GAO has uncovered certain facts which the Trump administration absolutely must consider and exploit as it pursues its announced regulatory corrections. This information sheds light on the previous administration’s process for adopting an unlawful “suite of regulations” imposing the “climate” agenda without any statutory authorization. Turns out, that plan was more unlawful than even we knew.
In fact, this information rightly puts an immediate end to the flagship rule, the Biden administration’s ‘Clean Power Plan 2.0’.
If you recall, the Clean Power Plan 1.0, imposed by the Obama-Biden Environmental Protection Agency (EPA), declared that “generation shifting”—forcing disfavored power plants to close via punitive regulation—was a “best available system” for reducing emissions, which had been “adequately demonstrated.” The Supreme Court overturned that rule in the monumental opinion West Virginia v. EPA, holding that EPA had never been given the authority to decide “how Americans get their electricity”, which is a “major question” left to Congress. Along the way, the Court ruled that forcing plants to close via punitive regulation was not a “system” of emissions reductions.
Seemingly taking its cues from the dissent by Justice Elena Kagan, the Biden administration then imposed a second, even more stringent Clean Power Plan 2.0. That plan also sought to force the premature retirement of certain electricity generation capacity, as purportedly the most efficient way of reducing greenhouse gas emissions. As has been documented, that is unlawful and a basis for overturning the CPP 2.0 rule and others, too.
This second time around, EPA required carbon capture and sequestration (CCS) as the best available system of emission reductions; EPA claimed CCS had been “adequately demonstrated” largely because the former administration claimed that CCS at a facility in Canada was working just fine. This was not true, as any search even of the Canadian popular or trade press would have proved (and the operator’s own quarterly reports affirmed, unambiguously).
Worse, however, EPA was told during the rule making process, by the government’s own engineers, that this was false. And someone buried that information even though it came from the government’s own expert staff. EPA then proceeded with the same false premise, as if it never received the advice it asked for.
GAO is reliably informed that on March 16, 2023 the EPA solicited preliminary comment from the Department of Energy (DoE) on EPA’s soon-to-be-proposed rule “New Source Performance Standards for Greenhouse Gas Emissions from New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units; Emission Guidelines for Greenhouse Gas Emissions from Existing Fossil Fuel-Fired Electric Generating Units; and Repeal of the Affordable Clean Energy Rule”. DoE’s National Energy Technology Laboratories’ (NETL) comments, submitted to EPA by DoE-HQ on or before March 22, 2023, refuted claims made in the then-draft proposal. Those comments were not reflected in the rulemaking docket, and EPA subsequently proposed its rule making the same claims that DoE engineers refuted.
GAO also sees this letter, suggesting the comments did make it to EPA and therefore that the party sanitizing the record was at the Agency, not at DoE.
We state with no slight confidence that DoE’s comments confirm what EPA knew or should have known, that it was proposing a major rule on a demonstrably false premise that carbon capture and sequestration had been “adequately demonstrated,” and based on an incomplete or materially falsified administrative record.
This recalls the previous administration’s burial of an assessment of exports of liquified natural gas to non-FTE countries, in order to facilitate a politically desired “pause” on LNG exports[1] (see FOIA request HQ-2024-02097-F; Government Accountability & Oversight v. Dep’t of Energy, 24-1829, DDC).
The Trump administration is sitting on the records the Biden administration cooked to force a predetermined outcome. That record, including digital traces of whatever, if anything, was disappeared from recent, prior administrations will necessarily be in the Trump administration’s hands. These records include internal discussions of all of the questions which strike at the heart of the legality of the Biden “whole of government” approach to imposing a never-enacted, ideological agenda. The U.S. House Committee on Oversight and Accountability has an outstanding, late 2023 request to track this information down; GAO now has a couple of its own, helping direct new agency leadership to the information.
We hope the administration will consider these facts and take appropriate action, beginning with moving expeditiously to identify and release this information, and work with the Agency on the most appropriate remedy to these proceedings.
[1] See, e.g., Editorial, “The Harris Disguise, Energy Edition,” Wall Street Journal, October 24, 2024, https://www.wsj.com/