As the Wonk Room points out, yesterday's UCS survey of EPA scientists has reignited passionate calls for embattled administrator Stephen Johnson to resign. Today, Rep. Ed Markey (D-MA), formally reacting to EPA's failure to cooperate with a congressional subpoena, is giving Johnson a chance to avoid a legal clash between Congress and the Executive Branch. Not taking the deal ASAP, however, is sure to escalate Johnson's troubles.
EPA is refusing to hand over documents such as the endangerment finding for CO2 emissions that it prepared last year in response to the Supreme Court's Massachusetts v. EPA mandate-- only to improperly shelve it and begin a new regulatory process. In the press release accompanying his letter to EPA, Markey reasserts congressional prerogatives, and outright rejects the EPA's excuses and its proposed compromise for making the documents availaable. His counter-proposal:
Chairman Markey has proposed that EPA will provide the committee with the requested global warming documents immediately, but that the committee will not reveal any information included in the documents until either the EPA releases its upcoming Advanced Notice of Proposed Rulemaking (ANPR) on global warming emissions from motor vehicles and other sources of these emissions that are regulated under the Clean Air Act, or June 21, 2008, whichever is earlier.
In a response last week, the EPA said it would not be willing to allow the committee to review the documents until after the earlier of the date on which the agency releases its ANPR , or June 21, 2008. The EPA did not even commit to allowing the committee to claim possession of the documents, but nevertheless requested that the committee withdraw its subpoena before the documents were even made available for review. The EPA has not claimed executive privilege on these documents, but instead, according to the letter from Chairman Markey, has invented “a new claim of ‘chilling effects’ on the administrative process—a basis that I am not aware has ever been recognized by any Committee of Congress as lawful grounds to withhold documents within the purview of a Committee’s inquiry.”
“At this point, Administrator Johnson and the lawyers at EPA are throwing any argument they can think of against the wall, hoping one will stick,” said Chairman Markey. “None of their arguments have yet had any traction -- or legal basis, for that matter -- and therefore they must hand over these important documents immediately.”
Markey also makes crystal clear the consequences of not taking his deal, saying that he shares Johnson's "interest in resolving this matter without a vote of contempt." He has given EPA until 6 PM on April 25-- that's tomorrow night-- to respond, adding that "otherwise, the committee is prepared to proceed with all its legal rights."