Amid reports that the U.S. Environmental Protection Agency is reconsidering the December 2009 “Endangerment Finding” regarding greenhouse gases,[1] a recanvassing of emails obtained in the infamous “Richard Windsor” Freedom of Information Act (FOIA) lawsuit brought over a dozen years ago by the Competitive Enterprise Institute (CEI) against the Agency[2] leads to a troubling conclusion: the Obama EPA’s regulatory “finding” that greenhouse gases endanger human health and welfare was the product of an illusory notice-and-comment process, and the agency predetermined its outcome because the relevant decisionmakers had unalterably closed minds.
The Endangerment Finding is the basis for the entire “climate” regulatory edifice that has followed, not to mention the electricity reliability crisis we are now being warned about by reliability organizations such as the North American Electric Reliability Corp.
Putting aside the obvious imperative for revisiting the EF given the evolution of scientific understanding and increasing disparity between the claims serving as the basis for the EF and subsequent scientific observations casting doubt on its evidentiary foundations, none of the proposed reforms to that climate regulatory state are likely to be durable if the Endangerment Finding remains in place. All of the regulatory reforms will be short-term and, ultimately, for naught. Electricity reliability crises will indeed be the new normal.
Reviewing the Agency’s internal record for procedural improprieties is a responsible step in reconsidering any prior or pending action. This is particularly important given what we have learned about the Obama and Biden EPA and other agencies deployed in the facially unconstitutional “whole of government” approach to imposing this climate agenda, despite the whole of government not being authorized to implement such policy and, per West Virginia v. EPA, even the EPA not having been authorized to do most of what it is trying to do post-EF.
And these emails, and privilege logs of randomly selected (by EPA) withheld-in-full records from CEI’s FOIA litigation suggest that there is a sound basis for believing the Obama team proceeded with a predetermined outcome in mind, and that the Endangerment Finding was the product of unalterably closed minds such that there was no realistic chance the process would achieve any other result. That violates our due process requirements as affirmed in the Administrative Procedure Act.
Even given just that information, to protect the integrity of the rulemaking process and hopefully guard against further adventurism in the future, it is clear that any reconsideration should also consider what the internal discussions reveal about the original propriety of this action in this respect.
Endangerment Finding Timeline
10.20.99 International Center for Technology Assessment submits petition to EPA seeking regulation of GHGs under § 202(a) of the CAA. This was denied in Sept. 2003, then winded its way through DC Cir. litigation, where that court upheld the denial.
4.02.07 SCOTUS holds 5-4 in Massachusetts v. EPA that the CAA definition of “air pollutant” contemplates GHGs, and that the Administrator must determine whether emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution, which may reasonably be anticipated to endanger public health or welfare, or whether the science is too uncertain to make that decision.
It did not order EPA to regulate GHGs, but to set forth a reasoned basis for doing so or not doing so.
12.18.08 EPA Administrator Johnson finds no endangerment, focusing specifically on stationary source permitting requirements, as set forth in the 19-page “Johnson memo”.
1.21.09 Obama administration takes office at noon.
1.29.09 Principal advisor to the Administrator on legislative climate issues and former green-group (NRDC) lawyer, David McIntosh, reports to the Administrator Lisa Jackson (under her false-identity email account in the name of “Richard Windsor”) and Lisa Heinzerling[3] about the second of two scheduled meetings with [ REDACTED ] climate modelers. [ REDACTED ].”
1.30.09 Scheduled “Briefing on the response to the Endangerment issue from Mass. v EPA“
2.08.09 Lisa Heinzerling sends “Richard Windsor” a “power plants memo”, withheld in full (WIF)
2.09.09 Jackson, McIntosh call with White House climate advisor “Carol Browner to discuss Coal Plants”
2.16.09 Emails, heavily redacted, discuss how much and what to say to NYT’s Broder in interview the next day. Redactions include discussion of endangerment. State, re that interview: “SUBJECT: Handshake meeting; Opportunity to outline agenda; endangerment”
2.16.09 Jackson writes to Heinzerling, Subject: Good news re: Johnson memo, “The Sierra Club and other petitioners who have challenged the Johnson memo on PSD will NOT be asking the court to stay the memo tomorrow. [ REDACTED (two lines ) ]. Have a good night.”
Heinzerling responds, “Wow. How did you pull THAT off?”
That seems a very good question.
2.18.09 NYT’s Broder publishes story “EPA to regulate Greenhouse gases”. Story quotes Jackson saying mind not made up but Mass. v EPA anniversary was coming up, which she calls “momentous,” saying “We have to lay out a road map.”
EPA redacted several emails, shielding discussion of same.
2.22.09 Vaughn index shows several email discussions of Endangerment, between Administrator and Heinzerling, WIF, as was email with same and public affairs chief discussing when and how to tell public about EF
2.23.09 Email from Bob Sussman to Windsor, Heinzerling, McIntosh, Subject: “OMB/Endangerment Finding”, refers to recommendation for “one important item” from Michael Fitzpatrick of OIRA (OMB) for proceeding with the Endangerment Finding
Heinzerling responds, “We’re planning on doing this.”
See 2.26.09 email to White House re same. This shows EF was well in the works one month into office.
2.26.09 Email from Heinzerling to “Windsor”, McIntosh, states that EF will be made, even though it was at the time purportedly just something under consideration, and that Agency can proceed w tailpipe regs (subject of Mass. V. EPA) while EF is underway
2.26.09 EPA tells Heather Zichal, deputy WH coordinator for climate and energy policy, that the EF will be made, they will get OMB to expedite its review and gives the timeline for going final
3.05.09 Vaughn index shows email discussions of Endangerment, between Administrator and Heinzerling, WIF
3.10.09 Vaughn index shows email discussions of Endangerment, between Administrator and Heinzerling, WIF
3.12.09 Al McGartland, director of EPA’s National Center for Environmental Economics, emails (soon-to-be) whistleblower Alan Carlin, “In light of the tight schedule and the turn of events, please do not have any direct communication with anyone outside of NCEE on endangerment.“
3.13.09 Vaughn index shows string of emails about drafting memo to POTUS re EF, Heinserling and Windsor, Attachment: “Presidential Decision Memo endangerment LH 3-15 – redline.doc”. Other entries show this thread continues on 3.16.09 and 3.22.09, including David McIntosh
3.16.09 Subject: Comments on the Endangerment TSD, copying more Agency officials, Carlin presses for inclusion of what are later described as “not helpful” comments contradicting what the administration has decided to do
3.17.09 More WIF email between Windsor and Heinzerling, “Endangerment”
3.17.09 McGartland emails Carlin, Subject: endangerment comments??? stating he did not forward Carlin’s input and stated, inter alia, “The administrator and the administration has decided to move forward on endangerment, and your comments do not help the legal of policy case for this decision.”
3.20.09 More WIF email between Windsor and Heinzerling, “Endangerment”
3.22.09 WIF emails between Windsor, Heinzerling, PR chief, “Endangerment”
3.202-23.09 WIF email between Windsor, Heinzerling, PR chief, on the matter of public hearings on “the endangerment finding”, which the records states had not yet been made
4.07.09 Lisa Jackson (“Richard Windsor”) trying to get time w David Axelrod to message EF
4.24.09 EPA proposes EF
6.09 Alan Carlin whistleblowing. 6.24.09 email re same, and having not been presented with the questions about Carlin allegations “we had been worried about.”
12.03.09 Vaughn index shows East Anglia (i.e., ClimateGate) Talking Points
12.05.09 Memo, redacted (first in full, then merely heavily), Tough Qs and As, “Issues raised regarding the Climate Research Unit (CRU) University of East Anglia.”
Fully redacts “Relevance to EPA and the Endangerment Finding.”
12.15.09 EPA publishes “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act.”
9.26.11 OIG report requested by Ranking EPW Member Sen. James Inhofe (R-OK), “Procedural Review of EPA ‘s Greenhouse Gases Endangerment Finding Data Quality Processes”—which found, among other procedural deficiencies, that the EF “should have been peer reviewed as” required by implementing guidance for the Information Quality Act but was not—states, inter alia, in its discussion “OAR Did Not Follow Some Steps in the Action Development Process”:
“EPA initiated a formal action development process for the stand-alone greenhouse gases endangerment finding in early March 2009,” and “OAR [Office of Air and Radiation] began the action development process for the stand-alone endangerment finding in March 2009…”, citing no other point of note in the history of considering an EF between March 2009 and July 2008;
and
“in the endangerment finding EPA described the April 2009 TSD as the “underlying scientific and technical basis” for the Administrator’s proposed findings.”
[1] Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act, December 7, 2009, Docket ID No. EPA-HQ-OAR-2009-0171, https://www.epa.gov/sites/default/files/2021-05/documents/federal_register-epa-hq-oar-2009-0171-dec.15-09.pdf.
[2] Competitive Enterprise Institute v. EPA (DDC), Case No. 1:12-cv-01617 (JEB).
[3] Ms. Heinzerling, who authored Massachusetts et al.’s brief in the Massachusetts v. EPA case, was brought in to the administration immediately and set to work on this matter for the first approximately seven months as “Administrator Jackson’s chief advisor on climate matters” (apparently until “reinforcements have arrived”