Washington, D.C. – U.S. Sen. Jim Jeffords, I – Vt., today released a letter signed by all nine minority members of the Senate Environment and Public Works (EPW) Committee sent to Environmental Protection Agency (EPA) Administrator Michael Leavitt demanding access to information pertaining to various agency decisions on clean air and clean water issues. The Senators were responding to EPA claims that their information requests are limited to what is available to the public through the Freedom of Information Act. Jeffords, the ranking member of the EPW Committee said, "This attempt by the Bush Administration to prevent Congress from fulfilling its oversight duties is unprecedented, shameful and flies in the face of our constitutional responsibilities. We've been stonewalled in receiving information from the EPA in some cases for more than two years." Attached is a copy of the letter, a copy of the outstanding information requests, and a copy of a letter from the EPA to Senator Jeffords outlining its arguments for withholding the information. ------------------------------------- March 29, 2004 The Honorable Michael O. Leavitt
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460 Dear Administrator Leavitt: On October 27, 2003, EPA Acting Associate Administrator Benjamin H. Grumbles responded by letter to numerous pending requests from Senator Jeffords and other Environment and Public Works Committee members for various EPA documents and analyses. In that letter, a copy of which is attached, Mr. Grumbles stated that certain of the requested documents "are not subject to release because they are internal, privileged material, or enforcement sensitive." Specifically, Mr. Grumbles stated that the documents were being withheld under privileges listed in sections 552(b)(5) and 552(b)(7) of the Freedom of Information Act (FOIA). See 5 U.S.C. §§552(b)(5) and 552(b)(7). A list of the outstanding document requests covered under the Grumbles letter is attached to this letter. Senator Jeffords is hardly alone in receiving such treatment. Indeed, your Agency has employed the same FOIA-based rationale to reject document requests from other individual Senators serving on the Committee. For example, in response to a request from Senator Wyden for documents pertaining to the City of Portland Combined Sewer Overflows enforcement action, your Agency claimed similar FOIA privileges. We are deeply distressed by your Agency's apparent determination to treat these requests for documents and analyses as requests under the Freedom of Information Act. All of these requests were made pursuant to individual members' official oversight responsibilities while serving on the Senate Committee on Environment and Public Works. Treating these requests as ordinary FOIA requests is contrary not only to the text and legislative history of the Freedom of Information Act but also to existing case law and the rules of the Senate. It also violates the affirmative duty that obligates all executive agencies to accommodate information requests from Congress to the maximum extent possible. Subsection (d) of the Freedom of Information Act states clearly that the Act was not intended to authorize any new withholding of information from "Congress." See 5 U.S.C. §552(d) ("This section is not authority to withhold information from Congress."). The legislative history elaborates on this provision, stating unequivocally that FOIA "has absolutely no effect upon congressional access to information." See H.R. Rep. No. 1497, 89th Cong., 2d Sess. 11 (1966) reprinted in 1966 U.S.C.C.A.N. 2418, 2429. Thus, when an individual member of Congress is acting in his/her official capacity, that member enjoys rights of access over and above those accorded to ordinary FOIA requesters (i.e. the same access rights accorded to "Congress" in the statute). The only appellate decision that addresses this issue in any detail, Murphy v. Dep't of the Army, 613 F.2d 1151 (D.C. Cir. 1979), reaches precisely this conclusion. See Murphy v. Dep't of the Army, 613 F.2d 1151, 1157 (D.C. Cir. 1979) (finding "no basis in the statute or in public policy for distinguishing for FOIA purposes between a congressional committee and a single Member acting in an official capacity"). As the Murphy court pointed out, all Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information. . . . Each of them participates in the law-making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator. 613 F.2d at 1157. In sum, Murphy stands for the proposition that any individual member of Congress acting in his/her official capacity should be entitled to the full panoply of rights of access to privileged information accorded to "Congress" under FOIA. The Murphy decision is still good law, as confirmed by at least two subsequent D.C. Circuit opinions and by the fact that there are no contrary appellate decisions. See FTC v. Owens-Corning Fiberglass Corp., 626 F.2d 966, 974 n. 16 (D.C. Cir. 1980) ("If Murphy applies here, the Commission could not lawfully withhold information sought by a member of Congress regardless of whether he complied with applicable committee or subcommittee rules, at least when he requests the information pursuant to his legislative duties and not 'in a purely private or personal capacity'." (citation omitted)); Rockwell Int'l Corp. v. U.S. Dep't of Justice, 235 F.3d 598, 604 (D.C. Cir. 2001) ("This case is thus controlled not by Dow Jones, but by Murphy v. Dep't of the Army, 613 F.2d 1151, 1155-59 (D.C. Cir. 1979), where we held that the Army had not waived Exemption 5 protection for an internal legal memorandum by sending it to a congressman along with a letter."). The position advanced by these legal authorities finds further support in the rules of the Senate, which do not locate the power of committees and subcommittees of the Senate to compel the provision of information exclusively in their chairmen. Rather, the rules explicitly recognize the right of both sides on Senate committees and subcommittees to obtain information. See Rule XXVI.4(d) of the Standing Rules of the Senate, S. Doc. No. 107-1, at 41 (2002) (providing that whenever the committee conducts a hearing, the minority shall be entitled, upon the request of a majority of the minority members, to call witnesses selected by the minority to testify during at least one day of hearings). Yet, in direct opposition to the existing legal authorities and in contrast to the long-standing norms of accommodation governing information exchanges between the political branches, your Agency apparently interprets 5 U.S.C. §552(d) as applying only to Congress as a body (or to its committees or subcommittees). Under this interpretation, it makes no difference if the individual member is making the information request in his/her official capacity as a member of Congress. Upon inspection, this interpretation appears to be based on nothing more than a policy preference for limiting congressional access to information to committee and sub-committee chairpersons. As pointed out in this letter, that policy preference is contrary to the text and legislative history of the statute. It is contrary to existing case law. It is contrary to the rules of the Senate. And it is contrary to the affirmative duty obligating executive agencies to accommodate information requests made pursuant to the exercise of congressional responsibilities. To that effect, we would like to discuss with you at your earliest convenience a schedule for delivery of responses to our outstanding requests. As Senator Jeffords' staff previously discussed with your staff, we can find ways to safeguard the integrity of any sensitive information. Finally, there are a number of other outstanding document and information requests made by various committee members in their official capacity to which your Agency has failed to respond, provided incomplete responses, or invoked some other non-FOIA related rationale. This includes any documents referred to in the Grumbles letter or the letters to Senator Wyden regarding the City of Portland Combined Sewer Overflows for which you are asserting a non-FOIA related privilege claim. It also includes: 1. the repeated requests beginning in May 2001 for a comprehensive analysis of the benefits of different multi-pollutant strategies, such as the Jeffords-Collins-Lieberman Clean Power Act; 2. the February 2003 request for information pertaining to the amount of methyl bromide currently stockpiled in the United States; 3. the June 19, 2003 request for documents and information relating to the White House's involvement in eliminating and altering climate change language in the Agency's State of the Environment report; 4. the October 17, 2003 letter regarding the accuracy of a statement by Mr. Bill Wehrum, counsel to the Assistant Administrator for Air and Radiation, regarding the enforcement approach that the agency will take in the event that the stayed NSR rule on routine equipment replacement is overturned; 5. the November 18, 2003 request for documents and information substantiating Mr. Jeffrey Holmstead's, Assistant Administrator for Air and Radiation, July 2002 New Source Review-related testimony; 6. the November 2003 request for EPA documents relating to the EPA Inspector General's report concluding that the Agency's health-based judgments and public communications were altered by White House personnel in the days following the collapse of the World Trade Center; and 7. the January 13, 2004 request seeking analysis or explanation of comments you made to the Edison Electric Institute regarding the proposed mercury rule and NSR enforcement. Surely we can work together to resolve these outstanding requests so that we may have a productive working relationship on matters pertaining to the health of our environment. We look forward to your response on this important issue. Sincerely, Senators: James M. Jeffords, Max Baucus, Harry Reid, Bob Graham, Joseph I. Lieberman, Barbara Boxer, Ron Wyden, Thomas R. Carper, Hillary Rodham Clinton ------------------------------------------------------- U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS OUTSTANDING DOCUMENT AND INFORMATION REQUESTS TO EPA
As of March 25, 2004 1) Original Request: May 2001 – The EPW Committee has repeatedly requested analysis of the costs and benefits of different multi-pollutant strategies, like the Jeffords-Collins-Lieberman Clean Power Act, since May of 2001. To date, the Committee has received cost information, but has not received a comprehensive analysis of the benefits of Senator Jeffords' Clean Power Act. EPW continues to request complete benefits analysis, taking into account all health care-related savings, air quality-related values, and ecosystem effects due to projected emissions reductions. 2) Original Request: August 2001 – Sen. Jeffords wrote to Administrator Whitman on August 10, 2001, with follow-up questions to a July 26, 2001, hearing, seeking a consolidated estimate of the public health and environmental benefits, including tons of pollution avoided, achieved through full implementation of all Clean Air Act programs (including NSR, MACT, and PM 2.5/Ozone) that the Administrator mentioned during the hearing would be potentially "unnecessary" under a three-pollutant reduction scenario. The Committee has received only a qualitative analysis of some programs. 3) Original Request: December 2001 – Concerning both rule packages, EPW Committee members requested in December 2001 letters to EPA and the Department of Energy the following analyses and all related documents: A) the resulting impacts of the rules on future emissions (not provided and no effort has been made to collect the information); B) the impacts on EPA, state, or citizen NSR enforcement, including settled or pending cases, or cases that may have been ripe had the rules not been changed, or future enforcement authority (not provided); C) the impacts on attainment or maintenance of the NAAQS for SIPS, FIPs, or tribal implementation purposes (not performed or provided, and no effort has been made to collect the information); D) the legal consistency or inconsistency of the rules (not provided); and E) the extent to which fewer sources may take permit limits to "net out" of NSR, and the related future emissions impact (provided only a qualitative estimate with no mechanism to detect impact). 4) Original Request: December 2001 – EPW members originally requested a log of documents relating to the proposed New Source Review rules on December 14, 2001. After EPA failed to deliver the log by the promised date of October 24, 2002, EPW resubmitted the request on December 20, 2002. A log was finally received on January 22, 2003 – after the first set of rules was finalized. However, the log is only a partial collection of the documents that would be responsive to the request, it does not contain information pertaining to document content, and it ends on September 30, 2002. EPW has requested a log that identifies document content pertaining to both sets of rules finalized in December 2002 and August 2003, through the date of the Agency's response to this request, which covers all documents described in the original request. EPW also requested all documents numbered 136-185 in the log on March 25, 2003, and in a subsequent email on May 15, 2003, but has not received these documents. 5) Original Request: December 2001 / July 2002 – EPA has not produced a quantitative analysis of the effects that the new and proposed NSR rules would have on the environment and public health, as was promised during both a July 16, 2002, joint EPW-Judiciary Committee hearing and a September 3, 2002, HELP Committee hearing, and as is required by Executive Order 12866. Furthermore, in December 2001, EPW members requested a discussion of the impacts of the proposed NSR changes on attainment of the National Ambient Air Quality Standards. EPW still awaits this analysis. 6) Original Request: July 2002 – Question number 24 of the July 30, 2002, NSR hearing follow-up request from Senator Jeffords asked for EPA to provide all written advice and comments from the Office of Enforcement and Compliance Assurance (OECA) regarding the effect of the Report and Recommendations on the ongoing enforcement cases. After receiving a second EPW request, EPA offered to allow EPW staff to view the documents at the Agency. The Committee has restated the request that the documents be delivered to the Committee and offered appropriate accommodation for sensitive material. 7) Original Request: February 2003 – In an EPA briefing in February of 2003, EPW Committee staff asked for the amount of methyl bromide currently in stockpiles in the United States. EPA replied that it would not fulfill the request because it considered this confidential business information. As stated by Committee staff in subsequent email correspondence, this assertion does not apply to Congressional requests. 8) Original Request: June 2003 – Senators Jeffords, Graham, and five other Senators sent a letter on June 19, 2003, to EPA concerning the White House's involvement in eliminating and altering climate change language in the agency's State of the Environment report. EPA's response on August 28, 2003, neglected to include a requested list of all inter-agency/Administration (internal) participant reviewers, copies of all internal drafts, and the name of the person who decided to delete the climate change section and insert a reference to an American Petroleum Institute-funded study. 9) Original Request: October 2003 – EPA has not responded to an October 17, 2003, letter from Senator Jeffords and one other Senator seeking the Agency's confirmation of the accuracy of a statement by Bill Wehrum, counsel to the Assistant Administrator for Air and Radiation, regarding the enforcement approach that the agency will take in the event that the stayed NSR rule on routine equipment replacement is overturned. 10) Original Request: November 2003 – On November 17, 2003, members of the EPW Committee requested EPA (and Council on Environmental Quality) documents relating to the EPA Inspector General's report concluding that the Agency's health based judgments and public communications were altered by White House personnel in the days following the collapse of the World Trade Center. To date, EPW has received none of the documents requested of EPA. 11) Original Request: November 2003 – Assistant Administrator for Air and Radiation Jeffrey Holmstead has not yet responded to a November 18, 2003 request from Senators Jeffords and Leahy that he provide evidence in support of his July 2002 hearing testimony, in which he stated that the Administration's New Source Review changes would not negatively impact pending enforcement cases. 12) Original Request: January 2004 – EPA has not responded to a January 13, 2004, letter regarding the Administrator's statements at an Edison Electric Institute meeting concerning both the agency's proposed mercury rule and New Source Review enforcement and routine maintenance. Specifically, the letter requested economic, legal, or policy analysis supporting the Administrator's statement that compliance with existing law and with the mercury settlement agreement would be less effective than EPA's proposed alternative. The letter also asked what the Administrator would be directing EPA to do with respect to the pending New Source Review cases, and cases previously under investigation for violation of NSR rules existing prior to the court stay of the routine maintenance rule.