EPA denies request for full explanation of California emissions waiver rejection

[JURIST] The US Environmental Protection Agency (EPA) [official website] on Friday cited executive privilege in denying congressional requests for certain documents relating to the agency's decision to deny California a waiver [JURIST report] from new auto-emissions standards. The waiver would have allowed California and 16 other states following its lead to impose stricter greenhouse emissions standards on cars and light trucks than those provided for by the EPA. As previously agreed [JURIST report], the agency provided US Sen. Barbara Boxer (D-CA) [official profile] and the Senate Committee on Environment and Public Works with a number of the requested documents, but "page after page of the relevant documents are whited out, and much of the key information is missing from [the] EPA's response," Boxer said [press release] on Friday.

In a letter [PDF text] accompanying the documents, the EPA explained:

Please note that EPA has identified an important Executive Branch confidentiality interest in a number of these documents because they reflect internal deliberations and/or attorney-client communications regarding California's waiver request. We recognize the importance of the Committee's need to inform itself in order to perform its oversight functions,but we remain concerned about any further disclosure of this information for a number of reasons. First, because the documents reveal deliberative process information internal to the Agency, EPA is concerned about the chilling effect that would occur if Agency employees believed their frank and honest opinions and analysis expressed as part of assessing California's waiver request were to be disclosed in a broad setting. The Supreme Court has recognized this "chilling effect" concern in particular.... Second, further disclosure could result in needless public confusion about the Administrator's decision that EPA will be denying California's request. That is, many of the documents are pre-decisional and thus do not reflect the Agency's full and complete thinking on the matter. Indeed, final decision documents have not yet been completed and made available to the public through publication in the Federal Register, so the public, if given access to the pre-decisional documents, would effectively be denied access to the full, complete rationale by the Agency. Finally, the Agency is currently engaged in ongoing litigation regarding this matter, and future litigation is expected. The documents contain privileged and confidential attorney-client communications and attorney work product. Further disclosure of this type of confidential information could jeopardize the Agency's ability to effectively litigate claims related to California's waiver request.
California filed a lawsuit [petition, PDF; JURIST report] against the EPA earlier this month challenging the agency's denial of the waiver. California's Air Resources Board [official website] adopted greenhouse gas standards [press release] in 2004 but it could not mandate them unless the EPA granted a waiver from the less stringent federal Clean Air Act (CAA) [text] standards. This was the first time that the EPA has denied California a waiver since Congress established the state's right to seek CAA waivers in 1967. AP has more.

 

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