California Senator, EPA fight over notes on waiver ruling

Agency officials have cited executive privilege in not publicly disclosing internal and attorney-client discussions.

Senate Environment and Public Works Chairwoman Barbara Boxer, D-Calif., Wednesday disclosed excerpts of a previously redacted EPA analysis regarding the agency's decision to deny California the authority to issue regulations governing greenhouse gas emissions from cars. Boxer's decision to disregard EPA's request that unedited versions of the analysis be held from public review ups the ante in a heated battle with the agency over the denial of her state's request to establish its standard.

"The information belongs to the American people, period," she said. On Tuesday, EPA allowed Boxer's aides to view and take notes from a 46-page PowerPoint presentation EPA technical and legal staff provided EPA Administrator Stephen Johnson. It included Johnson's handwritten notes.

Boxer Wednesday disclosed excerpts of her staff's notes that say EPA staff listed several "compelling and extraordinary conditions" that make California vulnerable to global warming, which would run counter to Johnson's argument in denying the state's request. This includes an increase in wildfires and California's diverse ecosystem, according to the excerpts.

The staff notes state that EPA "is almost certain to win" a lawsuit filed by manufacturers if the waiver were granted and the agency would likely lose a lawsuit if it were denied. The notes support Boxer's contention that Johnson did not adhere to the view of at least some of EPA's technical and legal staff when he denied California's request. An EPA spokesman noted: "The administrator has not claimed politics with his decision. If the senator continues to, that's her call."

Boxer said she will question Johnson when he testifies at a hearing Thursday. "He needs to tell the American people who the heck he is listening to ... and how his position is consistent with his responsibility," she said. Boxer and House Oversight and Government Reform Chairman Henry Waxman, D-Calif., a fellow Californian, are investigating the agency's decision. Boxer will introduce legislation granting California its waiver request.

EPA has promised to provide further redacted documents to Boxer's committee in February, including communication between EPA and the White House, according to her staff. EPA sent Boxer documents last Friday related to the agency's decision, but Boxer said they were heavily edited. EPA officials have cited executive privilege in not publicly disclosing internal and attorney-client discussions.

"EPA is concerned about the chilling effect that would occur if Agency employees believed their frank and honest opinions and analysis expressed as part of assessing California's waiver request were to be disclosed in a broad setting," EPA Associate Administrator Christopher Bliley wrote in a letter to Boxer.

California's tailpipe rule would require automakers to cut greenhouse gas emissions by 30 percent in new cars and light trucks by 2016. Reductions would start in the 2009 model year. California and 15 other states this month sued EPA to force the agency to review its decision. EPA cited that lawsuit as one of the reasons the agency did not provide all of the documents related to its waiver decision.