Late on Friday, the EPA delivered a box of hard-copy documents about the California waiver denial from to Senator Barbara Boxer, theoretically meeting her past-deadline demand for disclosure in advance of Thursday's Senate hearing. The catch, as per the Associated Press-- many documents were either missing or contained numerous redactions. In a letter from Deputy Administrator Christopher Bliley, EPA invoked executive privilege regarding executive deliberations and attorney-client communications, claiming above all that a failure to restrict public release of the documents would have a "chilling effect" on agency decisions:
The documents provided Friday by the EPA omitted key details, including a presentation that Senate aides said predicted EPA would lose a lawsuit if it went to court for denying California's waiver.
Boxer had threatened to subpoena the agency if it did not turn over the waiver documents. She said she would continue her quest for all the information. Boxer aides said the agency's offer to show her the redacted information privately was not satisfactory.
EPA spokesman Jonathan Shradar said Boxer and her aides were welcome to view and take notes on all the documents.
"The documents are going to show the decision remained the responsibility of the administrator," Shradar said. "He stands by his decision."
Everything except the titles was omitted from 16 pages of a 43-page Power Point presentation, according to copy of the document e-mailed to The Associated Press.
Boxer also released an angry statement-- noting that EPA's "chilling effect" argument "ironically" cites the Watergate-era Supreme Court case United States v. Nixon-- as well as the final witness list for Thursday's hearing (Johnson will be joined by a bipartisan panel that includes the governors of Maryland, Vermont and Pennsylvania). Her statement was accompanied by Deputy Administrator Bliley's letter, which rests on two additional arguments: an assertion that "further disclosure could result in needless public confusion about the Administrator's decisison that EPA will be denying California's request" (more on that one in a bit); and the claim that legal documents could compromise attorney-client privilege in defending against California's ongoing lawsuit seeking to overturn the waiver denial.
While we plan to assess EPA's overall executive privilege claim in further detail, we'd like to first note the significance of Bliley's letter with regards to the existing 9th Circuit lawsuit, California v. EPA. Bliley's letter adds weight to our suggestion Friday that EPA is preparing to isssue further legal justification for the waiver decision, which it would then claim constitutes the waiver's formal denial. Such a move might well lead to EPA moving for the existing suit, which is based on a December 19 decision letter, to be tossed out as premature. In addition to implying that December's announcement marked a decision to deny the waiver, but not a waiver denial in itself, Bliley argues that the many of the documents Boxer requested are "pre-decisional in nature and thus do not reflect the agency's full and complete thinking on this matter," adding that:
Indeed, final decision documents have not yet been completed and made available to the public through publication in the Federal Register, so the public, if given access to the pre-decisional documents, would effectively be denied access to the full, complete rationale by the agency.
Feigned concern for the public interest aside, EPA's evolving position is a crafty one in terms of delaying litigation and dragging out congressional oversight-- and, barring legislative intervention or unusually swift legal proceedings, leaving the ultimate fate of California's clean cars program in the hands of the next President. However, we would be remiss to not emphasize that it is an evolving position that betrays the fundamental weakness of EPA's decision against the waiver.
By scrambling to issue a "final decision" weeks (possibly months) after announcing that he'd made up his mind, Johnson may or may not stymie legal and congressional opponents, but he is, in effect, admitting that he made his mind up before he had developed a full (or as he would phrase it, "complete") legal rationale for doing so. The resulting logic is indeed quite dizzying and potentially confusing, but unlike the EPA, we have faith than an informed public can easily figure out what was going on here.