Memo warned: EPA chief's credibility at risk (San Francisco Chronicle)

By Zachary Coile

A senior Environmental Protection Agency staffer's newly released memo warned that EPA chief Stephen Johnson would lose his credibility and might have to resign if he rejected California's rules limiting greenhouse gases from cars and trucks.

The document, prepared by a top deputy in the EPA's Office of Transportation and Air Quality, is further evidence of the fierce internal struggle that Johnson faced before he ruled against California in December. Documents released earlier revealed that he overruled the unanimous opinion of his agency's legal and technical staff, who urged him to approve the state's rules.

California Democratic Sen. Barbara Boxer, who released the memo Tuesday, said it was another sign that the EPA is an agency in crisis.

EPA spokesman Jonathan Shradar said the staffer wrote the memo as talking points, but the advice was never actually given to Johnson.

"No one ever came in and said, 'You're going to have to resign,' " Shradar said.

The story behind the memo is almost as interesting as the memo itself. After the document was revealed Tuesday, former EPA administrator William Reilly, who served under President Bush's father, called Boxer's office to alert it that the talking points were written for him.

In an interview with The Chronicle late Tuesday, he said he called Margo Oge, director of the EPA's Office of Transportation and Air Quality, last year. A supporter of California's new rules, he wanted to know "how the issue was being framed at EPA" and how many waivers he had approved for California when he ran the agency.

Oge, as a courtesy to the former administrator, asked Christopher Grundler, deputy director of the Office of Transportation and Air Quality, to respond to the request. Reilly wanted the information to use when he called Johnson last fall to make his case for California.

But the e-mail, written by Grundler, highlighted the internal opposition within EPA to what Johnson was preparing to do.

The Oct. 17, 2007, e-mail contained talking points - written as if they would be delivered by Reilly - including this one: "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."

Grundler wrote that the decision was "likely to be among the two biggest decisions you get to make in the job" and acknowledged that Johnson was "under extraordinary pressure." He also urged Reilly to tell Johnson that the legal and scientific evidence supported California's case.

"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 memo said. "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."

In the memo, Grundler also urged Reilly to warn Johnson of the consequences of making the wrong decision.

"You have to find a way to get this done," he wrote. "If you cannot, you will face a pretty big personal decision about whether you are able to stay in the job under those circumstances.

"This is a choice only you can make, but I ask you to think about the history and the future of the agency in making it. If you are asked to deny this waiver, I fear the credibility of the agency that we both love will be irreparably damaged."

Grundler could not be reached for comment.

Reilly, who now works in San Francisco on water issues and is a member of Gov. Arnold Schwarzenegger's blue ribbon commission on the Delta, said he didn't use much of the talking points, including the line about resigning. He said he did use some of the background - including the fact that he had approved nine waiver requests for California.

Reilly said he told Johnson in a phone call last fall that California "has had a history of leading on air pollution matters" and that Schwarzenegger should be given a chance to implement the rules.

Still, the internal memo offers an inside account of how some EPA staffers viewed the debate over the waiver. Grundler's last line - "if you are asked to deny this waiver" - reflected the fears of some staffers that the White House would pressure Johnson to deny the state's request.

Johnson has denied being pressured by the White House. Boxer is now in a tug-of-war with the EPA to get the agency to release any e-mails or other documents showing that the White House, the vice president's office or other executive branch officials weighed in on California's rules.

But documents previously released by Rep. Henry Waxman, D-Los Angeles, chairman of the House Oversight and Government Reform Committee, show that Transportation Secretary Mary Peters joined Michigan lawmakers to lobby the EPA to reject California's request.

Boxer released other documents Tuesday, including an Oct. 31, 2007, e-mail in which a staffer in the EPA's climate change division wrote about trying to convince Johnson that California has the "compelling and extraordinary conditions" required by the Clean Air Act to set its tougher emissions rules.

"On compelling and extraordinary conditions, I got to chime in again," the unidentified staffer wrote, describing a meeting with Johnson.

"In addition to the argument that climate change may exacerbate CA's tropospheric ozone problem - for which CA has historically demonstrated compelling and extraordinary conditions - I think Johnson now better appreciates that there are additional conditions in CA that make them vulnerable to climate change: water resources (we spent time talking about this); wildfires (the recent news I think is helping to push him); long coast line; largest population; largest economy; largest ag sector..."

Shradar, the EPA spokesman, said the memos only suggest that there was a range of opinions offered to Johnson before he made his decision.

"At the end of the day, the administrator's decision stands," he said.

The memos could spark some fireworks at today's hearing in the Senate Environment and Public Works Committee, which Boxer chairs, where Johnson is expected to testify about the EPA's 2009 budget.

Boxer said the new memos prove her case that Johnson's decision "is about special-interest governing at its worst. ... It is just a nightmare."

At least 18 other states want to join California's efforts. The new rules would require automakers to make vehicles that get 44 miles per gallon by 2020 - more than a new federal law requiring an increase to 35 miles per gallon by 2020. Automakers oppose the state's rules and have praised the EPA's decision, but California and other states have sued to overturn it.

The ruling has even become an issue in the presidential race, with the leading Democrats, Hillary Rodham Clinton and Barack Obama, and the likely GOP nominee John McCain, all saying they back the states' efforts to set tougher rules.