Waxman uses persuasion, media savvy to defend EPA authority

When he took the gavel of the House Energy and Commerce Committee last month, Chairman Fred Upton (R-Mich.) acquired a well-staffed majority office and the prerogatives to set the committee schedule and subpoena witnesses.

But being chairman of the powerful committee also means facing off against a veteran lawmaker who colleagues say is one of the most formidable legislators and communicators in the House: ranking member Henry Waxman (D-Calif.).

Waxman, who has chaired and been the ranking Democrat on both Energy and Commerce and the Oversight and Government Reform committees, is credited by supporters and opponents with having a track record of advancing his agenda slowly over time, whether in the majority or the minority position -- and no matter who is in the White House.

"He's one of the most accomplished legislators and investigators in the history of the House -- it doesn't matter if he's in the majority or minority," said Rep. George Miller (D-Calif.), a longtime friend. "He's demonstrated that. He's done it from both sides."

Since becoming Energy and Commerce ranking member last month, Waxman has lost some of the tools he enjoyed the two previous years as chairman of the panel, which enabled him to move a comprehensive climate change bill through committee and to eventual House passage. He also faces a powerful new Republican majority determined to strip U.S. EPA of its authority to regulate heat-trapping emissions under the Clean Air Act -- a law he helped construct.


But Waxman has responded to this change in position by using some of the tactics and strategies he honed during his last stint in the minority -- notably his skill in conducting investigations and communicating strategically.

"I think it's important to educate people, and one good way to do that is to send letters and state the facts," the 19-term Democrat told E&E Daily last week. "I think that we're always looking to find out the facts, and while we can't call a hearing and we can't issue subpoenas, we still have the ability to ask the right questions and we will continue to do that."

Tactics that annoy -- and inspire

Waxman's office has in fact released a steady stream of letters and memos during the past few weeks, including several intended to poke holes in the Republican argument that EPA regulation of carbon dioxide is unnecessary and could have a detrimental effect on the economy.

On Feb. 2, his committee staff beat Upton's office to the punch by being the first to release an outline of Upton's own draft bill to bar EPA from regulating greenhouse gas emissions under the Clean Air Act -- a measure Waxman criticized as full of "radical" provisions that could have unconsidered effects on other laws.

Then on Feb. 8, the eve of the Energy and Commerce Committee's first hearing on the Upton draft legislation, Waxman's staff circulated to the press a 2008 letter in which then-EPA Administrator Stephen Johnson told President George W. Bush that a finding that greenhouse gases endanger public safety and human health was warranted.

"The latest climate change science does not permit a negative finding, nor does it permit a credible finding that we need to wait for more research," the former administrator said in the letter.

There was broad media coverage of the letter the evening before and morning of the Energy and Power Subcommittee's daylong hearing, at which current EPA Administrator Lisa Jackson defended her agency's finding that greenhouse gases endanger health and public safety and the regulatory programs that stem from that finding. The hearing's witness list tilted toward critics of EPA's carbon program and were invited by the panel's majority -- a usual practice for congressional hearings -- but by releasing the letter, Waxman's office had ensured that the first round of stories would support Jackson's testimony.

"That's what they do," said former Rep. Tom Davis (R-Va.), who chaired the House Government Reform Committee between 2003 and 2007 while Waxman served as ranking Democrat. Davis became ranking member in 2007, when Democrats took back control of the House and Waxman gained the committee's gavel and renamed it the Oversight and Government Reform Committee.

"They would release stuff the day before the hearing to the press under an exclusive, and so they would get their story," Davis said. "We're geared up for the hearing, and by the time the hearing comes the story is gone."

Davis said his staff would complain, but he considered Waxman's maneuver fair. "That's a legitimate tactic. You don't like it, but it's one of the tools you have if you utilize it right. And Henry's a master of the trade. Did it tick me off? Sure, but I went to school under Henry. I learned a lot from him."

Some of Waxman's missives target opponents of EPA, like when his staff released a letter last month questioning whether a Republican witness who appeared before the Energy and Environment Subcommittee in early 2009 had closer ties to the petroleum industry than he led the committee to believe. Waxman and his staff say Upton has since committed to meet with Patrick Michaels -- who told the panel the science of climate change was not settled -- to determine whether the Cato Institute scholar receives more financial support from oil and gas than he disclosed. Sean Bonyun, a spokesman for Upton, said that the chairman will send Michaels a letter "giving him an opportunity to clarify prior statements in writing."

Norman Ornstein, a scholar at the American Enterprise Institute, said he was not surprised that Waxman is using letters and other communications to target climate skeptics.

"We're going to see, we know from Republicans in Congress and conservatives outside an all-out revolt on EPA out of a fear that Obama will try and get through administrative action and the regulatory process what he didn't get through the legislative process," he said. "It would be surprising if Waxman weren't out there creating a counter-effort to protect and defend EPA and to call into question the motives of those attacking it."

Rep. Elijah Cummings (D-Md.), current ranking member on the Oversight and Government Reform panel, called Waxman a role model when it comes to directing a debate from either a majority or a minority position.

"He's one of the best," Cummings said. "First of all, he makes sure that he hires outstanding people. Second, he makes sure that he has objectives with regard to an investigation, and a hearing and a deposition. Whatever he's doing, he makes his objectives clear. Which makes it easier for your staff and the members, if they know where they're going.

"Just sitting there and asking questions, without a goal, you might as well be out in the ocean going nowhere fast," he said.

Rep. Dennis Kucinich (D-Ohio), another member of the Oversight and Government Reform panel, said that if anyone can defend EPA authority from an empowered Republican majority, it is Waxman.

"Mr. Waxman is quite thoughtful, and he's very deliberate in his approach," Kucinich said. "He builds a case on things in the way that a top trial attorney would -- just proceeds from one fact to another.

"Anyone who has had to contest with him on the other side would have to say that he's one of the most skillful opponents that anyone could have," he said.

Energy and Commerce Committee Republicans also say they respect Waxman, and that they have learned from his communications prowess. "We've actually used some of his previous letters in terms of the boiler plate items for our own letters from [the] Oversight and Investigations [subcommittee]," Upton said. "So he's helped us in the past."

Rep. Ed Whitfield, who leads the Energy and Power subpanel, also honored Waxman's skill, though he said that any lessons Republicans learned from the ranking member would help them advance their own goals.

"He's very astute at being able to take advantage of situations," the Kentucky Republican said. "So I think we learn a lot from Henry Waxman, just kind of watching him. He's very effective at what he does, and what we're going to try to do is we're going to try to be just as effective. We're going to try to even go back and reverse some of the things he's tried to accomplish in the past."

Past battles

House rules allow the majority to govern, and the 112th Congress is considered likely to pass a broad array of measures supported by the Republican majority, including several on EPA.

Still, some environmentalists say that minority lawmakers including Waxman have fended off attacks on EPA authority before, and might do so again.

In 1997, after the Clinton administration's EPA released ozone and fine particle matter rules that majority Republicans panned as too stringent, some House Democrats joined their colleagues in the majority to craft a bill that would have struck them down.

Waxman took the lead in lining up enough Democrats to sustain a likely Clinton veto of that bill, which then never received a vote on the floor.

"Waxman took up the challenge of defending them in Congress, and basically didn't back down even though it looked at the time like there was a bipartisan steamroller," said Frank O'Donnell, president of Clean Air Watch. "He stood in front of the steamroller and diverted it."

"He was definitely working from a minority position," O'Donnell said. "I think he could do the same thing here again."

For his part, Waxman sees similarities between the climate issue and his long fight to step up regulation of tobacco, which culminated in 2009 when a new law gave the Food and Drug Administration authority over that industry, an aide said.

"I think there's a parallel for sure on how long it takes to act," the aide said. "He worked on tobacco issues his whole career, and it took until last Congress to finally give the FDA authority."

While FDA regulation was the end goal, the aide said that incremental progress was made along the way in highlighting the risks of tobacco use and requiring their disclosure to the public. Waxman was able to move the ball on that issue both when he was in the majority and when he was not.

Paul Billings, vice president for national policy and advocacy for the American Lung Association, said that the tobacco fight showed Waxman to be "doggedly determined."

"He's in it for the long haul," Billings said. "When he's your champion, he'll fight with you until victory is achieved, even if it takes a decade and a half."

Billings remembered that as chairman of the Health and the Environment Subcommittee in 1994, Waxman often used "flourishes to capture the public's attention," such as when he asked CEOs for major tobacco companies to raise their right hands and swear to tell the truth before grilling them on the health effects of tobacco use.

"There was a certain element of some degree of political theater, but it was designed clearly to drive home a policy point," Billings said.

But even after Waxman entered the minority in 1995, Billings said he was able to reach the public by writing letters and asking careful questions -- tools he expects him to use in his fight to defend EPA's carbon programs.

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