EPA Administrator Johnson's CA Waiver Denial: Mind, and Mime Alone

Imagine that you’re taking your young son or daughter on a weekend camping trip that you both have been planning and looking forward to for the past year. Your car is all packed the night before and you’re planning to take a half day on Friday – when just before noon that Friday your boss calls and asks you to come into his office.

He tells you that he needs you to work over the weekend, that it’s important for your office, it’s important for the company and, above all, it’s important to him personally. He appreciates that you had your plans and he will leave the decision up to you. But as you leave his office, he looks you in the eye, smiles unnervingly and says, this really is important to me and I won’t forget this whatever you decide.

If you then picked up the phone and called your child, telling him her or that the camping trip was cancelled (crushing their impressionable young spirit) because you had to work all weekend – could you honestly say in your heart of hearts that the decision was yours and yours alone?

EPA Administrator Stephen Johnson says so, and wants us all to believe that is the truth.

Even though in his case that boss just happens to be the President of the United States.

In December Johnson denied California’s request to receive a waiver from EPA that the state needed to carry out its landmark law regulating global warming pollution from vehicles. Information emerged almost immediately thereafter suggesting that Johnson had concurred with unanimous EPA staff recommendations to grant California at least a partial waiver, until Johnson consulted with the White House about the President’s wishes.

Johnson had announced the denial of the California waiver request on a hastily arranged press conference call the evening of December 19th, following a Rose Garden signing ceremony of the new energy bill that morning by the President. EPA staff did not even know with certainty that Johnson planned to deny the waiver, and only Johnson’s inner circle was allowed to participate on the press call with the Administrator.

I’m told that these inner circle officials were unable to field all of the reporters’ questions about why Johnson had reached that decision, so the knowledgeable EPA professional staff were receiving frantic phone calls from the inner circle during the conference call while Johnson fumbled the reporters’ questions.

Because Johnson had not disclosed that he was going to deny the waiver, because EPA did not decide to announce the denial until late in the day on the 19th, and because EPA professional staff and even political staff other than Johnson did not believe the denial was appropriate or supportable – no decision documents or supporting analysis or justification had been prepared by the time of the press call that evening. Instead, EPA hurriedly drafted a short denial letter dated the 19th to California Governor Schwarzenegger. 

On the 20th, NRDC submitted a Freedom of Information Act request to EPA for all decisional documents justifying denial of the waiver as of midnight on the 19th, since we believed that few if any had been prepared by then due to the haphazard, unsupported nature of Johnson’s decision.  Also that day, Congressman Waxman launched an investigation into the denial.

EPA did not even issue its justification and what it called the formal decision for the waiver denial until the end of February, 2008.

Flash forward to July 22, 2008, when controversial and damning details emerged in testimony before the Senate Environment Committee by former EPA associate deputy administrator, Jason Burnett, who testified that Johnson had reversed his plan to grant California a partial waiver only after the President expressed a “policy preference” for denying the waiver. 

Johnson had been claiming repeatedly since December, including at a Senate hearing in late February, that the decision to deny the waiver was “mine and mine alone.”

More like mind, and mime alone. Johnson minded the President's wishes, and pantomimed the motions of reasoned decisonmaking in announcing the President's foregone conclusion that Johnson alone among EPA staff pretended to support. The real voice behind the mime remained the President.

This controversy flared up anew this week when five U.S. Senators – Boxer, Whitehouse, Klobuchar, Lautenberg and Sanders – asked Attorney General Mukasey to investigate whether Johnson made false and misleading statements in his testimony before the Senate Environment Committee. The Senators pointed to apparent contradictions between Johnson’s testimony and the testimony of Burnett. The first four Senators also called for Johnson’s resignation.
I express no view about whether the Administrator is guilty of the legal charges for which an investigation is being sought. He is after all innocent until proven guilty. And rising to the level of a prosecutable offense is a matter for the Justice Department to weigh, as the Senators duly requested.

But if Burnett's account is correct -- and neither Johnson nor EPA spokespersons have contradicted it -- then Johnson's “mine and mine alone” assertion appears both disingenuous and lacking in real world credibility.

Indeed, even the EPA spokesman temporarily lost sense of his talking points and spinmeister responsibilities when confronted with the obvious-to-everyone-else point that Johnson’s decision was just maybe driven by the President’s wishes.

As Darren Samuelsohn with E&E News PM reported:

Asked if Bush's view had influenced Johnson, EPA spokesman Jonathan Schradar replied, "Perhaps." But Shradar then quickly added, "The administrator made a fully informed decision pursuant to the law, and he stands by that decision."


“Mine and mine” alone?  Perhaps not.

Administrator Johnson left the Oval Office last winter, after President Bush looked him in the eye, smiled unnervingly, and told Johnson that the leader of the Free World wanted him to deny California’s waiver request. Johnson then reversed himself – contradicting the unanimous recommendations of EPA political and professional staff – and denied the waiver.

Johnson looked in his heart of hearts and said, "the decision was mine and mine alone." Do you believe him?