Washington, DC

Today, the eight Republicans on the Environment and Public Works Committee will not attend the nomination vote of Gina McCarthy to head the U.S. Environmental Protection Agency (EPA). On April 25, 2013 the Committee Republicans asked Chairman Barbara Boxer to postpone the nomination vote because they had not received answers to their questions. That request was denied. The Senators made the following statement today:

"For too long EPA has failed to deliver on the promises of transparency espoused by President Barack Obama, former Administrator Lisa Jackson, and by Gina McCarthy. Accordingly, the Republicans on the EPW Committee have asked EPA to honor five very reasonable and basic requests in conjunction with the nomination of Gina McCarthy, which focus on openness and transparency. While Chairman Boxer has allowed EPA adequate time to fully respond before any mark-up on the nomination, EPA has stonewalled on four of the five categories. We ask and expect that Chairman Barbara Boxer will follow the rules of the Committee and the full U.S. Senate."

Rule 2(a) of the EPW Committee rules require at least two members of the minority party to be present to constitute a quorum, which is necessary for the Committee to take action.

Rule XXVI 7(a)(1) of the Senate rules require that a majority of any Committee be physically present to take action. This is a requirement enforceable on the Senate floor, a fact confirmed by the Senate Parliamentarian's office.

On April 10, the EPW Republicans released five transparency concerns (four of which remain unresolved) they have with the U.S. Environmental Protection Agency (EPA). Click here to read the letter to McCarthy outlining their requests. Click on each of these transparency requests to read about each in detail: FOIA Failures, Inconsistent E-mail Practices and Policies, Transparency through Data Access, Snapshot Approach Toward Economic Analysis Doesn't Work, Share 'Intent to Sue' Notices with the Public.

Below is the text of a letter from EPW Republicans to Chairman Barbara Boxer today notifying her that no Republicans would be attending.

May 9, 2013

Dear Madame Chairman:

As you know, all Republicans on our EPW Committee have asked EPA to honor five very reasonable and basic requests in conjunction with the nomination of Gina McCarthy which focus on openness and transparency. While you have allowed EPA adequate time to fully respond before any mark-up on the nomination, EPA has stonewalled on four of the five categories.

Because of this, no Republican member of the Committee will attend today's mark-up if it is held.

We do not ask or expect that you will agree with this decision. We do ask and expect that you will follow the rules of the Committee and the full U.S. Senate.

Rule 2(a) of the Committee rules requires that at least two members of the minority party be present to constitute a quorum, which is necessary for the Committee to take action.

Rule XXVI 7(a)(1) of the Senate rules requires that a majority of any Committee be physically present to take action. This is a requirement enforceable on the Senate floor, a fact confirmed by the Senate Parliamentarian's office.

In addition, there is clear Committee precedent regarding this. In 2003, Democratic members of the EPW Committee chose not to attend the scheduled mark-up of Michael Leavitt as President Bush's nominee to head the EPA, pending the EPA's responding more fully to their requests. Then-Chairman Inhofe followed the rules cited above and scheduled an official mark-up for two weeks later. We ask and expect that you do the same.

We also ask that you read this letter at any Committee meeting held today and place it in the record.

Thank you for your leadership of the Committee.

Sincerely,

David Vitter

James Inhofe

John Barrasso

Jeff Sessions

Mike Crapo

Roger Wicker

John Boozman

Deb Fischer

MEMORANDUM

TO:      Interested members of the media
Fr:       EPW Republicans Press Office
            Contact: Luke Bolar 202-224-6176, luke_bolar@vitter.senate.gov

Re: Gina McCarthy Nomination Hearing // Boycott precedent
Da: Thursday, May 9, 2013

U.S. Senate Environment and Public Works (EPW) Committee Republicans have been completely unsatisfied with the lack of response or nonresponsive answers from Gina McCarthy who is nominated to head the U.S. Environmental Protection Agency (EPA).

EPW Committee rules state, "at committee business meetings...one third of the members of the committee, at least two of whom are members of the minority party, constitute a quorum,...no measure or matter may be reported to the Senate by the committee unless a majority of the committee members cast votes in person..."

There is precedent for abiding by these rules, especially in nomination situations. In 2003, when the Republicans held the majority on the Committee, Gov. Michael O. Leavitt of Utah was nominated to be the EPA Administrator. On October 1, 2003, Democrats boycotted the Committee vote on the nomination, citing concerns that they had not received adequate responses to their requests. Republicans, under the chairmanship of Sen. James Inhofe (R-Okla.), followed committee rules and postponed the Committee vote for two weeks.

Furthermore Gina McCarthy has served as the Assistant Administrator for the Office of Air and Radiation for four years, the office which has crafted the most expensive regulations issued in the Agency's history.

Politico Pro 5/8/2013 7:26 PM EDT

"Boxer didn't know whether a move by Republicans to protest tomorrow's vote would be unprecedented. "But I don't ever remember it," she said."

Reminder:

Leavitt was scheduled for a committee vote on October 1, 2003. Due to the Democrat boycott, the Committee vote was postponed until October 15, 2003. Leavitt received a vote on the Senate floor on October 28, 2003.

I. Excerpts from the Senate floor

October 28, 2003 CONGRESSIONAL RECORD-SENATE S13329

Mrs. BOXER. Madam President, I rise as a proud member of the Environmental Committee and the chair of the Democratic environmental team. I will be voting no on the Leavitt nomination.

The reason is, while I am not pinning all the terrible decisions of this administration regarding the environment on Mr. Leavitt-clearly, he was not there for those-I was very distressed

that the questions I asked him were simply papered over or, in some cases-six cases-there was no answer at all.

October 28, 2003 CONGRESSIONAL RECORD-SENATE S13331
Mr. JEFFORDS. Madam President, it has surprised me to hear some Senators use the word ‘obstruction' in the context of Governor Leavitt's nomination to be the new Administrator of the EPA. It was a surprise because that is exactly what this administration has been doing-obstructing Congress and our legitimate requests for information.

II. News clips

The Washington Times

Democrats boycott Leavitt hearing

October 1, 2003

http://www.washingtontimes.com/news/2003/oct/1/20031001-113738-4126r/?page=all

Excerpts: "The committee had planned to vote on Gov. Michael O. Leavitt's EPA nomination yesterday but was blocked because none of the eight committee Democrats showed up to the meeting. To hold a vote, the panel must have 10 members present, including two Democrats.

"...[Sen. Jeffords] said Mr. Leavitt and the Bush administration must answer questions that he and Democrats have..."

New York Times

Senate Democrats Boycott Hearing on E.P.A. Nominee

October 02, 2003

http://www.nytimes.com/2003/10/02/us/senate-democrats-boycott-hearing-on-epa-nominee.html

Excerpts: "The boycott denied the majority a quorum and threw another wrench into the nomination process, which Democrats have vowed to use to publicize their complaints about the president's environmental policies...

"...Senator Joseph I. Lieberman, Democrat of Connecticut and a presidential candidate, said of Governor Leavitt, ‘His nonresponsive responses to our legitimate questions show either his disrespect of the nomination process and the public or a lack of knowledge...'"

Chicago Tribune

Democrats boycott vote on Leavitt's EPA nomination

Senators say Utah governor failed to answer questions

October 02, 2003|By Michael Kilian, Washington Bureau.

http://articles.chicagotribune.com/2003-10-02/news/0310020394_1_senate-democrats-inhofe-environmental-record

Excerpts: "Senate Democrats on Wednesday boycotted a scheduled committee vote on President Bush's nomination of Utah Gov. Mike Leavitt to be the new Environmental Protection Agency administrator, contending that Leavitt has refused to fully answer their questions on his and the administration's positions on the environment.

"The boycott forced Republicans to cancel the vote and reschedule it for Oct. 14."

Environment & Energy Daily

Leavitt cruises through Senate EPW panel vote, 16-2

Thursday, October 16, 2003
http://www.eenews.net/public/Greenwire/2003/10/01/1

Excerpts: "...while Sen. Barbara Boxer (D-Calif.) skipped the session in protest of the responses Leavitt recently turned in to the lawmaker concerning his views on a range of environment and energy matters.

"...Boxer said today she would block the nomination until Leavitt is more forthcoming with answers to her questions..."

-30-

Specific Transparency Requests

1. That the EPA issue new guidance drafted by its Office of General Counsel that clearly outlines: a) standards and procedures to ensure that all official business is conducted solely on official government email accounts; and b) standards and procedures for responding fully, truthfully, and timely to FOIA requests and Congressional inquiries. The guidance document should also establish training regimes in these areas for all appropriate EPA staff, as well as penalties and procedures for dealing with deviations from the guidance.

2. That all private email accounts of Gina McCarthy are exhaustively reviewed, and that all emails regarding official EPA business are produced unredacted to the committee. If no such emails exist, that an affidavit stating that fact by McCarthy be produced for the committee. In addition, we're asking for transparency on specific documents, including specified documents sent or received from the Richard Windsor alias account, the committee has previously obtained in redacted form. An outline of specific emails requested has been provided.

3. That underlying data used to promulgate Clean Air Act rules be made public so the public can independently examine cost/benefit and other issues. That the EPA release a full set of data files for the American Cancer Society Study; the Harvard Six Cities Study; HEI/Krewski et al. 2009; Laden et al. 2006; Lepeule 2012; and Jerrett 2009. This request includes the coding of Personal Health Information (PHI).

4. That written assurances be given the committee that the EPA will conduct cost/benefit analysis as required under various executive orders and as required by the CAA, Section 321(a), specifically through issuance of new guidance mandating "whole economy" modeling on major rules.

5. That all petitions for rulemaking, notices of intent to sue, and proposed settlements be tracked and made public via readily available links on the EPA website. The Agency shall issue public notice of its intent to engage in settlement negotiations prior to the commencement of those negotiations, and include intervenors in any such negotiations.

April 25, 2013

The Honorable Barbara Boxer

Chairman

Committee on Environment and Public Works

410 Dirksen Senate Office Bldg.

Washington, DC 20510-6175

Dear Chairman Boxer,

We are concerned by your recent statement that the Environment and Public Works (EPW) Committee may vote on the nomination of Gina McCarthy to be EPA Administrator as early as May 8th. Before scheduling a vote, it is crucial that we receive the outstanding answers from both the nominee and the Agency to Committee members' questions for the record (QFRs) as well as the outstanding five requests made by the EPW Republicans. Those five requests simply ask for the Agency to conduct its work in a transparent and open manner as President Obama, former EPA Administrator Lisa Jackson, and the nominee have all publically committed to do.

EPW precedent illustrates that without answers to questions and information requests, it is not appropriate to move forward with the nominee. In a 2003 letter to the Chairman, Committee Democrats objected to moving forward with the nomination of Governor Leavitt as EPA Administrator in part due to their stance that, while they had received Leavitt's answers to their written questions, those answers were incomplete and insufficient.

In this context, we would note your recent decision to delay scheduling a nomination hearing for Nuclear Regulatory Commission Chairman Allison MacFarlane pending submittal of information that you requested from her concerning a nuclear facility in your state. We ask that you give us the same courtesy while we work through getting our questions for Gina McCarthy answered as well as the information we requested.