House Energy and Commerce Chairman Fred Upton, R-Mich., and House Oversight and Investigations Subcommittee Chairman Cliff Stearns, R-Fla., released an e-mail from a top Treasury Department official that suggests the official-Treasury Assistant Secretary for Financial Markets Mary Miller-believed the Energy Department violated the Energy Policy Act of 2005 by putting private investors' debt obligation before the government's in the case of a default when the government restructured Solyndra's loan in February 2011.
"Our legal counsel believes that the statute and the DOE regulations both require that the guaranteed loan should not subordinate to any loan or other debt obligation," Miller said in an August 2011 e-mail to Jeffrey Zients, acting deputy director of the White House Office of Management and Budget. The DOE regulations also state that DOE "shall consult with OMB and Treasury before any 'deviation' is granted from the financial terms of the Loan Guarantee Agreement."
The e-mail goes on: "In February , we requested in writing that DOE seek the Department of Justice's approval of any proposed restructuring. To our knowledge that has never happened."
But Energy Department spokesman Damien LaVera issued a statement defending the process.
"Assistant Secretary Miller's e-mail was written in August 2011, six months after the restructuring decision was finalized," LaVera wrote. "When the Treasury Department raised questions with the Energy Department in February, the career staff at the two departments discussed these issues. Ultimately, DOE's determination that the restructuring was legal was made by career lawyers in the loan program based on a careful analysis of the statute."
Upton and Stearns sent a letter to Treasury Secretary Timothy Geithner on Friday outlining their concerns about the e-mail exchange.
"In the course of our investigation, we have uncovered information that raises questions as to whether the Department of Energy satisfied the requirement to consult with the Department of Treasury about the $535 million loan guarantee issued to Solyndra in September 2009 and the restructuring of that agreement in February 2011," Stearns and Upton write in the letter.
They asked Geithner for all documents containing communication about Solyndra's loan guarantee from his department and to the other involved executive branches, including OMB, DOE, the White House, and the Justice Department. They also request analyses and studies related to the loan guarantee.
Solyndra announced it was filing for Chapter 11 bankruptcy on Aug. 31 after talks broke down over trying to restructure the loan a second time shortly before that.
Republicans have been investigating Solyndra before the company went under, but its probe went into high gear once it did and after the FBI raided Solyndra's California headquarters a week later. House Republicans speculated early on that the administration could be in violation of the Energy Policy Act of 2005 when it decided to subordinate taxpayers' dollars to the debt obligation of private investors, some of whom have close ties to President Obama.