Assertion of Executive Privilege Over Communications Regarding EPA's Ozone Air Quality Standards and California's Greenhouse Gas Waiver Request

Assertion of Executive Privilege Over Communications
Regarding EPA’s Ozone Air Quality Standards and
California’s Greenhouse Gas Waiver Request
The President may lawfully assert executive privilege in response to congressional subpoenas seeking
communications within the Executive Office of the President or between the Environmental Protec-
tion Agency and the EOP concerning EPA’s promulgation of a regulation revising national ambient
air quality standards for ozone or EPA’s decision to deny a petition by California for a waiver from
federal preemption to enable it to regulate greenhouse gas emissions from motor vehicles.

June 19, 2008

THE PRESIDENT
THE WHITE HOUSE

Dear Mr. President:
You have asked for my legal advice as to whether you may assert executive
privilege with respect to documents subpoenaed by the Committee on Oversight
and Government Reform (the “Committee”) of the House of Representatives. The
Committee has issued three subpoenas, two directed to the Administrator of the
Environmental Protection Agency (“EPA”) and one to the Administrator of the
Office of Information and Regulatory Affairs of the Office of Management and
Budget (“OIRA”), a component of the Executive Office of the President (“EOP”).
The subpoena to OIRA and one of the subpoenas to EPA seek documents related
to EPA’s promulgation of a regulation revising national ambient air quality
standards (“NAAQS”) for ozone on March 12, 2008. The other subpoena directed
to EPA seeks documents reflecting communications between EPA and the EOP
concerning the agency’s decision to deny a petition by California for a waiver
from federal preemption to enable it to regulate greenhouse gas emissions from
motor vehicles.
The Office of Legal Counsel of the Department of Justice has reviewed the
documents that EPA and OIRA have identified as responsive to the subpoenas but
have not provided to the Committee. The great majority of these documents are
internal to EOP and were generated in the course of advising and assisting you
with respect to your consideration of EPA’s proposed ozone regulation. The great
majority of the EOP documents are internal OIRA deliberative work product in
support of your participation in the ozone decision. The remaining OIRA docu-
ments consist of deliberative communications between OIRA and others within
the EOP, including White House staff. The EPA documents include unredacted
copies of notices for meetings between EPA officials and senior White House staff
to discuss the ozone regulation and California waiver decisions; redacted copies of
the notices that are being produced to the Committee indicate the time and place of
the meetings, but the identities of the meeting participants are redacted. The only
other EPA document concerning the ozone regulation is a set of talking points for

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the EPA Administrator to use in a meeting with you. The remaining EPA
documents consist of talking points for EPA officials to use in presentations to
senior White House staff at meetings at which California’s waiver petition was
discussed, communications within EPA and with EOP staff concerning the
preparation of talking points for you to use in a conversation with the Governor of
California, communications with EOP staff regarding how to respond to a letter to
you from the Governor, and a response to a request from senior White House staff
for a report on EPA’s goals and priorities.
The Office of Legal Counsel is satisfied that the subpoenaed documents fall
within the scope of executive privilege. For the reasons discussed below, I agree
with that determination and conclude that you may properly assert executive
privilege in response to the subpoenas.

I.

Documents generated for the purpose of assisting the President in making a
decision are protected by the doctrine of executive privilege. See, e.g., In re Sealed
Case, 121 F.3d 729, 752–53 (D.C. Cir. 1997) (addressing presidential communica-
tions component of executive privilege); Assertion of Executive Privilege With
Respect to Clemency Decision, 23 Op. O.L.C. 1, 1–2 (1999) (opinion of Attorney
General Janet Reno) (same). As the Supreme Court recognized in United States v.
Nixon, 418 U.S. 683 (1974), there is a

necessity for protection of the public interest in candid, objective,
and even blunt or harsh opinions in Presidential decisionmaking. A
President and those who assist him must be free to explore alterna-
tives in the process of shaping policies and making decisions and to
do so in a way many would be unwilling to express except privately.
These . . . considerations justify[] a presumptive privilege for Presi-
dential communications. The privilege is fundamental to the opera-
tion of Government and inextricably rooted in the separation of pow-
ers under the Constitution.

Id. at 708.
The doctrine of executive privilege also encompasses Executive Branch delib-
erative communications that do not implicate presidential decisionmaking. As the
Supreme Court has explained, the privilege recognizes “the valid need for
protection of communications between high Government officials and those who
advise and assist them in the performance of their manifold duties.” Nixon, 418
U.S. at 705. Based on this principle, the Justice Department—under administra-
tions of both political parties—has concluded repeatedly that the privilege may be
invoked to protect Executive Branch deliberations against congressional subpoe-
nas. See, e.g., Assertion of Executive Privilege With Respect to Prosecutorial

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 Assertion of Executive Privilege Over Communications Regarding Air Quality Standards

Documents, 25 Op. O.L.C. 1, 2 (2001) (opinion of Attorney General John D.
Ashcroft) (“The Constitution clearly gives the President the power to protect the
confidentiality of executive branch deliberations.”); Assertion of Executive
Privilege With Respect to Clemency Decision, 23 Op. O.L.C. at 2 (explaining that
executive privilege extends to deliberative communications within the Executive
Branch); Assertion of Executive Privilege in Response to a Congressional
Subpoena, 5 Op. O.L.C. 27, 30 (1981) (opinion of Attorney General William
French Smith) (assertion of executive privilege to protect deliberative materials
held by the Department of Interior). 1
The subpoenaed documents implicate both the presidential communications
and deliberative process components of executive privilege. The EPA Administra-
tor’s talking points regarding the ozone regulation were provided for your use and
are thus subject to the presidential communications component of the privilege.
The OIRA documents fall within the scope of the presidential communications
component because they are deliberative documents generated by your staff in
reviewing a proposed agency regulation on your behalf and developing a position
for presentation to you. Among other things, the OIRA documents contain candid
assessments of alternative actions that EPA or you could pursue. Addressing the
subpoenaed documents in their entirety, I believe that publicly releasing these
deliberative materials to the Committee could inhibit the candor of future delibera-
tions among the President’s staff in the EOP and deliberative communications
between the EOP and Executive Branch agencies, particularly deliberations
concerning politically charged issues. As the Supreme Court explained, “[h]uman
experience teaches that those who expect public dissemination of their remarks
may well temper candor with a concern for appearances and for their own interests
to the detriment of the decisionmaking process.” Nixon, 418 U.S. at 705. Accord-
ingly, I conclude that the subpoenaed materials at issue here fall squarely within
the scope of executive privilege.

II.

Under controlling case law, a congressional committee may overcome an asser-
tion of executive privilege only if it establishes that the subpoenaed documents are

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The Justice Department’s long-standing position finds strong support in various court decisions
recognizing that the deliberative process privilege protects internal government deliberations from
disclosure in civil litigation. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)
(“Manifestly, the ultimate purpose of this long-recognized privilege is to prevent injury to the quality of
agency decisions.”); Landry v. FDIC, 204 F.3d 1125, 1135–36 (D.C. Cir. 2000) (describing how
agencies may assert the “deliberative process” component of executive privilege in litigation); Dow
Jones & Co., Inc. v. Dep’t of Justice, 917 F.2d 571, 573–74 (D.C. Cir. 1990) (describing the
“‘deliberative process’ or ‘executive’ privilege” as an “ancient privilege . . . predicated on the
recognition that the quality of administrative decision-making would be seriously undermined if
agencies were forced to operate in a fishbowl”) (internal quotation marks omitted).

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“demonstrably critical to the responsible fulfillment of the Committee’s func-
tions.” Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498
F.2d 725, 731 (D.C. Cir. 1974) (en banc). Those functions must be in furtherance
of Congress’s legitimate legislative responsibilities. See McGrain v. Daugherty,
273 U.S. 135, 160 (1927) (Congress has oversight authority “to enable it efficient-
ly to exercise a legislative function belonging to it under the Constitution”). In
particular, a congressional committee must “point[] to . . . specific legislative
decisions that cannot responsibly be made without access to [the privileged]
materials.” Senate Select Comm., 498 F.3d at 733. I do not believe that the
Committee has satisfied this high standard with respect to the subpoenaed
documents.
In assessing the Committee’s need for the subpoenaed documents, the degree to
which the Committee’s stated legislative interest has been, or may be, accommo-
dated through non-privileged sources is highly relevant. See id. at 732–33
(explaining that a congressional committee may not obtain information protected
by executive privilege if that information is available through non-privileged
sources); United States v. AT&T Co., 567 F.2d 121, 127 (D.C. Cir. 1977) (explain-
ing that each branch has a “constitutional mandate to seek optimal accommoda-
tion” of each other’s legitimate interests); Assertion of Executive Privilege, 23 Op.
O.L.C. at 3–4 (finding that documents were not demonstrably critical where
Congress could obtain relevant information “through non-privileged documents
and testimony”).
With respect to the ozone standards, the Committee asserts that it needs the
subpoenaed materials to understand why the White House rejected EPA’s
“recommendations regarding the ozone standard” and to determine whether White
House staff complied with the Clean Air Act when evaluating EPA’s proposed
regulation. Letter for Stephen L. Johnson, Administrator, EPA, from Henry A.
Waxman, Chairman, House Committee on Oversight and Government Reform at 2
(May 16, 2008). The Committee offers similar justifications in support of its
demand for materials related to the California waiver issue. See, e.g., Letter for
Stephen L. Johnson, Administrator, EPA, from Henry A. Waxman, Chairman,
House Committee on Oversight and Government Reform at 1 (Dec. 20, 2007)
(“Your decision appears to have ignored the evidence before the agency and the
requirements of the Clean Air Act.”).
The Committee’s claim that it must have the subpoenaed materials to under-
stand the reasons for EPA’s decision on the ozone regulation is unconvincing
given the substantial information already available to the Committee. To date,
EPA and OIRA have produced or made available to the Committee approximately
30,000 pages of documents related to the revised ozone NAAQS standard. See,
e.g., Memorandum for the Members of the Committee on Oversight and Govern-
ment Reform, from the Majority Staff of the Committee on Oversight and
Government Reform, Re: Supplemental Information on the Ozone NAAQS at 1

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(May 20, 2008) (30,000 pages of documents received from EPA and the Office of
Management and Budget); see also Letter for Henry A. Waxman, Chairman,
House Committee on Oversight and Government Reform, from Jeffrey A. Rosen,
General Counsel, Office of Management and Budget at 1 (May 20, 2008) (OIRA
provided the Committee with access to more than 7,558 pages of documents). In
particular, EPA and OIRA produced to the Committee copies of all communica-
tions between the Administrator of OIRA and the Administrator of EPA concern-
ing the ozone NAAQS regulation. These communications explain in considerable
detail the views of OIRA, EPA, the White House, and the President concerning the
ozone NAAQS standard. See, e.g., Letter for Stephen L. Johnson, Administrator,
EPA, from Susan E. Dudley, Administrator, OIRA at 1 (Mar. 12, 2008) (describ-
ing disagreements between OIRA and EPA and advising EPA of the President’s
decision). Moreover, EPA publicly disclosed the substance of these concerns in
the preamble to its Federal Register notice for the final ozone regulation. Finally,
the Administrators of both EPA and OIRA testified before the Committee on May
20, 2008, concerning the ozone regulation. At that hearing, the Committee had
ample opportunity to explore with the witnesses the decisions and rationale for the
regulation.
It is of particular importance in considering the Committee’s need for the inter-
nal OIRA documents—which constitute the great bulk of the documents at issue—
that when the Administrator of OIRA testified before the Committee on May 20,
the Committee had the opportunity to ask her about OIRA’s role, as well as that of
you and the White House staff, in the process leading up to the issuance of final
NAAQS ozone regulation. Yet, the Committee asked no such questions. Indeed,
Administrator Dudley was asked only four questions during the entire hearing.
None of the questions put to the Administrator related to OIRA’s internal delibera-
tions or communications with the White House, and none demonstrated a need for
additional documents or information from OIRA. See Letter for Henry A.
Waxman, Chairman, House Committee on Oversight and Government Reform,
from Jeffrey A. Rosen, General Counsel, Office of Management and Budget at 2
(June 18, 2008).
EPA made similar accommodations with respect to the California waiver deci-
sion. The agency has made available to the Committee approximately 27,000
pages of documents concerning the decision. See Memorandum for the Members
of the Committee on Oversight and Government Reform, from the Majority Staff
of the Committee on Oversight and Government Reform, Re: EPA’s Denial of the
California Waiver at 1 (May 19, 2008). Again, these materials describe in
considerable detail—as a memorandum prepared by Committee Staff demon-
strates—the reasons behind EPA’s decision to deny California’s petition. Beyond
receiving access to tens of thousands of pages of documents, the Committee also
“deposed or interviewed eight key officials from the EPA” concerning the
California waiver decision, id. at 1, and, as discussed above, the Committee had an

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opportunity to explore the California waiver decision with the EPA Administrator
at the public hearing on May 20.
OIRA’s and EPA’s efforts represent an extraordinary attempt to accommodate
the Committee’s interest in understanding why EPA denied California’s waiver
petition, why EPA issued the revised NAAQS for ozone, and the involvement of
you and your staff in both decisions. Given the overwhelming amount of material
and information already provided to the Committee, it is difficult to understand
how the subpoenaed information serves any legitimate legislative need. In any
event, when I balance the Committee’s attenuated legislative interest in the
subpoenaed documents against the Executive Branch’s strong interest in protecting
their confidentiality, I conclude that the Committee has not established that the
subpoenaed documents are “demonstrably critical to the responsible fulfillment”
of the Committee’s legitimate legislative functions. Senate Select Comm., 498
F.2d at 731.

III.

For these reasons, I conclude that you may properly assert executive privilege
in response to the Committee’s subpoenas.

MICHAEL B. MUKASEY
Attorney General

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