[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
__________
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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
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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:]
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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:]
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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:]
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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:]
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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.]
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