12:32 PM: Boxer closes out. She doesn't doubt his veracity about the leaks-- she knows they were there, knew at the time. But its still bogus that he is saying there was no coincidence.
Asks again when they'll have the decision document ready. Johnson reiterates his earlier answer of the end of February (he "expects"), and that he "expects" to have the other documents to her by February 15th (Boxer is noting he won't say it firmly). And with that, on to a new thread for the governors...
12:30 PM: Sanders reminds him he's under oath, and says he'll give him a chance to rephrase his answer. As Boxer noted, his 12/19 media statement seemed to contradict this-- it has everything to do with the President signing the bill! How can he say it was just a coincidence?
Johnson says 2 events were happening in a "parallel path:" his deliberation under Section 209, and legislative debate on whether to change it. When he knew it wasn't changing, he was clear he could make his decision.
Sanders wants to know why, if the timing was due to leaks, he didn't cite that until now. Johnson "appreciates your advice," says his statement was factually correct context and focused on his legal finding for "compelling and extraordinary" conditions. Sanders argues that he mentions this more in passing in the press release, in the middle, and the energy bill et al were his main framing.
12:25 PM: Boxer is wrapping up questioning, asking about public comments and whether they were for or against the waiver. He says he saw "mixed views," quite a few for it and "quite a few that seemed to come from a card-writing campaign!" Ultimately this isn't a popularity contest.
Boxer places it into record that almost all were for CA, as well as EPA being lectured by the Supreme Court. Follows up on Sanders' questioning regarding the timing and if its fair that he's saying it was just because of leaks. He says yes, that's what he says.
Boxer reads him back his remarks from the press conference, which opened by citing the energy bill bringing a "national approach" and a "better approach" than states. So wasn't the energy bill actually the basis he was framing his decision with? Johnson still stands by his statement to Sanders. Boxer is incredulous and gives more time to Sanders to finish up.
12:19 PM: Whitehouse is still up, wants a comparison between typical procedure and what was done here. He thinks there typically is a consolidated recommendation, and that would seem to be the logical way in all cases. Johnson has said he didn't do this in that case-- isn't that weird, and isn't he justified in suspecting there was manipulation of the process? His time is now up.
12:13 PM: Whitehouse notes that in response to a question from Sen. Klobuchar, he said that he the waiver was not needed "in my opinion." Doesn't the law say that he can't substitute his preferences for California's? (Editor's note: GOOD QUESTION!)
Johnson is falling back on his interpretation of the law's saying that its his decision regarding the three criteria. They beging to argue over main areas of administrative procedure leading to his decision-- they agree on 3 main points including consolidated recommendation phase, its not three, but four, with the last being him summarizing and going over everything before him). Was there a consolidated recommendation from staff? "Sometimes there are, sometimes not." Whitehouse thinks he just contradicted himself, that he is saying that there wasn't a recommendation here.
12:04 PM: Sanders is incredulous that he just so happenned to issue a decision, via press release, the evening the energy bill came out. Johnson blames leaks to the media that were coming out with information he felt might be confusing to the public; he then decided he had to release his decision. Sanders follows up angrily, Johnson says it was a "unique situation" (but won't say it wasn't a coincidence) and he wasn't the one who leaked "misinformation."
More back and forth on Sanders' question. "You keep saying, 'As I said,' but you didn't say!" Johnson says he had wanted to make sure the President had signed the energy bill before he moved forward (apparently he wasn't sure, even though the White House had announced it was signing the bill).
12 PM: Lautenberg is asking about decision-making process, decision coming so suddenly along with the energy bill signing. Johnson reiterates that he wanted a more orderly process, but wasn't sure if the Clean Air Act would be amended by Congress, etc. (In other words, because the administration was threatening a veto and the likes of Senator Levin and Congressman Dingell were still maneuvering to get preemption, he supposedly gets to make a quick decision without any kind of real legal rationale beyond a basic outline.)
Why did he go against his staff-- did he think they were giving him faulty information? He loves his staff, they're great, they gave him good range of options, he independently weighed it and concluded CA didn't meet Section 209.
11:53 AM: Inhofe is leaving soon, but he asks former Deputy EPA Administrator Jeffrey Holmstead, testifying later, to address the "logic" of letting one state have authority over CO2, and whether Section 209 should be repealed. He also praises scientists dissenting from IPCC, tries to get Johnson to disagree with specific parts (he doesn't bite though).
11:47 AM: Boxer is up again. She is astonished that Johnson wouldn't fully answer public health questions, and enters previous CDC testimony into record. As far as the privilege issue goes, she's angry that his spokesman was "horrified" that she revealed document contents. When will the Commitee have the rest of the documents? He reiterates ongoing legal proceedings etc, but finally says February 15th.
Asked whether these will include expected emails between the White House and his office, he stutters and turns back to his lawyer before saying they're working on seeing what was there. Boxer reiterates that she's been lead to believe it will include this. She is trying to avoid subpoenas, but will if necessary, particularly if there's more tape!!!
11:42 AM: Whitehouse, a former US Attorney and state Attorney General, asks if Johnson directed the staff process. He did, and staff presented him a range of options ("all legally defensible"). Listened to these, views of Congress and administration and others, made his call.
Is it customary for staff to work out disagreements before coming to Administrator, and present a unified recommendation? Johnson interprets it as presenting a range of legal options and suggestions, to inform his decision. (In other words, what others see as a recommendation, he sees as advice).Who decides if staff will present recommendation or range of options? He says he leaves it up to individual office heads. Whitehouse asks if he shouldn't try to get a consolidated opinion anytime; Johnson says its ultimately his decision, "its not a popularity contest."
11:33 AM: Klobuchar says her constituents are confused that one agency (CDC) says this is a public health threat, but EPA seems to not be on that page yet. He should have his clear endangerment criteria, same rationale for the states having compelling conditions. Johnson goes back to Section 209 criteria being different still. He does admit that his "patchwork" argument has NOTHING to do with his legal argument-- also adds that "perhaps its a checkerboard."
P.S. The federal standard is the first "baby step," and is first national action since Klobuchar was in 7th grade!
11:30 AM: Testy exchange with Sanders. He gets Johnson (after some dithering) to say he agrees with the IPCC that warming is a 90-percent man-made problem, agrees it requires bold action. Won't answer personal opinon regarding why the administration waited so long, whether its a crisis. Is public health risk of wars, drought, floods etc. something that bugs him personally? Won't go into it for fear of giving ground regarding endangerment finding, which is still underway.
11:20 AM: Johnson won't answer Lautenberg's question on whether he took staff findings to Bush (as he should have and advocated for waiver to be incorporated into administration policy, according to Lautenberg). He says it was his decision alone. Asked whether ongoing wildfire and public health crises would be met with him saying to wait for the federal government, he simply says he'd follow the waiver process.
11:15 AM: Lautenberg asks about beliefs re: impact of warming-- is it dangerous to human health? Johnson says its serious issue, but agency is working on its endangerment decision (yup, dodging a direct response on this one too). His conscience is to follow the legal process...Lautenberg says he could leave the job if his conscience requires it!
11: 11 AM: Carper comes back to consistency issue, Levin-Inouye-Feinstein colloquy on industry concerns that NHTSA would be delayed if its standards are different from EPA-- suggests that Bush should direct them to both work on 35 MPG. How, along with taking into account state concerns, do we get to 35 MPG and not competitively disadvantage the auto industry?
Johnson jumps at this to add that the colloquy shows that he was unsure, until energy bill passed, whether Section 209 would even be intact (he doesn't, of course, mention Feinstein's corrective colloquy). Ultimately stayed intact, but says this shows that his focus on CAFE is a valid thing.
11:05 AM: Lieberman picks up on his preference for a national standard. After Mass v EPA, Bush set a goal to have national vehicle GHG standards, and EPA said they'd draft by end of 2007, didn't follow through-- are they still working on this? Yes, they are working on both fuel and vehicle standards, affected but not relieved of responsibility by the 2007 energy bill. Doesn't have a date for when they'll be done, though they'll try to do along with dates in the energy bill's text. Also asks about his written statement saying that litigation should wait for Federal Register notice-- when will it appear? Staff's target is the end of February.
in light of recent IPCC reports, on what scientific grounds did he conclude that threats were not "compelling or extraordinary?" Johnson says final decision document will explain his full scientific, technical and legal rationale (Schwarzennegger letter outlined the basics). In other words, he STILL hasn't figured out what to say!!!
10: 57 AM: Inhofe is asking leading questions. Yes, this is Johnson's call and no one else's (sidenote: true, but he has to follow the law still!). Yes, global warming pollutants are different from all others. Yes, Clean Air Act doesn't require him to rubber-stamp waiver petitions. White House/DOJ consulting: he's been at EPA his whole career, isn't that routine/common and good government?
10: 55 AM: Johnson told Schwarzenegger that there were no "compelling and extraordinary circumstances." What does he say about the compelling and extraordinary conditions presented to him by his staff? Her time runs out, on to Inhofe...
10:47 AM: Boxer brings up his confirmation hearing, promise to base on best scientific information and pursue "as open and transparent a decision process as possible." Shows the blank slides released to her staff last week-- is this open and transparent? Johnson falls back on decades of practice, in his career, of protecting attorney-client privilege during litigation, as they are now. Adds that he even then let Boxer and her staff see the documents, so he thinks that met his promise and the docs show he followed the law.
Boxer isn't buying it: ""You have no privilege visa ve the Congress."
10:45 AM: There is a need for a unified national solution, rather than action "by a patchwork of states." They had an extensive review process with unprecedented response. Clean Air Act requires him to determine based on its criteria; a hard decision, but everything in the past was about air pollutants affecting local/regional air quality. These issues are different, global in nature. CA doesn't have a need for its own state standard in his view; he is happy to take questions otherwise.
10:42 AM: Johnson is sworn in under oath (though he mutters "I do" from where I'm sitting).