This motion was filed yesterday in the case(s, consolidated) challenging EPA’s rescission of the pre-cooked, no-notice-and-comment 2009 Endangerment Finding (EF). Activists are insisting that the administrative record is incomplete. We could not agree more. There are so many things left unsaid in the record about the EF’s rise and fall!
GAO is gratified to see that certain parties now worry the administrative record is complete, apparently because certain documents announcing a decision were prepared… after the decision was made.
They’re saying predetermination because aha they PDF’d this thing ten hours after he said they’d decided! Could it be that matters can be finalized internally and documents then physically prepared for publication? Indeed, how could it ever be any other way?
Meanwhile GAO has obtained and presented a record of months of “when should we pull the trigger on this thing we’re pretending to be deciding whether to do?” (See the long record of that theater here.)
Yet these same parties had no issue with what GAO has pointed out, this much more obvious problem of the agency under President Obama’s EPA having made the decision to declare the endangerment finding before even going through the required motions of pretending to consider the prospect.
In other words, the climate activists don’t mind if you put the cart before the horse. But how dare you put it after the horse!
GAO thinks the campaign to delay, delay and delay judicial consideration of the merits of rescinding the EF some more, hoping for a different SCOTUS to hear challenges to rescission (delaying at SCOTUS being a cynical page in the playbook, hinted at in Mollie Hemingway’s recent book which reports shouting matches imploring delay of publishing the Dobbs decision amid rising threats to the sitting justices—who knows, things happen!—and the NYT’s recent publication of leaked documents pertaining to the “Clean Power Plan” which also hinted at the fact that, well, justices are mortal, got some old fellas here, lots of angry activists, let’s just wait awhile longer…).
Still, one of yesterday’s two filings by the activists may just fly a little too close to the sun; were it to succeed and convince the DC Circuit to stay the EF rescission, the NYT leak suggests to GAO that this Court is onto and has had enough of this team’s gaming the system to achieve desired aims through unlawful regulations. It just might step in earlier, rather than later. We shall see.