Madame Chairman, I am very disappointed with the actions of this Committee today. It is my view that the calling of this Business Meeting to consider a Committee Resolution to issue a subpoena to EPA Administrator Johnson is unwarranted and not focused on true oversight. Rather, this is a political exercise that is intended to score more political points to help keep this issue of alleged Administration interference alive in the press as long as possible. The document in question today has been offered to the Committee for review, and was in fact reviewed by staff yesterday evening. This same offer was accepted by Congressman Markey and the Select Committee on Energy Independence and Global Warming, but had been rejected by my Democratic colleagues.
I assure you that I take this Committee’s responsibility in legitimate Executive branch oversight very seriously. When I was Chairman of this Committee I assisted Ranking Member Jeffords in obtaining legitimate oversight documents from this same Administration. At the time I thought the Bush Administration was denying Senator Jeffords access to documents that he had every right to obtain. However, this case is different, and I believe once all the facts are given surrounding this investigation, it becomes clear that the issuance of this subpoena is both unwarranted and potentially disruptive to future deliberative processes within any Administration.
It is my view that regardless of Administration, the President acting through the entire executive branch is fully entitled to express his policy judgments to the EPA Administrator, and to expect this subordinate to carry out the judgment of what the law requires and permits. It can be argued that the “unitary Executive concept” promotes more effective rulemaking by bringing a broader perspective to bear on important regulatory decisions. It also enhances democratic accountability for regulatory decision-making by pinning responsibility on the President to answer to the public for the regulatory actions taken by his Administration.
Therefore, I consider this debate over censorship within the Administration to be a non-issue. All administrations edit testimony and all documents go through interagency review before any final agency action. The document that is the subject of this subpoena was a product of that same process. It had not yet gone through the interagency review process and was not considered to be final agency action. It did not trigger any Executive Order or Clean Air Act sunshine requirements.
I cannot support any investigations that could have a chilling effect within the deliberative process of the Administration, and cause future career and political employees from refraining from an open and honest dialogue. This is not a new position for me. In fact, during the Clinton Administration, although I requested and received numerous documents involving the ozone and particulate matter NAAQS decisions, New Source Review Documents, and Clean Air Act Section 114 enforcement documents, I always honored the claims by the Clinton Administration involving deliberative documents. Once we were told by the Clinton Administration that documents were deliberative in nature, we did not continue to press for them, recognizing the right of executive privilege and the sanctity of internal deliberations.
In addition to these fundamental principles on the internal deliberative process, it is my understanding that the Bush Administration on Friday, July 18, 2008 offered to allow Senator Boxer and Members of the Committee’s staff the opportunity to review the endangerment finding document that is the subject of this request in the same manner as was offered to the House and Congressman Markey’s staff in a previous investigation. This offer involved allowing staff to review the document and take notes for as long as they need, but not take possession of the document. The majority accepted this offer late yesterday evening, however the Majority has still insisted on calling this Business Meeting today. It is worth noting that the resulting review in the House was able to satisfy the House staff. Instead, this Committee insists on going forward with this subpoena request, which simply confirms that this investigation is not about true oversight, but to score political points and to keep the issue alive as long as possible.
In talking to my Republican colleagues, the concern is the chilling affect such a subpoena would have on both political and career executive branch employees in future Administrations. If employees become concerned that their unfettered advice to the President could be made public and also subject them personally to congressional oversight then they may become more guarded in their advice to the President during internal deliberations. This could deny future Presidents the advice they need to make informed decisions.
Madame Chairman, if this Committee were serious in undertaking efforts to draft climate change policy rather than score political points, it should be focusing its efforts in a much more methodical and deliberative manner that acknowledges the complexity of the issues surrounding any mandatory emission reduction policy. Regardless of my own position on this topic, the Committee should be exploring issues to help build a record on how to draft a cap and trade system, the level of technology currently available to achieve reductions, how to allocate credits, how to design an auction system, how to create a domestic offset program, what the international impacts will be on trade and particularly exports, how to effectively contain costs through a transparent mechanism, and the list could go on. Instead, we are forced here today to object and not participate in this largely political exercise.