his Agency's policies. And when he has appeared, he has resorted to canned, stock, evasive answers in response to legitimate questions about political influence infiltrating his Agency.

Just last week, he refused to appear before the Judiciary Committee on which I also serve for a hearing to look further into his failure to cooperate with Congress and provide documents and other information we have sought.

In what is perhaps the gravest matter of all, I believe the Administrator deliberately and repeatedly lied to Congress, creating a false picture of the process that led to EPA's denial of the California waiver, in order to obscure the role of the White House in influencing his decision.

Today, Senator Boxer and I have sent a letter to Attorney General Mukasey--along with Senator Klobuchar--asking him to investigate whether Administrator Johnson gave false and misleading statements, whether he committed perjury, and whether he obstructed Congress's investigation into the process that led to the denial of the California waiver request.

I ask unanimous consent that the letter and its attached recitations be printed in the Record as an exhibit to these remarks.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See Exhibit 1.)

Mr. WHITEHOUSE. There is more. These are not isolated counts but signs of an agency corrupted in every place the shadowy influence of the Bush White House can reach.

Administrator Johnson forced the resignation of EPA's Regional Administrator for the Midwest, Mary Gade, who was locked in a struggle with corporate polluter Dow Chemical Company. The circumstances are highly suspicious. Administrator Johnson has replaced Ms. Gade with a former attorney for the automobile industry, whose record on behalf of the environment has been described as ``horrible.''

The EPA, under Administrator Johnson, has reduced the reporting burdens on industries that release toxic chemicals into our land, sea, and air. It has weakened enforcement and monitoring by opening fewer criminal investigations, filing fewer lawsuits, and levying fewer fines against corporate polluters.

It has failed to protect agency employees who pointed out problems or reported legal violations or attempted to correct factual misrepresentations made by their superiors and created an atmosphere where employees fear reprisals.

In the face of widespread criticism that his agency is in crisis and that he is a pawn of the White House and its allies in polluting industries, Administrator Johnson's response was to label all those concerned, many of whom are dedicated career employees of his agency, as ``yammering critics,'' clearly a man after Spiro Agnew's own heart.

The EPA has a vital mission. When this great agency is weakened and its work subverted by political interference, there is a great cost to this country. When EPA scientists and career employees become discouraged as their voices go unheard, there is a great cost to this country. When the people of America lose faith that the Environmental Protection Agency actually lives up to its name, there is a great cost to this country. When those who were chosen to serve this country instead serve themselves, their political allies, and their patrons, there is a great and lasting cost to this country. It is a failure of integrity, and that is a failure we can no longer afford.

We demand integrity--democracy demands integrity--of our public officials, not just because integrity is an abstract moral good but because democracy fails without it.

Integrity sustains our democracy in such important ways. The first is integrity to the truth. In Government, when the facts are clear enough for responsible people to act, it is a failure of integrity to fail to confront those facts. As the late Senator from New York, Daniel Patrick Moynihan, famously said: ``You are entitled to your own opinion; you are not entitled to your own facts.''

America has traditionally been characterized by candid and practical assessment of the facts, a can-do attitude about responding to those facts, and bold decisionmaking to find our way through those facts. Practical, can-do, optimistic, realistic--that is the American way. When Government doesn't face the truth about the facts, it will almost certainly fail to meet the demands of the moment and fail to serve the interests of our people. That is what is happening at EPA. They simply will not face facts plain to any responsible person.

However, facts are stubborn things. They do not yield to ideology or influence. They do not care about your politics. Unanswered they stand, getting worse, and eventually the piper must be paid. If facts aren't candidly, realistically, and responsibly faced, not only will the problem get worse but the very capacity of the Government to address problems candidly, realistically, and responsibly, that capacity will itself degrade when not put to use. So there are ugly, lasting consequences when Government officials fail at their obligation to meet the truth head on.

Another integrity is to honesty. As failures of truth have a harsh cost in Government, so do failures in honesty. I have sworn in new assistant U.S. attorneys. I have sworn in new State assistant attorneys general. I have presided at nomination hearings. Every time I have seen the same thing: a little spark of fire, a moral fire sparked when someone makes a choice to earn less money than they would otherwise, to work a lot harder than they would otherwise, to dare greater challenges than they might otherwise, all in order to serve the larger purpose, to serve an ideal, to serve America.

This spark of fire inspires young men and women to tackle problems that may seem unmanageable. This spark of fire keeps people at their desks late into the night when others have gone home to their families. This spark of fire brings idealism and principle to decisions and illuminates a moral path through the complexities of Government.

The value in Government of that spark of fire burning in the hearts of a thousand men and women--our real thousand points of light--is immeasurable. EPA is sustained by that spark of fire.

But this spark of fire is quenched in the toxic atmosphere of dishonesty whose guiding principles are help your friends, please your patron, dodge your responsibilities, and fudge the truth. Dishonesty and idealisms do not cohabit.

The third integrity is competence, a vital integrity. If we are to address the present and looming problems a new administration will have to face--a war without end in Iraq, an economy on a sickening slide, a broken health care system, a country divided into two increasingly separate Americas, a public education system that is failing, the dangerous weight of an alarming national debt, foreign policies that have unhinged us from responsible world opinion, bickering and irresolution on problems such as immigration and global warming--we must see competence as a core integrity. We must demand competence of Government officials as a bare minimum, a core necessity.

Unfortunately, as one discouraged official has complained: ``In the Bush administration, loyalty is the new competence.''

Administrator Stephen Johnson is a failure in all these dimensions. From everything we have seen, Administrator Johnson has done the bidding of the Bush administration and its political allies without hesitation or question and in violation of his clear duty. He has tried to cover up his dereliction of duty with evasive and discreditable testimony. He has acted without regard for the law or the determinations of the courts. He has damaged the mission, the morale, and the integrity of his great institution--the Environmental Protection Agency--and he has betrayed his solemn duty to Americans who depend on him to protect their health, particularly our very youngest and our very oldest whose vulnerability is greatest.

Administrator Johnson suggests a man who has every intention of driving his agency onto the rocks, of undermining and despoiling it, of leaving America's environment and America's people without an honest advocate in their Federal Government. This behavior not only degrades his once great agency, it drives the dagger of dishonesty deep into the very vitals of American democracy. The American people cannot accept such a person in a position of great responsibility.

I am truly sorry it has come to this, but that is why this afternoon I called on Administrator Johnson to resign his position. I encourage my colleagues to look closely at these concerns. Look at the reasons. Look at what I have prepared. Whatever decision colleagues may come to, I hope all understand I come to this decision sincerely and after much review and reflection and with no pleasure.

I thank the President, and I yield the floor.

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