[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                       EPA'S NEW OZONE STANDARDS 

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 20, 2008

                               __________

                           Serial No. 110-117

                               __________

Printed for the use of the Committee on Oversight and Government Reform


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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                 HENRY A. WAXMAN, California, Chairman
EDOLPHUS TOWNS, New York             TOM DAVIS, Virginia
PAUL E. KANJORSKI, Pennsylvania      DAN BURTON, Indiana
CAROLYN B. MALONEY, New York         CHRISTOPHER SHAYS, Connecticut
ELIJAH E. CUMMINGS, Maryland         JOHN M. McHUGH, New York
DENNIS J. KUCINICH, Ohio             JOHN L. MICA, Florida
DANNY K. DAVIS, Illinois             MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts       TODD RUSSELL PLATTS, Pennsylvania
WM. LACY CLAY, Missouri              CHRIS CANNON, Utah
DIANE E. WATSON, California          JOHN J. DUNCAN, Jr., Tennessee
STEPHEN F. LYNCH, Massachusetts      MICHAEL R. TURNER, Ohio
BRIAN HIGGINS, New York              DARRELL E. ISSA, California
JOHN A. YARMUTH, Kentucky            KENNY MARCHANT, Texas
BRUCE L. BRALEY, Iowa                LYNN A. WESTMORELAND, Georgia
ELEANOR HOLMES NORTON, District of   PATRICK T. McHENRY, North Carolina
    Columbia                         VIRGINIA FOXX, North Carolina
BETTY McCOLLUM, Minnesota            BRIAN P. BILBRAY, California
JIM COOPER, Tennessee                BILL SALI, Idaho
CHRIS VAN HOLLEN, Maryland           JIM JORDAN, Ohio
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
JOHN P. SARBANES, Maryland
PETER WELCH, Vermont
------ ------

                     Phil Schiliro, Chief of Staff
                      Phil Barnett, Staff Director
                       Earley Green, Chief Clerk
               Lawrence Halloran, Minority Staff Director




















                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on May 20, 2008.....................................     1
Statement of:
    Grifo, Francesca, senior scientist, Union of Concerned 
      Scientists; Michael Goo, climate legislative director, 
      Natural Resources Defense Council; Roger O. McClellan, 
      advisor, Toxicology and Human Health Risk Analysis; and 
      Alan Charles Raul, partner, Sidley Austin LLP..............   166
        Goo, Michael.............................................   203
        Grifo, Francesca.........................................   166
        McClellan, Roger O.......................................   243
        Raul, Alan Charles.......................................   256
    Johnson, Stephen L., Administrator, U.S. Environmental 
      Protection Agency; Susan E. Dudley, Administrator, Office 
      of Information and Regulatory Affairs; and Rogene F. 
      Henderson, Chair, Clean Air Scientific Advisory Committee..    66
        Dudley, Susan E..........................................    76
        Henderson, Rogene F......................................    86
        Johnson, Stephen L.......................................    66
Letters, statements, etc., submitted for the record by:
    Dudley, Susan E., Administrator, Office of Information and 
      Regulatory Affairs:
        Letter dated May 20, 2008................................   148
        Prepared statement of....................................    78
    Goo, Michael, climate legislative director, Natural Resources 
      Defense Council, prepared statement of.....................   205
    Grifo, Francesca, senior scientist, Union of Concerned 
      Scientists, prepared statement of..........................   169
    Henderson, Rogene F., Chair, Clean Air Scientific Advisory 
      Committee, prepared statement of...........................    88
    Higgins, Hon. Brian, a Representative in Congress from the 
      State of New York, prepared statement of the American Lung 
      Association................................................   123
    Issa, Hon. Darrell E., a Representative in Congress from the 
      State of California, memorandum dated May 2, 2008..........   273
    Johnson, Stephen L., Administrator, U.S. Environmental 
      Protection Agency, prepared statement of...................    68
    McClellan, Roger O., advisor, Toxicology and Human Health 
      Risk Analysis, prepared statement of.......................   245
    Raul, Alan Charles, partner, Sidley Austin LLP, prepared 
      statement of...............................................   258
    Watson, Hon. Diane E., a Representative in Congress from the 
      State of California, letter dated May 16, 2008.............   154
    Waxman, Chairman Henry A., a Representative in Congress from 
      the State of California:
        Memoranda by majority and minority.......................     9
        Prepared statement of....................................     4


                       EPA'S NEW OZONE STANDARDS

                              ----------                              


                         TUESDAY, MAY 20, 2008

                          House of Representatives,
              Committee on Oversight and Government Reform,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 1:46 p.m., in 
room 2154, Rayburn House Office Building, Hon. Henry A. Waxman 
(chairman of the committee) presiding.
    Present: Representatives Waxman, Cummings, Kucinich, 
Tierney, Watson, Higgins, Hodes, Sarbanes, Welch, Platts, 
Cannon, Issa, Bilbray, and Sali.
    Staff present: Phil Barnett, staff director and chief 
counsel; Kristin Amerling, general counsel; Karen Lightfoot, 
communications director and senior policy advisor; Greg Dotson, 
chief environmental counselor; John Williams, deputy chief 
investigative counsel; Alexander Teitz, senior environmental 
counsel; Jeff Baran and Erik Jones, counsels; Jen Berenholz, 
deputy clerk; Matt Siegler, special assistant; Caren Auchman, 
press assistant; Leneal Scott, information systems manager; Rob 
Cobbs, William Ragland, and Miriam Edelman, staff assistants; 
Larry Halloran, minority staff director: Jennifer Safavian, 
minority chief counsel for oversight and investigations; Keith 
Ausbrook, minority general counsel; A. Brooke Bennett, Ashley 
Callen, and Kristina Husar, minority counsels; John Cuaderes 
and Larry Brady, minority senior investigators and policy 
advisors; Patrick Lyden, minority parliamentarian and member 
services coordinator; Benjamin Chance, minority professional 
staff member; Ali Ahmad, minority deputy press secretary; and 
John Ohly, minority staff assistant.
    Chairman Waxman. The committee will please come to order. 
Today's hearing will focus on several recent decisions that are 
of fundamental importance to our health and the environment.
    I have worked on health and environmental issues for 
decades, and I know that regulatory decisions in these areas 
can be very complex. But the law is clear: While all of us may 
have views as to what we may want the outcome to be in any 
rulemaking, we don't necessarily get the outcome we want. We 
are not entitled to specific results, but what we are all 
entitled to is a fair process that is based on the science, the 
facts, and the law.
    That impartial and rigorous system is one of the critical 
pillars of our Government.
    Unfortunately, President Bush seems to believe these rules 
don't apply to him. On key issues, this administration has 
pushed ahead with its agenda despite the evidence and the law. 
We know that is what happened on the decisions to launch the 
Iraq war; it happened again on decisions authorizing torture; 
and it happened when the White House fired independent and 
nonpartisan Justice Department officials.
    For months this committee has been investigating recent 
Environmental Protection Agency decisions relating to both 
global warming and the new air quality standards, and after 
reviewing nearly 60,000 pages of internal documents and 
interviewing officials involved in the rulemakings, we have 
found evidence that the White House often ignored the facts and 
the law.
    The first rulemaking was a response to California's 
petition to regulate greenhouse gas emissions from cars and 
light-duty trucks. Under the Clean Air Act, EPA must approve 
California's request unless it finds the proposal is arbitrary, 
isn't technically feasible, or isn't justified by compelling 
and extraordinary conditions.
    The record is overwhelming that EPA's experts and career 
staff all supported granting the California petition. In one 
internal document, EPA's own lawyer said: ``We don't believe 
that there are any good arguments against granting the waiver. 
All of the arguments are likely to lose in court if we are 
sued.''
    Administrator Johnson apparently listened to his own staff 
people. The committee has learned that before communicating 
with the White House, the Administrator supported granting a 
partial approval to California's request, but then the White 
House intervened. In December, after secret communications with 
White House officials, Administrator Johnson ignored the law 
and the evidence and denied California's petition.
    The second EPA rulemaking revised the air quality standards 
for ozone air pollution to protect both human health and the 
environment.
    In this case, EPA's expert advisory committee, the Clean 
Air Scientific Advisory Committee, unanimously recommended a 
new standard for protecting the environment. After considering 
all of the alternatives, Administrator Johnson agreed with this 
new approach, which is called a seasonal standard. In a 
submission to the White House, he described the case for the 
new standard as ``compelling,'' and he said that there was no 
evidence from the perspective of biological impact supporting 
the alternative standard favored by industry.
    But once again the White House intervened. On the evening 
before the final rule was released, President Bush rejected the 
unanimous recommendation of both EPA's scientific experts, 
lawyers, and Administrator Johnson and instructed EPA to 
abandon the new standard.
    The committee's investigation reveals that EPA officials 
were astounded by the President's decision and said it wasn't 
supported by either the science or the law. One official wrote, 
``I have been working on National Ambient Air Quality Standards 
for over 30 years and have yet to see anything like this.''
    Another wrote, ``We could be in a position of having to 
fend off contempt proceedings. The obligation to promulgate a 
rule, arguably, means to promulgate one that is nominally 
defensible.''
    And an EPA Associate Director observed, ``This looks like 
pure politics.''
    The same thing happened in a third critical rulemaking. 
Last April the Supreme Court directed EPA to determine whether 
CO2 emissions endanger health and the environment 
and must be regulated under the Clean Air Act. This is a 
Supreme Court decision, and under Administrator Johnson EPA 
assembled a team of over 60 career officials to work on this 
hugely important regulation. The staff determined that 
CO2 did endanger the environment and drafted 
proposed rules to reduce tailpipe emissions.
    To his credit, Administrator Johnson listened to his staff 
and sent an official ``endangerment finding'' to the White 
House. That endangerment finding means that the regulation 
should go forward. Jason Burnett, the Associate Deputy 
Administrator, told the committee that he personally 
transmitted the Administrator's determination to the White 
House in December.
    Yet once again the White House ignored the law, the 
science, and Administrator Johnson. Two months ago EPA was 
forced to announce that the agency would go back to square one 
and start the rulemaking process all over again.
    In each of these rulemakings, the pattern is the same: The 
President apparently insisted on his judgment and overrode the 
unanimous recommendations of EPA's scientific and legal 
experts.
    Now, our investigation has not been able to find any 
evidence that the President based his decisions on the science, 
the record, or the law. Indeed, there is virtually no credible 
record of any kind in support of the decisions.
    I recognize and support the broad powers our Constitution 
vests with the President of the United States. But the 
President does not have absolute power, and he is not above the 
law. The President may have a personal opinion about the new 
ozone standards, California's regulation standards, and 
regulating CO2, but he is not allowed to elevate his 
views above the requirements of the law.
    This is an important hearing, and I look forward to 
learning more from our witnesses.
    [The prepared statement of Chairman Henry A. Waxman 
follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Chairman Waxman. Before we proceed with hearing the 
witnesses, I want to recognize Mr. Issa, who is sitting in for 
Tom Davis, the ranking member of the committee, with an opening 
statement.
    Mr. Issa. Thank you, Mr. Chairman, and thank you for 
expressing the majority position extremely well. As we often 
say here in Washington, we are all entitled to our opinions, 
just not our facts.
    The appropriate role of the President was established in 
the Constitution and has been revisited on numerous occasions 
by all three branches of Government. Presidents of both parties 
have asserted the right to oversee and direct the actions and 
decisions of regulatory agencies. President Clinton offered a 
prime example of an aggressive Executive who was constantly 
involved in directing regulatory actions. Indeed, the Executive 
order that gave rise to today's hearing was issued by President 
Clinton in 1997.
    I say this to remind the chairman that the goal of this 
hearing is to investigate whether or not the President provided 
his opinions to EPA Administrator Stephen Johnson. On the issue 
of National Ambient Air Quality Standards [NAAQS], for ozone, 
it is pretty open and shut. He did.
    The President makes no pretense that he did not, as might 
have been implied by the other opening statement. We knew that 
on March 12, 2008, a memo sent from Susan Dudley informing 
Administrator Johnson of the President's judgment on the 
secondary NAAQS standard. That memorandum is part of EPA's 
public docket on the ruling and has been available to staff 
since the initiation of the ozone investigation. In fact, the 
smoking gun is on the Web site.
    Moreover, the President's involvement in the ozone NAAQS 
discussion does not reflect any unusual or improper action. His 
involvement was pursuant to a process established by the 
Clinton Executive order. That order openly declares the 
President's role in major rulemakings, namely, that the 
President will resolve disagreements between an agency and the 
Office of Management and Budgets Office of Information 
Regulatory Affairs [OIRA].
    Accordingly, according to the record, the President himself 
accepted OIRA's conclusions; therefore, the President carried 
out his constitutional responsibility consistent with the 
precedent an applicable Executive order and the Clean Air Act.
    I would also like to remind members of this committee that 
a difference over policy outcomes does not necessarily make a 
policy outcome fatally flawed, meaning that in fact we can 
disagree but at the end of the day law is discretionary in this 
case, and when followed, as it was by the President or any 
President, he may choose among a variety of policy options.
    It should not be surprising that the policy opinion chosen 
by a President of one party differs from the policy opinion 
that a Member of Congress from another party would have chosen, 
nor should it be a reason to cast blameless aspersions or 
discredit the deliberative process used to arrive at that 
decision. From the beginning EPA had proposed the option of 
either setting a secondary standard equal to the primary 
standard or alternately adopting a more biologically relevant 
standard, the so-called W-126 standard of 21 parts per million 
per hour.
    Given the legitimate role of the President in this decision 
and the legitimate choices before him, it appears this kind of 
oversight simply seeks to bully the President into making a 
decision supported by some Members of Congress. This is raw 
politics. The majority supposes that the unwelcome decision is 
an unlawful one. The President concluded within his discretion, 
the ozone standard should be set at 0.075 because of the 
uncertainty of any benefit at a lower level.
    Democrats can have a different judgment about the 
uncertainties and their benefits, but that does not make the 
President's decision improper in any way. If some Democrats 
want a stricter ozone standard, they could pass legislation to 
impose one. They have not done this and do not appear to be 
ready to do so, at least in part because some Members of their 
party disagree.
    Finally, with respect to the proper role of the Clean Air 
Scientific Advisory Board, in plain language the Clean Air Act 
expressly states that CASAC is advisory, not a standard-setting 
panel and not a policymaking panel. Under no circumstances does 
the Clean Air Act require the Administrator to simply rubber-
stamp CASAC's findings. The Advisory Committee is directed to 
review the science and make recommendations to the 
Administrator.
    By definition, ``recommendations'' can be rejected. With 
respect to the ozone NAAQS standard in particular, there is no 
bright line in the science today regardless of those who would 
like to seek one that shows that above-level ozone is unhealthy 
and below the level it is somehow of no danger.
    Accordingly, setting the NAAQS level for ozone is 
necessarily a policy judgment entrusted to the Administrator 
and claiming that science dictates a certain outcome is 
contrary to both science and law. It is worth noting the EPA 
has spent over 3,200 staff hours in producing over 65,000 pages 
of documents in their effort to comply with the committee's 
demands.
    OIRA has been similarly responsive, turning over somewhere 
between 6,800 and 7,900 document pages, and participated in 
half a dozen in-person meetings in conference calls in support 
of accommodating this committee's needs. Throughout the process 
the majority has praised the EPA in their efforts to 
accommodate the committee's demanding production schedule and 
acknowledge the logistical difficulties involved in such a 
voluminous document production.
    Finally, I understand the committee has recently released a 
memorandum summarizing the majority's findings with respect to 
both ozone investigation as well as the California waiver 
investigation. The minority has also drafted a separate 
memorandum based on our own independent evaluation of the 
facts. I ask that the minority documents be inserted into the 
record at this time.
    Chairman Waxman. Without objection, all of the memoranda 
provided by the majority and minority staff will be made part 
of the record.
    [The information referred to follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Issa. Thank you very much, Mr. Chairman. I look forward 
to this fact-finding hearing. I believe it is appropriate to 
ask when there are differences in opinions, because I believe 
Congress has an oversight role, but as I said in my opening 
statement, it is very clear the President was within his 
discretion in this case, based on the facts presently 
available.
    With that, I yield back.
    Chairman Waxman. Thank you, Mr. Issa.
    We are pleased to welcome three participants on our panel. 
We will hear from Stephen Johnson, who has served as the 
Administrator of the Environmental Protection Agency since May 
2005. He has been working at EPA in different capacities for 
the past 27 years.
    Susan Dudley was appointed as Administrator of the Office 
of Information and Regulatory Affairs in the White House's 
Office of Management and Budget in April 2007. Prior to her 
current position, Ms. Dudley worked at the Mercatus Center at 
George Mason University and as a consultant at Economists, Inc.
    Dr. Rogene Henderson is currently the Chair of EPA's Clean 
Air Scientific Advisory Committee and is a senior scientist 
emeritus at the Lovelace Respiratory Research Institute. She is 
an expert on air quality and has had a distinguished career 
serving on multiple boards and committees related to the topic. 
I would like to extend a special thank you to Dr. Henderson for 
the accommodations she has made to make herself available for 
this hearing. Thank you very much.
    This hearing has been postponed twice, and each time Dr. 
Henderson rescheduled her flight and canceled her plans to make 
sure she was available. I believe she even canceled a vacation 
which I am sorry to hear about. Thank you very much for being 
here.
    It is the policy of this committee that all witnesses that 
testify before us do so under oath, so if the three of you 
would please stand and raise your hands I would appreciate it.
    [Witnesses sworn.]
    Chairman Waxman. The record will indicate that each of the 
witnesses answered in the affirmative.
    Mr. Johnson, or all three of you, your prepared statements 
that you have submitted to us in advance will be made part of 
the record. We would like to call on you for your oral 
presentation. We usually like to keep that within around 5 
minutes, if possible. We will have a clock running. It will be 
green, and then the last minute will be yellow, and then when 
the time has expired, it will be red.
    I will not cutoff any of you from your presentation, but if 
you are mindful that the time has expired, we would like you to 
keep that in mind and try to summarize.

     STATEMENTS OF STEPHEN L. JOHNSON, ADMINISTRATOR, U.S. 
       ENVIRONMENTAL PROTECTION AGENCY; SUSAN E. DUDLEY, 
 ADMINISTRATOR, OFFICE OF INFORMATION AND REGULATORY AFFAIRS; 
 AND ROGENE F. HENDERSON, CHAIR, CLEAN AIR SCIENTIFIC ADVISORY 
                           COMMITTEE

                STATEMENT OF STEPHEN L. JOHNSON

    Mr. Johnson. Good afternoon, Chairman Waxman, and members 
of the committee. I am pleased to be here to discuss EPA's 
decision to significantly strengthen the National Ambient Air 
Quality Standard [NAAQS], for ground-level ozone.
    It is also a pleasure to appear alongside Dr. Rogene 
Henderson, Chair of EPA's Clean Air Scientific Advisory 
Committee [CASAC]. Former EPA Administrator Levitt appointed 
Dr. Henderson to this position in 2004 and in 2006 I invited 
her to continue serving in this important role.
    Since 1980, ozone levels have been cut nation-wide by more 
than 20 percent, even while our economy has more than doubled. 
As many of the Bush administration's recent rules to reduce air 
pollution take effect, we expect that trend to continue.
    While air quality has been improving so has our scientific 
knowledge of the relationship between pollution, public health, 
and our planet. As we learn more, science and the law require 
that we make changes. That is what we have done with regard to 
ozone.
    This afternoon, I would like to describe my decisions on 
the ozone standards, first for the primary standard designed to 
protect public health, and, second, for the secondary standard 
designed to protect public welfare. Since EPA last updated 
ozone standards in 1997, more than 1,700 new studies have been 
published about ozone's effects on human health. Many of these 
studies strengthen the linkages between ozone exposure and 
effects such as reduced lung function or aggravated asthma.
    In a large number of new studies showed that ozone is both 
more damaging and harmful at lower concentrations than 
scientists understood. After evaluating the results of these 
studies, along with recommendations of staff, my Clean Air 
Scientific Advisory Committee and public comments, I concluded 
that the 1997 standard no longer met the Clean Air Act 
requirement to protect public health with an adequate margin of 
safety. To provide that protection at a level that is requisite 
to protect public health, I selected a level of 0.075 parts per 
million for the primary standard as the most stringent 8-hour 
standard for ozone in our Nation's history, it will provide 
significant public health benefits to millions of Americans.
    Advances in science also provided significant new evidence 
about ozone's impact on the environment, particularly on 
sensitive plants and trees. When I proposed the standards last 
June, I presented two options: one, setting the standard 
identical to the primary as has been the practice for many 
years; or, two, setting a 3-month standard to address the 
cumulative effects of plant exposure to ozone over the growing 
season. Each of these alternatives had strengths and also had 
weaknesses.
    Selecting a secondary standard was difficult, as the record 
of this rulemaking shows. In making the decision, I reviewed 
the 1997 NAAQS decision and the scientific evidence available 
since then. I considered recommendations from CASAC and my 
staff. I read comments from the public, and as a matter of good 
government and as required by Executive Order 12866, I 
coordinated with others in the executive branch about the two 
options before me. I weighed all of this information in making 
my final decision, which was to set the standard identical to 
the primary standard at 0.075 per million.
    This stronger standard will provide significantly increased 
protection for plants and trees. In my 3 years as 
Administrator, I have strengthened two air quality standards, 
one for particulate matter and one for ozone. Earlier this 
month, I proposed to strengthen our Nation's air quality 
standards for lead. This is the first time in 30 years.
    In the process of navigating the requirements of the Clean 
Air Act, I have come to see both the strengths and limitations 
of this law, and, I believe, the need to change it for the 
better. I believe it is time to modernize the Clean Air Act to 
improve public health. When I announced the revisals on 
standards March 12th, I also announced four principles upon 
which the administration will seek proposals to modernize the 
Clean Air Act. Congress has adopted these principles and other 
environmental statutes such as the Safe Drinking Water Act.
    The Clean Water Act is an important act for us to review. 
The Clean Air Act is not a relic to be displayed in the 
Smithsonian but a living document that must be refurbished to 
continue realizing results. I look forward to working with you 
in our efforts to improve this important law and to continue 
our progress toward clear air across the Nation.
    Thank you, Mr. Chairman. I would be happy to answer any 
questions.
    [The prepared statement of Mr. Johnson follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Waxman. Thank you very much, Mr. Johnson.
    Ms. Dudley.

                  STATEMENT OF SUSAN E. DUDLEY

    Ms. Dudley. Chairman Waxman, and Ranking Member Issa, and 
distinguished members of the committee, thank you for inviting 
me and giving me the opportunity to testify today regarding the 
role of the Executive Office of the President, NEPA's ozone 
NAAQS rulemaking.
    In the interest of public transparency, both OMB and EPA 
placed in the correspondence related to this rulemaking in the 
public record to ensure clear presentation of the issues 
involved, Pursuant to Executive Order 12866 issued in 1993 by 
President Clinton, OIRA oversees the regulatory process for the 
executive branch by coordinating interagency review of 
significant regulatory actions. In most cases OIRA is able to 
work with the regulatory agency to resolve any issues that 
arise during the interagency review process. For those rare 
circumstances when such resolution is not possible, the 
Executive order provides a process for conflict resolution by 
the President with the assistance of the Chief of Staff.
    EPA's ozone NAAQS is a significant regulation under E.O. 
12866 and such was submitted to OIRA on February 22, 2008. In 
the course of interagency review, concerns were raised with the 
secondary, the welfare-based standard. These concerns focused 
on the form of the standard, not the level. EPA's proposed rule 
had sought comment on two alternative forms. Both were 
scientifically and legally valid, one set equal to the primary 
standard and another based on measured ozone levels over a 
season. The draft final rule would have relied on the seasonal 
form of the secondary standard.
    Establishing a separate seasonal standard would have 
deviated from EPA's past practice which has been to set the 
secondary ozone NAAQS equal to the primary NAAQS. The draft 
initially submitted for review did not clearly support a 
conclusion that a secondary standard was requisite to protect 
the public welfare. First, as EPA observed in the preamble to 
the 2007 proposed rules, a secondary standard set at a level 
identical to the proposed new primary standard would provide a 
significant degree of additional protection for vegetation as 
compared to the current standard established in 1997.
    Second, EPA's analysis indicated that the draft secondary 
standard accumulated over a season would not be more protective 
of vegetation than one set equal to the primary public health 
based standard. On the contrary, EPA recognized the seasonal 
standard in the final draft was generally less stringent than 
the primary standard.
    Given the public interest in this regulatory proceeding, I 
wanted to ensure that these concerns were laid out clearly to 
avoid misunderstandings, so I conveyed them to Administrator 
Johnson in memorandum dated March 6th. On March 7th, EPA Deputy 
Administrator Peacock responded in writing. Then, pursuant to 
the appeals procedure, the Executive order, EPA sought further 
consideration of this disagreement regarding the form of the 
secondary standard.
    Following the established Presidential Review process, the 
President concluded that, consistent with administration 
policy, added protection should be afforded to the public 
welfare by strengthening the secondary ozone standard and 
setting it equal to the new primary standard.
    On March 12th, I sent a memorandum to Administrator Johnson 
memorializing this process. As the preamble to the final rule 
states: ``While the Administrator fully considered the 
President's views, the Administrator's decision and the reason 
for it are based on and supported by the record in this 
rulemaking.''
    So, in summary, let me reiterate three key points. First, 
in the course of interagency review of EPA's final ozone, both 
OMB and EPA have been forthright in making key correspondence 
regarding initial disagreements over the form of the secondary 
standard available to the public.
    Second, the focus of my correspondence with EPA was not the 
primary health-based standard, but the secondary, welfare-based 
standard. No changes were made to the level or form of the 
health-based standard.
    Third, discussions regarding the secondary standard related 
exclusively to the form of the secondary standard and did not 
affect the level of protection from ozone exposure provided to 
vegetation. Contrary to some media accounts, the 8-hour form 
ultimately selected by the EPA Administrator is not lower or 
less protective than the alternative seasonal form of the 
standard.
    Thank you for the opportunity to testify.
    [The prepared statement of Ms. Dudley follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Waxman. Dr. Henderson.

                STATEMENT OF ROGENE F. HENDERSON

    Ms. Henderson. Thank you for asking me to testify before 
this committee. I am testifying as the current Chair of the 
USEPA's Clean Air Scientific Advisory Committee [CASAC], which 
is a congressionally mandated committee that advises and makes 
recommendations to the EPA Administrator concerning the 
scientific basis for setting air quality standards. The CASAC 
ozone panel included 25 members, all of whom were carefully 
vetted for their scientific qualifications and for any 
potential conflicts of interest.
    The questions addressed by the ozone panel was the same as 
for any criteria pollutants. In light of newly available 
information, are the existing standards adequate to protect 
public health with a margin of safety in terms of the primary 
standard or to protect public welfare in terms of the secondary 
standard.
    The ozone panel met with EPA staff in public meetings seven 
times to review eight documents over a 2-year period. Public 
comments were solicited at each of our meetings. Highly 
productive discussions were held between EPA staff, the public 
and CASAC in our efforts to develop the best scientific advice 
to provide the Administrator.
    A major product of these extended discussions was the 
unanimous recommendation that the primary standard should be 
lowered from a level of 84 parts per billion to a level between 
60 and 70 parts per billion. Note that the recommendation was 
in terms of a range. There is enough uncertainty at this low a 
concentration of ozone that CASAC can only recommend a range of 
values they consider to be protective of public health. It is a 
policy decision for the Administrator to determine where within 
that range to set the standard.
    Our scientific advice was not accepted. The primary 
standard was lowered but only to 75 parts per billion. The 
CASAC panel does not endorse the new primary standard as being 
sufficient protective of public health with a margin of safety 
as explicitly required by the Clean Air Act.
    Moving on to the secondary standard, which includes 
protecting our ecology, the panel was in unanimous agreement 
that we now have enough information to be able to set a 
cumulative seasonal secondary standard rather than having to 
default to using the primary standard. It is both common sense 
and fully justified scientifically to set a secondary standard 
separate from the primary standard, since, unlike humans, 
vegetation is affected by cumulative exposures to ozone during 
the growing season and during daylight hours.
    It is also in agreement with the National Research 
Council's 2004 Report on Managing Air Quality in the United 
States in which they strongly recommend that the EPA move away 
from having identical primary and secondary standards to 
setting a reasonable secondary standard because there is 
growing evidence that some vegetation is more sensitive to 
pollutants than are humans.
    Nevertheless, in March, Ms. Dudley of the OMB sent a memo 
to Administrator Johnson saying the form of the secondary 
standard should not be changed. This memo was clearly refused 
in a knowledgeable, well-written reply from Deputy 
Administrator Marcus Peacock. In reply, Ms. Dudley stated that 
President Bush had decided against having a secondary standard 
that was different from a primary standard. In defense of this 
decision, the White House said the decision was based on 
following the law. There is no law against having a different 
standards, as evidenced by the precedent set in 1971 when 
separate secondary standards were set for both particulate 
matter and sulfur oxides.
    Equally perplexing is the fact that the OMB objections were 
to the proposed form of the secondary standard, which is a 
scientific matter and not to the level of the proposed 
standard, which includes policy decisions. CASAC has been 
accused of wandering from scientific issues into policy. In 
this case, policymakers wandered into scientific issues, and 
they did not do it well. Wilful ignorance triumphed over sound 
science.
    Certainly the Administrator is the one who decides what 
standard to set, and CASAC's role is only advisory in nature. 
However, if the Administrator sets the standard outside the 
range recommended by his Science Advisory Committee, a strong 
reason for doing so should be given. The Administrator has said 
his decision was based on his own judgment.
    Congress may want to ask, on whose advice is the 
Administrator basing his judgments? The Clean Air Act mandates 
that one source be the CASAC whose work is done transparently 
in public by vetted members. By contract, the advice that 
appears to be trumping the CASAC advice is not transparent. The 
OMB and the White House set the secondary standard in effect 
rather than the EPA Administrator.
    In closing, I wold like to quote from Dr. Paul Gilman, who 
is the former Assistant Administrator for Research and a 
Science Advisor for the EPA, in a statement he made before a 
recent hearing of the Senate Committee on Environment and 
Public Works. ``Our best insurance that the science, the 
scientific judgment, and policymaking are as good as they can 
be is that the process is transparent, participatory, peer-
reviewed, and followed with informed oversight. Setting the 
standards by fiat behind closed doors is not in our best 
interest.''
    Thank you.
    [The prepared statement of Dr. Henderson follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Chairman Waxman. Thank you very much, Dr. Henderson.
    We will now proceed to questions and, by agreement with the 
minority, we will have 12 minutes on each side to begin, 12 
controlled by the chairman and 12 controlled by Mr. Issa. Then 
we will proceed to the 5-minute rule. Without objection that 
will be the order.
    Let me start off, Administrator Johnson. My concern is that 
the decisions at EPA are not being based on the science and 
they are not being based on the law. They are being made at the 
White House, and they are being made for political reasons. My 
concern is that this is happening over and over again. It 
appears to be what happened on the ozone rule. It appears to be 
what happened when you rejected California's efforts to 
regulate carbon dioxide from vehicles, and it appears to be 
what happened when EPA tried to regulate carbon dioxide itself 
after the Supreme Court decision.
    Dr. Henderson, let me start with you. You are the Chair of 
the Clean Air Scientific Advisory Committee, and you reviewed 
the new ozone standards that were recently announced by EPA. 
Are the standards that Administrator Johnson set consistent 
with the science?
    Ms. Henderson. It is not consistent with the CASAC's 
recommendations which are based on science.
    Chairman Waxman. Well, did CASAC give a range so that there 
was some discretion left that you thought would fit with the 
science that you knew?
    Ms. Henderson. Yes. The CASAC always recommends a range, 
never a bright line. We know that there is uncertainty at these 
low levels of ozone, so with careful consideration of the 
uncertainties and what we know from the scientific work that 
has been done since the last ozone standard was set, we 
recommend a range within which the Administrator could set a 
level that would be protective of public health with a margin 
of safety.
    Chairman Waxman. And did the Administrator select within 
the range recommended by the Scientific Advisory Committee?
    Ms. Henderson. No, he did not.
    Chairman Waxman. Now, in essence, you are saying that 
Administrator Johnson did not follow the science, is that 
correct?
    Ms. Henderson. That is correct.
    Chairman Waxman. Now, Administrator Johnson, I want to give 
you a change to respond. Dr. Henderson says you didn't follow 
the science. Do you agree with that?
    Mr. Johnson. Well, I would respectfully disagree with that 
characterization. One is that I did agree with our CASAC that 
the current standard was not requisite to protect public health 
with an adequate margin of safety, hence we were in agreement 
together. I should note that not all comments agreed with that 
conclusion.
    Second is that not only do I have the advice--and I 
appreciate and certainly respect the advice of CASAC and Dr. 
Henderson's role as the Chair--but also I have the 
responsibility to listen to what my staff say and, of course, 
evaluate all of the public comments after all the comments are 
in. I made the decision based upon all of the science before me 
that 0.075 was requisite to protect public health with an 
adequate margin of safety.
    Chairman Waxman. Excuse me, you answered my question. You 
think you set it within the protection of the science.
    Mr. Johnson. Absolutely.
    Chairman Waxman. OK. Now, the record shows your views about 
the science and the law were constantly being reversed by the 
White House. Your professional views may be scientifically and 
legally correct, but they are not the ones that are prevailing 
comments to the White House that the secondary standard for 
ozone, the one that protects the environment, be set based on 
cumulative seasonal exposure, isn't that right?
    Mr. Johnson. Well, more accurately, Mr. Chairman, would be 
that there are two options. There was one that the Agency 
preferred as part of the deliberation, and it was clear that 
there were others in the administration who felt the other was 
a preferred option. Of course, as I believe good government, we 
went through the process as outlined by President Clinton's 
Executive order, and the President provided input. Ultimately, 
I made the decision, and made the decision to set a secondary 
standard that is the most protective secondary standard in our 
Nation's history.
    Chairman Waxman. You, as the head of EPA, recommended a 
proposal. OMB and the White House looked at that proposal and 
said to you, we don't want that proposal. Then you made the 
decision that they recommended.
    When you sent your draft final rule to the White House in 
February, it said that the evidence for seasonal standard was 
compelling and that a seasonal standard was necessary to ensure 
the requisite degree of protection. But the White House then 
objected to that proposal, and you changed it. Is that what 
happened?
    Mr. Johnson. Well, I think, more accurately, was is that 
certainly it agreed with CASAC that a cumulative seasonal 
metric is the most biologically relevant form for vegetation; 
however, at the time we certainly noticed----
    Chairman Waxman. I really want a direct answer to the 
question. You submitted a rule to the White House, and the 
White House said they wanted a different rule, and then you 
decided what the White House suggested to you.
    Mr. Johnson. Well, there was a difference of opinion 
between two----
    Chairman Waxman. No, no. Yes or no. Yes or no?
    Mr. Johnson. Well, I don't believe it is a yes or no 
question, sir.
    Chairman Waxman. Well, you gave them one option and they 
gave you the other, and the one you accepted was theirs.
    Mr. Johnson. We had two options on the table. There was one 
that was preferred by EPA, one that was preferred by OMB and 
perhaps others, and it went through an Executive order process. 
I think that is good government.
    Chairman Waxman. OK. Well, this is not a minor change; it 
was a major reversal that I believe was not supported by the 
record. Your own staff said it was pure politics and that they 
have never seen anything like it in 30 years of working on air 
quality standards.
    An agency lawyer worried that the final decision was not 
even nominally defensible, and this wasn't the only time you 
have been reversed by the White House. It seems to be happening 
over and over again.
    Your Associate Deputy Administrator, Jason Burnett, told 
the committee that last fall you supported granting 
California's petition to regulate carbon dioxide emissions from 
vehicles. According to Mr. Burnett, you changed your position 
after you talked with the White House. Is that accurate?
    Mr. Johnson. I don't believe that is a fair 
characterization, Mr. Chairman. I think, certainly, as you look 
through the thousands and thousands of pages, including his 
deposition, that shows a very deliberate process going through 
where I evaluated all options from moving from a full approval 
to denial and options in between.
    Chairman Waxman. And you recommended it be in between. You 
didn't agree that there should be a complete granting of what 
California wanted, which was a waiver to do exactly what they 
wanted. You wanted a partial waiver so that it would go into 
effect through a period of time, and that was sent to the White 
House.
    Mr. Burnett told us under oath that he thought a partial 
grant--he, meaning you--thought that a partial grant of 
California was the best course of action.
    Well, that is what happened in this instance. The same 
thing happened the third time. According to your staff, you 
decided last fall that EPA should issue its own greenhouse gas 
rules, and you submitted a proposing endangerment finding to 
the White House. You also circulated a proposal to other 
agencies to regulate tailpipe emissions of carbon dioxide. Is 
that accurate?
    Mr. Johnson. It is true that we have a draft of 
endangerment finding that was part of the rulemaking process 
before the Energy Independence and Security Act was passed.
    Chairman Waxman. And you also recommended that other 
agencies regulate tailpipe emissions of carbon dioxide.
    Mr. Johnson. Well, that was part of a draft decision that 
has not gone through interagency process.
    Chairman Waxman. But you recommended it to the Department 
of Transportation.
    Mr. Johnson. Well, again, it was so deliberative and they 
had not reviewed it, and again, it was before the Energy 
Independence and Security Act, which then changed the course of 
action for EPA, and that is writing a regulation for renewable 
fuel standard.
    Chairman Waxman. We interviewed----
    Mr. Johnson. Excuse me. I am just working, as required, 
working with the Department of Transportation as they updated--
--
    Chairman Waxman. Well, we interviewed seven senior career 
EPA officials earlier this year, and they all told us the same 
thing. You supported Federal regulations for carbon dioxide 
emissions and submitted an endangerment finding to the White 
House. They said the proposal was sent to the White House in 
the first or second week of December. They told us that after 
you submitted your recommendations to the White House, they 
were told to stop all work on the regulations. This policy 
reversal became official in March when you announced that EPA 
was going to start the regulatory process all over again.
    My concern, Administrator Johnson, is that you've become 
essentially a figurehead. Three times in the last 6 months you 
have recommended to the White House that EPA take the steps to 
address climate change and protect the environment. In each 
case, your positions were overruled.
    Now, your positions were right on the science and the law, 
yet in each case you backed down. You received your 
instructions from the White House. Now that is not how our 
Government is supposed to work. Congress passes the laws and 
the executive branch is supposed to faithfully administer them.
    But what we see happening at EPA is that when you try to 
follow the law and the science, you are overridden. The 
attitude in the White House seems to be that President Bush can 
ignore the environmental laws that Congress wrote and do 
whatever he pleases.
    Now, my questions are about the process and the results. 
Let's go to this ozone decision. EPA is required under the law 
to set an ozone standard to protect public health and a 
secondary ozone standard to protect crops, forests, and other 
aspects of public, and we just went over that very briefly.
    After years of scientific review, you sent the draft final 
ozone standard to the White House for review. To protect the 
environment your draft recommended that EPA establish a new 
standard, one that would protect plants from cumulative 
exposure over growing season. The document to the White House 
stated that you found the evidence for the new standard to be 
compelling and necessary. You also wrote that you found no 
evidence to support the alternative standard favored by 
industry.
    When the final rule was issued on March 12th, you made a 
complete reversal on the environmental standard, you abandoned 
the seasonal approach, and you adopted the short-term approach 
that industry favored. These changes were made at the last 
minute pursuant to instructions from White House. According to 
the record, they were personally directed by the President.
    Administrator Johnson, your statement that there was 
compelling evidence in support of the seasonal standard was 
dropped in the final rule. So was your statement that there was 
no biological evidence supporting the industry standard. Why 
were these statements deleted from the rule?
    Mr. Johnson. Well, Mr. Chairman, as we prepared for making 
a decision--as I prepared making a decision on the secondary 
standard, again, we proposed two options, and I think the 
important point to note is it was not an issue of a level of 
protectiveness. Either form provided additional level of 
protectiveness for public welfare.
    Chairman Waxman. Did the White House provide you with new 
scientific evidence to change your mind?
    Mr. Johnson. Well, Mr. Chairman, certainly during the 
review, it was part of the Executive order. OMB certainly 
issued a concern, ``The draft is not adequate to support such a 
decision.'' And as I evaluated their comments and, certainly, 
the President's comment and reviewed it, I made the decision to 
establish the secondary standard----
    Chairman Waxman. I understand you made that decision.
    Mr. Johnson [continuing]. After I made the primary 
standard.
    Chairman Waxman. But the Clean Air Act is clear in setting 
ozone standards. The Agency is required to use the best science 
and set a standard that protects health and environment.
    Did the White House do this? Did the administration listen 
to the scientists, or did they reject the science and set 
standards that will not protect health and the environment?
    Mr. Johnson. No. Again, as I said, both forms were 
protective of the environment. The question is, what is the 
form? It is not the standard. And, in fact, for the secondary 
standard, some of the issues that I was facing in terms of 
uncertainty with adopting a separate standard, a cumulative 3-
months so-called W-126 form, was, for example, crop yield data 
was derived largely from data generated 20 years ago.
    In addition, the degree of risk attributable to varying 
levels of ozone exposure, there were uncertainties. Degree of 
protection that any specific cumulative seasonal standard would 
produce an associated potential for error in determining the 
standard and what would be providing a requisite degree of 
protection, all of those were among the uncertainties that, 
certainly, as I factored into my decision played a role. That 
is why I chose the primary form with input in this case from 
the President.
    I am very proud of the process. It has been a very 
transparent process where Susan's memo, Marcus' memo, and in 
fact a letter citing what the President's input to me is a 
final decision. I think that is good government, and I think 
that is the way we ought to operate.
    Chairman Waxman. Thank you very much, Mr. Johnson.
    Mr. Issa.
    Mr. Issa. Thank you, Mr. Chairman. I will continue where 
the chairman left off because I think it is a good line of 
questioning.
    Administrator Johnson, you, if I understand correctly, are 
a career professional, is that right?
    Mr. Johnson. That is correct.
    Mr. Issa. When did you join the EPA?
    Mr. Johnson. In 1980.
    Mr. Issa. In 1980.
    Mr. Johnson. Well, actually, I came to EPA, left and then 
came back, but my service computation date is 1980.
    Mr. Issa. Longer than some of the staff behind me have been 
alive, so we will say you have been there a long time, and you 
are not a political appointee. I mean, even though you sit now 
in an appointed position, you are a career professional, is 
that right?
    Mr. Johnson. I am a career professional who also is a 
political appointee, and I am proud of both of those mantles.
    Mr. Issa. But you were selected because of your long tenure 
with the EPA, clearly.
    Mr. Johnson. I believe the President, in fact, it was said 
that he wanted the most experienced, best person for the job, 
and I am honored to be serving our Nation and the President in 
that capacity.
    Mr. Issa. Well, let's run through a little of that 
experience. First of all, I assume you were at the EPA when 
California asked for a waiver from the need for MTBE or other 
oxygenates and try to use things that wouldn't destroy our 
water or wood corrosive, do you remember that?
    Mr. Johnson. I do remember that, yes, sir.
    Mr. Issa. Do you remember that was denied by the Clinton 
administration?
    Mr. Johnson. I do.
    Mr. Issa. So when it came to California meeting its own 
high clean air standards and not being at the back of the 
ethanol lobby, the administration under President Clinton was 
not willing to grant that waiver, right?
    Mr. Johnson. Well, I must say that is tangential because I 
was not in the Air Office or working on air issues, but I am 
aware of that fact.
    Mr. Issa. And California's request for a waiver was, they 
were going to comply with all of the standards; they simply 
weren't going to use things that poisoned our water or required 
that corn farmers in the Midwest get a special benefit.
    So the strange thing is, you know, today we are asking 
about a reduction, and I want to go into that. I am trying to 
figure out what good deed can possibly go unpunished. Let me 
run you through that.
    You were also there in--and I apologize, I said 1997--it 
was a typo. The Executive order of President Clinton's was at 
the beginning of his administration in 1993, isn't that true?
    Mr. Johnson. That is correct.
    Mr. Issa. And didn't he essentially assign that to Vice 
President Al Gore as sort of the go-to on air quality, if you 
remember?
    Mr. Johnson. I don't remember, sir.
    Mr. Issa. I don't forget on that one. But I certainly think 
that is within the administration's right. In this case, 
President Bush has kept that to himself.
    But in 1993, if I understand correctly, the ozone level was 
1.0 or 120 parts where today it is going to be 75. That was the 
air quality prior to the 1997 ruling, is that right?
    Mr. Johnson. Yes.
    Mr. Issa. And so in 1997 it was reduced from 120 to 84. 
Since 1997 when it was reduced to 0.084, has Mr. Waxman's 
district ever been in compliance? Does Hollywood or L.A. meet 
that 0.084?
    Mr. Johnson. No, sir, not.
    Mr. Issa. OK. So we have had a standard, and many parts of 
California have never reached that standard. Many parts of 
America have never reached that standard, is that correct?
    Mr. Johnson. There are a number of parts of America that 
have not, that is correct.
    Mr. Issa. And doesn't it make the science a little inexact 
to figure out where the safety level is if, in fact, people are 
above the existing standard and you are going to lower it even 
further? Isn't that one of the variables you have to deal with?
    Mr. Johnson. Well, the law actually prohibits me from 
considering costs or considering whether or not the standard is 
actually able to be implemented. Of course, that is one of the 
reasons why, among a number of reasons why, that I think that 
it is worthy of congressional debate.
    I believe there is an opportunity to improve the Clean Air 
Act. I think that it is unconscionable that we have a standard 
that we have gone through years of scientific evaluation to say 
this is protective of public health and then communities not 
even being in compliance with that for 20 or plus years. I 
think it is worthy of congressional debate, and I believe that 
there are other approaches that could achieve public health 
protection sooner.
    Mr. Issa. So, particularly, when it comes to 
CO2, if I understand your recommendation, it is time 
for Congress to act to create a more responsive law that would 
allow for compliance, offsets, things to deal, to be honest 
with the chairman and myself as Californians, the fact that we 
have some containment areas that just simply never complied.
    Mr. Johnson. Well, sir, I wholeheartedly agree. My 
experience in 27 years with a very complex statute as the Clean 
Air Act is, dealing with global air pollutant with many, many, 
many issues, my experience says that a legislative fix is the 
more efficient and effective way because, my experience says, 
with these complex laws subject to years and years of 
litigation.
    I believe that global climate change needs to be addressed. 
I believe the greenhouse gas emissions need to be addressed, 
and I think the most efficient and effective way is through a 
legislative fix. Having said that, I am initiating the 
rulemaking process by issuing an advance notice of proposed 
rulemaking of, later this spring.
    Mr. Issa. Well, I appreciate that. Just to finish on my 
numbers game here a little bit, you mentioned in your opening 
statement we are down about 20 percent over several decades, 
most of your career. If I do the numbers, coming from 120 parts 
to 84 parts, it was about 33 percent reduction. So if we are 
down 20 percent, we obviously didn't hit--we didn't go from the 
120 to the 84.
    Now if I understand correctly, going to 0.75 is about an 11 
percent reduction, and going to 0.070 would be about a 16 
percent. So today we appear to be having a hearing about 
whether a reduction of 11 percent is somehow anti people's 
breathing versus a reduction of 16 percent would somehow make 
it OK. Is that pretty much what I should be understanding 
today?
    Mr. Johnson. Well, that is certainly a view. Again, 
ultimately, when I made the decision on both the primary and 
the secondary both in regard to the primary, public health, I 
determined that the existing standard was not protective. It 
was not requisite to protect public health with an adequate 
margin of safety and wholeheartedly agreed with CASAC that it 
needed to be reduced.
    I made the decision to reduce it and to make it more health 
protective. In fact, again this is the Nation's most health-
protective 8-hours ozone standard in the history of the Nation, 
and that shouldn't go unnoticed.
    Mr. Issa. I appreciate that, and I agree. If I understand 
correctly, though, basically, if 2, 3, 4 years from now after 
we have achieved a portion of this 11 percent reduction that is 
presently being ordered, there is nothing that stops this 
process, with Dr. Henderson's help and so on, from seeing that 
there is an even lower level bolstering the science and 
ordering a lower level. There is nothing whatsoever stopping it 
from happening at any time, is that correct?
    Mr. Johnson. Well, it is not only not stopping it, we are 
actually directed by law and it is part of the 77 amendments to 
the Clean Air Act, we are required every 5 years to review each 
and every one of these standards.
    Of course, one of the challenges for the Agency since that 
amendment in 1977, the Agency has never met the 5-year 
requirement, and, of course, that is why we believe that there 
are changes and improvements in the way we actually go through 
the NAAQS process: to preserve science as well as to improve 
the timeliness of what we are doing.
    So we are required to make these evaluations and keep up 
with what the current state of the science is.
    Mr. Issa. I appreciate it. I would like to yield for a few 
minutes to Mr. Bilbray, as he needs it.
    Mr. Bilbray. Thank you.
    Mr. Johnson, I don't come from a business background, and I 
don't come as a lawyer. I come from the regulatory background. 
I served on Air Resources Board in California, I served in the 
air district, San Diego, on the few--in fact the only--air 
district I know in California that has actually had its 
standards dropped recently, I mean its category dropped because 
we were so successful.
    You talked about since 1980 a 20 percent reduction in 
emissions just in California during that time with 20 percent 
reduction, and I think our California numbers will be less, I 
think more of a drop. We have had a 50 percent increase in 
population. And that is one thing I hope that when we talk 
about the threat to the public health, we think about the fact 
that sheer population has been ignored from the entire 
environmental impact of those sheer numbers and that has to be 
considered.
    Doctor, you serve on one of the most critical bodies when 
it comes to environmental strategies, and I was very happy to 
work with our scientific body at ARB. California's program has 
been very successful because of the use of science.
    Back in the 1990's when California petitioned a waiver from 
the oxygen mandate, the mandate that we put ethanol or MTB into 
our gasoline, was your committee review that mandate?
    Ms. Henderson. No, because we an air committee, so we did 
not.
    Mr. Bilbray. Well, this was an air committee. This was 
coming from the----
    Ms. Henderson. This was from the Air Board?
    Mr. Bilbray. This was coming from the Air Resources Board.
    Ms. Henderson. I became chair of this committee back in 
2004, so it did not occur during my chairmanship.
    Mr. Bilbray. OK. Let me just tell you something. By 1994, 
California had recognized and our scientists had recognized 
that ethanol and methanol in our gasoline was not only not 
beneficial but was an environmental detriment, not just for 
water but air pollution.
    We formally requested this in 1994. I, for one, authored 
the bill that every Californian except one signed onto, to 
allow us to burn a cleaner, cheaper fuel for California. But we 
were blocked.
    Mr. Johnson, what was the rationale of the Clinton 
administration for blocking the request for a waiver for 
cleaner fuel for the consumers of California and for the 
environment of California? What was their justification 
requiring us to put MTBE in our fuel and ethanol in our fuel 
when the best scientists in air pollution that reviewed the 
process said there was no scientific reason to do it?
    Mr. Johnson. Well, sir, I am with Dr. Rogene, it was 
actually before my time, but certainly I know I have staff and 
can get back for the record to respond to that.
    Mr. Bilbray. Well, I will tell you, now that we have people 
that are administrators of EPA at that time who was over at 
California.
    And, Mr. Chairman, I am just telling you, I was outraged at 
that time that the Clinton administration, in my opinion, was 
bending to political pressure that was influenced by 
contributions at that time, and I think that we ought to 
recognize that, yes, there is undue influence on 
administrations.
    But no one administration has a monopoly there, and I wish 
that both Republicans and Democrats could have stood up for the 
environment against the political pressure, not only in the 
White House but here in the legislative body. To this day for 
us to point fingers at one administration when we went for 
almost a decade requesting a waiver based on the environment, 
and it was denied by Washington to the people of the State of 
California who, I think we all admit, have done extraordinary 
things to protect the environment.
    Thank you very much.
    Mr. Issa. Administrator Dudley, continuing on, let me ask 
you a question. Could you explain to the committee why the 
regulations of carbon dioxide is such a unique pollutant that 
it requires a new regulatory paradigm and doesn't fit into the 
old regulatory structures of the Clean Air Act?
    Ms. Dudley. I think that Administrator Johnson mentioned 
this a bit in his previous remarks, too. CO2 is a 
global pollutant. It doesn't matter where it is emitted, the 
effects will be felt regardless of whether it is emitted here 
or in China. In order to achieve the reductions that we think 
we need requires new technology, so massive incentives for new 
technology.
    So the Clean Air Act, which was mostly recently updated in 
1990, just was never designed for it and really isn't well-
suited to it.
    Chairman Waxman. Thank you, Mr. Issa.
    Mr. Issa. Could we ask that Administrator Johnson also 
answer it, if you don't mind, Mr. Chairman? He has something.
    Mr. Johnson. Yes. I would just say that one of the, I 
think, important reasons for the advanced notice of proposed 
rulemaking is that the Massachusetts versus EPA decision was in 
the context of automobiles and light trucks. The way the Clean 
Air Act operates is that decision in endangerment not only 
affects that narrow area of mobile sources but all mobile 
sources and, in fact, spills over into Title I and all 
stationary sources as well.
    So when I moved forward with an advanced notice for 
proposed rulemaking, it is actually expanding and looking at 
the entire, all sources, potential sources, of carbon dioxide 
and other greenhouse gases. I think that it is important for us 
as an agency, to understand all of those issues, and I think it 
will also help Congress, you, as you debate this very important 
issue.
    As I have said I believe, given my experience, a 
legislative approach is a much better approach than working 
through the intricacies of the Clean Air Act, and with the 
likely litigation that would ensue.
    Chairman Waxman. You might prefer another law, but there 
was a law. There is a law, the Clean Air Act adopted by 
Congress, and the U.S. Supreme Court said that EPA is supposed 
to regulate carbon emissions under that law. Even if you would 
like another law, you have to enforce the law that is there.
    Mr. Johnson. Well, and that is why I am proceeding with an 
advanced notice of proposed rulemaking, which is the first step 
in the regulatory process.
    Chairman Waxman. Mr. Tierney.
    Mr. Tierney. Thank you, Mr. Chairman.
    Dr. Henderson, in your written testimony you address the 
decision to set an environmental standard for ozone that is 
higher than the standard that scientific experts recommended. 
You stated, ``Wilful ignorance triumphed over sound science.''
    Those are strong words. Would you explain for us?
    Ms. Henderson. I was referring, really, to the secondary 
standard because in the case of the secondary standard, we were 
really excited that we now have enough information to use a 
different form for the secondary standard. In the past, we have 
had to default to the primary standard because we didn't have 
the right information.
    Then, to get so close to having the form changed and then 
at the last minute, with no explanation, really, of why it was 
done, that form was squelched. The new form was squelched by 
the White House because President Bush said we couldn't have a 
different secondary standard from the primary standard.
    Now, that is ignorance to me. That is wilful ignorance 
because I do not think the OMB really hadn't read the Clean Air 
Act to know that you can set that. I don't think the OMP really 
hadn't read the EPA staff documents that carefully explained 
why we were focusing on vegetation as the welfare effect of 
concern.
    So that is what my ``wilful ignorance'' meant. It bothers 
me, with all the hard work that went into this by the EPA staff 
and by CASAC to develop this different form for a secondary 
standard that someone can just, for no transparent reason, say, 
no, can't do that. That is what I meant by wilful ignorance.
    Mr. Tierney. Thank you very much.
    Mr. Johnson, do you want to respond?
    Mr. Johnson. Well, again, the record clearly indicates that 
this was a difficult decision and that these were two, both 
viable, options. Again, an important piece is that the level of 
protectiveness was essentially equivalent whether a W-126 form 
or identical to the 8-hour ozone----
    Mr. Tierney. That is interesting you should say that 
because what I see is there was no new evidence--at least you 
couldn't give an answer to Mr. Waxman--no new evidence from the 
White House at all on that issue. Before you had found evidence 
to be compelling, in your own words, and necessary, in your own 
words, and, in your own words, found no evidence to support the 
alternative standard that was favored by industry.
    So, Mr. Johnson, you say that the final decision was 
justified, but looking at your own words--and let's look at 
some of the words of your own staff, what they had to say about 
it. If you look through the documents that were provided by EPA 
as part of the investigation, and it is stunning; stunning to 
see how EPA staff reacted to the rejection of the seasonal 
standard recommended by Dr. Henderson.
    An EPA Associate Director comments, ``Looks like pure 
politics.''
    An EPA lawyer wrote, ``We could be in a position of having 
to fend off contempt proceedings. The obligation to promulgate 
a rule arguably means to promulgate one that is nominally 
defensible.''
    One EPA manager told his colleagues that he offered 
``sympathies to all for all the work that went down the 
drain.''
    Another career official stated, ``I have been working on 
NAAQS for over 30 years and have yet to see anything like 
this.''
    Yet another Agency official responded by saying, ``I know 
how incredibly frustrating and disgusted we all are at the 
moment.''
    So, Mr. Johnson, I think what is happening with the EPA is 
pretty unacceptable. It is the Administrator's job to implement 
our Nation's environmental laws and to protect the public 
health and welfare. It has to be based on the best evidence, By 
your own words, the evidence was compelling, it was necessary 
that the standard be different and the new form be instituted. 
So it looked to me that by your own words and by your staff's 
words, you are not doing your job.
    Recently, the Union of Concerned Scientists released the 
results of a survey of nearly 1,600 EPA scientists. The survey 
revealed that EPA scientists face significant political 
interference with their work. Nearly 1,000 EPA scientists said 
they personally experienced at least one incident of political 
interference during the past 5 years. Over 500 EPA scientists 
knew of many or some cases where the EPA political appointees 
had inappropriately involved themselves in scientific 
decisions.
    Mr. Johnson, are you concerned at all that hundreds of EPA 
scientists are reporting incidences of political interference 
with their work?
    Mr. Johnson. Well, sir, I am proud of the fact that EPA has 
consistently ranked in the top 10 places for Federal 
employment. As a career----
    Mr. Tierney. Are you concerned, as my question was, are you 
concerned that hundreds of EPA scientists are reporting 
political interference in their work?
    Mr. Johnson. Well, I would like to quote to you, if I may, 
a quote from Dr. Paul Gilman, who just recently testified. 
``EPA has become too politicized in its actions, too eager to 
pursue narrow political goals and too willing to ignore 
congressional intent. At least a dozen former EPA officials who 
played roles in setting policy now work as industry 
consultants, or''--this is also quoted, Orlando Sentinel--
``Science is as politicized in America as it was in the Soviet 
Union and Nazi Germany, and EPA is a prime example.''
    He then goes to say, ``I want to make this point that these 
headlines all came prior to the current Administration and 
pertained to the previous administration.''
    So, sir----
    Mr. Tierney. So that is just an excellent defense, Mr. 
Johnson.
    Mr. Johnson. So, sir----
    Mr. Tierney. So apparently because you think something was 
politicized in a previous administration, politicizing in this 
administration is laudable.
    Mr. Johnson. No, that is an inappropriate conclusion, sir.
    Mr. Tierney. My question to you was, are you proud of the 
fact, or are you concerned of the fact that hundreds of EPA 
scientists are reporting political interference with the work 
now, not in the past administration--we can have a hearing on 
that some other time. Are you proud of what is going on now?
    Mr. Johnson. I am very proud of the work of the Agency and 
all the thousands of scientists that we have and includes 
17,000 employees at EPA.
    Mr. Tierney. Well, I take it some----
    Mr. Johnson. And, Mr. Tierney, I will say just I will share 
my experience as a scientist growing up in the Agency that 
there are those times that scientists agree with the ultimate 
decision; there are times that they don't, and I understand 
that.
    As my role as Administrator is to evaluate the science and 
evaluate the policy under what the law directs me to do and 
make the best decision, that is what I have been doing, and 
that is what I continue to do.
    Mr. Tierney. Clearly, that is not what happened here, Mr. 
Johnson.
    Chairman Waxman. The gentleman's time has----
    Mr. Tierney. By your own admission.
    Chairman Waxman. Time has expired.
    Mr. Bilbray.
    Mr. Bilbray. Yes, Mr. Chairman. I have to say--let me just 
followup on this issue of a survey by scientists that there was 
an undue political influence here.
    Mr. Johnson, is it fair for me to say that there were 55 
requests for comment sent out by the Union of Concerned 
Scientists?
    Mr. Johnson. I don't----
    Mr. Bilbray. 5,500; 5,500, I am sorry.
    Mr. Johnson. Yes. I don't know the numbers of what was done 
or what wasn't. I am aware that, in fact, the survey was 
received by political appointees and non-scientists, so I have 
no idea what criteria they used for sending the survey out.
    Mr. Bilbray. That I have, sir. Fifty-five hundred out 
there. About 1,500 came in, and of that we are looking at maybe 
half of them had concerns, and there might have been--my 
concern was that for this to be used in this hearing as some 
kind of scientific document, and I say anybody who would like 
to take a look at this and said it is not a scientific 
document, it doesn't just--no pollster in the world would 
accept this. Any elected official that would accept it as being 
a standard, I think, would be appalled by it, but we will talk 
about with the next panel.
    Doctor, my question to you is, in your analysis, you know, 
you talked about the vegetation and the ecosystem. Was there a 
consideration of economic value considered in that standard?
    Ms. Henderson. CASAC is not allowed to consider economic 
issues, and what we are asked to do is give advice and 
recommendations on what will be protective of vegetation and 
the welfare without regard to the costs or the ease of 
implementation.
    So what we did consider was what was biologically relevant 
and what was recommended by the National Research Council. 
Also, I have a concern for the effect of ozone on vegetation as 
well as on people. When you continually emphasize the primary 
standard, where do you monitor? You monitor where the people 
are in urban areas. But we are neglecting the rural areas where 
our food crops and plants are grown, and when you need to have 
information, well, how does ozone affect those crops, and how 
protective do we need to be for that?
    Mr. Bilbray. Doctor, how long have you been chairman of 
this body?
    Ms. Henderson. I am in my 4th year. I go off in October.
    Mr. Bilbray. OK. I am concerned because when I talk about 
economic value, you went immediately to a defensive based on 
the cost of implementing strategies. You didn't talk about the 
economic value of the crops that might have been destroyed.
    Ms. Henderson. Well, I--forgive me.
    Mr. Bilbray. You shifted and went way off of where I was 
talking about, and I have to understand that, you know, that 
economic value is something regulatory agencies do all the 
time.
    Ms. Henderson. Certainly, and there is a, I believe--what 
do they call it--a regulatory impact assessment done after our 
assessment.
    Mr. Bilbray. My question to you, then, if you did not make 
that, what criteria did you use to set that on the impacts?
    Ms. Henderson. To set the form?
    Mr. Bilbray. Yes. What standards have you used?
    Ms. Henderson. The form was purely a scientific issue. I am 
not an ecologist, but we have very good ecologists on our 
panel, and they are the ones who develop the form.
    I mentioned Ellis Kelling [phonetically], a member of the 
National Academy of Sciences and others. They know what they 
are doing, so they developed the form.
    Mr. Bilbray. OK. I am just concerned that, you know, Ms. 
Dudley and Johnson, this issue of economic values both in the 
impact of not doing something and--I am sorry, the doctor went 
off just worried about enforcement, but also enforcement--isn't 
there a consideration if you have an economic value impact from 
both sides: first of all, lack of action and action?
    Mr. Johnson. Well, again, under the Clean Air Act and under 
establishing NAAQS, I am not allowed to consider costs or 
whether in fact it can be implemented or not. So I have to base 
my decisions based upon what the science says. Of course, I 
think it is also important to note that with all science there 
are uncertainties, and there is a range of uncertainties. So, 
then, science, policy, and then ultimately judgment needs to be 
exercised to make an appropriate decision.
    Mr. Bilbray. Well, isn't, in the statute, the term 
``economic value'' actually integrated right into the statute? 
Isn't there a reference there?
    Ms. Dudley. I have it in front of me.
    Mr. Bilbray. Go ahead, ma'am.
    Ms. Dudley. It says, ``Welfare includes but is not limited 
to effects on soils, water, crops, vegetation, man-made 
materials, animals, wildlife, weather, visibility and climate, 
damage to and deterioration of property, hazards to 
transportation, as well as effects on economic values and on 
personal comfort and well-being.''
    Mr. Bilbray. Well, let me just say that is a consideration 
with setting standards. I sure wish we would set the same 
standard before we start putting poison in our field, too.
    Chairman Waxman. Thank you, Mr. Bilbray.
    Mr. Higgins.
    Mr. Higgins. Thank you, Mr. Chairman. I would like to focus 
on the primary standard and health impacts. I think this is 
really important because it affects lives, health, and the 
well-being of people across the Nation.
    There are health risks we have some control over, but 
unhealthy air affects each and every one of us. Breathing in 
this life is not an option. Ozone is a dangerous pollutant. It 
hurts our lungs, worsens coughs and asthma, and makes us more 
vulnerable to colds and flu. When ozone layers are high, more 
people go to the hospital, more children miss school, and more 
adults miss work, and more people die.
    Dr. Henderson, will the standards set by EPA adequately 
protect Americans from ozone pollution?
    Ms. Henderson. The CASAC panel does not agree that the 
standard that was set is sufficiently protective of public 
health, particularly in regard to a margin of safety. Our 
concern is for particularly asthmatic children whose asthma is 
aggravated by the higher ozone levels and for what you----
    Mr. Higgins. So the answer is no?
    Ms. Henderson. The answer is no. I should be more succinct. 
No.
    Mr. Higgins. Administrator Johnson, how do you respond to 
Dr. Henderson's concerns?
    Mr. Johnson. Well, I disagree that I set the standard that 
is requisite to protect public health with an inadequate margin 
of safety. That is the statutory requirement, and that is what 
the science in my judgment indicates.
    I think it is also, and as you can read in our final agency 
decision document, and we go in great detail, and in fact we--I 
think it is a good idea and we are also required to respond to 
CASAC's recommendations.
    There was one study that was a pivotal study, a clinical 
study conducted by Dr. Adams, and that his study he was the 
only one that had gone and studied to the level of 0.060, which 
was at the lower end of the CASAC range. Dr. Adams actually 
wrote to the Agency twice questioning the use of his study in 
saying that we were misusing his study, that there were too 
many scientific uncertainties at that level.
    So that, and for other reasons which are documented in our 
decision document, I disagreed with CASAC on the actual level 
and agreed--but I did agree that the current standard was not 
requisite to protect public health, and that is why I reduced 
it from 0.084 to 0.075.
    Mr. Higgins. Well, look, yes, I want to address an 
inconsistency within EPA's analysis. I believe there is a major 
inconsistency here. EPA developed a regulatory impact analysis 
comparing the standard you chose to the standard recommended by 
Dr. Henderson. EPA projected that your weaker standard will 
produce the following results each year: Between 500 and 3,500 
premature deaths, 1,400 non-fatal heart attacks, almost 10,000 
asthma attacks or asthma symptoms, 7,500 emergency room and 
hospital visits, 67,000 lost work days, and almost a million 
lost school days.
    Mr. Johnson, why didn't you listen to your own staff and 
set a more stringent standard to avoid these harms?
    Mr. Johnson. Again, the Clean Air Act does not require a 
primary standard to be set at zero risk, and to achieve that 
which you are referring would have to be set at a zero, 
probably zero level. The Clean Air Act does not require that.
    The standard of the law is requisite to protect public 
health within an adequate margin of safety, and through court 
decisions, that standard is neither more or less stringent than 
necessary.
    Mr. Higgins. Yes.
    Mr. Johnson. And then that is my judgment, and I made the 
judgment that we needed to strengthen the standard, and I 
strengthened the standard which is the Nation's most health-
protective 8-hour ozone standard in our history. And I am very 
proud of that.
    Mr. Higgins. The public health experts aren't uncertain 
about the harm from ozone. The most eminent public health 
organizations in America agreed upon the Science Advisory 
Committee's recommendations, and this included the American 
Academy of Pediatrics, the American Medical Association, the 
American Heart Association, among others.
    I have a letter from the American Lung Association to this 
committee strongly critiquing EPA's rule, and I ask unanimous 
consent to enter it into the record.
    Chairman Waxman. Without objection that will be ordered.
    [The information referred to follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Higgins. The American Lung Association says, ``If EPA 
had followed the law, we could have cut the risk of life-
threatening pollution to millions of Americans nationwide.
    Administrator Johnson, last question. Your decision seems 
to be inconsistent with the mainstream thinking. It rejects the 
recommendations of your expert panel, your own staff, the 
outside public health organizations. It is just not credible to 
argue that your decision is based on science.
    Mr. Johnson. Well, I disagree with that, and we certainly 
have in excess of 400 pages of document that goes in great 
detail describing the science behind my decision, and that it 
is the most health protective standard in the Nation's history.
    I might add, as I met with all the public health officials, 
and I met with others so that I could have their input, and I 
think that is important as part of the process in me making a 
decision.
    As I mentioned in my oral testimony, I have just proposed a 
new health protective standard for lead, and I have taken it a 
step further because CASAC recommended a particular range. But 
as part of the evaluation the Centers for Disease Control have 
said that there is no safe level of lead. So CASAC did not 
recommend, but I felt it was important as a public health 
official to ask the question: Should we be setting the standard 
for lead at zero?
    Chairman Waxman. Mr. Higgins, your----
    Mr. Johnson. So those are the kinds of decisions that I 
have to make, and I see input. Again, I appreciate the Council 
of CASAC, my staff, the notice and comment, the public hearings 
all of which, but, ultimately, I need to make a tough decision.
    Mr. Higgins. I yield back, Mr. Chairman.
    Chairman Waxman. The gentleman's time has expired.
    Mr. Platts.
    Mr. Platts. Thank you, Mr. Chairman. I appreciate you 
holding this hearing, and I apologize that a scheduling 
conflict prevents me from remaining, but I would like to yield 
the balance of my time to the gentleman from California, Mr. 
Issa.
    Mr. Issa. I thank the gentleman.
    You know, if we could put the map up on the board, I think 
we have----
    Chairman Waxman. Mr. Platts.
    Mr. Issa. Oh, would you ask Todd to stay for a few minutes?
    Chairman Waxman. Mr. Platts is yielding his time. He must 
stay here. Go ahead.
    Mr. Issa. OK. If you could put the map up on the board, and 
this will primarily concern, I think, most both Administrator 
Dudley and Administrator Johnson, but if you will look at the 
chart, these are counties with monitor violations in 2008, 
primary ozone at the 0.75 parts per million, and secondary 
standard of 0.21.
    Now, my understanding is that every area that is dark, 
which includes, unfortunately, most of California. There is no 
effective difference whether you set the standard for secondary 
higher or lower, is that correct? That basically, the ones that 
are in compliance will be in compliance at either level; the 
ones that are not in compliance will not be in compliance at 
either level. Is that roughly true, based on the map you see up 
there, if you are familiar with it?
    Mr. Johnson. Based upon analysis that our staff did that 
whether the form was the W-126 form or the following identical 
to the 8-hours ozone standard, based upon the decision that I 
made to be protective that it didn't matter either way.
    Mr. Issa. OK, following up on that----
    Mr. Johnson. But, clearly--excuse me, sir.
    Mr. Issa. Yes.
    Mr. Johnson. But clearly, for the primary standard there 
were many counties based upon monitoring data that would be out 
of compliance within the new primary health protective 
standard.
    Mr. Issa. I realize that and, of course, if California's 
out of compliance, in such a large area they are going to be in 
either case.
    I would note that the food basket of California appears to 
be producing a tremendous amount of crops for us with already 
noncompliant ozone layers.
    Dr. Henderson, can you explain, essentially, why 
productivity has increased dramatically in most of America, 
whether it is corn, wheat, rice, or the vegetables grown in 
California during a time in which ozone levels were far above 
what you are saying you would like them to be?
    Ms. Henderson. Well, it would be a mistake for me to try to 
calculate all the factors that go into food production.
    What I was trying to mention was we could do a better job 
of air quality management in rural areas if we had some kind of 
handle on what the ozone levels are and if they are at a level 
that can affect the foliage.
    Mr. Issa. OK, but back to Administrator Johnson, you didn't 
find that setting a different standard would have made any 
difference. In other words, the economic value that you are 
required by statute to--and, Administrator Dudley, you, too--
you are required to look at this economic value. If I read this 
map correctly, there is not economic value to the different 
standard because it doesn't, in fact, change the compliance. Is 
that correct?
    Mr. Johnson. You have to be very precise. Based upon the 
data sets analyzed between 2003 to 2005, and then 2004 to 2006 
from currently monitored counties, no additional counties would 
have been out of attainment under the seasonal secondary 
standard initially proposed by EPA.
    Mr. Issa. OK. Could we put the chart up that comes next? 
This is the chart of levels for the 12-hour standard, the so-
called W-126 standard. I think all of you are familiar with 
this.
    When I read it, looking at the difference between the 0.075 
and the 0.070, under the 126 standard, 21 parts per million, I 
see no change again. Is that essentially a more graphic way to 
show that, in fact, there would have been no benefit had we 
implemented the lower standard? The secondary standard.
    Mr. Johnson. Yes.
    Mr. Issa. So, Dr. Henderson, if I accept science--and I 
do--and that your conclusions are well-intended but without the 
economic value consideration, would you agree, based on no 
counties changing, the 126, that in fact it was within the 
Administrator's purview to judge that and to come up with at 
least the standard for now of 0.075?
    Ms. Henderson. I am mixing whether you are talking about 
the secondary standard or the primary standard.
    Mr. Issa. Well, I am going to the secondary standard, but 
let me put it another way. Your advisory role is for the 
Administrator to accept or reject that, in fact, it is advisory 
even though it is scientific based, and you have standards 
different than he does. You said yourself you do not evaluate 
this economic value where he does. Is that correct?
    Ms. Henderson. It is certainly within his purview. He is 
the one who decides. We are advisory only. In the case of the 
secondary standard, I think the decider was President Bush. And 
that is within his purview, I mean.
    Mr. Issa. Thank you. Thank you for allowing me to clear up 
the difference in scope, Mr. Chairman.
    Chairman Waxman. Mr. Hodes.
    Mr. Hodes. Thank you, Mr. Chairman. The law is very clear 
that EPA may not consider costs in setting a National Air 
Quality Standard to protect the environment. The Supreme Court 
specifically addressed the issue in 2001. The court wrote that 
if EPA established a standard by ``secretly considering the 
costs without telling anyone,'' it would be grounds for 
throwing out the standard because the Administrator had not 
followed the law.
    I am concerned that this is exactly what happened in this 
case. The record before this committee shows that the unanimous 
recommendation of the Clean Air Scientific Advisory Committee 
was rejected by you, Mr. Johnson, apparently on the basis of 
White House opinion or desire to which you apparently exceeded, 
given the change in your position from February 22nd to March 
12th, for which is there is no explanation that is reasonable 
other than what the White House told you to do, and much weaker 
standards were finally selected.
    I want to know, Mr. Johnson, during the Agency's 
consultation with the White House, did White House officials 
express concerns about the costs of implementing the ozone 
standards?
    Mr. Johnson. Sir, are you referring to the primary or the 
secondary standard?
    Mr. Hodes. Either one. Did they express concerns about the 
costs of implementing the ozone standards with respect to 
either primary or secondary? And I will just point out for you 
that your Administrator, Mr. Peacock, said that it is clear 
that the prohibition extends even to secondary standards.
    Mr. Johnson. That is my belief, and that is the way I 
operated in my decisionmaking.
    Mr. Hodes. Did the White House express concerns about the 
costs of implementing either the primary or secondary standards 
in your consultations with the White House?
    Mr. Johnson. As I said, for making a decision, it is my 
decision and my decision alone, made independently, and I 
cannot consider and did not consider costs nor whether it was 
implementable.
    Chairman Waxman. Mr. Hodes, I don't think he has answered 
your question.
    Mr. Hodes. I know. I am sorry, Mr. Johnson. Here is my 
question: Not what you consider, I am asking you, Mr. Johnson, 
during the consultations you had with the White House, did the 
White House officials express concerns to you or your agency 
about the costs of implementing the ozone standards.
    Mr. Johnson. Well, if I did recall, I am not sure that it 
would be appropriate for me to get into what--who said what at 
what point in time. In fact, I believe that it is important for 
me and others, future administrators, to be able to have candid 
discussions with members of the executive branch, and, as I 
said, I made the decision. I made the decision without 
consideration of cost, and that is the important----
    Mr. Hodes. Let's stop there because I want to pursue this, 
and I want an answer to my question. When I hear a witness 
start talking to me about ``if I did recall,'' I wonder whether 
or not the witness is being evasive. Do you recall having 
discussions with the White House concerning costs of 
implementing the standards?
    Mr. Johnson. I have routine conversations with members of 
the executive branch.
    Mr. Hodes. Sir, it is a simple yes or no answer. Do you 
recall?
    Mr. Johnson. It is not a simple yes or no answer because I 
have routine conversations on a multitude of issues, and I am 
saying is that with, on this issue, I made the decision. I 
understand what the law directs me to do, and that is not 
consider costs and I did not consider costs.
    Mr. Hodes. Let me go back. Do you recall, sir--search your 
memory--having conversations with the White House about costs 
in implementing the standards?
    Mr. Johnson. If I did recall, it would not be appropriate 
for me to discuss the nature of those conversations.
    Mr. Hodes. So you won't tell me whether you do or do not 
recall?
    Mr. Johnson. As I said, it was not part of my 
decisionmaking.
    Mr. Hodes. That is not my----
    Mr. Johnson. That is the important piece, sir.
    Mr. Hodes. With all due respect, I am asking the questions 
and you are answering them.
    Mr. Johnson. I am answering and you don't like the answers.
    Mr. Hodes. No. What I want to know is, do you recall or 
don't you recall?
    Mr. Johnson. I said even if I did recall, it is not 
appropriate for me to get into the nature of discussions I have 
within the executive branch.
    Mr. Hodes. And the basis of your refusal to answer the 
question, is it your lack of recollection or some assertion of 
privilege?
    Mr. Johnson. I am not asserting any privilege at this time, 
but I think that it is important, and I think that it is 
important that I and future administrators have the ability to 
had candid conversations. I also believe that is important, and 
certainly as the Agency deliberates on issues that are before 
us, and I think that is an important privilege, and also I 
think that it is an important principle that I need to maintain 
for me and for future administrators.
    Mr. Hodes. I will try this one last time. You understand, 
sir, you are under oath before this committee?
    Mr. Johnson. Oh, I understand that, sir.
    Mr. Hodes. Do you or don't you recall having conversations 
with the White House about whether or not costs were considered 
by the White House?
    Mr. Johnson. As I said, that whether or not I recall or 
don't recall, I don't believe that it is appropriate for me to 
discuss the nature of those conversations. I believe it is 
appropriate for me to be able to have candid conversations, and 
I also said under oath that I did not consider costs in making 
my decisions.
    Chairman Waxman. Thank you, Mr. Hodes. Your time has 
expired.
    Mr. Sarbanes.
    Mr. Sarbanes. Thank you, Mr. Chairman.
    Ms. Dudley, I am going to give you some equal time here. I 
was intrigued by your memo that came, let me see if I can find 
it, on March 6th, which was 6 days before this deadline, you 
sent a memo to EPA where you said, ``The draft does not 
provide''--this is the draft EPA report--``does not provide any 
evidence that a separate secondary standard would be more 
protective than one set equal to the draft primary standard.'' 
Explain that.
    Ms. Dudley. The air quality that would be achieved by 
setting the secondary standard based on that seasonal form 
averaging it over 3 months or setting it equal to the primary, 
the level of air quality is the same. I think it gets back to 
the maps that were up there.
    But what we care about is air quality, and the air quality 
that vegetation and humans are exposed to, the two standards 
from all the analysis that EPA did would have the same effect.
    Mr. Sarbanes. I am incredulous that you could claim there 
wasn't any evidence when in the draft, original draft, the 
Administrator indicated that he found evidence compelling that 
ozone-related effects on vegetation are best characterized by 
an exposure index that is cumulative and seasonal in nature, 
and that conclusion on the part of the Administrator was 
reflective of what the expert panel had concluded, and what 
months if not years of research and work on the part of the EPA 
staff had concluded.
    So again, I mean I could see you asserting perhaps that it 
does not provide adequate evidence or sufficient evidence, but 
to suggest that it didn't provide any evidence, that there was 
no evidence that this secondary standard that was originally 
being ut forward would be the appropriate one doesn't seem to 
jibe with all of the other testimony and documentation that we 
have.
    Ms. Dudley. There are two different issues here. One is 
that whether vegetation responds over a season rather than over 
a day, and EPA did present evidence to that. EPA also presented 
evidence that the current standards--or the previous standard 
may not be protective of vegetation.
    But at the end of the day, regardless of which form you 
used, air quality would be reduced so that vegetation would be 
exposed to the same air quality. That is the bottom line, so 
that the form of the standard will not affect the air quality. 
It won't affect what people have to do to come into compliance 
with the standard, and it won't affect the air quality in those 
counties that are affected by the standard.
    Mr. Sarbanes. Well, what you are saying strikes me as 
double-talk in the context of what we heard in the original 
draft from the Administrator, and certainly the reaction of the 
staff and the experts to the ultimate decision to abandon the 
more cumulative standard in favor of the same standard as the 
primary was intense, and it was lamented at all levels within 
the staff which to me suggests that there was sufficient 
evidence. Certainly, there was evidence that would be the most 
appropriate route to take.
    Administrator Johnson, I just want to say to you that I am 
offended--and I am not trying to be facetious here, I actually 
mean this--I am offended on your behalf by the White House's 
handling of this matter, because right up to the end you were 
going with the science. In fact, I commend you for the fact 
that after you started to see the writing on the wall on March 
6th, you nevertheless, and then at that point, had the ability, 
I guess, to begin regrouping. You nevertheless pushed forward 
right up to the point of the deadline when the rug was 
essentially pulled out from under you, or you received this 
countermand, this final countermand or overwrite from the White 
House.
    I am going to ask you a question which again I don't mean 
to be facetious. You are somebody who was in the Agency for 
many years, you had this opportunity to take the top spot 
there. I am curious, when you did that, did the President in 
speaking with you about taking this job, or the White House in 
speaking with you about it, did they indicate to you that there 
would be times when the science would be overridden for 
political purposes? And you would essentially have to carry 
that water for the White House? How clear were they about these 
instances occurring.
    Mr. Johnson. Sir, my charge and certainly my oath of office 
was to carry out the mandates and the laws that I am 
responsible for under the Environmental Protection Agency. That 
was the charge. The President sent further and said, Steve, I 
want you to accelerate the pace of environmental protection 
while you help maintain the Nation's economic competitiveness. 
That was the charge that was given. I have certainly been very 
public about that.
    I have been carrying out those duties to the best of my 
ability, looking at sound science, and, as I said, science 
isn't pure. There are many uncertainties and science requires 
policy judgments and, of course, then there are a variety of 
other issues that come into play depending upon the statute.
    Mr. Sarbanes. Well, with all due respect, I can't imagine a 
clearer example of where your charge to carry out the law in 
respect to science could come into conflict with what the 
President's and White House's edict was in this particular 
matter.
    I yield back.
    Chairman Waxman. The gentleman's time has expired.
    Mr. Welch.
    Mr. Welch. Thank you, Mr. Chairman.
    Mr. Johnson, my understanding is Jason Burnett is a senior 
member of the EPA.
    Mr. Johnson. Yes.
    Mr. Welch. And he is a trusted and respected advisor, is 
that right?
    Mr. Johnson. Yes.
    Mr. Welch. A person on whom you had confidence, have 
confidence?
    Mr. Johnson. Yes.
    Mr. Welch. Is that correct? He, as you know, has been 
deposed, and he testified that, according to him in his 
testimony, you favored granting this California waiver in full 
in August and September. Is Mr. Burnett correct?
    Mr. Johnson. Well, I think that he is correct in 
characterizing that over time, as I was briefed----
    Mr. Welch. Let's keep it simple. I mean, I understand this 
is a process. My question, and I am really going to try to 
frame a question that is clear, that allows you to answer it as 
clearly and as succinctly as possible. I do appreciate that 
this is a process, and you have many things that come in so 
what happens today isn't necessarily what is the wise decision 
tomorrow, OK?
    But is he correct in his recollection, according to his 
testimony, that in August and September, you were leaning 
toward a full waiver?
    Mr. Johnson. Well, I don't recall the August and September 
timeframe, but I can say with confidence that I was considering 
all options, including a full grant and also a full denial, and 
options in between. And I think my recollection is, as I read 
the transcript last night, and I think he also states that as 
well.
    Mr. Welch. Mr. Burnett said--it was very clearly--that in 
August and September you were favoring granting a waiver in 
full.
    We have to move on here. I only have 5 minutes, so you read 
it last night. That is what he said.
    Chairman Waxman. Well, the issue isn't what Mr. Burnett 
said; the issue is whether it is accurate or not.
    Mr. Johnson. Well, as I said, is that I considered each one 
of the options.
    Mr. Welch. All right, let me go through this.
    Mr. Johnson. I don't recall the particular time, but I did 
consider----
    Mr. Welch. But that is obvious. It is obvious that you did. 
Here is what he said. I think you have more or less 
acknowledged that in August and September he was correct, you 
were leaning toward a full waiver. He said that over time you 
began to think of a partial grant. Is he right there?
    Mr. Johnson. I considered a partial grant, that is correct.
    Mr. Welch. All right. Then on December 19th you issued a 
denial.
    Mr. Johnson. Yes.
    Mr. Welch. Was that after you had been to the White House 
to have conversations about this issue?
    Mr. Johnson. Well, again, I have routine conversations with 
the White House throughout the calendar. Again, this was my----
    Mr. Welch. Did you have any----
    Mr. Johnson. This was the decision.
    Mr. Welch. Did you have anything----
    Mr. Johnson. I understand----
    Chairman Waxman. Mr. Johnson, we would appreciate it if you 
answer the questions.
    Mr. Johnson. Yes, I am trying.
    Mr. Welch. Did you have a meeting with the President about 
this?
    Mr. Johnson. I have routine meetings with the executive 
branch, including the President.
    Mr. Welch. OK. What part of my question don't you 
understand? Did you have a meeting with the President about 
this issue of the EPA waiver?
    Mr. Johnson. When and where and if I have meetings with the 
President are--I said I have routine meetings with members of 
the executive branch. Those meetings I believe are in 
confidence.
    Mr. Welch. Is there something----
    Mr. Johnson. And as I said, I made the decision. It was my 
decision alone.
    Mr. Welch. Mr. Johnson, you described this process is 
transparent and open, correct?
    Mr. Johnson. Yes.
    Mr. Welch. And you are proud of the process?
    Mr. Johnson. I am. This was an excellent process. As you 
can see from the thousands of pages.
    Mr. Welch. Does transparent mean if we can't know whether 
you, in fact, met with the President and discussed with him 
this issue?
    Mr. Johnson. I believe that as Administrator that I need to 
have the ability to have private meetings with the President 
and members of the executive branch.
    Mr. Welch. Did I just ask you what the content was of your 
meeting with the President?
    Mr. Johnson. I said I have already acknowledged that I have 
routine meetings with the President and members of the 
executive branch. I think that is good government.
    Mr. Welch. Yes, but a few things: In your September 12th 
briefing, there were slides that were presented that included a 
statement from our staff that the clearest and most defensible 
option would be to grant the waiver. Is that true?
    Mr. Johnson. I don't recall that particular slide. I know 
that there was a wide range of options and that they were all 
legally defensible.
    Mr. Welch. There were staff evaluations at the September 
meeting--this is all in the record. This is not disputable.
    Mr. Johnson. I said I don't remember that particular 
document.
    Mr. Welch. So we can pretend to the people listening that 
this is an established fact, but let's----
    Mr. Johnson. Sir, there were how many thousands of pages of 
documents that were submitted to you?
    Mr. Welch [continuing]. September 12th briefing it said 
California has extraordinary ozone conditions, that greenhouse 
gas standards are reasonably viewed as necessary to address 
climate change, and opponents to the waiver have not met their 
burden of showing the California standards won't benefit 
climate change and ozone conditions.
    Are you aware that in these evaluations they originally 
contained those remarks in writing until they were removed at 
the insistence of Mr. Meyers?
    Mr. Johnson. I don't recall that situation, and I don't 
necessarily see documents that are drafted by individual 
staffs.
    Mr. Welch. But you were at the meeting.
    Mr. Johnson. Oh, I don't necessarily see all the workings 
of drafting and redrafting before that it reaches my desk. That 
is the point.
    Mr. Welch. This is sounding like some of the meetings you 
were at you were present, and some of the meetings you are at, 
you are not. September 20th and 21st briefing, this is your 
briefing. I mean, it is not somebody else's.
    Did the EPA staff make it clear that the statutory criteria 
for granting the waiver had been met? That is a threshold 
question, correct?
    Mr. Johnson. There were a wide range of options, and there 
were opinions that were provided to me that as part of the 
record. As I said----
    Mr. Welch. It is a little frustrating.
    Mr. Johnson. Well, it shouldn't be frustrating----
    Mr. Welch. Well, it is.
    Mr. Johnson [continuing]. Because there is a 50-page 
document----
    Mr. Welch. No, no, it is a simple----
    Mr. Johnson [continuing]. Describing my decision and the 
scientific basis on what the law requires me to decide, which I 
decided.
    Chairman Waxman. Mr. Welch, your time has expired.
    Mr. Johnson, you admitted you had a conversation with the 
President on the California waiver. That wasn't an issue.
    Now, you are refusing to say whether you had a conversation 
with the President on the ozone waiver. What is the difference?
    Mr. Johnson. As I said, I have routine conversations with 
the President as well as members of the executive branch, and I 
believe that those----
    Chairman Waxman. Let me get the record straight.
    Mr. Issa. Could we have regular order?
    Chairman Waxman. The chairman is pursuing regular order. 
You said for the record that you had a conversation with the 
President on the ozone layer?
    Mr. Johnson. I don't recall making that----
    Chairman Waxman. On the ozone ruling?
    Mr. Johnson. I don't recall making that comment myself.
    Chairman Waxman. Do you recall making a comment that you 
have had a conversation with the President on any of these 
three rules that we have been looking at?
    Mr. Johnson. As I said, what I do recall and I believe is 
an accurate reflection of what I have said, is that I have 
routine conversations with members of the executive branch, 
including the President on a wide range of issues.
    Chairman Waxman. OK, I am not going to pursue this because 
I will have another opportunity, but it seems to me you are 
being awfully evasive, and I don't know why you cannot tell 
this committee whether you in fact had a discussion about this 
rule or that rule or the other rule. We are only talking about 
three different rules. Either you did or you didn't. I don't 
know why you cannot tell us that information.
    No one is asking you what was said. We are just asking you 
whether you had a conversation, and the answer is not 
acceptable to say, I have had conversations with the President 
and others on a routine basis, and I am not going to tell you 
whether I had a conversation on these subjects. What else do 
you talk to him about?
    Mr. Johnson. As I have said, I have routine conversations 
on----
    Chairman Waxman. In those routine conversations, did you 
talk about the ozone----
    Mr. Johnson [continuing]. On a wide range of topics.
    Mr. Issa. Mr. Chairman, I must insist that we go to regular 
order.
    Chairman Waxman. The gentleman is not in order at this 
time.
    Mr. Issa. Mr. Chairman, the rules of the House----
    Chairman Waxman. The gentleman will cease.
    Mr. Issa. The rules of the House call for an alternating 5 
minutes on----
    Chairman Waxman. The gentleman will cease.
    Mr. Issa [continuing]. On what time does the chairman 
speak. The point of order, Mr. Chairman, on what time does the 
chairman speak and ask these questions.
    Chairman Waxman. The Chair has the prerogative to pursue 
for the record a clarification and I am pursuing it.
    Mr. Issa. Mr. Chairman, where in the rules is that stated? 
Could I see a copy of the rules that allow it, because as I 
said, the rules of the House, Mr. Chairman----
    Chairman Waxman. We will furnish you with a copy at the 
appropriate time.
    Mr. Issa. Mr. Chairman, there are multiple Members that 
could yield to you time. I would ask that you----
    Chairman Waxman. I will have you physically removed from 
this meeting if you don't stop. I want to know an answer to the 
question.
    Did you have a discussion with the President on any one of 
these three rules?
    Mr. Johnson. Mr. Chairman, as I said, I have routine 
conversations with the President and the executive branch on 
all, on many matters before the Agency of particular 
importance. I don't believe that it is appropriate for me to 
get into the details of what those conversations are or are 
not. I think that is an important privilege that and 
opportunity that we have.
    Chairman Waxman. Are you asserting executive privilege?
    Mr. Johnson. Not at this time, sir.
    Chairman Waxman. OK, Ms. Watson is now recognized.
    Ms. Watson. Thank you, and let me try this: Mr. Johnson, in 
December 2007, you announced that EPA would deny California's 
petition--and I am a Californian--for a Clean Air Act waiver to 
enforce its standards to reduce greenhouse gas pollution from 
cars and trucks. In our previous investigations of the White 
House's manipulation of climate change science, we learned that 
the Office of the Vice President was involved in these 
activities.
    Because the California waiver directly relates to climate 
change, I would like to ask you about the Vice President's role 
in the California waiver decision. It is very important to me. 
Was the Vice President's Office involved with the deliberations 
on the California waiver?
    Mr. Johnson. Not to my knowledge, no.
    Ms. Watson. Your answer is no, OK. According to press 
accounts, the Vice President was involved in the issue and the 
Press has reported that the CEO of Ford and Chrysler met with 
Vice President Cheney prior to the denial and urged the 
administration to reject the waiver. Did the Vice President or 
his staff put any pressure on you or your staff to deny the 
California waiver request?
    Mr. Johnson. No.
    Ms. Watson. Did the Vice President or his staff tell you 
they opposed the California waiver?
    Mr. Johnson. Not that I recall.
    Ms. Watson. Mr. Johnson, we are looking at a mysterious, 
last-minute reversal of your position on the California waiver. 
We need to fully understand the reasons for that sudden change 
of course. Transparency is what we are trying to get to, and it 
would be fundamentally wrong if you reversed your decision 
because of the meeting the Vice President had with the auto 
industry. It would violate the Clean Air Act if a denial 
resulted from any pressure from the Vice President's office.
    But the committee won't know the truth if you do not tell 
us and, in terms of being transparent, we want to know why 
there was a reversal. We asked for the waiver because living in 
California, having worked for 20 years in the legislature, we 
did a lot to clean up our air. In fact, it took us 14 years for 
the smoking policies that stopped smoking on airplanes in 
California air space, and now it is the practice around the 
globe.
    So we kind of know what we are doing when we ask for a 
waiver. So if you could be transparent, was there any pressure 
put on you at all to change your own recommendations, to 
reverse your own recommendations.
    Mr. Johnson. Well, then I would with due respect beg to 
differ with your characterization. I didn't reverse any 
decision; I made the decision, and the decision was documented 
in the letter of what I intended to do--to the Governor--in 
December, and later on then, as I said, the approximately 50-
page document goes into great detail on my decision.
    It was my decision, it was mine alone, and as I note in the 
document that climate change is a problem that is not unique to 
California. My decision is grounded in the law and the facts 
that were before me.
    Ms. Watson. We have your words down in the record, but was 
there any input from the White House that influenced your final 
decision to deny us a request for a waiver?
    Mr. Johnson. Again, my decision was based upon the law and 
the facts in Section 209.
    Ms. Watson. No, let me clarify and speak real clearly.
    Mr. Johnson. Please.
    Ms. Watson. So you can answer me directly, was there any 
input from the White House, either the President or Vice 
President, that influenced your decision?
    Mr. Johnson. Again, I have routine conversations with the 
executive branch and----
    Ms. Watson. All right, you will not answer----
    Mr. Johnson [continuing]. And I made the decision----
    Ms. Watson. Hold on. Hold on, I am asking some questions. I 
have gone through this for the last hour. Yes or no.
    Mr. Johnson. As I said, I have routine conversations----
    Ms. Watson. No. That doesn't----
    Mr. Johnson. Well, again----
    Ms. Watson. Right, we are talking about transparency.
    Mr. Johnson. As I said----
    Ms. Watson. Yes or no?
    Mr. Johnson. The answer is no, they did not make the 
decision. The answer is yes, I made the decision.
    Ms. Watson. I didn't ask did you do that. Maybe my English 
is not clear. Let me see if I can restate it.
    Mr. Johnson. Please.
    Ms. Watson. Yes. You have these routine conversations.
    Mr. Johnson. Yes.
    Ms. Watson. Was there anything--you don't have to give me 
the content--was there anything in the conversation, any input 
from either the President or the Vice President--and the Vice 
President in particular, because we do have a record of 
conversations with an industry that adds to the pollution in 
the air, was there any input from the Vice President that 
impacted on your decision to deny California its waiver?
    Mr. Johnson. Specifically, for the Vice President I don't 
recall any.
    Ms. Watson. Your answer is that you don't recall.
    Mr. Johnson. I said no, I don't recall any.
    Ms. Watson. OK, thank you. Thank you very much.
    Chairman Waxman. Mr. Issa expressed that I was being unfair 
by taking additional time out of order, and I, in order to be 
fair, will yield him at this point 3 minutes so he can pursue 
further questions.
    Mr. Issa. Thank you, Mr. Chairman, and I appreciate the 
balance.
    In a nutshell, Administrator Johnson, you are aware that 
Members of Congress enjoy the speeches and debate exemption--it 
is been well documented--that what we do and say in order to 
make our decisions and how we come to the floor is protected 
from, basically, discovery by your branch. So it probably 
shouldn't come as a surprise, or should come as a surprise to 
you that we are surprised that you are not going to tell us 
whether or not there were conversations within the executive 
branch that led to your independent decision.
    So I hope you will take that as an I-understand-it-even-if-
others-don't.
    In a nutshell, you serve at the pleasure of the President, 
is that correct?
    Mr. Johnson. That is correct.
    Mr. Issa. But the President doesn't have the right to order 
you; he only has the right to either accept what you do, 
statutorily, make independent judgment if he has statutory, or 
fire you. Isn't that essentially correct?
    Mr. Johnson. Essentially, that is----
    Mr. Issa. OK, so you have independent authority subject to 
that portion of the pleasure, and you have asserted that in 
order to make your decision.
    I would like to quote a well-known gentleman, Chairman 
Dingell, who declared that this regulation of CO2 
was a glorious mess. Do you agree with Chairman Dingell that 
under the current law taking a common material that is going to 
be everywhere and diffuses quickly, and regulating it under the 
existing Clean Air Act, will be a glorious mess?
    Mr. Johnson. I believe that there are many intricacies and 
complications with the Clean Air Act, and my personal opinion 
is that, given the likely years and years of litigation that 
would ensue, I prefer a legislative approach. However, as the 
chairman duly noted, I had responsibilities to administer the 
Clean Air Act, and that is what I am doing by beginning with an 
advance notice of proposed rulemaking, which will certain help 
the Agency as it sorts through the intricacies of the Clean Air 
Act and, I trust, will also help Members of Congress.
    Mr. Issa. Now, in your consideration of granting a waiver 
to California, did it occur to you at least as to 
CO2 that when you haven't yet set levels on 
something you have just now been told through the courts you 
have the ability to set a level on, an independent request 
would be premature and inappropriate.
    Is that part of your consideration in how do you grant a 
waiver before you have even determined what the basis? You 
might, in fact, regulate to a level much lower than what 
California would?
    Mr. Johnson. Well, actually, the Section 209 of the Clean 
Air Act actually identifies three very specific criteria, and 
that has to be the sole basis of my evaluation of any waiver 
petition. In my judgment, California did not need the second 
criteria, which is a compelling and extraordinary conditions. I 
go into great detail describing why I do not believe, in my 
judgment, they met those conditions.
    Chairman Waxman. Mr. Cummings.
    Mr. Cummings. Thank you very much, Mr. Chairman.
    Administrator, let me ask you this: I found it interesting 
that when the chairman was asking you about meetings with the 
President, you did not provide a direct answer. You talked 
about all these wonderful times that you have, and then when 
Ms. Watson asked you about the Vice President, you did answer 
and say that you didn't have meetings with regard to the 
California standards.
    I just want to make sure I understand why it sounds like 
there was a different standard there for you.
    Mr. Johnson. It is not a different standard, sir, but, as I 
said, I have routine meetings with the executive branch, 
including the President. Asked specifically about the Vice 
President, and to best of my recall I did not have any 
conversations with him. I was just trying to respond to----
    Mr. Cummings. And all with regard to this, is that right?
    Mr. Johnson. With regard to the California waiver, that is 
correct. So I was just trying to clear that up.
    Mr. Cummings. Yes. Well, I am glad you did. I just, you 
know, one of the things, this stuff is personal for me because 
I have asthma. In my district in Baltimore, we have a high rate 
of asthma, and the taxpayers pay you. They pay you as they pay 
us. We, in Maryland, are anxious to adopt the same standards 
that California has, and so, you know, we are curious as to how 
our Administrator, our man in the EPA, how he makes his 
decisions.
    So, you know, during the time that the EPA, as 
Administrator many of your decisions have provoked widespread 
public criticism and even outrage. In response, you have said, 
``It is not a popularity contest,'' and you said, ``In the end, 
it is the judgment, and each of these decisions is my decision 
and my decision alone.'' Do you remember saying that?
    Mr. Johnson. I do remember saying that, and I agree with 
that.
    Mr. Cummings. But you don't get to decide whatever you 
want. You must base your decisions on the scientific data and 
the criteria that Congress established in law. The final 
decisions are made by the courts to determine whether your 
decision is conformed to the law. All too frequently their 
answer has been no.
    Chairman Waxman asked you recently about EPA, as to EPA for 
the full litigation record on the Clean Air Act decisions 
issued by this administration. It is not a pretty picture. Out 
of the 26 cases decided by the D.C. Circuit, EPA lost two-
thirds in whole or in part.
    Did you know that?
    Mr. Johnson. Yes, I do, and our then General Counsel Roger 
Martella sent, I believe, a letter to the chairman detailing 
all of the court cases which do not reflect that kind of 
percentage. So, yes, I am concerned when we lose cases, and 
that is why I am going my very best job to make sure that not 
only are our decisions, my decisions, based upon sound science 
but on good laws as well.
    Mr. Cummings. Well, I am glad you said that, because these 
losses include some of this administration's highest profile 
environmental rules. In 11 cases, the court said that the EPA's 
position was barred by the plain language of the law, which is 
the legal equivalent of a shutout.
    To date, the D.C. Circuit has reviewed eight of your 
decisions and has entirely or partially rejected half. Does 
this track record concern you?
    Mr. Johnson. Yes. Any time that the Agency loses a lawsuit, 
I think that is important, and that is of concern to me.
    Mr. Cummings. And I know EPA has fine lawyers. My concern 
is whether you and the White House are listening to them.
    Mr. Johnson. Well, sir, I listen to all of my staff, 
including a great legal staff. As I said, I base my decisions 
on science and on the law and on the facts that are before me.
    Mr. Cummings. Now, the committee's investigation of your 
denial of the California waiver decision revealed that legal 
staff warned that a denial would likely--that you would likely 
lose, but you disregarded their advice even when EPA has lost 
in court the first time. That hasn't stopped the administration 
from trying again.
    This summer EPA plans to issue a third New Source Review 
rule, which would allow dirty power plants to upgrade and 
increase air pollution without installing pollution control 
equipment. The D.C. Circuit overturned the administration's 
second New Source Review rule as well as part of the first, and 
the Supreme Court has already rejected the legal theory EPA is 
relying on.
    Has your legal staff warned you that this rule would be 
highly vulnerable to legal challenge?
    Mr. Johnson. Well, since the rule is pending before the 
Agency, that is an important issue that we are currently 
debating.
    Mr. Cummings. Thank you, Mr. Chairman.
    Chairman Waxman. Thank you, Mr. Cummings.
    Mr. Cannon.
    Mr. Cannon. Thank you, Mr. Chairman. This has been an 
interesting and relatively intense hearing. I would like to 
give Mr. Johnson the opportunity just to sort of respond to 
some questions that he has time to respond to, so we can 
actually make some sense out of those.
    On December 19, 2007, Mr. Johnson, you announced that you 
would be denying California's waiver request, and on February 
29, 2008, you released the complete decision document 
explaining the decision. Were you advised that the decision to 
deny California's waiver request was supported by the law?
    Mr. Johnson. Yes.
    Mr. Cannon. Would you like to elaborate on that a little 
bit?
    Mr. Johnson. Well, the staff presented me a wide range of 
options. We went through each of those options, and each one, 
those that were not defensible, were eliminated, and the ones 
that were presented, options were presented to me, including 
denial were presented, and ultimately that is the decision that 
I made.
    Mr. Cannon. So there were some options perhaps out there 
that didn't make it to you because they were not legally 
justifiable.
    Mr. Johnson. Again, I don't know which ones were or were 
not, but certainly the ones that were presented to me were 
legally defensible, including a denial.
    Mr. Cannon. Were you advised that the decision to deny the 
waiver we requested was supported by the facts of the record as 
well as the law?
    Mr. Johnson. Yes. In fact we have an approximately 50-page 
decision document that goes into great detail, detailing my 
decision and based upon all of the facts.
    Mr. Cannon. So you were presented with options that were 
justified by the law and the facts, and then you made a 
decision, and that decision was then substantiated by the law 
and the facts in your decision?
    Mr. Johnson. Yes.
    Mr. Cannon. Was denying California's waiver request one of 
the options that was included as one of the options included by 
your staff?
    Mr. Johnson. That is correct.
    Mr. Cannon. Do you have any reason to believe your staff 
would present you with an option that was not supported by the 
law or the facts of the record?
    Mr. Johnson. I do not.
    Mr. Cannon. Is there anything else you would like to say 
about this issue since you have been hectored to----
    Mr. Johnson. Well, sir, I know that the chairman and other 
members of the committee disagree with my decision, and I 
understand that. These decisions are not easy decisions, but I 
made the right decision. I made the decision based upon the 
facts, based upon the law, what the law directs me to, and I 
stand by that. It was my decision and my decision alone.
    Mr. Cannon. Thank you. You just answered the next question 
I was about to ask. It was your decision. Do you stand by that 
decision today?
    Mr. Johnson. Absolutely.
    Mr. Cannon. You know, I personally have some bona fides. I 
worked in the Reagan administration after the Surface Mining 
Law had been passed, and the first of the regulations had been 
done under the Carter administration. The second had been done 
under Secretary Jim Watt, and both were probably extreme. It is 
very difficult to find a middle path that actually works, works 
for industry and works for the American people and works for 
the environment.
    I just want you to understand that some of us understand 
how difficult these things are, especially difficult when the 
world changes and technology has changed the world around us. 
It has changed the world in which we can regulate and manage 
regulation. And to suggest that we could never do anything new, 
whether you are Democrat or Republican, would bind us, tie us 
up in a way that would not make any sense at all. In fact, I 
would hope that in America we would start looking at how we can 
actually move away from Federal, centralized regulation to more 
local regulation throughout the country.
    I think our information technology gives us that 
opportunity. Our understanding that the science of pollution 
and what is harmful to our bodies, what is harmful to the 
environment, is moving rapidly forward, and I would hope that 
the hectoring that you have felt today will not be perpetuated 
in the future by whoever replaces you and others but, rather, 
is a thoughtful review of what happens so that we can help 
guide these sort of bumpers instead of being sledge hammers 
about it.
    Mr. Johnson. Well, sir, I appreciate that, and I also 
respect the role of Congress and important role in oversight, 
and I am very supportive of oversight responsibility, and I am 
also supportive of transparency. But, as you can well imagine, 
I have to also be supportive of the ability to have candid 
conversations, have advice so that I can make decisions that 
are independent decisions, whether that be independent 
decisions from Congress or independent decisions, again under 
the law, or independent decisions from the White House, or 
anybody else.
    I do respect the oversight responsibility, and I believe 
that the thousands of pages and the depositions and all the 
rest demonstrate to me that I went through a very thoughtful, I 
went through excruciating number of briefings and details so 
that I could be best equipped to make the most informed 
decision.
    So again, I appreciate the opportunity to be here, Mr. 
Chairman, and thank you for those remarks.
    Mr. Cannon. Thank you, Mr. Chairman. I assume my time has 
expired.
    May I just thank Ms. Dudley for being here? Her office is 
also under the jurisdiction of the committee that I am the 
ranking member of on Judiciary. We have spent some time 
together. I appreciate her being here, and perhaps some other 
time we can ask more questions of you, Ms. Dudley.
    I thank you, Mr. Chairman. I yield back.
    Chairman Waxman. Thank you, Mr. Cannon.
    Ms. Watson. Mr. Chairman, a question to you.
    Chairman Waxman. Yes?
    Ms. Watson. Is it possible for us to get a copy? Mr. 
Johnson has spoken of the 50-page report, and I think it is in 
the public domain. Can we access a copy of that?
    Chairman Waxman. We will make it available to you.
    Ms. Watson. All right. Thank you very much.
    Chairman Waxman. I would like to recognize myself. The 
Constitution is clear. Congress passes the laws and the 
executive branch must faithfully execute them.
    Administrator Johnson, we knew what your professional 
positions were as the head of EPA. You had a record. You heard 
from an advisory committee, you heard from your staff, you got 
input from all sorts of groups, environmentalists and industry. 
That is all appropriate that you get all this input in to make 
the decisions.
    We knew what your decision was on three areas: ozone, the 
California waiver, and the greenhouse gas question. Or at least 
we know what you sent to the White House.
    And then you reversed yourself after you had a candid 
conversation with the White House that would indicate you are 
getting input from the President, which you may think is 
important. But it also may indicate that the President is 
really making the decisions. What we need to do our oversight 
job is to find out on what basis he is telling you that you 
ought to make a different decision than what you initially 
proposed.
    Now, in the case of ozone the Clean Air Act clearly states 
that air quality standards must be set by you using your best 
judgment based on the latest scientific information. The law 
does not provide that it is the President's decision; it says 
that it is your decision.
    Now, I understand some Constitutional scholars would say 
when Congress grants an agency authority, the President is 
granted that authority as well. Other scholars disagree. We 
don't have to resolve that issue, but in the setting of ozone 
standards, the science and staff work all pointed in one 
direction: Set a secondary standard that uses a seasonal form.
    EPA's record is clear, but in literally the last hours of 
the rulemaking process when you faced the deadline in which you 
have to come out with a rule, the President helped you see that 
you ought to reverse what EPA and what you had suggested, and 
the record does not explain how the President made his 
decision.
    Now, we issued a subpoena both to Administrator Johnson and 
Administrator Dudley to provide documents that will help the 
committee understand how this decision was made.
    Ms. Dudley, the subpoena required you to produce the 
documents by April 18th.
    Mr. Johnson, you were required to produce the documents by 
May 6th. Unfortunately, you both continued to withhold 
documents.
    I wrote to both of you on Friday. I informed you that 
unless there is an assertion of executive privilege, you must 
produce the documents at this hearing today. Administrator 
Johnson, has the President asserted executive privilege over 
the documents responsive to the subpoena?
    Mr. Johnson. My understanding, sir, that executive 
privilege is not something to be invoked lightly, and that 
constitutional confrontations between the legislative and 
executive branches should be avoided whenever possible.
    At this time I am not making an assertion of executive 
privilege today. Instead, I am committing that to you that my 
staff remains available and willing to continue our discussions 
about how to reach a mutually agreeable resolution regarding 
the remaining documents.
    My staff earlier, right before the hearing, delivered a 
number of additional documents on the ozone max.
    Chairman Waxman. Administrator Dudley, has the President 
asserted executive privilege over the documents that we 
requested of you pursuant to a subpoena?
    Ms. Dudley. I know that our lawyers have been discussing 
the documents. We have produced over 7,000 pages and, in fact, 
I have a letter delivered to you from OMB General Counsel today 
which, with permission, I would like to put on the record.
    Chairman Waxman. Without objection, we will have it in the 
record.
    [The information referred to follows:]

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    Chairman Waxman. Well, during my 2-year tenure as chairman 
of this committee, we have established a track record of making 
reasonable accommodations to executive branch interests that 
have arisen in committee investigations. In this case, you are 
trying to shield the White House from reasonable oversight, and 
that is not a reasonable position or an accepted one.
    The precedents are clear: Unless there is a valid claim of 
executive privilege, you need to turn over the documents. As 
Chairman Burton recognized when he was chairman: ``The only 
privilege under which the President may withhold subpoena 
documents is an executive privilege.''
    Ranking Member Davis took the same position. In this 
investigation there has been no assertion of executive 
privilege, and the documents the committee seeks are central to 
understanding whether the President has complied with the law. 
This is a serious issue, and your defiance of the subpoena is a 
serious matter that the committee is going to have to address.
    An example of this is whether, in establishing the ozone 
rule whether costs were taken into consideration in a 
surreptitious way, and we know what the Supreme Court has to 
say about that matter, and we also know that Ms. Dudley has a 
March 6th memo from the White House that was sent to EPA where 
she criticized EPA for failing to respond to economic values in 
setting the environmental standard.
    One of her objections seems to be the EPA proposal would be 
too costly to industry. We want to know more about that. We 
want to know on what basis that position is reached and others. 
So what I am telling you both, that unless you assert executive 
privilege, this committee has always stood by the fact that we 
expect the compliance with the subpoena.
    Mr. Issa.
    Mr. Issa. Thank you, Mr. Chairman.
    Chairman Waxman. I have taken 5 minutes and 41 seconds. The 
minute will be given 5 minutes and----
    Mr. Issa. Thank you, Mr. Chairman.
    I would like to followup on that. The President's 
involvement in the ozone proceeding, as I understand it, is not 
only allowed, and it is not improper influence but, in fact, is 
consistent with President Clinton's even greater involvement in 
setting the 1997 standard, isn't that correct?
    Mr. Johnson. That is correct.
    Mr. Issa. And I wasn't here in 1997, but I don't believe 
that the deliberative process between the Agency, that internal 
process, was ever demanded that it be exposed. Do any of you 
know if there was a record under one of the previous chairmen 
where they demanded to know everything that led to President 
Clinton assisting in the decisionmaking process finally made by 
the EPA but his input into that standard in 1997?
    Mr. Johnson. I don't know.
    Mr. Issa. I don't think there was, and I think we may be 
working with slightly different standards of what is 
appropriate.
    Chairman Waxman. Will, the gentleman yield?
    Mr. Issa. Of course, Mr. Chairman.
    Chairman Waxman. Well, I do want to indicate that these 
standards that you are talking about were exhaustively examined 
by Congress. In the 105th Congress, there were approximately 30 
days of hearings in at least 10 committees on this topic. EPA 
Administrator Carol Browner personally testified over a dozen 
times regarding the standards. Our own committee conducted an 
investigation about the matter as well.
    Mr. McIntosh, who was the subcommittee chairman, requested 
OMB produce all records related to OIRA's view of the proposed 
rules in response to this and other requests. OMB produced 
thousands of pages in documents, including internal White House 
communications, and apparently withheld only two memoranda to 
the President from senior advisors within the executive branch 
of the President.
    So this record demonstrates that Congress, especially our 
committee, spared no effort in conducting oversight over the 
Clinton rulemaking. It also shows that the Clinton 
administration was extraordinarily responsive to our 
committee's extensive demands for interviews and documents.
    Mr. Issa. Well, and I appreciate the reclaiming of my time. 
It certainly shows that we have a long tradition of looking 
into it and that we also have a long tradition of recognizing 
that the President has a role to set, to participate in the 
standard-setting, both President Clinton and now President 
Bush.
    I would like to get to one closing matter, because I think 
we have sort of made the point with the inclusions of these 
graphs and so on that the difference in the secondary standard 
would have made no difference. So I think we will go on to out 
of ozone and on to CO2.
    Administrator Johnson, if you were to have granted 
California's waiver request, and if California went into global 
cap-and-trade, and if California reduced its CO2, 
assuming that China and India continue to produce new coal 
facilities that have absolutely no scrubbers, that are just 
putting out CO2, would it really be all that 
significant when you look at the present level in California 
reduced by, let's say, 20 or 30 percent versus the new coal 
plants being put up on a weekly basis in China?
    Mr. Johnson. Well, if I may, those are not the criteria on 
which I had to base the California waiver.
    Mr. Issa. No, no, I understand that, but you are 
obviously----
    Mr. Johnson. So I based that on were there the criteria 
that were in the law.
    Now, asking the other question, the challenge that we have 
as a Nation and as we have across all the States, including my 
home State of Maryland, is that all contributes to global 
climate change. So, in fact, what is happening in Maryland over 
what is happening in Florida or New York or wherever, is all 
contributing to----
    Mr. Issa. OK. And I want to focus on that because, although 
it is not the primary portion of this hearing, I think as we 
close t his hearing as to this panel, I think it is important. 
We have to get down the amount of CO2 going into the 
atmosphere on a worldwide basis if we are going to be effective 
in reducing CO2 worldwide, thus assuming that the 
scientists' predictions are right that if we continuing putting 
more CO2 in, we will, by definition, be contributing 
to global warming.
    We make that assumption. This committee has studied it, 
extensively. Based on that assumption, isn't it a global issue, 
one that requires treaties and a reduction on a global basis if 
we are going to be effective?
    Mr. Johnson. I believe it requires that each of the 
nations, whether you are a rapidly developing economy like 
China or India, or the United States or European Union, to be 
leaders and to move forward, and that each situation is 
different. Fifty percent of our electricity comes from coal; 
Australia it is 82 percent; France is much less than that, it 
is less than 10 percent.
    Mr. Issa. One final question, because I think we have made 
that point. You have a responsibility as a Federal officer to 
all Americans, and if I understand the standard under which you 
rejected California's waiver, part of that is an equal 
protection, that States are not allowed to arbitrarily have 
separate standards without need because in fact you are 
protecting all of us and our commerce against arbitrary changes 
in standards by States.
    Isn't that true?
    Mr. Johnson. Well, again, the three criteria that focus 
specifically on California, other States are not allowed to 
take any other action themselves unless the waiver was granted, 
and then they can adopt what the California standard is.
    The issue that was before me was, was there compelling and 
extraordinary conditions, and my decision--again part of those 
50 pages--clearly shows, and the science clearly shows, whether 
it is sea level rise--sea level rise is more of a problem for 
the East Coast than it is for the West Coast. Acceleration of 
temperature or higher temperatures, yes, California experiences 
higher temperatures but there are other parts of the country 
that make it worse.
    And so, as looked at, the criteria, particularly compelling 
and extraordinary, in my judgment based upon the science, did 
not meet the standard.
    Mr. Issa. Thank you, and thank you for this hearing, Mr. 
Chairman. I yield back.
    Chairman Waxman. Thank you, Mr. Issa.
    We have another panel of four witnesses. If Members would 
permit, I would like to move on to the next panel.
    Mr. Bilbray.
    Mr. Bilbray. Mr. Chairman, can I just followup, just 
quickly, on one item?
    The standard that we are complaining about with the ozone 
standard, the Science Committee was saying it should be at 
0.07, right, minimum? Or maximum?
    Ms. Henderson. Maximum, but we gave a range of 0.06 to 
0.07.
    Mr. Bilbray. California's standard, Mr. Johnson, is sitting 
at the maximum that it was recommended. Now, traditionally, has 
there been ever a time--and I am trying to remember it my 30 
years of involvement in this issue--has there ever really been 
too many regulations where the Federal standard has been more, 
you know, more stringent than the California standard?
    Mr. Johnson. I don't recall.
    Mr. Bilbray. I just want to say, when we argue about this, 
we are talking 5 to 7 percent. But I think we admit that--I 
know you are going to get sick and tired of hearing me talk 
about California, and when we get to greenhouse, I will beat 
our breast about importing all the electricity but not wanting 
to have the coal plants. But what I am saying, it is in all 
fairness, we are so close on this issue it is not the huge 
element, and I would ask our toxicologist how many deaths per 
million are we talking about here which we usually talk about.
    So I yield. Mr. Chairman, I just want to say that there are 
some big issues out there, and I wish that we would be setting 
some standards here like stop burning coal here in the capital 
or buying coal electricity for the capital here. And I hope 
that we can work together at getting a waiver for California on 
the greenhouse and the fuel mixture and work on making the 
capital truly greenhouse neutral, CO2 neutral, 
rather than these phony offsets, and I look forward to working 
with it, Mr. Chairman. With your extensive background on it, I 
think we have some great opportunities if we just work together 
on this.
    So thank you very much for the added time.
    Chairman Waxman. Thank you, Mr. Bilbray.
    Ms. Watson, I understand you wanted an equal amount of 
time. Would 2 minutes that we will yield to you, if you wish to 
pursue it with some documents for the record?
    Ms. Watson. Yes, because my State is involved, and we have 
tried to address pollution there, the largest State, 38 million 
people and all their cars. I think every family has 13 cars. So 
this is really important to me, and I am taking it personally, 
too.
    When EPA makes decisions that don't meet the law and loses 
in court, environmental protection is delayed and the public 
indeed is hurt. These aren't the only cause to problems. A 
State must adopt each new Federal requirement into State law, 
and those efforts are wasted as well.
    Now I have their letters that are addressed to the chairman 
from Leo Drozdoff, the Administrator of the Division of 
Environmental Protection for the State of Nevada. Now, this 
isn't a partisan issue for Nevada has a Republican Governor. 
Administrator Drozdoff says, ``We appreciate your efforts to 
identify and quantify the impact of EPA's failed rulemaking 
attempts. Every time we are forced to develop programs that are 
clearly in conflict with the Federal environmental law, it is 
an opportunity wasted and environmental protections delayed. 
The resource implications to a small State like ours and the 
negative effect on our relationship with the EPA are enormous. 
These impacts will be felt for years and years to come.''
    This is an extraordinary protest from a State Energy Policy 
Act, and, Mr. Chairman, I would like to have unanimous consent 
to enter this letter into the record.
    Chairman Waxman. Without objection, that will be the order.
    [The information referred to follows:]

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    Chairman Waxman. The gentlelady's time has expired.
    Mr. Cannon requested time as well.
    Mr. Cannon. Thank you, Mr. Chairman. First of all, let me 
just point out that you made the comment that on the ozone rule 
that you wondered if costs were taken into account in a 
surreptitious or inappropriate way. I think that is vitally 
important. That is the work of this committee is to oversee 
those kinds of things. I would hope that we would be able to 
find those problems, not just suggest the existence of such 
problems.
    Just finally, Mr. Johnson, suppose California had been 
allowed to have their CO2 lower standard, had the 
waiver granted, would that have made any difference as to 
CO2 in California or in the country? Any significant 
difference?
    Mr. Johnson. Well, it is an issue of debate, but certainly 
based upon what we know is that we have both a national and a 
global problem, and so automobiles and improving efficiency 
there certainly help, but since it is a global air pollutant, 
it is highly questionable how much effect it would really have. 
So again I have to say for the record, those are not the 
criteria.
    Mr. Cannon. Right.
    Mr. Johnson. The criteria I had to look at were, are there 
compelling and extraordinary conditions in California.
    Mr. Cannon. But the request for the waiver had to be more 
symbolic than substantive?
    Mr. Johnson. Well, again, it was a formal waiver request, 
and certainly we did due diligence and held two hearings. I had 
many, many briefings and certainly having a 50-page, or 
approximately 50-page, decision document on waiver is unusual, 
if nothing else, in its size and all of the issues that are 
there.
    Mr. Cannon. Thank you, Mr. Chairman. I yield back.
    Chairman Waxman. Thank you.
    Mr. Johnson, as we end your participation at this hearing, 
I want to tell you something very clearly. This hearing isn't 
about what you decide, it is about how you decide and the 
integrity of the process. I don't think you ought to leave this 
room satisfied that you have deflected questions and avoided 
telling us information that we are entitled to have.
    Judging by some of the responses I think you have given us 
today, I expect you to regard this part of the process with 
derision from many of us. We walk away from this hearing 
astounded that you, as a career EPA employee, are willing to be 
part of a process that makes a mockery of the rulemaking 
process, and that you are willing to come here and pretend that 
what really happened didn't happen.
    In this case, we have the record to guide us. It tells us 
how EPA's best legal and scientific experts supported granting 
California's petition and adopting a new ozone standard for the 
environment. The record tells us you ultimately agreed with 
EPA's experts and gave those recommendations to the White 
House, and we know the White House overruled you.
    Yet your testimony pretends that none of this happened, and 
it pretends you have reached the ultimate decisions 
independently and with a scientific and legal basis. Your staff 
knows this isn't true, and we know that it isn't true. As 
someone who has long fought for EPA and strong environmental 
protections, I can't adequately express how deeply this saddens 
me and how poorly it reflects on the EPA.
    I thank the three of you for being here, and we are going 
to move on to our next witnesses. I call forward our second 
panel, Dr. Francesca Grifo. Dr. Grifo is a senior scientist and 
director of the Union of Concerned Scientists, Scientific 
Integrity Program. She has over 20 years of experience 
directing science based projects and programs. She holds a 
Ph.D. in Botany from Cornell University.
    Michael Goo is the climate legislative director for the 
Natural Resources Defense Council. He has previously served as 
majority counsel for the Senate Committee on Environment and 
Public Works, minority counsel for the House Energy and 
Commerce Committee, and as Acting Assistant General Counsel at 
EPA.
    Dr. Roger McClellan currently advises public and private 
organizations on issues related to air quality. He has 
previously served as Chair of EPA's Clean Air Scientific 
Advisory Committee and as president of the Chemical Industry 
Institute of Technology.
    Alan Raul is a partner with Sidley Austin, and is Chair of 
the firm's Information, Law, and Privacy Practice Group, and he 
is also a member of the firm's Government and Internal 
Investigations Group and Appellate Group as well.
    I welcome you to our hearing. It is the practice of this 
committee that all witnesses testify under oath, so I would 
like to ask each or you to please stand while I ask you to 
raise your right hands.
    [Witnesses sworn.]
    Chairman Waxman. The record will indicate each of the 
witnesses answered in the affirmative.
    Dr. Grifo, we want to call on you first.
    For all of you, your prepared statements are in the record 
in full. We would like to ask you to try to limit your oral 
presentations to 5 minutes. The clock will indicate when it is 
red that the 5-minutes have expired. Please go ahead.

   STATEMENTS OF FRANCESCA GRIFO, SENIOR SCIENTIST, UNION OF 
    CONCERNED SCIENTISTS; MICHAEL GOO, CLIMATE LEGISLATIVE 
     DIRECTOR, NATURAL RESOURCES DEFENSE COUNCIL; ROGER O. 
MCCLELLAN, ADVISOR, TOXICOLOGY AND HUMAN HEALTH RISK ANALYSIS; 
       AND ALAN CHARLES RAUL, PARTNER, SIDLEY AUSTIN LLP

                  STATEMENT OF FRANCESCA GRIFO

    Ms. Grifo. Good afternoon, and thank you, Mr. Chairman, and 
thank you to the committee. I am a senior scientist, as you 
said, and director of the Scientific Integrity Program as the 
Union of Concerned Scientists, a leading science-based non-
profit working for a healthy environment and a safer world.
    I would like to thank the committee for the opportunity to 
speak to you this afternoon about the problem of political 
interference in the work of Federal Government scientists. The 
United States has enjoyed prosperity and health in large part 
because of its strong and sustained commitment to independent 
science.
    As the Nation faces new challenges at home and growing 
competitiveness abroad, the need for a robust Federal 
scientific enterprise remains critical. Unfortunately, an 
epidemic of political interference in Federal science threatens 
this legacy. Political interference in EPA's decision regarding 
the air quality standard for ground-level ozone is emblematic 
of the problem of manipulation, suppression, and distortion of 
science at the EPA.
    You have already heard that EPA Administrator Stephen 
Johnson issued the final ozone standard at an arbitrary level 
inconsistent with the analysis of EPA scientists and 
independent science advisors and, ultimately, not sufficiently 
protective of public health. You have heard that the White 
House pressured the EPA to consider economic costs associated 
with tightening the ozone standard. The law, as affirmed by a 
2001 Supreme Court decision requires the standard be based 
solely on best available science. EPA leadership failed to meet 
that objective.
    The White House's interference or meddling in the ozone 
decision is not a stand-alone incident. Time and time again 
White House officials or EPA political appointees have stepped 
in to second guess, manipulate, or suppress the work of EPA 
scientists, threatening the Agency's ability to protect human 
health and the environment.
    In our investigation of EPA scientists, our survey 
conducted by Iowa State University together with us, hundreds 
of scientists report direct interference in their scientific 
work, fears of retaliation and systemic disregard for the 
expertise of EPA's Advisory Committee. Our survey found that 
889 scientists reported personally experiencing one of these 
events in the last 5 years. In essay responses, nearly 100 EPA 
scientists self-identified OMB, Office of Management and 
Budget, as the primary culprit in this interference. It is 
important to note that we didn't ask them about OMB. The 
question was much broader; they volunteered that.
    Two hundred and thirty-two scientists had personally 
experienced frequent or occasional changes or edits during 
review that changed the meaning of scientific findings, not 
just routine edits but those that change the meaning. Two 
hundred and eighty-five scientists had personally experienced 
frequent or occasional selective or incomplete use of data to 
justify a specific regulatory outcome.
    A hundred and fifty-three scientists had personally 
experienced frequent or occasional pressure to ignore impacts 
of a regulation on sensitive populations. Five hundred and 
thirty-six scientists felt that the Agency occasionally, 
seldom, or never heeds advice from independent scientific 
advisory committees. This result was markedly worse at the 
Office of Air Quality Planning and Standards which works 
closely with the advisory committees to set the NAAQS. Half of 
these respondents felt the EPA did not heed the advice of the 
advisory committees.
    The White House has rewritten EPA's scientific documents 
concerning climate change, pressured EPA scientists to support 
predetermined conclusions regarding the health effects of toxic 
mercury pollution, and pushed for rules that politicize the 
scientific findings contained in the OIRA's toxic data base. 
Science has been mis-used on air pollution, asbestos, fuel 
efficiency, mountaintop removal mining, oil extraction, 
pesticides, plywood plant pollution, toxic selenium 
contamination, and on and on.
    Fortunately, this is not a problem without a solution. A 
suite of reforms are detailed in our report Interference at the 
EPA, but here are the most timely. The House and Senate 
overwhelmingly approved by partisan legislation to strengthen 
whistleblower protections for Federal employees. It is crucial 
that the final legislation now in Conference Committee contains 
specific protections for scientists who expose efforts to 
suppress or alter Federal research.
    The EPA should increase openness in its decisionmaking 
process. If research results in analysis by EPA scientists are 
made public before they drop into, as the GAO put it, the black 
box of OMB, attempts to distort science will be exposed. The 
expanded breadth of the OMB must be pushed back. Questioning 
the scientific consensus of Agency experts is not OMB's proper 
role.
    EPA should adopt media communication and scientific 
publication policies that ensure taxpayer-funded scientists and 
their research are accessible to Congress and the public, and 
scientists need to be made proactively aware of these rights.
    Finally, there are two actions that can take place 
immediately: Administrator Johnson should send a clear message 
to all political appointees that he will not tolerate any 
attempts to alter or suppress Federal Research just as EPA 
Administrator William Ruckelshaus did 25 years ago. 
Administrator Johnson should pledge to operate EPA in a fish 
bowl.
    We would welcome a dialog with Administrator Johnson, 
although as of this morning he has not responded to repeated 
requests to begin that conversation. We look forward to 
continuing our work with the 110th Congress to restore 
scientific integrity to Federal policymaking.
    Thank you.
    [The prepared statement of Dr. Grifo follows:]

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    Ms. Watson [presiding]. Thank you, Dr. Grifo.
    Mr. Michael Goo.

                    STATEMENT OF MICHAEL GOO

    Mr. Goo. Thank you, Chairman Waxman, and Ranking Member 
Davis and Mr. Issa for the opportunity for the opportunity to 
testify here regarding EPA's new National Ambient Air Quality 
Standards for Ozone.
    My name is Michael Goo. I am the climate legislative 
director for the Natural Resources Defense Council. NRDC is a 
national non-profit organization of scientists, lawyers, and 
environmental specialists dedicated to protecting public health 
and the environment.
    Before I turn to my scripted statement, I just wanted to 
make a couple of points here about some of what we have heard 
today. And Mr. Johnson won't admit talking to the White House 
about the ozone decision, but we have the EPA talking points 
from the meeting with the President, and they say that the 
seasonal form is the most scientifically defensible, and they 
say that the seasonal form is the most legally defensible.
    And the question that we have is, what caused the 
Administrator to change his mind, quite literally overnight, so 
that the EPA staff had to scramble around to change the 
document within 24 hours?
    And then just to also respond to a point, a chart was put 
up. Administrator Dudley said that there would be no more 
attainment areas with the secondary standard set the same as a 
primary standard, but it is not just the form that regulates 
the stringency of the standard, it is also the level.
    The CASAC--and I am not quite sure, Dr. Henderson didn't 
have the opportunity to comment on this--but the CASAC said 
that the level should be between 15 and 17, and the level was 
actually set at 21. Of course, therefore, it wasn't as much 
more protective than the primary standard.
    Now let me turn to my prepared remarks. The first I just 
want to make with regard to ozone is that we now know that 
ozone kills people. We say that ozone results in excess or 
premature mortality. That is a fancy way of saying that smog 
kills people. Ozone pollution, also, so it is a host of other 
health effects--susceptibility to infection, asthma attacks, 
school absences, emergency room visits, and even overnight 
admission into the hospital--and these are real effects with 
real consequences for us, for our children, for our elderly, 
and our infirm.
    The second point I wish to emphasize is that ozone 
pollution is ubiquitous. According to EPA, approximately 140 
million Americans live in areas that violate the 1997 8-hour 
standard, including more than 16 million children, more than 6 
million people age 75 and older, and more than 9 million people 
who suffer from asthma.
    Putting these two facts together, it is clear that ozone is 
a major public health problem in the United States.
    In my testimony, I have characterized the decision of the 
Administrator as a shameful distortion of the scientific and 
regulatory process for setting National Ambient Air Quality 
Standards. I say that from my vantage point as a former EPA 
attorney who spent more than 4 years developing and defending 
the standards set forth in the Clinton administration, which 
were ultimately upheld by the U.S. Supreme Court.
    Prior to this administration in an unbroken line of cases 
extending back nearly 40 years, these standards were repeatedly 
upheld by the courts, and since its creation in 1977, nearly 
every Administrator prior to this one has made decisions 
regarding the National Ambient Air Quality Standards within the 
scientific boundaries set by the Clean Air Scientific Advisory 
Committee.
    This Administrator, despite very clear recommendations from 
CASAC, chose to disregard its advice. The Administrator had 
before him an enormous opportunity to advance the cause of 
public health protection in the United States. He had a 
voluminous scientific record documenting health effects at 
levels below the existing standard.
    He had a unanimous recommendation from CASAC, and he has a 
very clear directive from the Congress and the courts that he 
must set the standard to protect public health with an adequate 
margin of safety, erring on the side of caution. In short, he 
had all the elements that he needed to set a highly defensible 
standard that would have protected public health with an 
adequate margin of safety, and it distresses me to report that 
the Administrator squandered that opportunity.
    The record is clear. The Administrator's decision is not 
based on the latest scientific evidence; it is not based on the 
recommendations of CASAC; it does not protect public health; 
and it does not include a margin of safety.
    Somebody tried to defend this decision as a reasonable 
policy decision or attempt to justify the decision on the basis 
of vague notions of uncertainty, but to say something is a 
policy judgment, or to say that a decision is based on 
uncertainty has little by way of actual rationale.
    The question is, what is the policy, and in what direction 
does any alleged uncertainty cut? Is the policy to honor the 
latest scientific evidence and the recommendation of CASAC 
erring on the side of safety? I would submit that the record 
before us makes clear the answers to those questions.
    In the end, these standards will be replaced by ones that 
reflect the science and the law, but in the meantime our 
citizens' lungs and their health will suffer as a result.
    Chairman Waxman, I commend your efforts and the efforts of 
your staff to bring this deplorable situation into the light of 
day. Thank you.
    [The prepared statement of Mr. Goo follows:]

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    Chairman Waxman [presiding]. Thank you very much.
    Dr. McClellan.

                  STATEMENT OF ROGER MCCLELLAN

    Mr. McClellan. Good afternoon, Mr. Chairman, and 
distinguished members of the committee. I am Roger McClellan, 
an independent advisor in air quality issues. My home is in 
Albuquerque, NM. I appreciate the invitation to present my 
views on EPA's recent review and revision of the National 
Ambient Air Quality Standards for ozone. I ask that my written 
testimony be entered in the record as though read in its 
entirety.
    Let me summarize. For more than four decades I have been 
contributing to the development of science needed to address 
important societal issues concerned with air quality. I am 
proud to have served on many EPA scientific advisory committees 
from the origin of the agency to the present time under 
administrations of both parties.
    This included service on the Clean Air Scientific Advisory 
Committee, which I chaired 1988-1992, and on panels that have 
considered all the criteria air pollutants. I served on the 
Ozone Panel that advised a 1997 standard. I did not serve on 
the most recent Ozone Panel, however, I have closely followed 
the standard-setting process that led to the final rule 
announced by Administrator Johnson on March 12, 2008, focusing 
on the primary or health-based standard.
    As you know, every standard has four interrelated elements: 
an indicator, an averaging time, a numerical level, and a 
statistical form. It is important that these always be 
considered in their entirety.
    Throughout the review process leading up to the final rule, 
there has been debate over the numerical level of the 8-hour or 
averaging time standard with ozone as the indicator. In my 
opinion, much of the debate was premature and focused on the 
outcome desired by some parties, a lowering of the standard 
even before the review of the science was complete. This 
resulted in a blurring of the boundary between the role of 
science and judgment in the setting of the standard.
    With publication of the proposed rule for the ozone 
standard, the debate intensified. That included repeated 
reference to the CASAC recommendation the primary standard be 
set within a specific narrow numerical range, 0.060 to 0.070 
ppm. In my opinion, the CASAC panel moved from the science 
arena into the policy arena with its strident advocacy of an 
upper bright line value of 0.070 ppm for the primary standard.
    CASAC's selection of this narrow range and an upper bright 
line value followed the template that CASAC had been used, used 
with the pm 2.5 standard. In that case CASAC, the panel I 
served on, advocated setting the pm 2.5 annual standard setting 
at 13 to 14 micrograms per cubic meter--a view that I dissented 
from--and the 24-hour standard at 25 to 35 micrograms per cubic 
meter.
    The Administrator made policy judgments in setting the 24-
hour standard at a level of 35 micrograms per cubic meter, a 
drastic reduction from the previous, and reaffirmation of the 
annual standard at a level of 15 micrograms per cubic meter.
    CASAC argued, with the exception of myself or another, that 
he had made a political choice and ignored the science. In the 
case of ozone, Administrator Johnson made a policy judgment. 
set the ozone standard at 0.075 ppm average over 8 hours. The 
value was actually consistent with the original advice of his 
own staff, 0.075 ppm up to a level slightly below the current 
standard which we know was 0.080, but with rounding could have 
been up to 0.084.
    Again, CASAC argued he made a political decision and 
ignored the science In my view, the CASAC panels have not fully 
understood nor communicated the extent to which the 
recommendations they communicated to the Administrator 
represented their interpretation of the science and their 
personal policy preferences on the numerical level of the 
standard.
    Even before the final rule for ozone was announced, CASAC 
scheduled the teleconference to develop unsolicited advice to 
the Administrator. This clearly moved CASAC from the scientific 
advisory arena into the political arena. This was evidenced by 
panel members noting the importance of getting the record right 
for the courts and the suggestion that the Administrator should 
have resigned rather than cooperate with OMB and the White 
House.
    The panel's letter on that teleconference continues to 
suggest that somehow science and scientists alone can establish 
the appropriate standard or, at a minimum, dictate the upper 
bound acceptable for a policy decision. The Clean Air Act does 
not call for a standard-setting committee with the 
Administrator merely serving as a rubber stamp for the 
committee's judgments. The Clean Air Act wisely calls for a 
Clean Air Scientific Advisory Committee to provide advice to 
the Administrator on policy judgments that under the Clean Air 
Act are the exclusive responsibility of the Administrator.
    In my opinion, the Administrator has appropriately 
exercised his authority in making policy judgments on both the 
revised pm 2.5 and ozone standards, making selections from 
among an array of scient-based options. The basis for his 
policy decisions are well documented in both final rules, 
including consideration of both the science and personal 
judgments of CASAC. They are also consistent with the Supreme 
Court's interpretation of the Clean Air Act.
    He did not consider cost, however, he did exercise judgment 
appropriately in deciding how low is low enough in setting the 
numerical level of both standards from among an array of 
science-based options. There is no scientific methodology that 
can be used as a substitute for the Administrator's judgment.
    I welcome the opportunity to address any questions you may 
have.
    [The prepared statement of Mr. McClellan follows:]

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    Chairman Waxman. Thank you, Mr. McClellan.
    Mr. Raul.

                 STATEMENT OF ALAN CHARLES RAUL

    Mr. Raul. Mr. Chairman, Mr. Issa, members of the committee, 
thank you for inviting me to testify today to provide my views 
on the authority of the President to influence the decisions of 
his subordinates in the executive branch. It is an honor to 
appear before you.
    I am testifying today in a personal capacity based on my 
interest and background in administrative and constitutional 
Law. I am currently engaged in private law practice and have 
previously served as General Counsel of the U.S. Department of 
Agriculture, General Counsel of the Office of Management and 
Budget, and as Associate Counsel to the President.
    Until recently, I also served in a part-time capacity as 
vice chairman of the Privacy and Civil Liberties Oversight 
Board.
    My views here are focused only on the general issue of 
Presidential authority to influence and direct the regulatory 
actions and decisions of the executive branch under Article II 
of the Constitution. It is my view that the President is and 
should be in control of the executive branch, but, importantly, 
this does not derogate or diminish Congress' power to set 
policy by legislation and to oversee the Executive's execution 
of the laws.
    Rather, the unitary Executive means that it must be the 
President and not some relatively unknown subordinate, narrow 
agency, or obscure technical committee who is responsible to 
the public to take care that the laws are well and faithfully 
executed. In short, the unitary executive concept promotes more 
effective rulemaking by bringing a broader perspective to bear 
on important regulatory decisions and enhances democratic 
accountability for regulatory decisionmaking by pinning 
responsibility on the President to answer to the public for 
important regulatory actions taken by his or her 
administration.
    Setting standards requisite to protect public health and 
welfare is inherently a policy exercise because Congress and 
the courts acknowledge that government regulations cannot, and 
need not, achieve zero risk. Indeed, it is the President's 
responsibility, not just his right, to ensure that executive 
branch regulatory decisions, to the extent Congress has left 
the Executive with some discretion, reflect the President's own 
policy judgments. That way the public can hold the President 
accountable for important regulatory judgments or, 
alternatively, look to Congress for stronger, smarter, or more 
specific laws.
    If the EPA Administrator does not agree with the President, 
he or she may resign or be replaced, but there are no grounds 
to complain that the President's position is undue 
interference. The reasons why the Constitution established a 
powerful President are well known. In short, the Framers were 
acutely conscious of the debilitating weaknesses that resulted 
from Executive by Committee during the Revolutionary War and 
under the Articles of Confederation. They clearly understood 
that putting one person in charge of the executive branch would 
promote accountability.
    The Constitution adopted a unitary Executive in order that 
the American people would know exactly whom to credit or whom 
to blame if the laws were not faithfully and effectively 
discharged. If responsibility is diffused, then the ability of 
the public to influence and choose their government is diluted, 
and Presidents of both parties have asserted the right to 
oversee and direct the actions and decisions of their 
regulatory agencies.
    Former Chief Judge of the D.C. Circuit, Patricia Wald, who 
served as Assistant Attorney General for Legislative Affairs in 
the Carter administration and was appointed to the D.C. Circuit 
by President Carter, strongly supported the power of the 
President to direct his or her subordinates in the executive 
branch. In 1981, she offered the leading opinion on 
Presidential Control over Rulemaking, Sierra Club v. Cassel. 
Interestingly, Judge Wald was joined in that opinion by then 
Judge, now Justice Ruth Bader Ginsburg.
    Judge Wald addressed arguments advanced by environmental 
plaintiffs who claimed that President Carter had improperly 
interfered with EPA rulemaking in order to impose weaker 
pollution controls than the technical staff at EPA desired. She 
categorically rejected this criticism of President Carter's 
decisive role. Echoing Alexander Hamilton, Judge Wald opined 
that preserving the President's flexibility to direct his or 
her subordinates was so important that it was not legally 
required for the executive branch to publicly disclose the 
details of White House and Presidential contacts.
    Similarly, President Clinton further codified and 
solidified the process and desirability of Presidential control 
over executive branch rulemaking, and you have heard testimony 
earlier today about Executive Order 12866, which required that 
Agency regulations be consistent be consistent with the 
President's priorities and the principles set forth in the 
Executive order.
    As you heard also, President Clinton, himself, was 
personally involved in improving the 1997 ozone standard that 
was a precursor of the standard involved today, and just as is 
the case with the current ozone rule, as was the case with 
President Carter's sulfur and particulate matter rules that 
Judge Wald addressed, EPA ultimately chose in 1997 a pollution 
standard that was more lenient than the one favored by Agency 
staff and recommended by the CASAC Committee of Scientific 
Advisors.
    I would submit that it makes sense as a matter of public 
policy to acknowledge and respect the President's ultimate 
dominion over the executive branch. If Federal Regulations do 
not serve the public well, either because they are too 
restrictive or too permissive, or simply not well designed, the 
President and Congress, of course, should take the blame. If 
the regulations are reasonable and accomplish the public's 
goals efficiently, then the President and Congress should 
receive the credit.
    Technical advisors are essential to the rulemaking process, 
but the buck has to stop with the person who answers to the 
people. That is the President.
    Thank you for considering my views.
    [The prepared statement of Mr. Raul follows:]

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    Chairman Waxman. Thank you very much, Mr. Raul.
    We will now proceed to questions, and to start off the 
questioning, I want to recognize Ms. Watson.
    Ms. Watson. Thank you so much, Mr. Chairman. And, Mr. Goo, 
I felt your passion in your testimony. I am very passionate, 
too, because my grandfather, in coming here--once into 
California I am speaking of--and once he got here he found he 
had to go over and live in Arizona. When he came back, he fell 
dead in the streets leaving a widow with seven children. The 
oldest is my mother. So that was before we had the Clean Air 
Act.
    I spent 17 years as the Chair of Health and Human Services 
in the California State Senate. We fought viciously with those 
who did not want to clean up the air because they felt it would 
impact on, I guess, their profits.
    So you have expressed grave concerns that Administrator 
Johnson's decisions on the new ozone standards were not based 
on science and the law. In your view, is this failure to base 
an EPA decision on science and the law an isolated incident? 
And could you put this in context in terms of this 
administration's overall record of implementing the Clean Air 
Act?
    Mr. Goo. I would be glad to, Congresswoman Watson. This is 
not an isolated instance at all, far from it. What we have seen 
in the past 8 years is a concerted attempt to effectively 
dismantle the Clean Air Act through implementation and 
enforcement, and we have seen it in a number of instances from 
new source review to Mercury pollution, to the National Ambient 
Air Quality Standards and their position on greenhouse gases.
    As I mentioned and as you note, air pollution is very 
serious business here in the United States. More Americans die 
from air pollution than die from drunk driving and HIV/AIDS put 
together, and most of that is from particulate air pollution, 
which I would mention as a good example of the same kind of 
decisionmaking that we have seen where the Administrator chose 
to disregard the clear advice of the Clean Air Scientific 
Advisory Committee.
    The very next decision that we will be seeing in the 
National Ambient Air Quality Standards area will be with regard 
to lead and known toxic air pollutants. We are concerned that 
the next decision with regards to lead may resemble the past 
two National Ambient Air Quality Standards.
    Ms. Watson. Let me just ask you this. Have you seen this 
disregard for the scientific input as a problem for the Agency 
over a period of time?
    Mr. Goo. I think over the last 8 years, this has been a 
very difficult time for people at the Agency. If you look at 
the depositions and you look at the record that Chairman Waxman 
has compiled, you see that any number of staff, career staff 
attorneys, were saying things like, I have never seen this in 
the last 30 years. It has been extremely distressing.
    The career staff at EP are extremely dedicated, and they 
are dedicated to the science and to pubic health protection. 
They have not been well served in this administration.
    Ms. Watson. Well, I want to thank you very much. I feel the 
same exact way. California is my State, and I want to thank 
you. The Clean Air Act says that the EPA must use its 
understanding of science to protect people's health and lives 
from air pollution. Disregarding the law and the science 
subjects people in our environment to grave harm.
    My family was affected by the fact that we didn't have 
these standards, and I lost a grandfather whom I never knew. So 
the rejection of our request in California hit us very, very 
hard.
    Thank you very much, Mr. Chairman, for this time.
    Chairman Waxman. Thank you, Ms. Watson.
    Mr. Cannon.
    Mr. Cannon. Thank you, Mr. Chairman. Mr. Goo, how many 
people die of AIDS each year?
    Mr. Goo. I don't have the precise figure, but I will get it 
for you. More than 45,000 people die of particulate matter 
pollution from power plants alone in the United States each 
year.
    Mr. Cannon. We are going on with a very short number of 
minutes, sir, 2 minutes each, so if you don't mind, I am just 
going to ask some pretty quick and clear questions.
    Dr. Grifo, how many members are there in the Union of 
Concerned Scientists?
    Ms. Grifo. We have members who are citizens and scientists 
from across the country, roughly 200,000 that work actively 
with us.
    Mr. Cannon. How many of those are scientists, have a Ph.D. 
in science?
    Ms. Grifo. I can tell you that for our particular issue, 
the scientific integrity issue, we have an activist list of 
15,000 scientists from across the country. The broader one, I 
can get you that exact number.
    Mr. Cannon. I would actually appreciate that, and how many 
of the members, broader membership of UCS, are Government 
employees?
    Ms. Grifo. I don't know, but I can potentially find that 
out.
    Mr. Cannon. I would appreciate that. And of those who are 
active scientists but not Government employees, do you have any 
idea how many receive Government contracts?
    Ms. Grifo. I am sorry?
    Mr. Cannon. How many receive contracts or money from the 
Federal Government to do research?
    Ms. Grifo. I don't have any way of knowing that, sir. We do 
not take any Government money at the Union of Concerned 
Scientists.
    Mr. Cannon. I know you don't, but many of your scientists 
do. Let me just point out that when you have a taxpayer-funded 
research, and priorities change because times change, you are 
going to have complaints from scientists.
    Are you familiar with the Congressional Research Service's 
review of the study that you quoted in your testimony?
    Ms. Grifo. I got it about 15 minutes ago.
    Mr. Cannon. You should read it, because I think it points 
out that your study is----
    Ms. Grifo. I did read it, and I am happy to respond to 
anything in it. It is all completely refutable.
    Mr. Cannon. Pardon me?
    Ms. Grifo. I have. I am happy to respond to any of this.
    Mr. Cannon. It would be hard for you to respond. I have too 
short a time, but you are talking about 5,810 people that were 
surveyed, were asked questions that were EPA scientists. You 
had about almost 1,600 respondents and 700 complaints. I think 
that this whole--you should look at that, because I think it 
deeply undermines the credibility of your statistical 
inclusions about this administration and the integrity of 
science, which I think is largely driven by financial 
interests, and the transition that is happening in society, and 
the change priorities that we have in America.
    Thank you, and, Mr. Chairman, I yield back.
    Ms. Grifo. If I may respond. I would like to direct you to 
page 5 of the CRS Report where it says, ``Consequently, there 
are no issues related to sampling errors as there was no 
probability sample.'' Page 6 of the CRS Report where it says, 
``This is not an issue here, however, this is not a sample 
survey but a census.'' And page 7 of the CRS Report where it 
says, ``The UCS Report does provide sufficient information for 
any analyst to examine it and highlight some of those 
limitations.''
    Chairman Waxman. Mr. Bilbray.
    Mr. Bilbray. Thank you, Mr. Chairman. Mr. Chairman, let me 
first point out that I support the waiver for greenhouse gases 
for California, and I look forward to working with you at 
offering some legislation that will authorize that and the 
Clean Fuel Strategies of California and exempt us from the 
Federal restrictions.
    But I think we need to recognize that a lot of people--this 
would be the first time a State would have the ability to 
regulate outside of its jurisdiction because in our California 
strategies, we are talking about restricting the importation of 
certain electricity across the State boundary, which is 
absolutely new, and we need to take a look at that.
    Now the Concerned Scientists. I want to pose a question 
here. There were 71 issues that you took with decisions that 
the administration had, and you feel that there was undue 
political influence on these decisions?
    Ms. Grifo. I am sorry, what are you referring to?
    Mr. Bilbray. You listed 71 different times that you felt 
there was undue political influence and some political agenda 
pushed by the administration in their decisions, in your 
testimony.
    Ms. Grifo. Seventy-one? I don't think I used the number 71.
    Mr. Bilbray. Well, there's a list on your testimony. My 
question is, in all of this, have the Concerned Scientists 
taken a position about the use of ethanol in our fuel stream 
and its environmental and health risk?
    Ms. Grifo. Sir, that is a different program at the Union of 
Concerned Scientists, and I can certainly put you in touch with 
them.
    Mr. Bilbray. Well, ma'am, let me just tell you something. I 
have 71 here that has been given to me by your testimony. There 
is----
    Ms. Grifo. Can you point what the 71 is?
    Mr. Bilbray. Page 25.
    Ms. Grifo. Oh, in the A to Z. It is actually almost 90 now, 
yes.
    Mr. Bilbray. OK, 90. In that list, I don't see ethanol and 
its environmental damage that the largest State in the Union is 
trying to outlaw, eliminate, and you guys have sort of walked 
away from it, but in the same population issue I see, you know, 
four or five issues on abortion or birth control in here. I 
have to be frank with you--as how you walk away something that 
is as much of an environmental problem as ethanol, but then 
talk about the morning-after pill, or abstinence programs as 
being your major concern.
    I will challenge you to abandon your political prepositions 
and work with us at addressing real science and threat issues. 
But this testimony here, this and what I would say was the lack 
of scientific way of approaching your so-called survey, 
wouldn't you agree that if you were doing this kind of survey, 
you would, from a scientific point of view, there is no way an 
environmental regulatory agency would accept that survey as 
being a substantive document.
    Ms. Grifo. First of all, I think the CRS did accept it as a 
substantive document. That is the thrust of what is said here, 
and each of the pieces in here--well, we can go through them 
one by one, and I am happy to talk about them.
    But the point of the A to Z guide is, if you have 
documentation of political interference in science, I would 
love to see it. Everything in the A to Z guide has primary 
documentation. If you have it, we will analyze it, and we will 
put it up there.
    Mr. Bilbray. Well, then, I would ask that over almost 20 
years a group that claims to be scientific, where do you stand 
on forcing the State of California continue to burn ethanol as 
fuel when the science says it is bad?
    Ms. Grifo. That is not the issue of this hearing, I am 
sorry.
    Chairman Waxman. Mr. Issa.
    Mr. Issa. Thank you, Mr. Chairman, and I will be brief. I 
would ask unanimous consent that the Congressional Research 
Service Report be, in fact, put into the record.
    Chairman Waxman. Without objection, that will be the order.
    [The information referred to follows:]

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    Mr. Issa. And I, for one, will take CRS's independent study 
and certainly would welcome the Union of Concerned Scientists 
to submit to us where they think that somehow it is factually 
wrong. However, I would suggest in the future that if you want 
to do a survey, do a survey, but if you want to do polling, 
that there are science practices that would allow for it.
    Really, I would just like to take this limited amount of 
time and say to Dr. McClellan, you are here--and to Mr. Raul--
you are both here on your own dime, you are both experts, and, 
historically, can you give us, briefly, in the remaining time a 
contrast between today and the period of time in which you 
served. because, quite candidly, I wasn't here during the 
Clinton administration and then a Republican majority.
    But I would like to have a contrast because I would like to 
understand, do you believe that there is somehow a rabid change 
in the way the administration works with your former agencies, 
or is it substantially the same, and we are simply seeing it 
different because we see it through different eyes?
    Mr. McClellan. Thank you for the question. I would be very 
pleased to address that.
    As I noted in my opening remarks, I have been associated 
with the EPA and its advisory structure from the beginning of 
the Agency. At the time the Agency was created, I was chair of 
a committee, which was Advisory to the U.S. Public Health 
Service. That function was brought into EPA, and thus I became 
a part of the Science Advisory Board at its beginning.
    I will have to say that controversy has been a part of the 
fabric of the EPA since its origins, and it has been a part 
since the passage of the Clean Air Act, which preceded the 
Agency. Indeed, one of the first activities I participated in 
was a visit to Research Triangle Park in the early 1970's as we 
were putting in place the first Air Quality Standards. We went 
there based on concerns that came to the surface with a 
headline story in the L.A. Times about the question of whether 
scientists were being pressured to come to a particular 
viewpoint.
    Periodically, over time we have seen these controversies. 
It is natural because you have science, and scientists are not 
without their own emotions and their own judgment. We are 
passionate about the use of our science.
    Mr. Issa. I appreciate, and----
    Mr. McClellan. I don't see a big spike.
    Mr. Issa. Thank you. And Mr. Raul, just very briefly so we 
can go to a vote, I am afraid.
    Mr. Raul. Well, I think there has not been as much change 
as it may appear, listening to only one hearing. I think 
President George W. Bush has not been a potted plant with 
respect to environmental rulemaking in his administration, nor 
have his predecessor Presidents been potted plants. President 
Clinton was very involved, President Reagan, President Carter, 
all very involved in rulemaking.
    President Reagan, of course----
    Chairman Waxman. We are going to have to----
    Mr. Raul. Sure.
    Chairman Waxman. I think if you would put the rest in for 
the record, I would very much appreciate it.
    Mr. Issa. Thank you very much, Mr. Chairman.
    Chairman Waxman. Mr. Raul, even though you assert that the 
President can direct the Administrator's decision, do you agree 
that the President must follow the law?
    Mr. Raul. Absolutely, Mr. Chairman.
    Chairman Waxman. And so when the President intervenes and 
makes a decision on the secondary--or when he intervened and 
made a decision on the secondary ozone standard, does the 
decision still have to meet the requirements of the Clean Air 
Act?
    Mr. Raul. Absolutely.
    Chairman Waxman. And the Clean Air Act requires the EPA 
Administrator to identify the level of air quality requisite to 
protect the public welfare from any known or anticipated 
adverse effects associated with the presence of such air 
pollutants in the ambient air.
    Mr. Goo, is it your position that scientific evidence 
available to the Administrator and the President that the 
secondary ozone standard was set at a level requisite to 
protect the public welfare?
    Mr. Goo. No, it is not my opinion. The unanimous 
recommendation of CASAC was that the form of the standard, not 
the 8-hour standard, the basic point here is that plants and 
foliage respond differently than human lungs do. The 8-hour 
standard was set to protect human lungs and human respiratory 
function. The secondary standard----
    Chairman Waxman. Well, whoever set that standard, whether 
it was in fact the President or the Administrator, you don't 
think it fits with the science?
    Mr. Goo. That is correct, Mr. Chairman.
    Chairman Waxman. And therefore the Clean Air Act.
    Mr. Goo. Right.
    Chairman Waxman. And, Dr. Grifo, your survey is important 
because it provides us with a big picture of political 
interference with the work of scientists at EPA. Almost 1,600 
EPA scientists filled out survey questionnaires and sent them 
to the Union of Concerned Scientists, and the cases where EPA 
political appointees had inappropriately involved themselves in 
scientific decisions, or interference with political appointees 
from other parts of the administration like the White House and 
EPA scientists, who were directed to inappropriately exclude or 
alter technical information from EPA scientific documents.
    This survey shows that there has been a serious problem of 
political interference with the EPA scientists working under 
the Bush administration. That I think is unacceptable and has 
to stop.
    I thank the four of you very much for your testimony, and 
we will keep the record open in case there are other thoughts 
you want to submit to us for the record, or questions that 
Members may seek to ask.
    That concludes our hearing. We stand adjourned.
    [Whereupon, at 4:58 p.m., the committee was adjourned.]

                                 
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