EPA Seen Under Attack in Bush Years
By Simona Perry
By Simona Perry
In remarks at the closing session of the National Treasury Employees Union (NTEU) legislative conference on February 28, Rep. John Sarbanes (D-Maryland) noted, "One of the things that you come away with, you start to form an impression, having sat through the testimony of the folks at the front lines and unpersuasive testimony of people at the highest levels, it's like there's been an orchestrated attack on federal employees." He joked that it was almost as if there were "a handbook saying 'how do you undermine the reputation of good government?' I have no hard evidence that such a book exists, but I have circumstantial evidence."
This "orchestrated attack on federal employees" by the Bush administration has been carried out in at least three dimensions: the control and manipulation of language and information, the deterioration of the legal climate with regard to whistle blower provisions, and the appointment of weak leadership that refuses to push back against the White House. All of these dimensions are evident in the Environmental Protection Agency's (EPA's) most recent decision to deny California a Clean Air Act waiver to regulate greenhouse gas emissions.
Control of Language
Throughout Congressional hearings regarding the controversial EPA decision to deny California the right to regulate greenhouse gas emissions, including recent testimony on the 2009 federal budget, a single question plagues the administrator of the EPA, Stephen L. Johnson: "Why didn't you listen to your staff?" Johnson's answer, delivered in a voice and tone devoid of emotion except for a slight impatience, is always the same: "The decision was mine and mine alone. And it was the right decision."
However, the documents received by Congressional investigators regarding that decision, as well as the February 29 final decision document published in the Federal Register, clearly show Johnson disregarded the advice of his career staff and, instead, based the decision on the advice of political appointees within EPA and the economic concerns of automobile manufacturers.
Among the internal documents released by the EPA as part of the Congressional inquiry is an email to Johnson from an unidentified career employee. The employee advises Johnson, "The eyes of the world are on you and the marvelous institution you and I have had the privilege of leading; clearly the stakes are huge, especially with respect to future climate work ... From what I have read and the people I have talked to, it is obvious to me that there is no legal or technical justification for denying this. The law is very specific about what you are allowed to consider, and even if you adopt the alternative interpretations that have been suggested by the automakers, you still wind up in the same place ... If you are asked to deny this waiver, I fear the credibility of the agency that we both love will be irreparably damaged."
The Federal Register document, considered the final decision on the matter, was released more than a month after the formal public announcement of the decision. Suspicion surrounds this post-announcement release. Insiders believe there may have been an earlier final decision document that had to be re-written because the staff who originally drafted it did not agree with the waiver denial or the grounds on which the decision to deny the waiver were based. Until such an earlier document is produced, this is purely speculation. But, what cannot be denied is the systematic disregard of scientific and legal advice offered by career staff within the EPA.
As Sen. Barbara Boxer (D-California) said in a statement released on February 26: "These documents paint a picture of an Environmental Protection Agency in crisis. They show the dedicated professional staff of the EPA working hard to do what they are paid to do by the American people - protect our health and our environment. At the same time, we see more and more evidence of Administrator Johnson ignoring the science and the facts, and discarding the advice of his professional staff."
The Plum Book
The seeds of language control within the Bush administration were planted early and often and were carefully sown in agencies such as the EPA, whose mission is to protect and preserve the environment and public health.
There is a device at the disposal of any new administration that can greatly assist in reforming the organizational culture of the executive branch by ensuring language is used in accordance with political ideology. This device gives a new administration direct access to the approximately 1.7 million employees of the federal government and the power to oversee what federal employees say, how they say it, and who they say it to. That device is known as the Plum Book, a listing of federal positions that will be considered political appointees under the incoming White House.
Since 2000, the Bush administration has placed over 9,051 federal positions in the Plum Book. Most of these positions are part of an elite, handpicked partisan group that share the same political ideology as the new president and agree to enforce this ideology in their jobs within agency leadership.
However, these are not only the cabinet-level and senior executive service positions. They are also "Schedule C" positions requiring no Congressional approval, and subject to no conduct-based or performance-removal procedures. "Schedule C" positions are involved in making or approving substantive policies according to the agency's mission, but such employees work only for other political appointees who have a "confidential or policy determining relationship with the president or agency head." Because of this role as an intermediary between the White House and agency personnel on substantive policy decisions, these "Schedule C" political appointees may also exercise direct authority, or pressure, over how career federal employees undertake their professional responsibilities.
Decision-making within this "plum" culture centers on information control. Within federal agencies whose main mission involves the use and sharing of scientific expertise and knowledge in making decisions, the impact has been debilitating. From the closure of EPA's libraries without explanation and without notice to a complete gag order on scientists presenting their findings to public, academic or professional audiences, the Bush administration has been able to "not so much as wage war on expertise, as to contain that expertise," according to Jeff Ruch, executive director of Public Employees for Environmental Responsibility (PEER).
What has resulted from this control and suppression of information and language is a privileging of politics and corporate interests above scientific knowledge and the expert advice of career agency employees. Career scientists and environmental specialists in the EPA, whose job it is to assess environmental risks, conserve and protect natural resources, and protect public health, find their research and advice either ignored or "spun" into politicized messages that either support or refute administration agendas.
In most cases, career employees within the federal government believe they have no recourse except to do as they are told, resign or be marginalized in their jobs. However, since 1932 labor unions have existed for federal employees to organize for a better work environment. Fewer than half of all federal employees are members of a union, and, of those, many think they cannot join a union. When entering the federal service, a new employee is asked as part of the public service pledge not to strike against the government, but there is no pledge not to organize.
The NTEU represents 150,000 federal employees nationwide, and the NTEU Chapter 280 represents approximately 1,600 career scientists working at the US EPA Headquarters in Washington, DC. The NTEU Chapter 280 has recently been joined by three other unions representing EPA employees across the nation, in ensuring greater accountability in agency decision-making. In addition to work-place issues that fall under the bailiwick of most trade unions, Chapter 280's unique role in fighting for mission-critical issues regarding the quality of decision-making within EPA has made it an important force in getting the truth out about what's happening in the daily work lives of career federal employees.
The NTEU Chapter 280 and the other EPA unions are particularly concerned scientific integrity and professionalism be made central to all public environmental and human health policy decisions. As the ability of individual career employees to speak out about malfeasance or misuse of scientific and technical information in the course of doing their jobs is eliminated, the unions and organizations such as PEER must serve as the safety valve for grievances. As Jeff Ruch describes, "We run a battered staff shelter. For the most part 'whistleblowers' are people who are in trouble for doing their job."
And in 2008, such safety nets for federal whistleblowers are increasingly important. A collective hush swept through the federal service in 2006 when the US Supreme Court ruled the First Amendment does not protect public employees from disciplinary action for job-related speech. In the ruling, the court restricted civil servants' ability to file lawsuits against agency retaliation over the disclosure of government misconduct. The ruling essentially made a federal employee's speech the property of the US federal government.
In an act of solidarity in February, the newly-formed coalition of EPA unions halted meetings with the administration due to a series of complaints that "EPA ignores the advice of its Labor Union Coalition and its own Principles of Scientific Integrity whenever political direction from other federal entities or private sector interests so direct." The letter goes on to cite examples of a clear disregard for scientific integrity and the advice of EPA career scientific, legal and technical employees under Johnson's watch. The examples include fluoride drinking water standards, organophosphate pesticide registration, control of mercury emissions from power plants, closure of EPA libraries and the recent request from California for a waiver to allow states to more stringently control greenhouse gases. Previous to Johnson, but under the Bush administration, the letter says "EPA over-rode recommendations from its own employees in connection with notification of risks to rescue workers and residents associated with terrorist attacks on New York in September 2001."
The EPA unions' complaint that the administration favors "political direction from other federal entities or private sector interests" over the advice of career employees and without scientific integrity refers in part to the control Bush's political appointees have been able to exert over federal scientists, legal advisers and environmental specialists hired to protect and serve the public good, not private corporations or the White House.
Among one of the most notable of these political appointees was William L. Wehrum. Shuttled in from private law practice, and with a resume that includes serving as an environmental adviser for a major US chemical manufacturer, Wehrum served from 2001 to 2006 as counsel to the assistant administrator for EPA's Office of Air and Radiation (OAR) and as acting assistant administrator for OAR during 2006. He was nominated to fill the assistant administrator position, but was denied confirmation by the Senate in June 2007, and resigned to take a lucrative position as a partner at Hunton and Williams law firm in Washington, DC. During his time at EPA, Wehrum attempted to eliminate a 30-year practice of providing expert staff recommendations to the administrator concerning the review of health-based national ambient air quality standards by consolidating greater decision-making power into the hands of political appointees.
In the internal EPA decision documents released as part of the Congressional investigation into the denial of a Clean Air Act waiver to California, Wehrum sent an email on March 15, 2006, to staff at the EPA Office of Transportation and Air Quality, the OAR and the Office of General Counsel. His advice: "I think we should assert the existence of preemption and propose to deny the waiver based on the absence of compelling and extraordinary conditions ... Having said that, I also think that this issue goes far beyond OAR..." This advice was contrary to the legal and scientific advice from Johnson's staff. The final decision document released by the EPA denies California a waiver based on "the absence of compelling and extraordinary conditions."
In a December 2007 article in Washingtonian Magazine, just six months after his resignation from the EPA, Wehrum was named one of eight "Big Gun" lawyers from Hunton and Williams. Above his name, it reads: "Green Like Me - or Not: Own a dry-cleaning company - or a house on a protected lake? If so, the Environmental Protection Agency can make you jump through hoops. These lawyers can help."