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Department of Defense, Military Construction and Veterans Affairs, and Full-Year Continuing Appropriations Act, 2013

Floor Speech

Location: Washington, DC


Mr. VITTER. Mr. President, this week, March 10 to 16, has been designated Sunshine Week. What better time for it this year since President Obama has a brandnew nominee to head the Environmental Protection Agency, and that agency is in desperate need of sunshine and transparency. In the midst of Sunshine Week, I wanted to talk about these very serious issues.

First of all, let's go back a little bit. The first day President Obama took office in 2009, the White House Web site declared that his administration would become ``the most open and transparent in history.'' The President issued high-profile orders pledging ``a new era'' and ``an unprecedented level of openness'' across the Federal Government. Those are great goals and great aspirations. Unfortunately, the record--particularly, as I said, at the EPA--is a lot different.

President Obama's EPA has earned a reputation for ignoring congressional information requests, ignoring and frustrating FOIA--the Freedom of Information Act--hiding elite e-mails, which is completely contrary to EPA policy, and hiding other important information from the public. Is it in desperate need of a new leader who will reverse these antisunshine, antitransparency practices and build a true culture of transparency and openness. Unfortunately, President Obama's nominee, Gina McCarthy, comes from inside the very troubled agency and she has been directly involved in many of these problem areas. That is why I think we need to talk about these concerns.

I wish to go through four important categories where the EPA--including during Gina McCarthy's service--has exhibited a complete lack of transparency. It has been exactly the opposite of sunshine, openness, and transparency.

First of all, e-mails and the growing e-mail scandal. A lot of the EPA's troubles have surfaced through their dubious e-mail practices, e-mail practices that have been used, in my opinion, clearly to circumvent transparency laws such as FOIA and to circumvent congressional oversight. We have uncovered the use of alias e-mail accounts and private e-mail accounts to conduct official agency business.

What is the issue there? The issue is that clearly this is a way to avoid transparency, avoid these being produced through FOIA requests, and try to avoid producing these important e-mails when Congress has asked for them and to keep the public and Congress in the dark.

The most infamous example of this is Lisa Jackson, the former EPA Administrator's complete disregard for transparency through her Richard Windsor e-mails. Richard Windsor was an alias. I think, clearly in my opinion, she used this alias when it came to openness and producing documents, et cetera, that this was not necessarily her.

As it turns out, multiple EPA officials have been conducting business through aliases or through private e-mail accounts, and these private e-mail accounts are absolutely prohibited by the EPA. In spite of that, we have uncovered a pattern. This is not an isolated incident. It is not just Richard Windsor who has been used as an alias, but there is a pattern. The Acting Administrator, Bob Perciasepe, has used an alias private account. Region 8 Administrator Martin used, a private account; Region 9 Administrator Blumenfeld used, a former account; former Deputy General Counsel Yang, a lawyer for the EPA, used a account. That is completely contrary to the clear rules of the EPA.

It doesn't stop with the use of these completely improper private e-mail accounts for official business. We have also uncovered high-level officials collaborating with environmental groups to push their biased agenda. Administrator Martin--since he resigned over all this when we had this come out--regularly communicated with far-left environmental groups such as the Environmental Defense Fund on his personal e-mail account to circumvent Federal transparency laws. His personal e-mails, which we have since gotten, exposed the EPA's efforts to further bury coal plants under crushing regulations.

Again, this is not just some technicality. These private accounts and aliases were clearly used to hide stuff from Congress, hide stuff from the public, and to try not to disclose all this collusion with outside environmental groups and what--in my opinion--is a far-left agenda.

Another very important category is FOIA. FOIA is the Freedom of Information Act. It was passed into law by Congress in 1966. It was passed for a very simple purpose: to direct sunshine onto the Federal Government. Here we are in the middle of Sunshine Week, and FOIA is a classic example of an important tool to direct sunshine onto the Federal Government.

Under former Administrator Jackson's leadership, FOIA has become a joke at the EPA. Al Armendariz, the former EPA Administrator, had to resign after claiming it was EPA's policy to ``crucify'' domestic businesses. He actually called FOIA ``nonsense.'' As others at the EPA would try to have others think, Al Armendariz was not some rogue EPA official. In fact, this is the general attitude of the EPA.

The Obama administration again has tried to get away with the claim that they are ``the most transparent in history.'' Yet as the Associated Press has reported, they sometimes produce a lot of pieces of paper under FOIA, but ``more often than it ever has, it cited legal exceptions to censor or withhold the material, according to a new analysis.''

This is a perfect example. This is a document produced under a FOIA request. It is one of the infamous Richard Windsor e-mails. Guess what is produced. Nothing. It is one thing to redact a few words or a particularly sensitive sentence. They have produced absolutely nothing. There is not a single word from the body of the e-mail. This is routine. The EPA has regularly mismanaged FOIA requests. It is clearly in the business to frustrate these sorts of requests and not to follow the law.

I would like to show some other examples. Again, these are produced e-mails. Most of them are from the infamous Richard Windsor e-mails. Again, not a word in the body of any of these e-mails is produced. There is not a single word. This is another good example. There is not a single word produced. So we get plenty of paper, but what information do we have for the public? Nothing.

There is something else that is particularly outrageous. We have an e-mail that was produced from the Office of General Counsel to Region 6 officials. That e-mail talks about standard EPA protocol regarding FOIA requests. It is not about a particular FOIA request, which might be overbroad, inappropriate, and might have arguments against it. Again, this e-mail is from the EPA lawyers to an EPA region, and it is about how to deal with FOIA in general. That standard EPA protocol--according to this e-mail--is ``to alert the requestor that they need to narrow their request because it is overbroad, and secondarily that it will probably cost more than the amount of money they agreed to pay.'' Then when the requestor doesn't immediately respond to that, they just shut down any EPA response.

Again, this is outrageous. This was not a response to a particular request. This was the advice from EPA lawyers about how they should always consider responding. Just always say it is overbroad, just always say it is going to cost more money, and then shut things down, foot drag, and obstruct. That is absolutely ridiculous.

A third important category in this pattern of activity is EPA's use of secret data. This EPA, more than any other in history, has been promulgating rules and regulations which have a dramatic effect on major sectors of our economy. Obviously, this is a big deal and big concern, particularly when it costs us jobs or potentially shuts down businesses. Yet the EPA has been completely opposed to releasing any of the numbers, the science--the alleged science--and the data behind these decisions.

Again, many of EPA's regulations have big pricetags. Yet EPA refuses to publicize the basic scientific data underlying virtually all of what they have done. The new Clean Air Act rules are the biggest example. Implementing the Clean Air Act happens to be the responsibility, by the way, that Gina McCarthy has been directly overseeing since June of 2009.

The National Ambient Air Quality Standards, for example, are complex and sweeping in their nature. The law requires, as it should, that they be based on sound scientific data and that it be implemented through a robust decisionmaking process. Unfortunately, that has not been the case and recent standards have suffered from a rushed process, reliance on secret data, and biased scientific review.

The only way we can fully know what is going on and have a discussion about this is if EPA releases the underlying scientific data--the underlying numbers. I have personally asked for this. In fact, this request is 20 months outstanding. I asked for it almost 2 full years ago. Yet EPA has adamantly refused.

Recently, it has come to light that EPA fails to complete comprehensive economic analyses of a majority of its rules. A February 2013 study reveals that the Agency's disregard for economywide impacts, as well as any other discrete negative impacts, renders their cost-benefit analyses to be misleading and based on manipulated data. Again, this is a very important category.

If sunshine is to mean anything, if it is to have any real meaning as we stand here in the midst of Sunshine Week, we need to see the data behind these enormously important decisions. EPA cannot use secret data. That is contrary to the letter and spirit of the law. It is certainly contrary to the public having access to important information and to our responsibility in Congress on oversight.

The final category I wish to mention is the so-called unified agenda. Under Federal law, every agency is required to produce their regulatory agenda. In fact, they are required to produce it under law twice a year--once in the spring and once in the fall, and that is called the unified agenda. Again, every agency is required to produce that to the Office of Information and Regulatory Affairs.

The problem is this requirement is observed sort of like the requirement to pass the budget is observed in the Senate. In 2012, the EPA was 8 months late producing their spring 2012 regulatory agenda, and they have yet to submit their fall 2012 regulatory agenda. Again, I have asked EPA directly about this. More than 6 weeks after the deadline passed, EPA has yet to respond to the simple question of when they will submit their spring and fall regulatory agendas. We have not seen a bit of either of them yet.

This is important because it is about sunshine, openness, and transparency. It is about being fair and open to the American people and giving the American people--including through its representatives in Congress--full information. This is an important area that the nominee to head the EPA, Gina McCarthy, has to address. It is awfully basic and legitimate to say to Gina McCarthy: If you want to become the new EPA Administrator, you will need to answer these big, obvious, and pertinent questions. It is particularly important since you come from inside this very troubled, completely nontransparent agency and have been at the heart of many of these troubling areas.

One thing I will question her directly on is her active coordination with Al Armendariz, whom I mentioned earlier, in shutting down key energy projects. That direct coordination was highlighted in an e-mail we did get from Armendariz celebrating the death of a petroleum coke plant in Texas. Armendariz wrote in that e-mail: ``Gina's new air rules will soon be the icing on the cake.'' Shutting down jobs, shutting down American businesses is going to be the icing on the cake.

In conclusion, I want to underscore that President Obama's EPA, unfortunately, has been the worst example of how hollow his promise is of being the most open and transparent administration in history. As we begin to consider the confirmation of a new EPA Administrator, this needs to be a big focus of our attention.

Surely she needs to commit in very concrete and specific ways to change this culture. I am concerned that she has been part of this culture. She comes from inside the agency. She is directly involved in many of these very troubling areas. So we need to hear how she is going to reverse this culture and usher in a new era of openness and transparency. I will have specific requests for her that will allow her to prove that commitment, and I know many other Members of the Senate have similar concerns.

I look forward to that discussion with Gina McCarthy. I look forward to continuing this discussion with the entire U.S. Senate. Transparency Week is an important time and an appropriate time to start that important discussion and to end these abusive practices by the current EPA.

Thank you, Mr. President. I yield the floor.


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