White House asserts executive privilege in air-quality case

McClatchy NewspapersJune 20, 2008 

WASHINGTON — Setting up a constitutional showdown, the White House on Friday asserted executive privilege in denying a congressional request for thousands of pages of documents related to the federal government's rejection of California's efforts to regulate greenhouse-gas emissions.

Congress is attempting to determine whether President Bush played a role in the Environmental Protection Agency's decision to deny California's request for permission to impose tougher air-quality regulations than federal law called for.

California had been granted such waivers numerous times over the years, but the Bush administration delayed and then rejected its request for authority to regulate carbon dioxide emissions.

"I don’t think we’ve had a situation like this since Richard Nixon was president," said Rep. Henry Waxman, D-Calif., the chairman of the House Committee on Oversight and Government Reform, which is conducting the investigation.

An EPA official, Jason Burnett, has told committee investigators that EPA Administrator Stephen Johnson had favored granting the waiver but denied it after meeting with White House officials. In testimony last month, Johnson refused to say whether he’d discussed the waiver request with Bush.

Waxman canceled a contempt vote that had been scheduled for Friday morning against Johnson and White House official Susan Dudley after the White House informed him of its last-minute decision. Waxman said the two had refused to cooperate with his panel.

Jeffrey Rosen, general counsel to the president, said the White House already had turned over 7,558 pages of documents to the committee. He urged Waxman not to proceed with a contempt resolution.

"We believe that the present state of affairs does not justify the sudden, significant escalation," Rosen said in a letter to the committee.

Waxman was critical of the White House's decision. "There are thousands of internal White House documents that would show whether the president and his staff acted lawfully," Waxman said. "But the president has said they must be kept from Congress and the public."

Waxman said the committee would investigate the matter further before deciding how to proceed. "We will not abandon this matter," he said. California Democratic Rep. Diane Watson, a committee member, said she was appalled that the waiver had been denied for the largest state in the union.

"We live in a state where the pollution was so bad, you could fly from Sacramento down to Los Angeles and it was like flying in gunk. You could cut it," she said. "Over the years, we’ve cleared the air."

Democratic Rep. Dennis Kucinich of Ohio, another member of the committee and a former presidential candidate, said Bush had demonstrated contempt for Congress and abused his power. Kucinich reiterated his call to impeach the president, saying it was the only way that Congress could hold the administration accountable. He said the committee should approve a contempt resolution immediately.

"Can the government be clean if the air is not?" Kucinich asked.

Virginia Rep. Tom Davis, the top-ranked Republican on the committee, told Waxman to proceed cautiously and to make sure he had the right case if he intended to challenge an assertion of executive privilege.

"We want to have a winning case," Davis said. "This is precedential institutionally and I think we want to be very, very careful as we move ahead." For months, Waxman's committee has been investigating the EPA's decision to block California from regulating greenhouse-gas emissions for cars and trucks. The waiver had become a battleground over the administration’s hesitation to enact policies aimed at slowing global warming. In the absence of federal action, 11 other states also had sought authority to impose tougher limits on greenhouse-gas emissions.

Waxman charged that Johnson, along with staffers and scientists at the EPA, wanted to grant California's request but that the White House had interfered. Then, Waxman said, "after secret communications with White House officials," the EPA denied California's petition.

"The outcome dramatically changed when the White House became involved," Waxman said.

Bush sought advice from Attorney General Michael Mukasey before making his decision.

"The Office of Legal Counsel is satisfied that the subpoenaed documents fall within the scope of executive privilege," Mukasey said in a letter to Bush, which Republicans on the committee released.

The White House announced its decision in a letter to Waxman written by Jim Nussle, the director of the president's Office of Management and Budget. He said the White House was asserting executive privilege "in order to preserve the confidentiality that is essential to the ability of current and future presidents to receive candid analysis, advice and recommendations" from staff members.

Waxman said the White House was taking "an extraordinary step" by asserting executive privilege. But he said congressional investigators wouldn’t give up because they had "a fundamental obligation to learn the truth."

Previous stories on this topic: Official: White House influenced EPA ruling on California emissions

EPA chief won't say if Bush discussed California waiver

McClatchy Newspapers 2008

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