Republican Senators Mount Transparently Political Attack on Nominee to Head EPA

The group of Republican Senators [pdf] most loudly criticizing the nomination of Ms. Gina McCarthy to head EPA evidently have decided not to mount a frontal assault on her impressive qualifications or historic health achievements [pdf] leading EPA’s clean air program. Indeed, their primary line of public attack is not even substantive, meaning not directed at decisions McCarthy made to clean the air and protect public health by enforcing the Clean Air Act.

Instead, a group of eight conservative Senators has staked their opposition to McCarthy on a mixed procedural-political syllogism that could fit on a bumper sticker: “Transparency good; EPA not transparent; therefore McCarthy bad.”

Even though Republican Senators have hit Ms. McCarthy with an astonishing 1,079 questions (Senator Vitter, 653; Senator Inhofe, 145), the Environment Committee Republicans have returned repeatedly to the transparency meme in their public criticisms.

Transparency in government is essential to a well-functioning democracy. NRDC depends on such transparency to understand, analyze, critique and explain government decisionmaking; to reveal industry and political influence; and to ensure that agencies follow the law rather than illegal considerations. This administration has a transparency record that ranges from fair (rulemaking records) to mediocre (Freedom of Information Act practices, media manipulation) to deplorable (interference by the White House Office of Information and Regulatory Affairs).

But these Republican Senators appear to be counting on the public and media accepting at face value their transparency talking points, while not looking past them to examine the actual ingredients that make up the Senators’ self-concocted transparency bromide. The Republican Senators on the Environment & Public Works Committee, led by Senator David Vitter (R-LA), have expressed extreme dissatisfaction with McCarthy’s responses to letters containing questions and demands that the Senators characterize as purely “transparency”-related.

Senator Vitter says that he and his colleagues “have generously allowed her the time to respond to our questions and five specific transparency requests,” but that the “unresponsive answers received are unacceptable.”

What Senator Vitter does not say is how many of the requests in his letter have more to do with the same ideological, substantive attacks that Republicans are leveling against EPA and its health standards, rather than notions of good government transparency.

It’s a clever political stratagem to hide these disparate issues behind the banner of a transparency cause. But since the five requests are the actual ingredients of the Senators’ transparency bromide, let’s examine them separately to see what all the fuss is about.

     (1) Provide Senators with underlying data from air pollution studies dating to 1993 regarding the health impacts of particulate matter (or soot) pollution, despite the data’s inclusion of personally-identifiable medical information of patients involved in the studies.

The letter [pdf] from Senator Vitter et al. demands that EPA release a full set of data files for a series of air pollution studies conducted by private researchers and universities dating to 1993. Typical of the requested studies is the “Harvard Six Cities Study,” published in the New England Journal of Medicine in 1993. Polluter lobbyists have been railing against this study ever since it was published, mounting an especially fierce campaign against EPA’s 1997 national fine particle (PM2.5 or soot) air quality standards. (The industry campaign failed ignominiously when a unanimous Supreme Court upheld EPA’s standards in 2001.)

The Harvard study found robust associations between fine soot particle pollution and mortality. “Mortality was most strongly associated with air pollution with fine particulates, including sulfates” – the type of air pollution produced by coal-burning power plants, oil refineries and chemical plants.

So why has an obstructionist tactic that lobbyists for polluting industries have been pushing unsuccessfully since the mid-1990’s suddenly become an issue that would justify blocking the confirmation of Gina McCarthy in 2013?

Not because of its merits, since Republican and Democratic administrations have agreed that it would be improper and an invasion of patient privacy to hand over some of the medical records demanded by industry. No Republican Senators demanded these data files or obstructed nominations over their release during eight years of the Bush administration. Putting aside political hypocrisy and opportunism, the Senators evidently have concluded they can twist the old industry demands into the strands of a “transparency” narrative.

But the transparency story line here is just a fiction to mask the real reason that industry and conservatives have suddenly elevated studies dating to 1993 to one of the top 5 reasons to slow and oppose McCarthy’s nomination in 2013: it frustrates and seemingly even enrages EPA’s worst critics that these studies (and numerous others, mind you) support the agency’s clean air rules that are projected to save thousands of lives annually. Standards that produce health benefits outweighing industry compliance costs by many billions of dollars. See for example here, here and here [pdf].

House Republicans in the 112th Congress have held hearing after hearing  after hearing to give a platform to industry critics disputing the health impacts and economic benefits from reducing soot pollution.

Republican Congressman Joe Barton (R-TX) has gone so far as to announce his “hypothesis” that exposure to air pollution from power plants such as particulate matter is not linked to premature death; that EPA findings that reducing such pollution will avoid thousands of premature death every year “are pulled out of thin air; and that there are no “medical negatives” from air pollution such as mercury, sulfur dioxide and particulate matter. Now some Senate Republicans are following in the footsteps of Mr. Barton.

In devoting so much insistent attention to these air pollution studies, this group of Senators appears to be making two calculations: (1) by making a series of iterative demands about the protocols and records behind a number of complex studies, conducted by disparate groups of private researchers over the course of decades, the Senators will be able to drag out McCarthy’s hearing long enough to leave EPA without a confirmed Administrator and obstruct the workings of an agency whose mission they do not support; and (2) by manufacturing a political controversy over some (but hardly all) studies linking soot pollution and mortality in ways that numerous other studies have reaffirmed, they will somehow undermine the entire body of soot mortality literature in ways that have proven unsuccessful so far.

     (2) Undertake “whole economy” cost-benefit analyses of EPA standards using a non-peer reviewed, industry-pushed model.

EPA notes in its responses [pdf] to Vitter’s questioning that the agency “performs detailed regulatory impact analyses for each major rule in accordance with relevant Executive Orders” and EPA’s peer-reviewed guidelines on cost-benefit analysis. EPA’s analyses already examine impacts within both the regulated sector and other impacted sectors. So what’s behind Republicans’ desires for “whole economy” analyses?

Again, prior extreme legislation [pdf] introduced in both houses of Congress reveals what’s really at work here. These demands are attempts to cripple EPA through paralysis by analysis, adding layers of bureaucratic red tape and delay to a process that is not broken.

Moreover, the particular analytical tool that Senator Vitter and his colleagues are pushing on the agency is revealing. It is an industry-backed, non-peer reviewed model that EPA points out was not developed to address whole-economy employment impact of regulations and is not suited to that task.

In pushing this industry tool under the guise of "transparency," Senator Vitter is yet again reacting to industry's urging to bias EPA processes against health safeguards and toward industry-desired outcomes.

     (3) Publish notices that EPA receives from outside parties conveying the intent to sue the agency when it fails to meet a mandatory statutory duty. In lawsuits against the agency for violating the law, the Senators demand [pdf] that third party intervenors be given the right to participate in all settlement negotiations about that lawsuit.

EPA's May 1 response [pdf] to Senator Vitter says that as of early April the agency addressed the publication concern. All notices of intense to sue EPA that are submitted to the agency are now publicly available.

This is only appropriate, as there is no sound reason to keep these documents from the public; they are public records that EPA already was required to disclose in response to Freedom of Information Act requests. But it’s a good government practice to make the notices more readily available to the public online after the agency receives them.

Senator Vitter has embedded in this request, however, an entirely unrelated attempt to force EPA to hamstring law enforcement in ways that are not required by law and that are actively harmful. Here’s the anti-environmental tag-along: the Republican Senators’ letter demands [pdf] that EPA include “intervenors” in any settlement negotiations between EPA and parties suing the agency for violating the law. What is this about?

Intervenors are third parties that would support EPA against claims that the agency had broken the law—but the Republican Senators plainly have certain kinds of intervenors in mind. The Senators want industry intervenors to be given the right to participate in settlement discussions to argue that EPA has not broken the law—even when EPA admits that it has— and to oppose rulemakings and schedules to remedy the law breaking, even when EPA is willing to follow the law and correct its illegal behavior.

Today, of course, third party intervenors have no legal right to participate in settlement discussions under any area of the law, involving any party, whether government, private or individual. Imagine a lawsuit by female employees against Wal-Mart over claims that they are paid less than their male co-workers; Congress does not (and should not) give male employees the right to participate in and block settlements between Wal-Mart and the female workers because the men want the pay discrimination to continue.   

The actual parties to a lawsuit, the plaintiffs and defendants, are allowed to conduct settlement discussions as they see fit. Defendants are allowed to weigh their litigation risks and decide whether to expend resources defending cases they may or may not conclude to be defensible.

But the Senators don’t like that. They are insisting that EPA alone across the entire American judicial system must include intervenors in settlement negotiations over whether and how EPA follows the law. Now why might that be?

The obvious answer is that the Senators want to give corporations and industry parties the right to thwart or delay enforcement of health and environmental laws carried out by EPA. Even when EPA agrees to adopt health standards on a schedule that the agency believes it can reasonably meet, and must meet to follow the law, it remains in the interest of industry intervenors participating in settlement negotiations to block those outcomes.

This is not idle speculation. We know this already is a plank of the Republican congressional agenda based on GOP House legislation (H.R. 3862, pdf) that actually would prohibit EPA from settling lawsuits if a non-party industry intervenor objects. That’s right—under the Republican bill, industries that would benefit from polluting excessively and illegally would be granted legal status to obstruct or delay EPA’s obligation to follow the law, over the objections of the agency and citizens that want the law upheld.

I have direct experience with utility industry attorneys intervening in clean air lawsuits where EPA had missed a mandatory statutory deadline by nearly 10 years (in this case, to adopt mercury and air toxics standards for power plants [pdf]). EPA had no defense against claims that it had violated the law. The agency agreed to a reasonable schedule that it said it could meet and has met since then (after giving industry over 120 days to comment on its proposed rule).

And yet the utility attorneys still opposed the settlement and schedule that committed EPA to issuing the standards. The industry attorneys actually argued that EPA could not lawfully adopt the health standards—ever. (Needless to say, the judge rejected these arguments and approved the schedule.)

So we have seen versions of the ideological demand in the Senators’ letter before. It has nothing to do with transparency nor Ms. McCarthy’s qualifications, and everything to do with the same old agenda to undermine enforcement of health and environmental safeguards.

Republican legislators have been unable to pass bills that would grant industry these interference opportunities in both chambers of Congress and in both the 112th [pdf] and 113th Congress [pdf]. Senator Vitter’s requests are attempts to shoehorn these demands into entirely unrelated confirmation proceedings.

     (4) Require EPA to draft guidance requiring that official business be conducted on official email accounts and improve the agency’s response to FOIA requests.

EPA has agreed to undertake these steps, and Senator Vitter’s April 16th letter acknowledges as much. The agency is working on such guidance, and has committed to training staff on FOIA procedures. The Senator acknowledged that this request has been satisfied.

     (5) Review all private email accounts of Ms. McCarthy, despite the fact she’s already testified that she does not use personal email accounts to conduct official EPA business.

Senator Vitter now acknowledges that Ms. McCarthy has searched her personal email accounts and indicated she does not use personal email accounts when conducting official business. But his correspondence and questions make clear that we can expect more email fulminating from untapped reserves of political grandstanding.

I could devote a separate post to the politicized tempest in a teapot surrounding an alternative email address by former EPA Administrator Lisa Jackson. There is no excuse for EPA withholding from congressional inquiry or public FOIA requests Administrator emails conducting agency business.

But so long as all emails are disclosed, separate email accounts for political appointees are at least defensible as a practical matter to conduct internal business when the alternative is a single Inbox and 300+ million Americans know your email address. (Political appointees under Republican administrations did the exact same thing out of necessity.) Does anyone genuinely believe that all members of Congress have only one email address and conduct business only in that Inbox?

While there are some legitimate public oversight issues here, the email controversy so far is a molehill aspiring to be a mountain, and political grandstanding of greater interest to right wing bloggers than the public.

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The partisan opposition to an eminently qualified EPA nominee is a Washington lesson in the need to look behind politicians' talking points and to dissect their actual demands and tactics. The Republican Senators' demands are less about transparency than wrapping anti-health grievances and obstructionist tactics in the pleasing garb of transparency concerns.

The full Senate and public should not be fooled. Ms. McCarthy deserves to be confirmed as EPA Administrator. I believe she will be and I wish her well.

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