Sen. Whitehouse Wars against Johnson’s “Gobbledygook”

WARNING: Readers with an impatience for administration evasiveness should not watch this video.

EPA Administrator Stephen Johnson appears to be a student of the Alberto Gonzales School of Congressional Testimony, the main teaching of which is to never answer a question “yes” or “no.” And at the first sign of trouble, you’d better spiral into minutiae and hope the Senator’s time runs out.

The first time around, Sen. Sheldon Whitehouse (D-RI) didn’t know quite what he was up against. But as someone who went toe to toe with the Dean of Evasion himself, and as a former prosecutor, he was ready for round two.His line of questioning was as follows: his first questions had established that the EPA typically has a decision process with four steps. They were: 1) a briefing on the underlying issues, 2) an analysis of the various options, 3) a consolidated recommendation from the staff on what the decision should be, and 4) Johnson’s final decision. Whitehouse, after a typically maddening Johnson interlude of clarification and detail recitation, got him to agree to this basic framework. And he got him to agree that with the California decision, Johnson had not received a consolidated staff recommendation.

Then he tried to plunge forward. But Johnson repeatedly muddled and equivocated, revising that basic framework and generally doing everything he could to prevent Whitehouse from driving to his conclusion. Finally, after reminding Johnson that he was under oath (the second time that happened today), Whitehouse, out of time and patience, concluded:

What I am hearing is that there typically is a consolidated recommendation that comes from the staff. Which makes sense.…. that would seem to be the logical way to proceed.

And you have said that you didn’t do that in this case, and given how peculiar the ultimate decision is, it raises the suggestion that there has been a manipulation of the agency process in this case in order to allow you to make a decision that is neither supported by the facts, nor by the law, nor by your staff’s recommendation.

It’s a serious matter. So I will hope you will give me a real answer to it and not just lots of gobbledygook about administrative law, which I’m pretty familiar with. I have a specific question.

So it seems that Whitehouse will have to wait for a written answer from Johnson — which I’m sure will be just as crystal clear.

Update: Here’s the transcript:

SEN. WHITEHOUSE: Well, the process that led to this, let me go back to that discussion we were having. You said that is is typical in your agency for there to be essentially four steps through this process: one, a process of briefing; second, a(n) options analysis with all the options reviewed and evaluated by your staff; third, a consolidated recommendation from your staff as to the decision that they recommend that you make; and finally, your decision. Correct?

MR. JOHNSON: Again, there are a lot of important sub-steps in that, such as here’s the basis, we’ve got —

SEN. WHITEHOUSE: Was anything that I said wrong?

MR. JOHNSON: No, no. Let me just add to that, and add to that that a very important step —

SEN. WHITEHOUSE: Yeah, I’d like to get to some questions, so I don’t want you to slow-walk me through this by going into the minutiae of administrative procedure, if you don’t mind.

MR. JOHNSON: Well —

SEN. WHITEHOUSE: Is it correct that those are the four major elements that lead to your decisions?

MR. JOHNSON: You missed one, another element, and that is, evaluating — summarizing and evaluating the notice and comment, the comments that came in.

SEN. WHITEHOUSE: Okay. Understood. Was there a consolidated recommendation made by your staff on this waiver question?

MR. JOHNSON: My — as I recall, there was a series of —

SEN. WHITEHOUSE: It’s a yes-or-no question.

MR. JOHNSON: I don’t recall that there was a consolidated recommendation in the briefing papers.

SEN. WHITEHOUSE: Why, if it is typical in your agency for there to be a consolidated recommendation made by the staff, was there not a consolidated recommendation made by the staff on this particular question?

MR. JOHNSON: I thought I just answered the question by saying that I receive a wide range of briefings and option selections. Sometimes there’s —

SEN. WHITEHOUSE: That’s a different thing. That’s the options analysis you talked about.

MR. JOHNSON: — a consolidated recommendation — sometimes there’s a consolidated recommendation, sometimes there’s not.

SEN. WHITEHOUSE: So it’s not typical. I mean, you’re telling me two things. You’re saying that it’s — you just agreed with me — and by the way, you are under oath. You just agreed with me that one of the key steps here was the consolidated recommendation by the staff. You just agreed with me that it was typical, that that was the standard process. Now you’re saying, well, maybe sometimes, maybe not. You can’t have it both ways.

What is the process —

MR. JOHNSON: Let me — then let me —

SEN. WHITEHOUSE: — for your agency, which is a big agency and runs with procedures?

MR. JOHNSON: Then let me correct the record so that it’s clear. It begins with a notice and comment process. Then the staff —

SEN. WHITEHOUSE: Focus on the consolidated recommendation piece.

MR. JOHNSON: Again, there sometimes are consolidated recommendations, and those consolidated recommendations are in the form of here are the five options that we believe are legally defensible. Sometimes those consolidated recommendations are here is our recommendation.

SEN. WHITEHOUSE: What’s the difference?

MR. JOHNSON: And sometimes it’s a range, sometimes it’s —

SEN. WHITEHOUSE: Yeah, but who decides that they’re going to give you just the options analysis versus a consolidated staff recommendation?

MR. JOHNSON: Again, I leave it up to the head of the particular office that is evaluating the particular petition or regulation or whatever.

SEN. WHITEHOUSE: Isn’t it just a matter of basic administrative discipline, with a multi-division agency like yours, to force them to the exercise of trying to get to a consolidated agency recommendation before you’re asked to make a decision? This a basic —

MR. JOHNSON: Again, my point is, the consolidated agency recommendation might include one option or it might include three options, might include five options.

SEN. WHITEHOUSE: So the options analysis and the consolidated recommendation are the same thing now? We’ve just been through how they’re separate steps; now you’re saying that they’re the same thing?

MR. JOHNSON: I’d be happy to be very clear for the record, because it’s clear that — you seem, to my perspective, to be confused on the steps. So I’d be happy to for the record.

SEN. WHITEHOUSE: I think it would be important to clarify very specifically what the typical steps are for your agency in presenting a matter to you for a decision, typically, and compare that to how that was done in this case, because what I’m hearing is that there typically is a consolidated recommendation that comes from the staff — which make sense.

That is the way administrative agencies should ordinarily operate. And it is, in fact, to some degree, an administrator’s responsibility to try to force his staff to come to a consolidated recommendation. That would seem to be the logical way to proceed. And you have said that you didn’t do that in this case.

And given how peculiar the ultimate decision is, it raises the suggestion that there has been a manipulation of the agency process in this case in order to allow you to make a decision that is neither supported by the facts nor by the law nor by your own staff’s recommendation.

It’s a serious matter, and so I hope you’ll give me a real answer to it and not just lots of, you know, gobbledygook about administrative law, which I’m pretty familiar with. I have a specific question, and I think I’ve made it pretty clear. And I’d like to make that for the record, so I don’t take any further time.

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