Robert M. Sussman, a senior fellow at the Center for American Progress and former Deputy Administrator of the EPA, has compiled an excellent analysis of some of the EPA's most recent controversial decisions. Assessing the EPA's continued defiance of the Supreme Court and its recent extralegal actions (at the White House's direction) while setting new ozone standards, Sussman does a great service by honing in on a key nuance in Administrator Stephen Johnson's irresponsible actions:
The administrator of EPA is a member of the president’s political team but he is also charged by Congress with safeguarding the integrity of the nation’s environmental laws. It is not unusual for the president’s advisors to have views on how the agency should carry out its agenda, and the give-and-take between EPA and its political masters is a healthy if at times frustrating part of the policymaking process.
But in the end, the EPA administrator must protect the agency’s statutory mission and institutional integrity, even if that means resisting presidential advice that strays outside the bounds of law and precedent. A 27-year career EPA scientist, Stephen Johnson should understand where to draw the line between legitimate policy debate and presidential fiat, but recent events unfortunately indicate that the line has now been crossed not once but again and again on his watch.
This is a damning distinction that unfortunately doesn't get drawn out enough in the debate about Johnson's decision-making process, who influenced it, and who was ignored in it. Johnson gets to make the final call, and he's allowed to be influenced by his political masters, but he must do so within the clear bounds of statutory guidelines. His decisions to overrule his staff don't merely cry out for condemnation because they lack adequate justification, but because the advice ignored clearly delineated that legally, he had no other choice.
That Johnson has gone outside his statutory authority is only highlighted by the fact that twice in the last week-- in response to congressional questioning on Thursday about Mass. v. EPA, and while explicitly rationalizing his ozone ruling the next day-- he has openly expressed a desire to change the law as it stands, and veer from the EPA's focus on protecting the environment and human health. Until that happens, Johnson is stuck with the legal mandates on the books, and despite his best efforts to find wiggle room, they leave him with little choice but to either move forward or engage in the kind of legally-fictitious delay tactics we've seen. His attempts to rationalize the second option makes a mockery of the legitimate decision-making authority that Congress did very much intend to give officials in his position.
Those who support Johnson's actions, or wish he had gone further and found a way to not be so clumsy and transparent, often similarly pontificate about how the Clean Air Act and the courts aren't really meant to handle global warming, or how the Supreme Court really didn't force EPA's hand on anything significant. Once again, they're more than welcome to that belief, but not the selective quoting of statutory text and legal precedent that make them think it can be acted on by the Bush administration (or any other one). Only a highly expansive view of Johnson's authority, and one that aggrandizes that role at the expense of deference to statutory text and legal precedent, allows for the kind of unprecedented legal fiat that he has undertaken.