[Senate Hearing 110-1267]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 110-1267
 
                   BUSH ADMINISTRATION ENVIRONMENTAL
                    RECORD AT DEPARTMENT OF INTERIOR
                  AND ENVIRONMENTAL PROTECTION AGENCY

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 24, 2008

                               __________

  Printed for the use of the Committee on Environment and Public Works
  
  
 [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]



      Available via the World Wide Web: http://www.access.gpo.gov/
                            congress.senate

                               __________
                               
                               
                               
                        U.S. GOVERNMENT PUBLISHING OFFICE
88-912 PDF                  WASHINGTON : 2015                        

___________________________________________________________________________________            
For sale by the Superintendent of Documents, U.S. Government Publishing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). 
E-mail, [email protected].  
             
               
               
               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED TENTH CONGRESS
                             SECOND SESSION

                  BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana                  JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut     JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
HILLARY RODHAM CLINTON, New York     JOHNNY ISAKSON, Georgia
FRANK R. LAUTENBERG, New Jersey      DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland         JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont             LARRY E. CRAIG, Idaho
AMY KLOBUCHAR, Minnesota             LAMAR ALEXANDER, Tennessee
SHELDON WHITEHOUSE, Rhode Island     CHRISTOPHER S. BOND, Missouri

       Bettina Poirier, Majority Staff Director and Chief Counsel
                Andrew Wheeler, Minority Staff Director
                            C O N T E N T S

                              ----------                              
                                                                   Page

                           SEPTEMBER 24, 2008
                           OPENING STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from the State of California...     1
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode 
  Island.........................................................     4
Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland     5
Baucus, Hon. Max, U.S. Senator from the State of Montana.........    20
Klobuchar, Hon. Amy, U.S. Senator from the State of Minnesota....    68

                               WITNESSES

Pope, Carl, Executive Director, Sierra Club......................     9
    Prepared statement...........................................    12
Clark, Jamie Rappaport, Executive Vice President, Defenders of 
  Wildlife.......................................................    22
    Prepared statement...........................................    25
Ball, Reverend Jim, President and CEO, Evangelical Environmental 
  Network........................................................    33
    Prepared statement...........................................    35
Schaeffer, Alan, Executive Director, Diesel Technology Forum.....    51
    Prepared statement...........................................    54

                          ADDITIONAL MATERIAL

Statement of Norman D. James, Attorney, Fennemore Craig, Phoenix, 
  AZ.............................................................    75


BUSH ADMINISTRATION ENVIRONMENTAL RECORD AT DEPARTMENT OF INTERIOR AND 
                    ENVIRONMENTAL PROTECTION AGENCY

                              ----------                              


                     WEDNESDAY, SEPTEMBER 24, 2008

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The full committee met, pursuant to notice, at 2:34 p.m. in 
room 406, Dirksen Senate Office Building, Hon. Barbara Boxer 
(chairman of the full committee) presiding.
    Present: Senators Boxer, Baucus, Cardin, Klobuchar, and 
Whitehouse.

           OPENING STATEMENT OF HON. BARBARA BOXER, 
           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. The hearing will come to order.
    I want to welcome everybody here to this beautiful room 
where so many wonderful laws have been written, and we want to 
write some more good ones. We do our oversight as best we can 
in this room.
    Today's hearing is the Bush administration's Environmental 
Record at the Department of Interior and at the EPA. Our first 
panel is set to be Robert Meyers, Principal Deputy Assistant 
Administrator, Office of Air and Radiation, U.S. EPA, and Lyle 
Laverty, the Assistant Secretary for Fish and Wildlife, 
Department of the Interior.
    And then we have panel two, who I will introduce after 
that.
    So the purpose of this hearing is to examine the Bush 
administration's record on important public health and 
environmental matters. Unfortunately, instead of reviewing 
accomplishments, we look back on years filled with 
environmental rollbacks that serve the special interests and 
not the American people.
    Today, this Committee will shine a light on the Bush 
administration's efforts to undermine EPA's and the Department 
of Interior's mission to protect public health and the 
environment. A clear picture of the Bush administration's 
environmental record can provide a road map for the next 
Administration and the Congress which will be useful in the 
effort to reverse these dangerous decisions.
    This Committee is going to work up until the last minute of 
this session. Time and time again, the White House has 
interfered in EPA decisions that should be based on science and 
the law. Time and time again, EPA has ignored the law and the 
advice of its own scientific experts.
    Let's take a look at a few examples of this disturbing 
record. One, in one of its first official acts, the Bush EPA 
announced it was suspending the newly strengthened standard for 
arsenic--I am sorry, we have to get ourselves in gear. To we 
have a chart for arsenic? OK.
    In one of its first official acts, the Bush EPA announced 
it was suspending the newly strengthened standard for arsenic 
in tap water. It was a public outcry, and we blocked them. I 
remember, just to catch their attention, I sent the movie 
Arsenic and Old Lace over to the White House to make a point 
that this was in fact a dangerous substance.
    Then EPA proposed to do what it called the CHEERS study 
jointly with the chemical industry in which low-income families 
were offered gifts and other incentives if they agreed to 
enroll their newborn children in pesticide studies in their 
homes over a 2-year period. There would be videos taken of 
these children crawling around in pesticides. There was a great 
outcry and EPA canceled the study.
    Senator, would you join me up here? I would really 
appreciate it. Senator Baucus is probably coming, but if you 
could just sit in Senator Carper's chair. Senator Carper's 
chair, you think? Is Senator Carper coming? Senator Carper's 
chair.
    Senator Whitehouse. I will upgrade and become Senator 
Carper.
    [Laughter.]
    Senator Boxer. I was just going through the EPA record, 
starting off with before you were here, one of the first things 
they did is try to weaken the arsenic standard in drinking 
water. And then the CHEERS study, where, as you may remember 
reading about at this time, we had a great outcry because this 
was low-income families. They were getting paid off to put 
their kids in a dangerous study.
    And now we recently saw they tried to revive this idea, but 
after meeting with my staff, they couldn't answer any of the 
ethical questions, and they retreated from that study.
    EPA set a weaker clean air standard for toxic soot than its 
independent scientific advisers, children's health advisers, 
and its own scientists recommended. Soot kills thousands of 
Americans every year. I think we have to keep reminding people 
of this. Soot kills thousands of Americans every year, 
especially children and the elderly.
    Next, EPA rejected the advice of its own scientists, 
scientific advisers, and children's health experts and set a 
weaker health standard for smog than the scientists 
recommended. Smog poses a serious health risk to millions of 
people, killing thousands of people each and every year.
    Next, EPA set a weaker standard for lead pollution in air, 
and for lead paint cleanup than its independent scientific 
advisers recommended. As we all know, lead is highly toxic to 
kids and can reduce IQ and can cause learning and behavioral 
problems and can damage children's developing brains.
    The courts, including Bush-appointed judges, have 
repeatedly struck down EPA's rules that weaken public health 
protections. Judges have used strong language to express their 
frustration with EPA's failure to comply, saying for example, 
``only in a Humpty-Dumpty world would EPA's explanations make 
sense'' or that, quote, ``EPA employs the logic of the Queen of 
Hearts in Lewis Carroll's classic Alice in Wonderland.'' These 
are the words of the courts, the words of the courts.
    According to a recent GAO report prepared at my request, 
EPA political officials worked with the White House and the 
Pentagon to undermine the process for evaluating toxic chemical 
risks. The Bush administration's system puts polluting agencies 
like DOD in the diver's seat, with an ability to secretly stop 
or weaken EPA actions to control toxic chemicals like 
perchlorate, TCE, and other pollutants.
    Ben, could you sit in Senator Lieberman's seat?
    Next--and I want to just talk about perchlorate for a 
minute. Perchlorate is this dangerous toxin that interferes 
with the thyroid. It means that it interferes with our ability 
to produce hormones. It damages the brain and it damages the 
nervous system. Now, perchlorate is in 35 States in many, many 
sites--35 States. It is everywhere. We have some leaks that 
show us that in fact the EPA is going to walk away from setting 
a standard for perchlorate, which the scientists tell us must 
be set at between one and six parts-per billion.
    It is shocking, and there was actually a big story in The 
Washington Post about this, but they are not doing anything 
about these chemicals.
    EPA has severely weakened its office of Children's Health 
Protection and ignored its Children's Health Advisory 
Committee, as we learned from GAO last week. GAO did a study 
and they said EPA is not paying attention.
    EPA's record on global warming could not be worse. Despite 
the President's campaign to regulate carbon, the White House 
reversed course and rejected actions to control global warming 
pollution. It literally took an order from the court, the U.S. 
Supreme Court in Massachusetts v. EPA to force EPA to begin to 
address the problem. Even then, the White House blocked EPA 
from issuing its proposed ``endangerment finding'' under the 
Clean Air Act, which would have given the green light to action 
on global warming.
    The Bush administration denied the California waiver, and I 
want to publicly thank Senator Whitehouse for his intense and 
unrelenting questions yesterday of an EPA witness. Mr. Johnson 
has not been here for 6 months. Yesterday, he sent someone 
else, and that individual actually contradicted Mr. Johnson's 
testimony that he had given about the waiver. We know that 
waiver is crucial to our State so that they can move forward. 
We also know that it is the first time a waiver has been denied 
in 40 times. Forty times we have gotten these waivers.
    EPA has slowed its Superfund program--this is another 
issue--to a crawl. Over the last 7 years, the pace of cleanups 
has dropped by 50 percent compared to the last 7 years of the 
prior administration. The cleanups have fallen from 80 to 40.
    And getting back to perchlorate, they are not going to set 
a standard. I wanted to say that because I know Carl Pope just 
came in, and he has worked so hard on this. EPA data shows that 
16.6 million people are exposed to unsafe levels of 
perchlorate. And we know how risky it is to kids. It disrupts 
their normal development.
    Now, on occasion, EPA has taken a positive step, including 
the issuance of cleanup orders to the DOD, although the DOD is 
not complying in many of these cases, which we found out. 
Senator Cardin, I want to thank him for his intensive questions 
about Fort Meade.
    Now, on the Department of the Interior side, we don't get 
to interact with them that much, but where we do interact with 
them is on the Endangered Species Act, and they have proposed a 
terrible proposal to dramatically weaken the rules under the 
EPA--another 11th hour attempt to undermine environmental 
protections.
    The Endangered Species Act is one of America's most 
successful environmental laws. Indeed, just last year the Fish 
and Wildlife Service removed the bald eagle, the very symbol of 
our Country, that was saved because of this Act. The Bush 
administration has proposed to rewrite the rules so that most 
expert agencies will not be involved anymore.
    So here is where we stand, colleagues. We had been told 
that Robert Meyers, Principal Deputy Assistant Administrator of 
the Office of Air and Radiation at EPA would be here for our 
first panel, along with Lyle Laverty, Assistant Secretary for 
Fish and Wildlife, Department of the Interior. They are not 
showing up for this hearing. They are not showing up.
    We will leave their cards there in case they do show up, 
but I have never seen anything like what we are getting from 
this Administration. Johnson has been in hiding since March, 
and now they won't even send people because they don't want to 
face up to the tough questions we have for them. And you know 
what? They are cowardly and they have been a danger to the 
people of this Country. That is it.
    Now, if those words don't get them here, I don't know what 
else will.
    And so I turn to Senator Whitehouse first, and then Senator 
Cardin.

         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 
          U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. Thank you, Chairman. Thank you very 
much for your relentlessness in this pursuit and your passion 
to make sure that this is an agency that accomplishes its 
mission of protecting the people of this Country.
    I think what I will do is ask unanimous consent that the 
documents that I assembled, with your assistance and with the 
assistance of your staff, that supported my call for 
Administrator Johnson's resignation, and that I put into the 
Senate record in the speech to that effect on the Senate floor, 
be made a part of the record of this proceeding.
    Senator Boxer. Is there objection? Hearing none, so 
ordered.
    [The referenced documents were not received at time of 
print.]
    Senator Whitehouse. I would also point out we had an 
interesting hearing in the Judiciary Committee not long ago, 
and the Director of the FBI, Bob Mueller, came. I spoke at some 
length to compliment him on the way he handled the pressure 
that was put on him by the White House with regard to the 
President's program to wiretap Americans without a warrant, and 
how he stood by his guns through all of that. I don't think he 
wanted to cross the President. I don't think that was his 
intention.
    But what he did recognize and what Deputy Attorney General 
Comie recognized and what I think Principal Assistant Deputy 
Attorney General Patrick Philbin recognized is that even in the 
executive branch, when you take on certain public offices, you 
also take on certain public duties. The oath you take and the 
dignity and honor of the office that you assume binds you, 
honor bound, to the accomplishment of those duties.
    If the President wants you to do something different, you 
simply cannot do it. You have to stand up to him and say, I 
can't do that; if you insist on that being done, you will have 
to find somebody else to do it. It is not consistent with the 
responsibilities of this office.
    And it strikes at the heart of this phony I think largely 
corrupt unitary executive theory that has been the intellectual 
cover by which the White House has made an effort to 
essentially cow all executive agencies and bend them to their 
political will.
    Setting aside the immediate health issues, as important as 
they are today, something very bad happens in America when the 
entire executive branch turns its eyes away from the duties and 
responsibilities that people are sworn to uphold based on their 
office, and instead look only for political direction from the 
White House, and are willing to do anything, say anything that 
obliges them, even if the repayment for being a toady is 
nothing more than rides on Air Force One or having your wife 
have tea with the First Lady at the White House, or whatever it 
is that causes you to--whatever your price is for having sold 
out the duties of your office.
    Unfortunately, I think we will look back for many, many 
years at this episode, what happened at EPA and what happened 
at Interior. It is not just wrong substantively in terms of the 
protection of our people's health and our Country's natural 
resources. It is wrong at the very heart of the checks and 
balances that make America the Country that we are.
    I think frankly it is disgraceful. I can understand why 
they are not here. I would be ashamed to come and defend myself 
here if I were in their shoes, but there has been a lot at 
stake. And your persistence and your relentlessness in keeping 
the focus on it I think is something that people will look back 
20, 40, 60, 100 years from now and note as they look at bright 
spots in these dark days of misrule.
    Senator Boxer. Thank you so much.
    Senator Cardin.

         OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, 
            U.S. SENATOR FROM THE STATE OF MARYLAND

    Senator Cardin. Thank you, Madam Chair. This is a sad day 
for the Environmental Protection Agency. It is a sad day for 
our Nation in that the representatives would not appear before 
the Congress in order to review with us the status of 
environmental efforts to protect public health. It is a tragic 
day.
    Let me, Madam Chair, compliment you. You know, we can have 
as many hearings and we can pass as many laws as we want, and 
you can't change the attitude of this government as it relates 
to the importance of protecting public health through our 
environment and leaving our planet in better condition than we 
found it. You just can't do that. You are not going to change 
their record, unfortunately.
    But you have put a spotlight on this. You have put sunshine 
onto what they have done, and the American people now 
understand exactly what has happened over these last 8 years. I 
thank you for doing that because I think this record needs to 
be told.
    We shouldn't be, I guess, surprised the witnesses aren't 
here. We know that this Administration has prevented the 
release of scientific information that should have been 
released. They have failed to follow the expert advice of their 
own career people. They have done that over and over again. So 
it is not a surprise that they would not want to be confronted 
by questioning by this Committee.
    I asked my staff in preparation for today's hearing to 
outline for me the areas of concern and accomplishment by the 
Bush administration as it relates to protecting our 
environment. And Madam Chairman, I got a long list of concerns. 
I will just mention a few. It is a little bit too long. But I 
said, look, go back and find me something positive, and they 
did. They found one, so let me say there was one good thing 
that we found, and that is the national monument designation of 
the Northwest Owyhee owls. Congratulations on that.
    But it is overshadowed by this long list, long list. We 
know how many hearings we have had on greenhouse gases, and we 
know just recently, the hearing this past week. The people of 
Maryland understand how much more we are at risk because of sea 
level changes. And this Administration is not even following 
the order of the Supreme Court in moving promptly to determine 
the regulations of greenhouse gases.
    The California waiver is outrageous, Madam Chair. That is 
just outrageous. My own State of Maryland wanted to follow the 
California model. There have been two models in the Country: 
the minimum model established by the Federal Government and the 
California waiver. That is how we have done things in the past. 
Against the advice of their own department, against the law, 
they said no, the lead in the air which is affecting people in 
my own State, they refused to take the appropriate actions. The 
Endangered Species Act, you mentioned several times they have 
been forced to move forward because of court litigation. The 
quality of our drinking water, they have ignored.
    You mentioned the cleanup. Well, let me tell you, you are 
right. EPA issued orders. DOD didn't follow it. The bottom line 
is, we don't have action, and the people that live around Fort 
Meade are suffering as a result of contamination of the water 
supply because of the failure of the Department of Defense to 
clean up the hazardous waste sites. And we have the same risk 
now at Fort Detrick in my State of Maryland. The shore 
infrastructure funds. Look at what they have been doing trying 
to prevent the water quality there.
    And then, let me just mention budgets, and I will be 
parochial. I will talk about the Chesapeake Bay. It is not the 
first and not the last time I will be talking about the 
Chesapeake Bay in this Committee. But this Administration has 
failed to adequately fund the programs that are essential to 
the Chesapeake Bay. The EPA program office, the Clean Water 
Revolving Fund, the NOAA Chesapeake Program Office, the Army 
Corps of Oyster Recovery, the USGS budget for analysis of 
pharmaceuticals in the Potomac River, the Forest Service's 
Chesapeake Forest Program, and then most recently, Madam 
Chairman, the Chesapeake Bay Watershed Program authorized in 
the farm bill they wanted to zero out.
    I just want to thank not just the work of this Committee, 
which has been critical, but the work of the Congress in 
restoring much of those funds. Thank goodness we have done that 
here because Senator Whitehouse is correct. The challenges for 
the next Administration are going to be so much more difficult 
because of the record of this Administration.
    This Congress has tried to be constructive. It is difficult 
in working with this Administration. I do look forward to the 
next Administration in forging the type of environmental 
programs that will make us proud. Our work will be more 
difficult, but I do look forward to restoring and correcting a 
lot of the damage that has been caused by the policies of this 
Administration.
    [The prepared statement of Senator Cardin follows:]

          Statement of Hon. Benjamin L. Cardin, U.S. Senator 
                       from the State of Maryland

    Madame Chairman, thank you for holding this hearing today.
    President Bush's 2006 decision to establish a vast portion 
of the Northwestern Hawaiian Islands as a National Monument 
covering 1,200 nautical miles, an area larger than 46 of the 50 
states, is an extraordinary accomplishment. I applaud the 
Administration's action. It is a legacy he can be proud of.
    Unfortunately, the remaining record of the Bush 
administration is abysmal.
    On Climate Change, the Administration has consistently 
tried to limit the amount of scientific data released, inserted 
political opinions for scientific findings, and ignored 
requirements to deal with the climate change issue
    On its bedrock statutes regarding clean air and clean 
water, EPA has issued a number of controversial rules and 
regulations, often at odds with the recommendations of its own 
scientists. A number of the actions have been challenged 
successfully in the courts.

     EPA rejected the recommendations of its scientific 
advisors by setting a new Smog Standard which is less 
protective of health than the level recommended by its 
advisors.
     Earlier this year the U.S. Circuit Court of Appeals for 
the District of Columbia ruled unanimously that the EPA's rules 
for air emissions from power plants failed to comply with 
protective safeguards in the Clean Air Act that require strong 
and timely protection of public health from mercury emissions.
     The Bush administration announced a proposal to establish 
new limits on the amount of lead allowed to be in the air which 
ignored the recommendations of EPA scientists.

    It is not just regulatory programs that have gone astray. 
The Administration's budget requests for environmental programs 
are also taking us in the wrong direction.
    Sewer Infrastructure. A 2004 report from the EPA estimated 
that the lack of adequate sewer infrastructure was partly 
responsible for the estimated 850 billions of gallons of storm 
water that contaminated sewage that enters U.S. waters each 
year. This year's Bush administration's budget request for 
wastewater (the Clean Water State Revolving Fund) is more than 
50 percent lower than when he took office.
    Drinking Water. The Bush administration has not required 
any testing or set safety limits for drugs in water despite the 
fact that the Safe Drinking Water Act and the Food Quality 
Protection Act direct the EPA to address the problem of 
chemicals and their impact on the body. This year the 
Administration proposed cutting the water quality programs at 
the United States Geological Survey, which provided the key 
monitoring data showing the drug contamination.
    Refusing to collect scientific data is the opposite of 
safeguarding our drinking water, and it is unacceptable.


                   natural resources and public lands


    The Bush Record on natural resource lands has generally 
been one of neglect. The greater harm, however, has come from 
an effort to limit the reach of the Endangered Species Act.
    Mr. Laverty's predecessor was forced to step down in 
disgrace because of the way she inserted political ideology 
into the Fish and Wildlife Service's work, overruling staff 
scientists and ignoring the law. The Bush administration's 
Endangered Species Act proposal attempts to take the scientists 
out of the equation.


       the record in maryland is no better than it is nationally.


    Climate Change: With sea level rise well documented and 
rising water temperature killing off key underwater grass 
species, the Chesapeake Bay is already experiencing serious 
affects from global warming. The Administration's failure to 
address the problem has exacerbated the problem.
    And because greenhouse gases persist in the atmosphere for 
decades, failure to act over the last seven-plus years means 
significantly deeper and swifter reductions will be needed to 
address the threats in the future.
    California Waiver: Maryland is one of 18 states seeking to 
join California in its ability to regulate mobile sources of 
greenhouse gas emissions.
    Chesapeake Bay: In addition to the failure to act on 
climate change issues, the Administration has failed to 
adequately fund a variety of well-established programs ranging 
from the

     EPA Program Office,
     the Clean Water SRF,
     NOAA's Chesapeake Bay Program Office,
     the Army Corps of oyster recovery program,
     USGS's budget for analysis of pharmaceuticals in the 
Potomac River,
     the Forest Service's Chesapeake Forests program, and most 
recently,
     the Chesapeake Bay Watershed Program authorized in the 
Farm Bill.

    We don't have the time to detail all the ways this 
Administration has

     undercut public health safety,
     ignored threats to our health and our environment, and
     undermined scientific integrity.

    I hope we will focus on a few of the major problems and 
point out areas where the next Administration needs to right 
some fundamental missteps.

    Senator Boxer. I want to thank both my colleagues.
    So just to clear up the record, I want to place a couple of 
documents in the record. I don't know if my colleagues are 
aware, you probably are, but I will remind you because it was 
in the back of my mind. I remember when Stephen Johnson, his 
nomination was pending, and he came up here, and it was 
Chairman Inhofe at the time. And Chairman Inhofe said, before 
we have opening statements, I would like to have you respond to 
a required question of this Committee, if you would please; 
would you please stand: Are you willing to appear at the 
request of any duly constituted Committee of Congress as a 
witness? And each nominee nodded in the affirmative, including 
Mr. Johnson.
    Now, he hasn't been here in 6 months, so he did not tell 
the truth to this Committee when he said he would.
    And then also Mr. Laverty, nameplate over there, and I said 
to him, Robert--because his name is Robert Lyle, I called him 
Robert--Robert, I will ask you the same; are you willing to 
appear at the request of any duly constituted Committee of 
Congress as a witness? Yes, ma'am, I am.
    He didn't tell the truth either. He is not here.
    This is serious stuff. When you don't show up at a hearing 
that is duly constituted, you are not fulfilling your 
constitutional responsibility. And when you don't show up for 6 
months, it seems to me, you committed perjury when you answered 
this question in the affirmative. And then you don't even send 
anyone?
    I think after Senator Whitehouse did his questioning 
yesterday, maybe that is why. They didn't want to send anybody 
else, Senator.
    Let me tell you what they told us. This is what they told 
us. EPA's senior staff told my senior staff that they are not 
here because they didn't want to be questioned on the issues 
raised in yesterday's hearing about the waiver and other things 
we questioned them about. Interior said they couldn't get their 
testimony cleared.
    What Country are we in? So this is a sad moment. It is 
unbelievable, but it is not new for us. We haven't been able to 
get the head of the EPA here in 6 months. He has a lot of time 
on his hands. He is traveling around the world, I read, and 
going to--what did he do last week? He went on a river boat 
trip and we hear he is going to Israel and Jordan, Australia.
    OK. We do have a panel that did show up, and I dare say it 
was a lot harder for some of you to get her than for Mr. 
Johnson to come a few blocks.
    So if you would come and join us: Carl Pope, the Executive 
Director of the Sierra Club; Jamie Rappaport Clark, Executive 
Vice President, Defenders of Wildlife; Reverend Jim Ball, 
Ph.D., President and CEO, Evangelical Environmental Network; 
Alan Schaffer, Executive Director, Diesel Technology Forum; and 
Norman James, Director, Fennemore and Craig.
    OK. Well, Mr. Schaffer, you are the only minority witness 
who showed up, and we want to welcome you. We are glad you are 
here and we are interested to hear what you have to say. And 
Mr. Jones hasn't come either. So.
    So we are going to just go down the row here. We are taking 
a look-back. The reason we are taking a look-back is we need to 
know how much work we have to do in the next Congress and the 
next Administration. So I think there is so much we have to 
undo that we thought we would get started early and start our 
list.
    You know how at home we have a to-do list? We put it up on 
the refrigerator. My to-do list looks a little different than a 
lot of others because we have so much that we have to do.
    So let's start off with Carl Pope, Executive Director, 
Sierra Club. Let's say 7 minutes each, and make sure you put 
your mic on.

               STATEMENT OF CARL POPE, EXECUTIVE 
                     DIRECTOR, SIERRA CLUB

    Mr. Pope. Sorry, thank you.
    Madam Chair, Senator Inhofe, members of the Committee, I am 
Carl Pope and I am the Executive Director of the Sierra Club.
    Looking back, I think the fundamental lesson of the last 8 
years is that James Madison wrought well. In the environmental 
arena, the executive dictatorship which the Vice President 
attempted to erect on the foundation of a hyper-partisan 
parliamentary Congress was, I am happy to report, repeatedly 
and consistently thwarted by the checks and balances built into 
our system.
    Let's begin with EPA, which I think can best be described 
at this moment as a pile of judicial smithereens.
    Senator Boxer. Go ahead. You can all look at your 
BlackBerrys when you are done.
    Mr. Pope. Over at EPA, if you were to pick up the Code of 
Federal Regulations in 2 years and examine it, you would be 
hard-pressed to know that this Administration ever existed. 
Virtually the entire regulatory edifice of clean air policy, 
which this Administration attempted to erect, has been 
dismissed by a combination of the courts, the Congress and 
vigorous State action. In its place, for the first time in 
American history, a vigorous State-based policy of clean air 
protection has been put in place.
    The courts threw out the Bush administration's mercury 
rules, its interState transportation policy. They blocked its 
efforts to repeal the new source review requirements. And 
during the period when the mercury rule was on the books, more 
than 20 States rejected its permissive emission limits and 
adopted much more effective rules of their own.
    When EPA said that carbon dioxide was not a pollutant, the 
Supreme Court disagreed and said it must be regulated under the 
Clean Air Act. When this Administration refused to comply, 
States all over the Country began moving on their own, first 
REGI, then the Western Governors Initiative, now the Midwestern 
Clean Air Alliance.
    California after this Administration for years sat by while 
oil imports increased and global warming got worse and the 
price of gas rose and American motorists suffered, refused to 
set tougher fuel economy standards. California acted, 14 States 
have now followed it; when EPA and the auto industry tried to 
prevent this, once again, the courts refused to go along, and 
while the needed waiver has not indeed been issued, it is in 
the courts where I am certain when the issue is adjudicated it 
will be issued. And perhaps more important, both candidates for 
President of the United States have pledged that if elected, 
they will immediately grant the waiver.
    In fact, and this has not been commented on, but it is a 
remarkable fact that in the last 3 years, in the face of an 
Administration which we all know has done everything it could 
to slow action on global warming, the United States and its 
States have put in place regulatory changes which will reduce 
the long-term carbon dioxide emission rate of this economy by 9 
percent. More than 900 million metric tons of CO2, which were 
projected 3 years ago to be part of our business-as-usual 
inventory, will not happen. This estimate is very conservative. 
It does not, for example, include a very important decision 
made this weekend by the body which sets emission standards for 
all of the Nation, to raise the fuel efficiency requirement for 
all new homes and offices by between 15 percent and 20 percent.
    So EPA may not have acted. America has acted.
    Let's look at the public health. Consistently, repeatedly, 
time and time again, EPA has ignored the recommendations of its 
own scientific advisers. At one point on the particulate rule, 
EPA even promulgated the interesting scientific notion that the 
lungs of rural Americans were better able to handle the abuses 
of pollution than the lungs of urban Americans. The Bush 
administration was nothing if not fair. They were very willing 
to savage their own supporters.
    But if you look actually at what has happened in terms of 
State regulation of clean air, the States have been moving 
forward. We have actually made tremendous progress in the last 
5 years in spite of the lack of executive leadership.
    On clean water, a similar story. The Administration wanted 
to permit raw sewage to be dumped into drinking water. Congress 
sent them packing. The Administration wanted to issue 
regulations that would have permanently exempted 60 percent of 
the Nation's waterways from Clean Water Act protection. 
Republican hunting and fishing groups scared them off in 2004. 
When Florida ignored the requirement that it regulate toxic 
pollution, the courts required it to act.
    So the good news is that little of the Bush 
administration's affirmative environmental agenda survived. But 
the bad news is that checks and balances don't work very well 
to get routine maintenance done. They don't work very well to 
get the Nation to pay its bills. They don't work very well to 
maintain the integrity of governmental processes of the science 
of the Federal Government, of the measuring of the Federal 
Government, or the bookkeeping of the Federal Government.
    And where we have an enormous problem inherited from this 
Administration is in the loss of governmental capacity, 
scientific integrity, the fact that we have a huge amount of 
undone routine maintenance, whether it is the national parks, 
our Nation's sewage system, clean water, clean air monitoring. 
The fact is the next Administration will inherit a Federal 
Government information process which has been fundamentally 
broken and which James Madison's checks and balances were 
inadequate to resolve.
    At the end of the day, there are tasks, Madam Chair, for 
which executive leadership is important. I was asked recently 
whether I thought we needed new leadership on the environment 
in the White House. I was forced to respond, that question 
suggests that we have leadership today.
    Thank you very much.
    [The prepared statement of Mr. Pope follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Senator Boxer. Well, that sure says it.
    Senator Baucus, I want to take a minute here before we go 
to our next witness to fill you in what has been happening.
    We had planned this a very long time ago, and we had 
received word that we were going to have two witnesses, Robert 
Meyers, Principal Deputy Assistant Administrator from the EPA, 
and Lyle Laverty, Assistant Secretary for Fish and Wildlife. 
Neither of them have shown up. They told us, one said they 
didn't want to--where is my quote. They called and said they 
are not here, the EPA, because they didn't want to be 
questioned on the issues raised at yesterday's hearing, in 
which Senator Whitehouse pretty well asked a lot of hard 
questions on the waiver, and we had other questions. And 
Interior said they couldn't get their testimony cleared.
    Now, I have never seen anything like this. I went back to 
essentially the oath they took. They were asked would they--you 
know how we always ask nominees will you always come when you 
are asked. This makes 6 months since Mr. Johnson has been here. 
I know you have a very important hearing on Libby here. So I 
wanted to give you the sense of what is going on.
    We will go to your opening statement at this time, and then 
we will resume the hearing with Ms. Clark. So please go ahead.

             OPENING STATEMENT OF HON. MAX BAUCUS, 
             U.S. SENATOR FROM THE STATE OF MONTANA

    Senator Baucus. Well, thank you, Madam Chair. I am very 
disappointed that the Administration has taken that course of 
action.
    Clearly, when agencies cooperate and attend, there is a 
much better result for the public good.
    Senator Boxer. Of course.
    Senator Baucus. Because at the very least, it enables the 
relevant agency to come up with ways to make, to improve upon 
something they perhaps not have done or should have done in the 
past. To stonewall causes the public to have even less 
confidence in government. All of us are public servants. The 
American public are our employers, who we work for. We are just 
the hired hands. We are just employees, whether it is us in the 
Senate or whether it is the people who work at EPA, OMB, the 
Administration or what not, because people have entrusted us 
with making decisions that affect their lives. I am just very 
disappointed, to say the least, the EPA has chosen that course 
of action.
    I thank you, though, for holding this hearing because it is 
important. Accountability is one of the hallmarks of good 
government, and oversight hearings I think are extremely 
important in the interests of good government. I have been 
increasingly disappointed over the last 8 years that sound 
science and public health are waning at the EPA.
    Protecting people and the environment is the mission of the 
EPA. It should be the most important consideration in whatever 
EPA does, whether it is writing regulations or cleaning up a 
Superfund site. When EPA strays from its mission in order to 
promote special interests or to cut costs, people get hurt.
    There is no better example of this than the situation at 
Libby, Montana. You have heard me talk many times about the 
tragic circumstances of Libby. Libby, Montana is a town plagued 
by decades of asbestos contamination. Hundreds have died, died 
of asbestos-related disease, and many hundreds more are sick 
and dying.
    Tomorrow, this Committee will hold an important hearing on 
the failure of EPA to keep public health as the most important 
goal during the cleanup of Libby. Madam Chairman, I thank you 
for holding the hearing tomorrow and for allowing me to chair 
that hearing. This hearing highlights the concerns about the 
Bush administration's environmental record and EPA's conduct 
with respect to Libby. The hearing tomorrow is another example 
of the topic discussed here today.
    My staff and the Committee staff have conducted an 
extensive investigation of EPA's handling of Libby, Montana and 
its failure to declare it a public health emergency. This is a 
relevant topic for today's hearing. I would like to ask consent 
to enter some of the documents uncovered during the 
investigation in the record today. I have them with me. Madam 
Chairman, these are some of the documents we have uncovered, 
and believe me, they are alarming. Let me read them.
    Senator Boxer. Without objection, they will go into the 
record.
    Senator Baucus. I thank you, and I thank the Chair again 
for allowing me to speak today, and also for chairing the 
hearing tomorrow, having the hearing tomorrow. It is not only 
tragic, it is stunning in its scope of what EPA has not done, 
particularly in conjunction with OMB.
    In fact, in many respects the EPA was for a while on the 
right track. This was a few years ago, around 2001 and 2002. 
And then something happened, and the something that happened is 
that the White House just put the kibosh on EPA's actions to 
not only cleanup Libby, but to declare a public health 
emergency. And then the staff all recommended strongly that EPA 
declare a public health emergency. And even Christine Todd 
Whitman, when she was then Administrator, so agreed. But then 
the White House intervened and said no, and they said no 
because they did not want to pay the cost of cleaning up 
asbestos in Libby and also paying the cost of cleaning up 
asbestos products in other parts of the Country, products that 
were manufactured with asbestos in Libby, Montana. The company 
is W.R. Grace. W.R. Grace is worse than reprehensible in its 
conduct here.
    But anyway, the point is tomorrow to get this out on the 
record so the public knows what happened. Hopefully, it will 
lead to a result where we do get this problem addressed, with a 
public health emergency declared so that asbestos products are 
addressed in attic insulation, other installations with 
asbestos products can be removed, not just in homes in Libby, 
Montana, but also in other parts of the Country.
    So thank you very much.
    Senator Boxer. Senator, I just want to say I know you have 
such a burden on your shoulders with your work here, but you 
have carried this Libby, Montana issue. I have watched you, you 
know, seriously fight and fight and fight for justice. I just 
want you to know, as Chair of this Committee, that I am so 
proud to have you on this Committee and to have your voice 
because, you know, there are certain things in life where there 
is right and there is wrong. It is just so obvious.
    And people sometimes say, well, why would the 
Administration not do the right thing? Well, I think you 
pointed it out. Either they don't want to spend the money or 
the special interests are behind it, and they don't want any 
action. We just found out that in perchlorate--you know, that 
terrible toxic chemical that interrupts the thyroid and harms 
kids and damages their brain--we just found out that EPA is not 
going to set a standard.
    Now, their own scientists have told them you must set a 
stand between one and six parts per billion. There are 35 
States that suffer from this toxin. And kids are suffering 
brain damage. This is extraordinary, and they are walking away 
from it.
    So there is a pattern here, and that is the purpose of this 
hearing is, and your continuing it tomorrow, is to step back 
and look at all the work we have to do just to repair the 
damage that was done these past 8 years.
    Senator Baucus. Thank you very much.
    Senator Boxer. Thank you.
    All right, Ms. Clark.

 STATEMENT OF JAMIE RAPPAPORT CLARK, EXECUTIVE VICE PRESIDENT, 
                     DEFENDERS OF WILDLIFE

    Ms. Clark. Thank you, Madam Chair. I am happy to be here 
today. Members of the Committee, I am Jamie Rappaport Clark. I 
am the Executive Vice President of Defenders of Wildlife. I do 
appreciate the opportunity to testify today.
    I have to say when I was first told, as soon as I got here, 
about the Administration not coming to testify, I was 
dumbfounded, to say the least. I am glad I was given a heads 
up, because having a long career in the Federal Government as a 
wildlife biologist before accepting a Presidential appointment 
as Director of the Fish and Wildlife Service in the last 
Administration, it never dawned on me that you could actually 
say no, that you wouldn't come. Or it never dawned on me that I 
wouldn't come when asked to explain decisions made by our 
agency or by the executive branch. So that is quite surprising. 
I can assure you that coming up here to explain ourselves 
wasn't always comfortable.
    I would, however, like to draw a fairly bright line between 
those who have refused to testify and those former career 
colleagues that have worked incredibly hard and quite doggedly 
over these last 8 years to protect wildlife and special places. 
I think they have done us all proud.
    Over the past 25-plus years, I have seen the Endangered 
Species Act and how it works from a variety of different 
perspectives, both inside and outside of government. Based on 
this experience, I can say that during these last 8 years, the 
Administration has largely abandoned our longstanding 
bipartisan commitment to protect endangered and threatened 
species and their habitat.
    It has slowly starved ESA programs of critical resources. 
It has slow-walked the protection of endangered and threatened 
species by listing fewer than in any previous 8-year period. 
The Administration, as the Interior Department's Inspector 
General and Government Accountability Office has found, has 
repeatedly politically interfered with the science supporting 
endangered species decisions.
    You will recall 18 months ago after documents were leaked 
to the press, the Administration denied outright, they denied 
that it was considering a massive rewrite of ESA through 
regulation changes. But the proposals published last month 
certainly demonstrate that it never really did abandon efforts 
to undermine and weaken the ESA.
    The section seven consultation requirements are the heart 
of protections of the Endangered Species Act, but the 
Administration is now proposing to allow any Federal agency to 
avoid consultation if the agency unilaterally--unilaterally--
decides that an action it sponsors is not anticipated to result 
in take of an enlisted species, and its other effects are 
insignificant or unlikely.
    Now, that might sound reasonable--in fact, it does on its 
face. It sounds reasonable. Why have consultation if there are 
no effects? But figuring out whether an action will cause take 
or other effects often is the key issue and it can be a 
difficult one to solve. On many occasions, the questions of 
whether take will occur is not readily apparent. To know that 
requires expertise and in-depth knowledge of a species' biology 
and behavior.
    Current rules allow Federal agencies to decide whether 
there will be adverse effects in their actions, but the 
agencies must obtain the concurrence of the Fish and Wildlife 
Service or the National Marine Fisheries Service. Under this 
Administration's proposal, however, independent species experts 
at one of the services would no longer review Federal agency 
judgments about the effects of actions that it sponsors. This 
framework lets the fox guard the chicken coop.
    Shifting the responsibility for determining the effects 
Federal actions will have on listed species to the agency 
proposing those same actions, when those agencies have 
potentially conflicting missions and priorities, will clearly 
undermine progress toward species recovery. It would be much 
more effective, and I submit efficient, to appropriately fund 
and staff our existing wildlife agencies and programs to ensure 
that they can carry out section seven consultations in a timely 
and responsible manner.
    The Administration is also proposing to drastically narrow 
the consideration of Federal agency impacts even when 
consultation does occur. Using some novel concept of essential 
causation, the Administration would eliminate consultation for 
Federal actions that contribute to effects on a species, 
perhaps even substantially if that effect would still occur to 
some extent without the actions.
    Even though the scientific evidence builds every day that 
greenhouse gas pollution is a significant cause of adverse 
effects on wildlife, this Administration would eliminate by 
fiat by statement, any meaningful consideration of the 
cumulative impacts of this pollution or allow for possible 
solutions.
    But the changes they propose go well beyond global warming. 
They would make it far more difficult to address all types of 
cumulative impacts on wildlife so that all listed species 
today, almost 1,400 of them, and their habitat could be quietly 
destroyed a little bit at a time, even if the destruction 
eventually adds up to losing the species altogether.
    Perhaps even more harmful are the supposed clarifications 
proposed by the Administration to the official list of 
endangered and threatened species, which put into place a 
radical new interpretation of the law. The practical effect of 
the revisions would be to write into law an opinion of the 
Interior Solicitors Office, the Interior Department's 
Solicitor, which reverses more than three decades--the entire 
implementation of law since it was passed--but more than three 
decades of understanding, by concluding that a species eligible 
for listing may be given protection only in some of the places 
it occurs and not in other places.
    For nearly 35 years before the Solicitor came along with 
this new novel argument, any species that met the Act's 
definition of an endangered species or a threatened species 
received the Act's protection wherever it occurred. With the 
stroke of a pen, a political appointee reverses long-settled 
understanding and did it just with the stroke of a pen--no 
opportunity for public engagement or public comment.
    Two years ago, the Senate wisely refused to consider 
legislation that included some of the same concepts that are 
now found in the Administration's proposals today. Congress 
should stop these proposals once again.
    Thank you, Madam Chair. I am happy to answer any questions.
    [The prepared statement of Ms. Clark follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
           
    Senator Boxer. Thank you very much.
    Reverend Jim Ball, President and CEO, Evangelical 
Environmental Network. Welcome.

STATEMENT OF REVEREND JIM BALL, PRESIDENT AND CEO, EVANGELICAL 
                     ENVIRONMENTAL NETWORK

    Reverend Ball. Chairman Boxer, Ranking Member Inhofe--oh, 
he is not here--distinguished members of the Committee, my name 
is Reverend Jim Ball, and I am President and CEO of the 
Evangelical Environmental Network. It is an honor to testify 
before you today.
    I just want to highlight that we had passed out issues of 
our latest magazine, and there is a photographic essay on 
endangered species in the issue. I would love to have it 
included in the record.
    Senator Boxer. Without objection.
    Reverend Ball. My purpose here is to offer moral guidance 
on protecting the environment, which can be found in reflecting 
upon the belief that we are made in the image of God. In 
Genesis 1:26, it states: ``Then God said, let us make humanity 
in our image, in our likeness, and let them rule over the fish 
of the sea and the birds of the air, over the livestock, over 
all the earth, and over all the creatures that move along the 
ground.''
    This text helps us understand the tremendous power God has 
given us as human beings, power to rule, power that can easily 
be misused. It is clear, however, that God intends us to use 
this power in a certain way. With our God-given freedom, we are 
to image or reflect how God would rule on earth, always 
understanding that any authority or power we have does not come 
from us.
    How we treat both who and what is within our control, 
within our power, is a true test of our moral character as 
individuals and as a society. How we treat who we have the 
power to help or harm is governed by some basic moral 
principles. We are to: love our neighbors; do unto others as we 
would have them do unto us; and protect whom Jesus has called 
``the least of these,'' described elsewhere in scripture as 
orphans, widows, and aliens or foreigners--precisely those who 
don't have power and are therefore vulnerable to those who do.
    As Jesus helped us see when asked what was the greatest 
commandment, all of these moral principles ultimately flow out 
of our chief aim as human beings: to love God with all of our 
heart, soul, mind and strength. The major way we love God is by 
doing God's will, which is another way of saying that we are to 
freely be whom God created us to be: images or reflections of 
how He would do things on earth. Morally, this is how we are to 
exercise power, as a loving and just God would.
    In the United States, how citizens and the government can 
legally exercise power is determined by you, the legislators, 
in keeping with the Constitution. When it comes to 
environmental concerns, how can you or members of the executive 
branch exercise power on behalf of the citizenry in keeping 
with the basic moral principles of loving our neighbors and 
protecting the most vulnerable?
    Take lead as an example. As the best scientific evidence 
demonstrates, it clearly causes harm to children. The current 
standard in 1978 is clearly outdated and should be strengthened 
or improved. My hope is that when the EPA issues their final 
ruling in mid-October, the EPA Administrator will abide by the 
unanimous recommendations of the EPA's own scientific panel, as 
well as his scientific staff. The same pattern should be 
followed with ozone and particulate matter. Other pollutants to 
highlight that are not currently regulated, but should be, are 
mercury and greenhouse gases.
    Thus far, I have briefly discussed how we are to treat who 
we have the power to help or harm. How we treat what we have 
under our control, including God's other creatures and the 
natural resources of God's earth is also very much wrapped up 
in being made in the image of God, of doing God's will.
    In keeping with our moral obligations as image-bearers, the 
Endangered Species Act provides for the legal protection of 
God's other creatures within our power, helping to ensure that 
the blessing of life and sustenance God has given to his other 
creatures is not turned into a curse by us. Any diminishment of 
legal protection that ensures the survivability of the 
multitude of species created, blessed, and provided for by God 
runs counter to our calling to rule as God would rule.
    On the other hand, the improvement or enhancement of such 
protection is in keeping with our being made in the image of 
God. But don't be fooled and don't fool yourselves. As the 
Apostle Paul says, ``Be not deceived; God is not mocked.'' God 
knows the difference between real improvements and those 
designed for other purposes that do not enhance protection.
    But just a few verses later, the Apostle Paul offers words 
of encouragement that are especially important for Members of 
Congress and your staff to hear: ``So let us not grow weary in 
doing what is right, for we will reap at harvest-time, if we do 
not give up.''
    Thus, to be true images of God in our love and service of 
others, especially those within our power, as well as in our 
dominion or care of the rest of creation, is at the core of 
what it means to be a moral being. Will the use of our power be 
characterized by service, generosity, compassion, and mercy? Or 
will it degenerate into selfishness, greed, and tyranny?
    And so as finite creatures and members of the Senate, your 
exercise of legal power is tinged with eternity. You can weak 
or strengthen our country's efforts to protect people, 
especially the most vulnerable, from air pollution and climate 
change. You can stand by and let others weaken them, even 
though you have the power to stop them. You have the same moral 
choices concerning the protection of God's other creatures.
    So what type of images of God will you be in relation to 
environmental concerns as you exercise your freedom and power 
as members of the Senate? True images? True reflections of 
God's will, God's love? I pray that God grant you, as well as 
members of the executive branch with authority over the 
environment, the spiritual strength and wisdom to be His true 
images on earth in your protection of your fellow citizens and 
God's other creatures.
    Thank you for your attention, and I look forward to any 
questions.
    [The prepared statement of Reverend Ball follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]     
        
    Senator Boxer. Thank you, Reverend. I really liked that 
quote about never give up because we don't.
    [Laughter.]
    Senator Boxer. Believe me, the three of us don't and many 
others on this Committee and our staff. So we thank you for 
those words. They are very comforting to us.
    Mr. Schaeffer, we are happy to have you, Executive 
Director, Diesel Technology Forum. Welcome, sir.

   STATEMENT OF ALLEN SCHAEFFER, EXECUTIVE DIRECTOR, DIESEL 
                        TECHNOLOGY FORUM

    Mr. Schaffer. Good afternoon. Madam Chairwoman and members 
of the Committee, my name is Allen Schaeffer and I serve as 
Executive Director of the Diesel Technology Forum. We are a 
not-for-profit educational group representing the Nation's 
leading diesel engine, vehicle and equipment manufacturers, 
fuel refiners and suppliers, including those that make 
emissions control technology.
    We are delighted to be here today to discuss the actions at 
the Environmental Protection Agency relative to the Clean Air 
Act over the last 8 years. Specifically, our focus will be on 
diesel engines, equipment and fuels.
    The last 8 years have seen actions that compel the 
fundamental transformation to a new generation of diesel 
engines, fuels, and emission control technologies. We refer to 
this as clean diesel. By definition, this is the combination of 
advanced engines, cleaner fuels, and new emissions control 
devices all working together.
    Clean diesel is the future. It is a system that will soon 
be standard equipment on every diesel engine and piece of 
equipment in America, including a whole new generation of clean 
diesel cars now coming to market. Moving to this clean diesel 
technology has involved both conventional and non-conventional 
approaches by industry, the EPA and other stakeholders. In a 
practical sense, it means stringent new engine emissions 
standards, a switch to a cleaner diesel fuel, but also a 
voluntary collaborative approach to reduce emissions from 
existing engines and equipment.
    For engine manufacturers, it has required substantial 
innovation and breakthroughs in emissions control technology. 
For fuel refiners, it has required substantial and 
unprecedented investments to clean up diesel fuel.
    With regard to new engines, over the last 8 years the EPA 
has enacted the most stringent emissions standards on the 
diesel industry in history, requiring more than a 90 percent 
reduction in emissions of particulate matter and nitrogen 
oxides from their previous levels. This effort began in 2000 
with rules adopted by the Clinton administration, which were 
subsequently defended, implemented and expanded to other 
equipment sectors by President Bush and the current 
Administration.
    As a result of the EPA's numerous regulatory actions, the 
pathway to cleaner diesel engines and fuels to achieve much 
lower emissions is now in place from everything from small 
construction equipment, farm machinery, highway commercial 
trucks, freight locomotives, marine vessels, work boats, and 
very large off-road machines and mining equipment, and most 
recently to a new generation of clean diesel passenger cars 
that now meet the emissions standards of all 50 States.
    A graphical representation of the continuous improvement in 
diesel engines is provided as an appendix to this testimony.
    The foundation of this success story was the switch to 
cleaner diesel fuel, which we refer to as ultra-low sulfur 
diesel. This is a critical aspect of the clean diesel system 
because it enables the use of advanced emissions control 
devices. The last time a major change in diesel fuel 
formulation took place was in 1993, and resulted in spot supply 
shortages and vehicle performance problems for the first 6 
months of the fuel transition. Older truck engines were 
particularly affected in California. Enforcement waivers had to 
be granted, and the switch was viewed as problematic on a 
number of fronts.
    This time around, EPA took a number of steps to assure a 
smoother transition, including convening a panel of 
stakeholders to monitor implementation of the fuel refining 
requirements, as well as providing information to those that 
had to comply with the rule through the Clean Diesel Fuel 
Alliance with the Department of Energy and industry and other 
stakeholders.
    While not perfect, the October 15, 2006 roll-out of clean 
diesel fuel was a marked improvement over 1993. EPA mostly 
succeeded in meeting the goal of a smoother transition to the 
new fuel that was transparent, had widespread fuel availability 
for 2007 and later-year model trucks and diesel cars which 
required the use of this new clean fuel. Work continues today 
toward assuring consistent nationwide supply and meeting the 
final 100 percent availability requirement by December 31, 
2010.
    As a result of this progress, many stakeholders have come 
together to applaud the contribution of ultra-low sulfur diesel 
fuel and clean diesel technology to the Nation's clean air 
progress. Our group partnered with the Natural Resources 
Defense Council in a joint press conference heralding the 
switch to new clean diesel fuel in October 2006.
    EPA has also closely collaborated with California on the 
adoption of many diesel engine emissions and fuel quality 
standards, and has been helpful in raising awareness about the 
fuel savings potential for a new generation of clean diesel 
cars that get 20 percent to 40 percent better fuel economy than 
a gasoline vehicle.
    I would like to turn now to non-conventional approaches. 
While the Administration has implemented a substantial number 
of regulations that impact new engines, it also has worked to 
reduce diesel emissions and improve air quality by pursuing 
some non-conventional and non-regulatory approaches for 
existing engines and fuels.
    Because diesel engines are renowned for their durability 
and long lives, in 2000 EPA announced the creation of a new 
voluntary program called the Diesel Retrofit Initiative. 
Through this program, EPA hopes State and local governments, 
fleet operators, and industry could complement the reductions 
coming from regulatory actions by using newly available 
technology on existing heavy-duty trucks, buses and equipment. 
A goal at that time was set to reduce emissions from more than 
11 million diesel engines.
    Subsequent efforts followed, known as Clean School Bus USA 
and other diesel retrofit initiatives through the construction 
sector.
    One of the key reasons for EPA's success in promoting this 
program was the creation of regional diesel collaboratives, 
where they invited industry and environmental groups, as well 
as State and local governments, to focus on projects and 
concerns of regional interest. EPA brought an important energy 
and attention to this critical issue and offered Federal 
support, while letting local stakeholders have flexibility to 
set their own priorities.
    The key to the success of the national clean diesel 
retrofit effort is funding for end-users like school districts, 
refuse haulers, contractors, trucking fleets and others so that 
they can implement these new technologies.
    Here, Congress and this Committee in particular, continue 
to play a vital role. Senators Carper and Voinovich in 2005, 
along with Senator Clinton and others on the Committee, 
undertook a bipartisan effort to help advance clean diesel 
retrofit through the Diesel Emissions Reduction Act, otherwise 
known as DERA, a portion of the 2005 energy bill. DERA provides 
funding for the voluntary retrofit initiative authorized at up 
to $200 million a year for each of 5 years.
    This year, we have our first appropriation and the success 
is really substantial. State grant programs have generated 
interest now from all 50 States. Every single State has 
expressed interest in this program, with 35 providing their own 
matching funds. It is a real testament to the success of the 
initiative. The only criticism we have heard about the program, 
besides the desire for full funding, has been around the 
coordination of EPA and California's efforts to verify new 
technology.
    In conclusion, the transformation to clean diesel is well 
at hand, and by any measure is a success story with industry, 
environmental stakeholders and the EPA working together. 
Manufacturers are delivering on the challenge to the production 
and delivery of clean diesel commercial trucks since last year. 
Refiners have delivered cleaner diesel fuel and continue to 
expand its availability. End-users that have acquired the new 
technology are finding it to meet or exceed their expectations 
for performance.
    Every category of stationary and mobile diesel engines, 
with the exception of ocean-going container vessels, is now on 
the path to clean diesel fuel and low-emissions technology. And 
finally, there is genuine excitement about the new generation 
of clean diesel cars which is coming here in the U.S. beginning 
this year. The voluntary incentive-based programs EPA has 
championed through its National Clean Diesel Campaign and the 
SmartWay Transport Partnership will play a greater role in 
reducing emissions and saving energy in the future.
    Congress has placed an important role in authorizing and 
appropriating funds for these voluntary incentive programs, and 
consumer tax credits for light duty advanced lean-burn diesel 
vehicles. Your continued support in this area is needed.
    Thank you for the opportunity to appear today.
    [The prepared statement of Mr. Schaeffer follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
       Senator Boxer. Thank you very much, sir.
    I know that Senator Klobuchar had a statement to make, so I 
will call on her.

           OPENING STATEMENT OF HON. AMY KLOBUCHAR, 
            U.S. SENATOR FROM THE STATE OF MINNESOTA

    Senator Klobuchar. OK, thank you very much, Chairwoman 
Boxer. I want to thank you for holding this important hearing 
and for your diligence and perseverance in the face of many 
obstacles in trying to push these environmental issues.
    I have to tell you, and I want to thank our witnesses for 
all being here. I wish, Mr. Schaeffer, that every environmental 
issue we dealt with was handled on a more bipartisan basis, but 
that just hasn't happened with many of the ones that the 
witnesses referred to here.
    My State has operated that way in the environmental area. 
We have a Republican Governor, a Democratic legislature, and we 
have been able to enact one of the most aggressive renewable 
portfolio standards in the Country--25 percent by the year 2025 
for renewables. Part of it is I think we see it, as I know most 
States in the Country do, is that the environment and the world 
around us part of our way of life.
    I always like to ask people how much money you think we 
spend on worms and bait in Minnesota. Would you like to answer 
that, Mr. Pope? Every year, how much money do you think we 
spend on worms and bait?
    Mr. Pope. I don't know, but I am sure the number is large, 
Senator. I am sure you do know.
    Senator Klobuchar. It is $50 million for fishing in 
Minnesota, and it is just a good example of how clean water and 
mercury-free water is part of our way of life in our State. I 
have been really emboldened by some of the groups that have 
come out to support work on climate change in our State. 
Snowmobile groups testified because they have seen the effect 
that the lack of snow and the warmer temperatures have had on 
recreation. Ski clubs have testified. It is not just the little 
kids with penguin buttons on anymore.
    So despite all of the resistance--and that is putting it 
mildly--we have experienced with this Administration, I see 
hope in the way that groups have been able to come together. I 
think of the blue-green alliance between some of the 
environmental groups and the labor groups. I think, Reverend 
Ball, about the work that the religious community is doing and 
all the hearings that Chairwoman Boxer had that have brought 
together different groups that want to come together and get 
something done.
    The second reason I believe it is so important in our State 
is our State believes in science. We brought the world 
everything from the post-it note to the pacemaker. We are the 
home of the Mayo Clinic. We believe that you shouldn't hide 
science. That is why I have been so shocked in my first year-
and-a-half in the Senate to have this endangerment finding on 
the Clean Air Act and on climate change and greenhouse gases 
that we have to look at it in a back room with three Senators. 
I have been told we can't even make a copy of it.
    I didn't really think it was some top security secret. I 
thought it was something that the public should be able to 
have. And so I am looking forward to next year with a fresh 
start that we will be able to bring this science into the realm 
of this Committee room from a new Administration.
    And then finally, as you so eloquently talked about, 
Reverend Ball, I just see this as a moral issue. When I gave 
the prayer at the National Prayer Breakfast for world leaders, 
I talked about the prayer of the Ojibway Indians in our State, 
where they talk about how decisions have to be made not for 
today, but for those seven generations from now, and that we 
have that moral obligation as leaders. That is why I have so 
appreciated Chairwoman Boxer's attempt to work across the aisle 
and get things done. I know we are going to have success next 
year. I can feel it in my bones, but it has been a very 
difficult year for us.
    So I just want to thank all the witnesses for being here 
and for participating. I will make you a promise. There is a 
reason I am in the gang of 20 on the energy issue. I don't 
agree with everything that the other side has, but I think we 
need to work together better. But it has made it nearly 
impossible in the environmental area with this Administration, 
and that just has to change next year.
    Senator Boxer. Yes, it does, and it will.
    I was thinking, if any of you could shed light, I 
particularly think perhaps Carl and Jamie might the ones on 
this particular question. I was struck by how many executive 
orders there have been, you know, where they have back-doored a 
lot of the rules and regs. Have either of you studied that? You 
know, in other words, if you don't want to obey the law, there 
are various ways. First, you can try to get it repealed. No one 
is going to repeal the Endangered Species Act. It is just not. 
The bald eagle symbolizes a lot of what was said, so we are not 
going to do that. So there are ways--you know, obviously they 
have put forward a plan to do that.
    But just in terms of executive orders, Carl or Jamie, have 
you taken a look at how many have been issued and how many 
could be repealed on the first 100 days of the new President if 
he desired to?
    Mr. Pope. Well, they have done almost everything with 
executive orders or things that are less. Executive orders at 
least are public documents. You have to tell people about them. 
An extraordinary amount of what they have done they have been 
unwilling to tell people what they are doing. We don't really 
know, for example, what the enforcement advisories to the Army 
Corps of Engineers and EPA are with regard to the jurisdiction 
of the Clean Water Act over intermittent headwater streams.
    We do know that at least 500 cases that we have been able 
to ferret out, you know, basically by hiring detectives, that 
in at least 500 cases waterways were not protected by the Clean 
Water Act because some Federal bureaucrat or some political 
appointee decided the Clean Water Act didn't apply, and that 
although this was a waterway and it was within the United 
States, it was not in a legal sense a water of the United 
States.
    So I think that in fact the amount of legally instantaneous 
improvement to be achieved is enormous. The challenge is that 
what is legally instantaneously achieved may not be achievable 
if you don't have the staff, you don't have the science, you 
don't have the budget, you don't have the morale on the part of 
civil servants to do the job. There is a major leadership 
challenge to get this stuff undone because these agencies have 
been so badly damaged. But legally, the next President will 
have a relatively open field.
    Senator Boxer. Do you want to add to that, Jamie?
    Ms. Clark. Well, I haven't counted, but it is clear that 
this Administration has been incredibly frustrated 
legislatively. What they have not been able to achieve 
legislatively, they have worked very hard to deal with 
administratively.
    Worse than that, they are increasingly doing it under the 
radar. So there is not opportunity for public engagement, 
public input, as Carl was mentioning. And clearly as it relates 
to Interior and the issues that Defenders of Wildlife deals 
with on a daily basis, the Endangered Species Act is one of the 
best examples. They have been thwarted by you and others, 
thankfully, up here to in essence gut the ESA, which has served 
us so well.
    One of the best examples--executive order notwithstanding--
is what is happening in the Solicitor's office. By fiat of a 
Solicitor, they totally changed the way that the Endangered 
Species Act is implemented through the writing of creative 
opinion. It is tantamount to changing the law. It has undone 35 
years of interpretation by the biologists.
    Senator Boxer. Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman.
    Ms. Clark, you have held significant executive office.
    Mr. Pope, you have referenced the great James Madison, so I 
will direct a question to you about the point that I made in my 
opening statement.
    I guess, simply put, the question is, does someone who 
undertakes the duties of an executive position undertake any 
duties other than the duty of obedience to the White House?
    Mr. Pope. Well, I suppose that depends on whether you 
address that question to anybody prior to Vice President Cheney 
or to Vice President Cheney. It is clear that in this 
Administration, the view is that in fact the oath of office is 
an oath of office to the President. That is what their 
interpretation of the unitary executive means.
    Now, if you asked me if I can find any shred of validation 
in American political, judicial, legislative or constitutional 
history, I can't, and the Vice President has never offered any. 
But if you really look at the way they behave, and you look at 
the way in which the founding fathers described the way the 
British cabinet and the British Parliament interacted with King 
George, the parallels are eerie.
    Senator Whitehouse. There was some--I will let you answer 
as well, Ms. Clark--but Mr. Pope has prompted my recollection 
of a telling moment in a Judiciary Committee hearing when one 
of the loyal Bushes who was testifying referenced having sworn 
her oath of office to the President. Of course, Chairman Leahy 
pounced on that in a moment, and interrupted and said, wait a 
minute, didn't you swear an oath to the Constitution?
    And then rapid back-peddling began, but it was a telling 
moment and relates very much to the questions we have heard 
about of in theory nonpartisan positions at the Department of 
Justice, with the candidates facing the inquiry of what is it 
about George W. Bush that makes you want to serve him, which 
again I think is a bit more consistent with the realm of King 
George than it is with the United States of America that I grew 
up in and was trained about as a lawyer.
    Ms. Clark.
    Ms. Clark. Well, Senator, I can only speak from personal 
experience.
    Senator Whitehouse. What did you feel when you took your 
oath of office?
    Ms. Clark. Well, it was quite clear to me. I was also kind 
of brought along through the confirmation process as a career 
biologist within the agency first. It was absolutely clear to 
me that I was swearing to uphold the Constitution, and to 
steward the laws and regulations under the governance of the 
Fish and Wildlife Service, under the authority of the Fish and 
Wildlife Service.
    That certainly didn't mean that I was going to ``disobey 
the White House.'' And there was often great conversation with 
the Secretary of Interior and the White House. But there was 
not a question ethically or from a performance base that we 
were swearing to uphold the Constitution. That is how my Senate 
confirmation hearing went and that is how the swearing-in 
ceremony went. So that was paramount.
    Senator Whitehouse. Which of course, to confirm and State 
the obvious, includes the requirement that even the President 
of the United States faithfully execute the laws.
    Thank you, Madam Chair.
    Senator Boxer. I just want to thank this panel so much.
    I want to thank Senator Whitehouse so much.
    This has been a difficult time for us because it is hard to 
make progress when people don't show up. You know? At least you 
have a chance in discourse to try to persuade one another. And 
when they don't show up--and in Mr. Johnson's case for 6 
months--it is really difficult.
    I want to say, working on the global warming legislation 
was one of the greatest experiences in my life, and to shepherd 
it through this Committee was one of the best accomplishments 
that I could talk about.
    And just having the faith community come to the table was 
really wonderful, Reverend Ball.
    And I want to say to Carl here that I think you know how 
much Carl Pope of the Sierra Club was such an advocate in 
saying to me they need to be part of this and they need to be 
happy, and this has got to be done, all of us together.
    So having all of you here is really great. I wanted to say, 
we got a beautiful letter from the National Council of 
Churches, and I thought, you know, it was very much, Reverend 
Ball, the same effect of yours, just making us sit back for a 
moment and understand that there is a whole spiritual component 
to what we do.
    I thought just one very simple sentence in here I think is 
important: In a time of growing environmental concerns, it is 
important that the EPA and those agencies with the needed 
expertise and experience remain vigilant in protecting God's 
earth and God's people.
    I mean, that is it in a very simple way. That is all we are 
asking from Mr. Johnson. We are not asking anything other than 
what he is supposed to do.
    Mr. Schaeffer, having you here was wonderful. You told a 
good story and we started taking care of these diesel engines 
back in the Clinton era and we continued with the progress, 
crossed over party lines. This is an example of how it should 
be.
    Unfortunately, there are so few examples of this, maybe a 
few, a scant few. And the rest of it has really been--and I am 
not going to overState it--it has just been a war against the 
environment, to be honest. I use those words carefully, but 
that is what it has been because every day, you know, we hear 
about another repeal, another executive order, another 
outrageous decision, another ducking of an obligation.
    And it is just--you know, Bettina now, she calls me. I know 
when she calls me on Friday afternoon, late Friday, that 
something terrible has happened.
    Senator Whitehouse. For the Saturday papers.
    Senator Boxer. What? Yes, for the Saturday papers. You 
know, they hope no one is going to notice it, but that is why 
we do this oversight, as Senator Whitehouse alluded to, because 
we need to set the record straight.
    Well, all of you are our allies in this. We work for the 
people and that is it. So I just want to say that I hope better 
days are coming in so many ways. We have a financial crisis 
that needs to be dealt with in the right way, and we are trying 
to do that. We have an environmental crisis that is going to 
have to wait until the next Administration because this one 
won't come to the table--unheard of--but we will not stop what 
we have to do.
    Senator Whitehouse, I know you have some closing remarks. 
Please proceed.
    Senator Whitehouse. I just wanted to, with respect to the 
boycott of this hearing by the Administration witnesses, State 
that I thought that the questions that I was asking Mr. Meyers 
yesterday were ones that merit answer. Clearly, he was having 
substantial difficulty. I don't know that the record of the 
hearing would reflect it because the record is not well-suited 
to long gaps of silence.
    But there were extremely long gaps of silence--30 seconds, 
a minute--while he sat there trying to puzzle his way through 
to an answer that would neither commit perjury by him, nor 
reveal perjury by the by the Administrator. And I think that 
stumped him in those times, but as I said, I think these are 
questions that merit an answer. Although clearly, as this 
Administration winds down and slinks off-stage, there is no 
appetite for meeting further with us, I hope that those 
questions get answered anyway.
    Frankly, I hope that with respect to our request, somebody 
from the Department of Justice interviews Robert Meyers and 
continues that examination and gets those answers, and doesn't 
get fobbed off by the short timeframe we have to work with in 
these hearings. I think he is a witness who would--it would be 
very interesting and I think useful to have half an hour or an 
hour to examine him under oath and be able to run down 
questions and get to the bottom of his answers.
    I very much hope that somebody at the Department of Justice 
who is looking into the letter that the Chairman sent and that 
I sent, follow up on this, because I think that he does have 
only two choices. He can either perjure himself or reveal the 
perjury of his Administrator.
    Thank you.
    Senator Boxer. I think that is a very important statement 
that you made. Anyone who followed yesterday's hearing, it was 
one of the most--it was such a long silence, that I had 
forgotten what the question was, and the poor clerk here had to 
go back and find the question. It was just on and on.
    I am going to put in the record, without objection, the 
statement of the National Council of Churches, which goes very 
well with Reverend Ball's.
    [The referenced document was not received at time of 
print.]
    Senator Boxer. I am really stunned today that they are not 
showing up. It speaks volumes to their disdain for the American 
people, because after all, we represent the American people. 
That is our job. We don't have any other power other than that 
which we derive from them. So when they don't come to Congress, 
they are not talking to us, they are not talking to the 
American people.
    These are tough, tough days. We have a few more tough days 
ahead of us. But the American people have to know the truth. As 
we look at this investigation, perjury, on the whole issue of 
the waiver, we have sent over the fact that these witnesses, 
Mr. Johnson, these officials, Mr. Johnson and Mr. Laverty--
right?--Mr. Johnson and Mr. Laverty told us that they would 
appear anytime we asked them. That was the condition upon 
which--if they had said no, that would have been the end of it, 
but they meant no, maybe.
    We didn't say, will you appear when you are in the mood or 
if you feel good and have a good cup of coffee. We didn't say 
will you appear when you think it is good for you and not when 
you don't. We didn't say any caveat. We said what we have to 
say: Will you come to a duly constituted hearing?
    I have to say, Senator Inhofe--this is a fact, this will 
come out--tried not to have a duly constituted hearing. I 
wanted to make sure you knew he was going to object to our 
meeting, and that is why we had a recess. We almost didn't have 
this hearing. We almost had a briefing because I think they 
knew for them not to show up here, they could have not shown up 
if it was a hearing. But if it is a hearing, they have to show 
up.
    So it is an unpleasant sticky wicket. When Congress wants 
to do its job, and we know it is not pleasant. I wouldn't want 
to be Mr. Johnson facing me and Sheldon Whitehouse. But you 
know what? That is his job. He has to face us. And if he is 
such a coward, he ought to resign, which is what we asked him 
to do, instead of traveling around the world on taxpayer 
dollars going to Israel and Jordan and going on some fancy-dan 
ship. Somebody said he went on this ship where they had a show 
or something, but he missed the show? Did he miss it? I guess 
he was so busy.
    He tried very hard to make the ventriloquist show, but he 
may not have made it because he is just so busy.
    All right, enough said.
    Thank you.
    We stand adjourned.
    [Whereupon, at 12:35 p.m., the committee was adjourned.]
    [Additional material submitted for the record follows.]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
                             [all]