The Clean Air Act reserves to "the judgment of the [EPA] Administrator" alone, as a matter of law, the revision of the secondary “public welfare” standard for ozone and other air pollution. This legal standard must be based on what is "requisite to protect the public welfare," a standard that a unanimous Supreme Court has ruled must be based on science alone, and may not be based on cost or other non-welfare related considerations.
On Tuesday, March 11th, the President personally flexed his expert scientific muscles, and overruled the public welfare standard for ozone selected according to the scientific judgment of the EPA Administrator. Instead, the President ordered adoption of an ozone standard preferred by White House economists, a standard that EPA recognized to “lack scientific support.” And in doing so, the President relied upon the very cost considerations that the Supreme Court had ruled illegal in 2001.
The President’s last-minute intervention on March 11th – the day before EPA’s court-ordered deadline for adopting the ozone standards -- precipitated a late night legal flurry within the administration. As this March 13th 14th front-page Washington Post article describes it:
Solicitor General Paul D. Clement warned administration officials late Tuesday night that the rules contradicted the EPA's past submissions to the Supreme Court, according to sources familiar with the conversation. As a consequence, administration lawyers hustled to craft new legal justifications for the weakened standard.
EPA’s Administrator, Stephen Johnson has confessed ignorance about the advice delivered during the meeting between the Solicitor General and White House officials that night. Nor is there any indication that EPA’s own attorneys were even involved in that meeting. EPA staff waited patiently for written White House orders to be delivered on the 11th. None came.
The written White House orders still had not arrived by Wednesday morning, March 12th. EPA staff continued scrambling to concoct a justification for the President’s directive, rewriting the response to public comments documents, preamble and final rule. The Administrator still had not signed the final rule despite the ticking court-ordered clock because the President’s plug-in justification had not showed up at the agency. Hastily, EPA postponed its scheduled 1:00 press conference until after 6:00. A woman caller to the Administrator’s office that afternoon was mistaken for the White House Office of Management and Budget’s Susan Dudley, and greeted with this response, “Is that you again, Susan? We’re working as fast as we can.” Chaos reigned at EPA.
Finally, the letter from the White House’s Dudley to Administrator Johnson arrived late that afternoon. The letter laid down the President’s order, which EPA dutifully repeated in the preamble to the final rule, moments before Johnson signed it.
Reasoned decisionmaking running its course at EPA.
EPA, EPA, “Therefore” Art Thou: Immediately after the preamble sentence quoting the President’s dictate, a sentence follows in which the revealing word “therefore” resounds with the force of a cowboy boot landing on the back of the neck of a lassoed calf: “EPA’s decision therefore also reflects the view of the Administration as to the most appropriate secondary standard.”
You gotta admire the moxy of the beleaguered EPA staffer that included the word “therefore” in that sentence, since it confirms that EPA’s decision followed logically and unavoidably from the President’s order: POTUS says, EPA does. I also rather like the cheeky irony of the word “also” in that sentence, as if to say “Why looky there, Stephen Johnson’s decision also just so happened to parrot the President’s view.”
CYA: The remarkable preamble paragraph disclosing the President’s interference and dictate peters out with a cursory, whimpering testament to the Administrator’s independence that not even the sentence’s author must have believed: “While the Administrator fully considered the President’s views, the Administrator’s decision, and the reasons for it, are based on and supported by the record in this rulemaking.” In EPA legal parlance, that throw-away claim is known as a CYA justification – Cover Your Administrator.
The Science of the Lambs: If you find yourself like EPA, unlucky enough to be a hapless lamb led to slaughter one day, the least you can do is raise a ruckus by bleating all the way to the slaughterhouse. The public docket and preamble for the final EPA rule disclose four remarkable instances of EPA standing up to the White House’s anti-scientific interference – in public, on scientific principle and (in the most incredible instance of them all) subversively.
(1) Long-time EPA staff and agency watchers are still marveling over the high-level mano a mano combat played out between the OMB’s Susan Dudley and EPA’s Deputy Administrator, Marcus Peacock, in back-to-back memos dated March 6th and 7th – just 5 days before the March 12th court-ordered deadline for adopting the ozone standards. This is where the OMB-EPA disagreement over the ozone public welfare standard came to a head – with EPA’s March 7th memo strongly rejecting OMB’s demands. That repudiation sent OMB scurrying to the President to put EPA in its place.
For one brief, shining moment, however, piercing through the smog of illegal and political cost considerations, EPA stood up very publicly to OMB’s reliance on illegal and unjustified factors to attempt to force EPA to adopt a less protective public welfare standard. Indeed, EPA’s March 7th memo reminded OMB acidly that (1) a unanimous Supreme Court decision prohibited consideration of cost in setting a public welfare standard; and (2) contrary to OMB’s claims, “EPA is not aware of any information indicating beneficial effects of ozone on public welfare. . . [or] beneficial effects on economic values or on personal comfort and well-being.”
It is exceedingly rare for high-level memos such as these two even to be written, much less placed in a public EPA rulemaking docket. Especially in this administration with its penchant for secrecy, where OMB-EPA disputes and deals are usually mediated in undocumented phone calls and meetings. EPA’s ultimately ill-fated defiance must be recognized in that light and the agency deserves credit for its courage, however fleeting.
(2) and (3): Even more extraordinary – unprecedented to my knowledge – is the very public disclosure of the President’s personal involvement at the 11th hour as Science Decider in Chief. This disclosure came in two forms: first, the preamble to EPA’s final rule, which revealed the President’s “conclusion” on “March 11, 2008” that EPA’s public welfare standard would be overruled and that the preference of OMB economists would prevail. The EPA rule preamble quotes two sentences out of the blue, oddly without any citation, explaining that the President’s decision was reached “consistent with Administration policy” – policies that the preamble pointedly does not elucidate.
The second disclosure came in the form of a letter that appeared in the rulemaking docket on March 13th -- the day after the rule was signed -- but had begun circulating by email on the 12th: a letter from the White House’s Susan Dudley to Stephen Johnson (mistakenly dated March 13th) officially notifying EPA of the President’s decision to overrule Johnson. This letter contained the mysteriously uncited sentences from the EPA preamble.
(4) The most revealing and astonishing disclosure of them all, however, is also the most subversive: EPA quietly placed into the public rulemaking docket the talking points on the ozone public welfare standard prepared for the Administrator’s meeting with the President. The document is prominently marked “Deliberative and Confidential” and dated March 11, 2008. The purposeful disclosure of this asserted confidential document comes from the same administration that waged the secretive Cheney energy task force battles, and exhibits steadfast resistance to Freedom of Information Act disclosures and Congressional oversight. EPA does NOT place documents like this in public rulemaking dockets – except when it wants to, as here.
And what do these talking points reveal that EPA and the Administrator needed to tell the President and OMB in the Oval Office? That the Supreme Court had unanimously disallowed cost considerations in the establishment of public welfare standards for air pollution; that EPA’s planned approach was “the most scientifically defensible” and “consistent with scientific advice” (italics in original); that EPA’s planned approach was “the most legally defensible”; that “the Administrator must decide how best to set” the public welfare standard; and finally, that “EPA has extensive record support for [EPA’s planned approach] and lacks scientific support for [OMB’s desired approach].”
Johnson was not persuasive in the Oval Office, and the President ordered adoption of the public welfare standard that EPA deemed to “lack scientific support,” as of March 11th at least.
As these disclosures show, however, EPA did succeed -- through a combination of pluck and subversiveness -- in revealing to the American people the heavy, anti-scientific hand of the President and White House. The disclosed EPA talking points especially serve as an indictment of that heavy handedness, as well as an indictment of the legal and scientific basis (or lack thereof) for the President’s decision.
Freaky Friday: As in the Disney movie “Freaky Friday,” Stephen Johnson awoke on Friday, March 14th to discover that he had re-possessed the body of the EPA Administrator. On a press conference call to announce EPA’s new rules for locomotive and marine diesel engines, Johnson lashed out at the Washington Post – and indirectly at yours truly for my quote in the Post article – for disclosing the role of the President in overruling Johnson. The Administrator huffed that – all evidence to the contrary – he, not the President, was the Science Decider in Chief.
Johnson also protested that there had been nothing “irregular” about the extraordinary events of March 11th and 12th discussed above. In the same breath, Johnson acknowledged that he had been completely oblivious to the Solicitor General’s involvement on March 11th weighing in with the White House on the potential (un)lawfulness of the position that the President forced upon EPA that afternoon. Thus did Johnson confirm that he and EPA were so out of the loop and marginal that they had not been invited to the big kids' party.
Meanwhile, over at the White House on Friday, White House spokesperson Tony Fratto all but declared that cost considerations had been the President’s driving motivation for overruling EPA’s public welfare standard. At that morning’s press briefing, Fratto responded to a question asking why the President had intervened in EPA’s smog decision. Fratto responded that the President’s involvement was driven by a concern over “how federal regulations impact communities.”
Thus were the President’s illegal motivations publicly clarified – not concern for science or what is “requisite to protect the pubic welfare,” as the Clean Air Act requires – but impacts on communities. In other words, costs – the very considerations that a unanimous Supreme Court had ruled illegal when setting public health and welfare standards under the Clean Air Act.
The memo from the White House’s Dudley and the EPA preamble “explained” the President's justification for his decision – if one can use that word – as a decision based upon "Administration policy." On March 12th, this impenetrable phrase was at best an empty vessel that the March 6th White House memo had publicly filled with illegal cost considerations, and at worst a smoke screen for — illegal cost considerations. On Friday, the White House spokesperson swept aside that smoke screen and publicly confirmed what we knew all along -- that “Administration policy” was code for the unlawful cost considerations that drove the President personally to overrule EPA’s public welfare standard for ozone, on the way to becoming Science Decider in Chief.