Sen. Barbara Boxer has been investigating a cover up directed by the WH and Cheney's office to hide from the public an EPA finding that global warming endangers our lives and public health --- both now and in the future. Even the WH admitted that GHG endangers us. Yet, Bush has obstructed the EPA from fully disclosing how we are endangered and prevented the EPA from complying with the law by regulating GRG.
This cover up has teeth because it affects if we live, where we live and the quality of our lives. It involves WH secrecy, violation of laws, altering sworn Congressional testimony and imposing GAG orders. Yesterday, the fruits of the investigation thus far caused Democrats to demand that EPA Administrator Johnson resign and that a DOJ perjury investigation be conducted.
Today, a federal court ruled that Bush and his advisors do not have absolute immunity from Congressional subpoenas (pdf file). This could be a long, hot summer for Bush given the number of Congressional investigations related to this cover up.
Senator Boxer explained the reckless nature of this cover up:
Let me close with an analogy. If I knew that danger was lurking around the corner, and I watched as a group of innocent people walked around that very corner without warning them, I would be guilty of a reckless and unconscionable act.
History will judge this Bush administration harshly for recklessly covering up a real threat to the people they are supposed to protect.
This is reckless endangerment and reckless killing: More people will suffer injuries, illnesses and deaths from extreme climate events and global warming impacts than would otherwise happen if our government took effective actions now.
Here is a timeline of the primary events in this global warming cover-up:
April 2007: The cover up is triggered by a US Supreme Court decision.
The Supreme Court held in Massachusetts v EPA that GHG constituted an "air pollutant" under the Clean Air Act (CAA). The court directed the EPA to determine if GHG vehicular emissions endanger public health or welfare. If the EPA concluded that GHG endangers public health or welfare, then it is required by law to regulate the GHG. The "basic logic of the law is straightforward; if the public is endangered, the government must act."
October 2007: Cheney deletes CDC testimony on public health impacts of global warming.
Last October, Julie Gerberding, the head of the Centers for Disease Control and Prevention (CDC), testified before Senator Boxer's committee on the public health consequences of climate change. At the time, it was reported that the testimony had been heavily "censored" by this administration. The deleted pages included a list and explanation of likely public health impacts of global warming. (Desmogblog wrote an excellent diary at the time showing a comparison of the edited and unedited versions.)
In early July 2008, former EPA official Burnett told Congress that it was Cheney's office that cut 6 of the 14 pages or nearly half of her congressional testimony. In fact, it was the "White House, at the urging of Cheney's office," that asked Burnett to "work with CDC to remove from the testimony any discussion of the human health consequences of climate change."
Senator Boxer characterized these deletions as the "first part of 'a master plan' aimed at 'covering up the real dangers of global warming and hiding the facts from the public.'"
In short, Cheney's office is alleged to have altered the nature of sworn testimony before Congress. It should be noted that Julie Gerberding maintained that no one directed or changed her testimony. However, if she stated otherwise, then she could face perjury charges. As it stands, there may be some administration officials facing suborned perjury charges.
November 2007: WH says GHG endangers public.
The EPA used a policy consensus approach with other federal agencies and officials providing input when it conducted its 6-month analysis to determine, pursuant to the Supreme Court decision, if GHG endangers public health or welfare. This process "culminated in a cabinet level meeting in November 2007:
Burnett said that officials from the White House, the vice president's office, the Department of Energy and other agencies agreed at a Cabinet-level meeting last November that greenhouse gases endangered the public and regulation was needed.Various theories were proffered to avoid reaching an endangerment conclusion, but the "[a]dministration recognized that the only supportable answer to the Supreme Court was to find that greenhouse gases endanger the public. They also recognized that a finding of endangerment would have profound consequences and the initial decisions for how to apply the Clean Air Act would set the stage for years to come." Thus, on "April 16, 2008 President Bush called on Congress to pass new legislation and to amend the Clean Air Act so that it did not need to be used to regulate greenhouse gases." When that failed, Bush commenced a rule making process (discussed below) that is focused on convincing the public that GHG should not be regulated by the CAA.
December 5, 2007: EPA emails report to WH that GHG endangers Americans.
EPA official Burnett emailed the WH its draft report which concluded there was compelling and robust evidence to support a finding that GHGs endanger the public health and welfare. The WH "instructed EPA to retract it," but Burnett refused. The WH then refused to open the email to prevent public disclosure of the findings in the EPA report. It has now taken 7 months to obtain any public disclosure of some of the key points in this report, but the full report has not yet been disclosed to the public.
The WH actions were contrary to law. This EPA report was its regulatory response which was directed by the US Supreme Court. The refusal by the WH to receive the report interfered with EPA's legal duty to render an endangerment finding, and then, commence regulation of GHGs if the finding was positive, as here. As Sen. Boxer stated:
"This president, I believe, made a decision that flies in the face of a Supreme Court case, and so I believe it is clearly unlawful," Boxer said.The Bush administration has claimed concerns about the accuracy of the science used for the EPA's endangerment finding. However, the EPA based its finding on scientific data, studies and reports that presented the current state of knowledge on climate change science and constituted reports that our government had reviewed, formally accepted, authored or commissioned to ensure that the information used for the EPA endangerment finding had been vetted by both our government and the climate change scientists. The EPA rejected or dismissed theories that did not have scientific support.
Finally, after 7 months of silence, Sen. Boxer's threatened subpoena convinced the EPA to provide a "brief loan" of a copy of the EPA's draft endangerment finding. Three senators were allowed to take "whatever notes they can make" under the "watchful eyes of two White House lawyers" to provide a summary of some of the key findings made by our EPA:
• "The Administrator believes that there is compelling and robust evidence that observed climate change can be attributed to the heating effect caused by global anthropogenic [or man-made] greenhouse gas emissions.Rep. Markey also read the endangerment finding, which he paraphrased as follows:
• "Based on the evidence before him, the Administrator believes it is reasonable to conclude current and future emissions of greenhouse gases will contribute to future climate change.
• "The Administrator is aware that the range of potential impacts that can result from climate change spans many elements of the global environment, and that all regions of the U.S. will be affected in some way.
• "The U.S. has a long and populous coastline. Sea level rise will continue, and exacerbate storm surge flooding and shoreline erosion.
• "In areas where heat waves already occur, they are expected to be more intense, more frequent, and longer lasting.
• "Wildfires and the wildfire season are already increasing and climate change is expected to continue to worsen the conditions that facilitate wildfires.
• "Where water resources are already scarce and over-allocated in the Western U.S., climate change is expected to put additional strain on these water management issues for municipal, agricultural, energy and industrial uses.
• "Climate change also introduces additional stress on ecosystems which are already affected by development, habitat fragmentation, and broken ecological dynamics.
• "In sum, the Administrator is proposing to find that elevated levels of [greenhouse gas] concentrations may reasonably be anticipated to endanger public welfare."
Apparently, the WH found the EPA draft endangerment finding "radioactive in three key areas":
"It validates the approval of California's waiver to regulate greenhouse gases from motor vehicles. It demonstrates that the Transportation Department's proposed fuel economy standards fall far short of what is technologically feasible and cost-effective. And it makes a strong case supporting how the existing Clean Air Act can be used to regulate greenhouse gases."Bush has already reaped some immediate benefits from keeping the EPA endangerment finding secret. In addition to the draft endangerment finding, the 12/07 EPA email included a draft regulatory proposal which recommended fuel-economy standards of 37.7 miles per gallon in 2018. Around 10 days after Bush refused to open the EPA endangerment email, Congress, apparently in the dark about the EPA's recommended fuel-economy standards, passed a new energy bill (EISA or Energy Independence and Security Act), which mandated a lower standard of 35 miles per gallon by 2020, or two years later than recommended by the EPA. On the same day this bill was signed into law, the EPA also denied a waiver to California, and now claims the EISA provides a better vehicle to regulate GHG than the CAA.
December 19, 2007: Bush Rejected EPA-Recommended Air Quality Waiver To Allow California To Regulate GHG.
One month earlier, the WH agreed that GHG endangered the public, yet now Bush prevented even state regulation of GHG by denying a waiver to California. This was outrageous for so many reasons. "Over the past 30 years, the US EPA has granted California more than 40 such waivers, denying none" because the law allows California to set air quality standards that are stronger than federal law. In fact, the EPA's legal staff concluded that there was no legal precedent or "any good arguments against granting the waiver" and that ultimately the EPA would "lose in court" if sued.
The House Oversight and Government Affairs Committee conducted a 5-month investigation of the EPA's decision to deny California its legal right to a waiver. Senator Boxer describes how the WH "cooperated" with this investigation:
Despite noncooperation, the committee reviewed over 27,000 pages of EPA documents and deposed or interviewed 8 key officials. The committee issued its findings:
The record before the Committee shows: (l) the career staff at EPA unanimously supported granting California's petition; (2) Stephen Johnson, the Administrator of EPA, also supported granting California's petition at least in part; and (3) Administrator Johnson reversed his position after communications with officials in the White House.This issue is about more than a waiver. As the Committee stated, Bush has a constitutional mandate to ensure that US laws are faithfully executed. The governing law is the CAA, which requires that California's petition to regulate GHG motor vehicle emissions is "decided on the merits based on specific statutory criteria." The Committee concluded that it would be a "serious breach" if Bush or other WH officials directed the EPA to ignore the record of scientific evidence so that it could deny the waiver for "political or other inappropriate reasons.
While the record indicated that the WH played a "pivotal role" in the decision to reject the California waiver, WH directives prevented Congress from determining the full extent of the WH role:
During his deposition, Mr. Burnett was asked to identify the White House officials who spoke with Administrator Johnson and to describe the substance of their communications with Administrator Johnson. Mr. Burnett informed the Committee that he had been directed not to answer any questions about the involvement of the White House in the decision to reject California's petition.The Committee plans to continue its investigation to "assess the legality of the White House role" in rejecting this waiver.
June 26, 2008: The ANPR or Watered-Down Version of the 12/07 EPA Endangerment Finding.
One of the goals of this cover up is to prevent regulation of GHGs by the CAA. Thus, Bush refused to accept the EPA's 12/07 endangerment finding because then the EPA would be mandated by law to regulate GHG under the CAA. While the issue is now limited to EPA regulation of mobile sources of GHG emissions, given the structure of the CAA, the regulation would be extended also to small sources and stationary sources, such as "schools, hospitals, factories, power plants, aircraft and ships."
When it became clear that there would be no legislative "fix" to implement an endangerment finding by new legislation rather than the existing CAA law, the Bush team moved to a new strategy of avoiding the issuance of "any finding at all" in order to prevent the issuance of "a positive endangerment finding."
Thus, the EPA's 12/07 endangerment finding simply does not exist. Instead, after 5 days of WH pressure on the EPA, the EPA agreed to issue an Advance Notice of Proposed Rulemaking or ANPR, which will be a "watered-down version of the original proposal that offers no conclusion." The EPA justified the ANPR strategy on the basis of a changed circumstance of Congress impeding the EPA's process to respond to the Supreme Court by passing EISA, which is claimed to have "concrete effects upon the emissions of greenhouse gases."
EPA's original proposed rule concluded that climate change endangers the public welfare, but the revised rule now seeks public comments on whether climate change poses a danger. The WH also pressured the EPA to "eliminate large sections of the original analysis that supported regulation, including a finding that tough regulation of motor vehicle emissions could produce $500 billion to $2 trillion in economic benefits over the next 32 years." The proposed rule will also be much shorter than the original document of 250 pages, which "included detailed alternative approaches on how to regulate greenhouse gases from fuels, vehicles and stationary sources such as power plants." The new proposal is briefer because Bush does not even want the EPA to discuss alternatives. "Instead, the document reviews the legal and economic issues presented by declaring greenhouse gases a pollutant."
The sole purpose of the ANPR is to make the case that CAA can not be used to regulate GHG. Thus, Bush rejected a proposal to obtain public comment on the issue whether the EPA should regulate GHG under the CAA. In an unprecedented move, the ANPR includes comments from a host of federal agencies advocating against using CAA to regulate GHG.
However, Bush likes to say he is acting in the best interests of all Americans because such grave matters should be decided by us:
Decisions with such far-reaching impact should not be left to unelected regulators and judges. Such decisions should be debated openly [and] made by the elected representatives of the people they affect.June 2008: EPA GAG Order.
The Bush administration has fired back another response to the continuing --- and successful --- investigations conducted by Democratic lawmakers. The EPA has imposed a GAG order on its staff to bar responding to questions or issuing statements to congressional investigators, reporters, the EPA Inspector General or representatives of the Government Accountability Office.
Cheers to Senator Boxer and all Democratic lawmakers who are conducting investigations to protect us from our own government.