According to the Department of Transportation's General Counsel, it was legal for the the agency to "inform" members of Congress about California's request for an Environmental Protection Agency waiver to control greenhouse gas emissions from motor vehicles. It didn't violate federal anti-lobbying restrictions, nor was it an improper use of appropriated funds for "publicity or propaganda purposes."
However, without the benefit of learned counsel, and relying, instead, on plain dictionary definitions, let's consider what the agency did: It sought to influence specific public officials to take a desired action (lobbying); through the propagation of information reflecting the views and interests of those advocating such an action (propaganda); and by issuing a message in behalf of some cause or idea (publicity).
The department targeted governors and members of Congress representing states or districts with a significant number of auto plants, related facilities and employees. A script prepared for use on California waiver telephone calls reads that if the waiver is granted, it could "lead to a patchwork of regulations on vehicle emissions which would have significant impacts on the light truck and car industry."
The script notes that EPA is receiving comments on the waiver request (the comment period is now closed), and that DOT is "gauging to see" if the member (or governor) would be interested in submitting comments "since this could greatly impact the auto facilities within your district."
Possibly to avoid an appearance of unduly trying to influence public officials, the script says that department personnel making the calls should say, "We are in opposition of the waiver," but only if asked. But does that reflect the Bush administration's position and, if so, does it taint the presumed objectivity of EPA's regulatory process? Or is DOT out there on its own policy limb? The agency did not respond to a request for comment.
Representative Henry Waxman, Democrat-California, chairman of the House Committee on Oversight and Investigation, is investigating the department's activities related to the waiver request. He said DOT's efforts may be an improper and possibly illegal use of federal resources. DOT turned over 71 pages of email exchanges and documents to Waxman's committee, but a committee aide said Waxman is seeking additional material.
The EPA will make its decision on the waiver request by the end of the year, based on the agency's interpretation of the Clean Air Act. DOT has no role in setting clean air standards or controlling vehicle emissions. But it justifies its "interest in informing the public and their elected representative," as consistent with its "longstanding and well-known support of a single regulatory scheme for motor fuel economy."
Therefore, DOT's backdoor effort to influence another agency's regulatory process really had nothing to do with the merits of California's waiver request, or the need to control greenhouse gas emissions, or the Clean Air Act. Rather, it echoes the auto industry's fear that in order to meet California's emission standards automakers would have to produce more fuel efficient vehicles. Not only vehicles sold in the California, but in 11 other states that are prepared to set the same standards should the waiver be granted -- thus creating the dreaded "patchwork of regulations."
The department does have a point: It would be much better to have a single, national fuel economy standard, however one well above the current standard. It would also be better to have a national program to reduce greenhouse gas emissions, which the administration has failed to deliver -- thus creating a vacuum many states and localities are ready to fill.
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