Bush admin rejects bid to unseal EPA endangerment finding

With two weeks remaining in its term, the Bush administration still refuses to release a critical U.S. EPA document linking motor vehicles' greenhouse gas emissions to global warming's environmental problems.

Last month, the White House Office of Management and Budget denied Greenwire's appeal to publicly unseal the climate change materials through the Freedom of Information Act. OMB deputy general counsel Steven Aitken explained that the document in question contains draft analysis and its disclosure "would inhibit the frank and candid expression of views that is necessary for effective government decision making."

Greenwire has another FOIA request pending at EPA, but a decision on the release of the document is now expected to fall to President-elect Barack Obama's team as it takes over the agency's operations Jan. 20.

To date, only House and Senate investigators have seen EPA's "endangerment finding" on climate change -- though under strict rules that would not allow them to make complete copies of the document. Democratic lawmakers have released excerpts from their notes, including concluding statements warning of the risks to public health if climate-changing emissions go unchecked.

But the full EPA document remains under wraps, leaving a gap in the federal government's response to the March 2007 decision by the Supreme Court in Massachusetts v. EPA. That 5-4 opinion ordered the Bush administration to begin anew its study on the public health and environmental threats posed by climate change.


"What they've done is really unfortunate," said Lucy Dalglish, executive director at the Reporters Committee for Freedom of the Press. "It's a good example of government agency game playing. It's a very good example of how politics have driven the agenda in the last eight years and how politics have driven science."

Obama aides did not respond to requests for comment on how they would handle the public release of the Bush-era EPA document. Still, several key advisers to the incoming Obama administration have well-versed records on the issue that suggest they will be more open to transparency.

For example, Georgetown University law professor Lisa Heinzerling, a member of Obama's EPA transition team, wrote the Supreme Court briefs that led to the landmark climate change decision against the Bush administration. And Robert Sussman, a co-chairman of Obama's EPA transition team, told Greenwire last summer that he supported making the Bush-era documents public.

"At this stage of the game, the easiest thing would have been to disclose these documents," said Sussman, a former EPA deputy administrator under President Bill Clinton. "They're drafts. We know they don't represent official policy in the Bush administration, but everybody knows they're there. There is some contribution they can make to public understanding and public debate, and I don't really see the downside at this point of releasing them."

EPA staff worked on the climate change "endangerment finding" for much of 2007. But in testimony last summer before Congress, former EPA Deputy Associate Administrator Jason Burnett said the Bush administration had blocked the document's public release.

Burnett said he sent the "endangerment finding" via e-mail in December 2007 to OMB, but officials there asked him to recant the e-mail. He said he was told that if he did not take back the e-mail, it would be subject to public disclosure requirements.

The Bush administration in early 2008 publicly dropped its plans to issue an "endangerment finding" on climate change. Instead, it published a nearly 500-page advanced notice of proposed rulemaking that lists ways EPA could regulate greenhouse gas emissions.

Obama's options

A well-placed EPA source said last month that the Obama transition team will not have official access to the "endangerment finding" until after the new president is sworn in. But EPA career staffers do have the materials, and the Obama transition team likely has been briefed on its contents and whereabouts.

"It's hard to imagine career folks holding it back from them," said the EPA source. "They're about to become the new stewards of the regulatory process."

Once in office, Obama's EPA team will have several options if it wants to release the "endangerment finding" document.

Several sources said it would be in Obama's interest to release the Bush-era materials as a way to help the public understand the complicated nature of the regulatory process.

"You can imagine they'd want to establish some openness," the EPA source said. "Also to demonstrate how they want to deal with the science. I expect they'll find some things in there that they may feel are not consistent with the best science. They may want to demonstrate that openness by putting out what they feel is more consistent with the best science out there."

Democratic leaders on two congressional committees also have pending requests to release the EPA document. The House Select Committee on Energy Independence and Global Warming issued a subpoena last summer to gain access to the endangerment finding. And the Senate Environment and Public Works Committee threatened to vote on a subpoena but pulled back after Bush officials agreed to bring the materials up to Capitol Hill for a closed-door review.

But Hill aides said last month that Obama's team can expect to get some breathing room before being pushed to hand over the Bush-era EPA documents. After all, Obama's EPA is expected to issue its own endangerment finding that would then prompt the writing of multiple new climate rules.

Roger Martella, a former EPA general counsel under President George W. Bush, said he expects the Obama team will rely to some degree on the "endangerment finding" document as it prepares to craft climate regulations. "It will probably be a starting point," Martella said. "A chance to hit the ground running. But I'd be surprised if they used it wholesale."

The Obama administration also will have to address Greenwire's FOIA request for the Bush-era document. Under former Bush Attorney General John Ashcroft, the Bush administration had a wide degree of latitude in denying FOIA requests.

While the Obama team is expected to rewrite Ashcroft's FOIA policies, it is unclear how far they will go. After all, it will soon be the Obama administration facing queries on its internal workings from the public and the media. "None of it is going to happen overnight," said Dalglish.

E&E editor-in-chief Kevin Braun said today that he would consider litigation under FOIA depending on how the Obama administration handles requests to release the Bush-era document.

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