As we approach Thursday's Senate hearing on EPA's California waiver denial, now likely to include the heightened dramatic element of a showdown over executive privilege, it's certainly worth noting that this move is not entirely unpredictable on a couple of levels.
The obvious predictor being raised by observers (see, for instance, Crooks and Liars) is the possibility of outside interference from Vice President Cheney's office and other parts of the Bush administration (the Department of Transportation quickly comes to mind). Speaking to the AP, EPA spokesman Jonathan Shradar asserted that the documents released will show that this was entirely Administrator Johnson's decision. That may well be the case based on the materials released to Senator Boxer's staff, but given that Shradar was defending a partial release chock full of redactions and missing pages, we wouldn't be surprised to see congressional questions pertaining to this angle persist.
In addition to the that line of questions and a general lack of surprise that the Bush administration would seek to maintain executive secrecy, a quick bit of research reveals that this isn't the first time that EPA in particular has raised the matter of executive privilege. Back in July, when Johnson was hauled before Senator Boxer's commmitte about EPA's proposal to tighten the national ozone standard, OMB Watch noted that he responded thusly to questions about a meeting denoting potential White House influence on the proposal:
As Reg•Watch has pointed out, the White House has its fingerprints on this weak proposal. The White House Office of Information and Regulatory Affairs (OIRA) held three meetings on the rule, two of which were packed with industry reps. The first meeting also featured a representative from Vice President Cheney's office. An official from the VP's office has been present in only five of the last 482 regulatory review meetings.
Something else was peculiar about that first meeting: there was no representative from EPA. Executive Order 12866, which governs the regulatory review process, requires an official from the relevant agency be invited to each meeting. OIRA is supposed to disclose why that official did not or could not attend. In this case, OIRA hasn't.
Committee Chairwoman Barbara Boxer (D-CA) questioned EPA Administrator Stephen Johnson on this peculiarity. Johnson said, "I don't know why we were or were not invited," and, "I don't recall being aware of that particular meeting." He also did not recall being briefed on the substance of the meeting afterwards.
Boxer pressed Johnson and asked him to provide answers as to whether EPA has any knowledge of this meeting. Johnson said he would "to the extent possible" and then alluded to invoking executive privilege (the excuse du jour in the administration.)
OMB Watch also asserted that in that instance, a claim of executive privilege would not have been valid.
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