OT;Testimony of Witherspoon, Former Executive Officer of ...

[Guest guest]

Testimony of Witherspoon, Former Executive Officer of the

California Air Resources Board, on the Schwarzenegger

Administration's Interference with Implementation of Global Warming

Measures

http://www.californiaprogressreport.com/2007/07/testimony_of_ca_1.htm

l

Thank you for the invitation to speak with you today. What I would

like to do this morning is talk about what's been going on at the

Air Resources Board for the last year, tell you where the process

got off track, and make some recommendations about how to fix the

situation going forward. Just as a quick aside, I have spent 22

years of my life at the Air Resources Board from the time I was a

student intern in 1981. It's near and dear to my heart and soul

which is at the integrity and reputation and authority of the board

to be restored going forward and allowed to do its work, which

history shows speaks for itself.

The Schwarzenegger Administration has always had internal strife on

environmental issues, with lots of pushing and pulling from

different factions on the Governor's staff. Since the beginning of

his first term, ARB has been frequently summoned to the Governor's

Office to answer questions about what the Board was doing, and to

respond to concerns raised by various stakeholders.

When Terry Tamminen and Bonnie Reiss were still here, we could count

on a fair hearing in the horse shoe. In those days, once ARB

explained what the law required and what were proposing to do, the

Governor's staff typically told us to go ahead. Likewise, when they

understood that the counter proposals by industry lobbyists would

impede pollution control or endanger lives, they gently told those

lobbyists " we're sorry, but ARB needs to take this action to protect

public health. " And that was the end of it.

When Terry Tamminen left the Administration the commitment to

environmental objectives diminished. When Bonnie Reiss resigned last

year it disappeared altogether. ARB continued to be summoned to the

Governor's Office, but the conversation was totally different. Why

are you doing this to industry? Show me where the law says that

you're supposed to do this. Tell me why it can't be postponed until

next year. Prove to us that your cost calculations are accurate.

Explain to me again why you can't do it the industry's way. They

stopped asking what's at stake for public health or how will this

affect our ability to meet air quality standards. Those aspects were

no longer relevant. Never did they ask, what's at stake for public

health? Or, how will this affect our ability to meet air quality

standards? Those aspects are no longer relevant to the current

Governor's staff.

For the past year, the pressure has been relentless and it has all

run one way. Slow down. Do less. Go easier on industry.

That's why I strongly believe that the Governor needs to put an

environmental advisor back on his senior staff. The Administration's

internal dialogue has become completely one-sided and is contrary to

his stated commitment to balance environmental and economic

objectives.

Some of the newspapers have reported that Terry Tamminen and Bonnie

Reiss still are in the Governor's inner circle and yes they are, but

they are distant. We need somebody here on a day to day basis to

engage on the issues day in and day out.

The second major change in the past year was the complete erosion of

boundaries between the Governor's Office, Cal/EPA and the ARB. Once

AB 32, the Global Warming Solutions Act, became law, the boundaries

between the Air Resources Board and the Governor's Office dissolved

and we were expected to behave as an extension of the Governor's own

staff. ARB personnel were not allowed to speak or act on any

substantive matter related to greenhouse gases without prior

permission from the horseshoe. Secretary and her deputies

became the enforcers and ordered ARB not to get ahead of the

Governor. Don't say this, remember to emphasize that, and don't make

any public statements about early action measures. We'll tell you

what your early actions can be. Publicly, they said quite the

opposite. That ARB was in charge. That ARB would determine what to

do about the recommendations of the Market Advisory Committee,

etcetera. Given that disconnect its not surprising the Legislature,

stakeholders and the general public had no idea what was actually

going on.

Once they got used to bossing ARB around on climate programs,

Cal/EPA and the Governor's Office staff started telling us what to

do about air toxics (such as formaldehyde and perchloroethelyne),

how to spend the bond money set aside for cleaning up the air

pollution associated with goods movement, and how to write our

diesel emission control rules. Nothing was off limits to them. We'd

even get calls during our regulatory hearings with specific

instructions on what to do. `The Governor's Office wants the Board's

resolution on the predictive model for gasoline to say that you're

going to suspend part of the rule if the oil companies get direct

subsidies to comply instead. " When I responded that would be

difficult because the Chairman did not support such language, I was

instructed to make it happen or else. The same thing went on at the

hearing on discrete early action measures to reduce greenhouse

gases, only that time the Governor's Office put the touch directly

on Board members instead, including Chairman Sawyer. And when Dr.

Sawyer did not comply, he was fired. " Or else " was fully realized.

To keep that from happening in the future, the members of the Air

Resources Board need to have fixed terms. They should not be

threatened with dismissal for voting their conscience, responding to

public testimony, or otherwise exercising their judgment. That's

what they were appointed to do.

In addition, the separate roles and responsibilities of the

Governor's Office, Cal/EPA and ARB need to be restored. The

Governor's Office needs to set broad policy. Will we or won't we

require the best available controls on the construction industry?

Will we or won't we impose operational limits in the San Joaquin

Valley? Will we or won't we ban formaldehyde? The Governor knows how

to do that when he's writing Executive Orders and holding press

conferences. He needs to be just as clear on the day-to-day issues

confronting ARB.

Cal/EPA needs to go back to its coordinating role -- brokering

information, tracking the process, and making sure other Cabinet

members understand what's needed to achieve California's air quality

goals so they don't thwart our objectives. The Secretary also needs

to do a better job of bring critical issues to the Governor's

attention. She lets the horse shoe push her around even when she

disagrees with them. That's a disservice to the man who appointed

her and to the departments, boards and offices she oversees.

The last thing I want to talk about is personnel decisions at the

Air Resources Board. Every Governor, and I've worked for 5 of them

has retained the right to " vet " high level hires at each state

agency, such as the Executive Officer. However, this Administration

has taken over senior hires completely.

Since last August, Kennedy has wanted to get me out of ARB and

ordered Dr. Sawyer to make that happen on May 7 of this year even

though I am a civil servant, I do not report to her, and my position

is to be appointed in statute to be appointed by the governing board.

He refused as did the rest of the Board, which is my appointing

authority. When ARB's chief counsel stepped down two years ago, I

was prohibited from suggesting a candidate to replace her. The

Governor's Office will decide, I was told. Finally, when ARB's

Communications Director ran afoul of Adam Mendelsohn earlier this

year, he was summarily dismissed without any say so from the

Chairman or me. Take this transfer or else, he was told. ARB's new

Communications Officer, who just started on Monday, was selected by

the Governor's press staff, not ARB — though Dr. Sawyer and I were

allowed to talk to him. I wish him all the best because he's walked

into a quagmire.

ARB now needs to hire a new Executive Officer. That decision should

be left up to the Governing Board. Similarly, ARB's current Chief

Counsel is retiring at the end of this year. ARB needs a genuine air

quality or climate expert in that post, not a legal hack chosen to

do the horseshoe's bidding.

I believe this can all be turned around and that ARB, Cal/EPA and

the Governor's Office can get back on the right track. Nichols

is a fantastic choice to lead the Air Resources Board and she will

do great things if the Governor's Office will only allow that to

happen. The Legislature can help by remaining vigilant, by asking

tough questions, and demanding to hear directly from the principals

involved. There's so much at stake for California and the world. We

need the best thinking, the right motives, and courageous actions

from everyone that has a role to play.

I thank you for listening to me this morning and I would be happy to

answer any questions you have.