InsideEPA reports on some For Us, By Us nuttery representing the Left’s “some are more equal than others” view of the public seeking equal rights to access public records under the Freedom of Information Act (FOIA).
As this email obtained in GAO v. Regents affirms, it is also precisely the brand of crackpottery an insider whispered, around inauguration time, as the kind to watch for in the Biden Administration.
Counsel for GAO in numerous open records lawsuits Chris Horner had an opinion piece leading Friday’s Wall Street Journal Opinion page.
The scheme revealed is reminiscent of the machinations detailed in this amicus brief, filed by Horner on behalf of Energy Policy Advocates and which revealed early on the Biden EPA’s interest in going around the law to impose the never-enacted climate agenda.
In very short: A bureaucrat’s gaffe juuust pre-West Virginia v. EPA soon ran into the doctrines of colorable authority and major questions. With receipts provided courtesy of FOIA.
Read the piece here.
FOIA Litigation reveals eye-opening breadth and depth of climate activist involvement with Biden Administration
Coordination extends beyond SEC, to White House, EPA, others
Energy Policy Advocates has obtained 501 pages from the Securities and Exchange Commission (SEC) in Freedom of Information Act (FOIA) litigation over records pertaining to the involvement of a “climate” rent-seeker, Persefoni, and its partners Ceres and a consultant called ERM. It is now clear that these parties worked hand-in-glove with the SEC in developing the latter’s “climate risk disclosure” (CRD) proposed rule.
That rule declared an outlying, relatively low cost estimate a fraction of what other parties estimate this will do to the broader economy and its (non-Persefoni) participants, yet lacking citation or methodology to explain from whence it came.
Subsequently, numerous congressional oversight efforts have focused on determining where this enigmatic cost estimate for SEC’s extraordinary and legally adventuresome CRD proposal came from.
For a primer, GAO has covered this troubling public-private partnership, here.
To the list of glaring problems (think: compelled speech, materiality, Major Questions Doctrine), it seems a decent bet to add good old arbitrary and capricious to CRD’s obvious vulnerabilities.
Here are a few exemplars from early in the production, and early in the game, giving a flavor of the canoodling:
As background, emails and other info in the public domain indicate Curtis Ravenel serves both Michael Bloomberg (see, “Mike”) and consultant to the ESG stars and former Bank of England head Mark Carney in lobbying the Biden Administration to adopt their “climate” projects respectively styled TCFD and GFANZ — by regulatory fiat. This portfolio includes, as Treasury Department productions show, lobbying them on their Gmails.
The latter being a practice also used by Bloomberg aide and former SEC Chair Mary Schapiro, who would email, e.g., Janet Yellen Chief of Staff Didem Nisanci’s GMail, then come in to jointly lobby SEC on climate issues (?!)). It’s quite an operation.
Persefoni has since brought on board SEC’s Kristina Wyatt who features in these emails, Emily Pierce and former Commissioner and Acting Chair Allison Herren Lee, whose schedule also obtained by Energy Policy Advocates affirms was the principal driver of this overreach, on the Commission. They all go way back with this rather new yet remarkably influential entity.
One can see why the House Financial Services Committee, House Committee on Oversight & Reform, and Senate Banking Committee Republicans have been pressing SEC on this matter. Hopefully this helps as, yet again, stonewalling agencies have made it necessary for private parties to go to court to get some of the record of how these institutions are being used, with whom.
There is much more there. As SEC stated about this production in a Joint Status Report filed with the U.S. District Court for the District of Columbia yesterday:
9,600 pages, most of which are attachments. Yesterday’s production included all “parent” emails and began releasing some of the many pages of attachments, thereto.
Those numbers strongly suggest we’ve cracked the mystery of the missing source behind SEC’s cost estimate for its climate risk disclosure rule. (Readers also will spot Team Persefoni spending quite a bit of time downplaying costs of CRD and, reminiscent of so much in the climate industry, how those costs, why, they’ll just go lower once you coerce a bigger market for us into place.)
There is more coming, and hopefully congressional oversight bodies get further information. For now, anyone with any involvement with this move should read the SEC’s initial production, here.
UPDATE: See relevant document tranches here and here.
From the “Oh, they’d never do that” department we see a couple of emails produced the other night in Freedom of Information Act (FOIA) litigation by Energy Policy Advocates.
There’s nothing quite like preparing well in advance to declare a (checks notes) “climate emergency”. Hey, one can never be too prepared! Even more amusing — in a rather dark, very 2020s way — is the idea of a proposal for a “Climate Emergency Initiative.” And apparently a really good one at that. Odd this didn’t come up in Mr. Goffman’s prolonged, still-inchoate confirmation process…
GAO can only wonder what it’s being held for. What new paper, claim, film release, loss in court, UN Conference of the Parties/political need will necessitate the discovery of a “climate emergency” for which, fear not, we just happened to have an Initiative prepared…
Readers may recall this failure to disclose by EPA air office nominee Joseph Goffman, architect of the overturned Obama-Biden Clean Power Plan who is back at it now in the Biden administration — despite the record suggesting his own actions and disregard for the law are such that he should be nowhere near any such authority, or even in the building.
EPA under “Law Whisperer” Goffman has operated as an egregious scofflaw following its slap down by the U.S. Supreme Court in West Virginia v. EPA, proceeding with Goffman’s planned and now inarguably impermissible “backdoor” or “law whispering” strategy — imposing the climate agenda in the absence of any such grant of congressional grant of authority via a “suite of rules” intended to cause regulated parties to rethink their resistance.
E&E News reports Goffman is now under scrutiny for other possible lapses.
GAO humbly submits the allegation at issue there pales in comparison to that already reported on but, to date, left to sit without attention.
Government Accountability & Oversight has filed suit against the Federal Deposit Insurance Corporation (FDIC) for its failure to release records about — recent headlines affirm — yet another federal government agency failing to engage in its core responsibilities or competencies in favor of politicization.
“Watch the theme of “environmental justice”- it will subsume much policy orientation going forward”
GAO readers may have seen this recent item about the New Green Blob that’s eating the Old Blob, and the bitter power struggles along the way, in keeping with Sayre’s Law (though admittedly the number of dollars being redistributed is so high).
Now we were reminded of another Biden Transition-era email from a self-proclaimed insider telling an incoming climate apparat that this was the plan.
Old Westerns remind us what happens when it comes time to split up the loot
Recent coverage of “environmental justice” money being thrown around (a billion here and a billion there, pretty soon…)
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reminded GAO of some transition-era emails — including from a recent Biden White House promotion (and, speaking of hijacking agendas and authorities) — suggesting that this funding spigot/machine has even displaced the green establishment in terms of priorities. The same way “climate” consumed traditional (and of course any actual) environmentalism because money, the EJ industry is displacing old-line greens.
Mary of course is Democrat Godmother of the Green Bureaucracy Mary Nichols. Keeping with the theme of just how fast things change when there’s this much cash and power at stake, Ms. Nichols is more recently famous for explaining, at the Rockefeller family mansion, natch, that that other Dem luminary Ernest Moniz had “not been well-managed”, having failed to keep current with updates to the liturgy and claiming that natural gas still is acceptable as a “bridge fuel” to the elusive wind- and solar-powered nirvana.
We don’ need no stinking SCOTUS opinions?
The Senate Committee on Environment and Public Works has announced a Wednesday confirmation hearing for former Obama Environmental Protection Agency climate guru Joe Goffman to be Assistant Administrator for the Office of Air and Radiation at the EPA. Goffman has served in an acting capacity or otherwise in-waiting since joining the Biden transition team, but this affair had previously succumbed to postponements due to Democratic members failing to show.
Goffman is boasted of in GreenWorld as being the EPA’s “Law Whisperer”, teaching old laws new tricks, as Energy Policy Advocates explained in its amicus brief in State of New York et al. v. (US) EPA. That brief laid out what open records productions show about how progressive state attorneys general offices, led by New York’s, worked with activists to craft a plan to impose the “climate” agenda through the Clean Air Act, somehow. To do so they turned to a network of former EPA employees cum outside activists, having been referred to them following NY OAG’s consultations on the plan with none other than Joe Goffman. Who now awaits confirmation to a position where he gets to decide whether he and his allies pull it off.
No, he hasn’t recused from New York, or related matters. More on that strange state of affairs momentarily. First, consider the further confounding fact that, subsequent to those machinations, the U.S. Supreme Court issued a landmark opinion calling a halt to “law whispering”. In fact, SCOTUS ruled specifically in the context of using the Clean Air Act to impose a climate agenda (indeed, a plan crafted by Mr. Goffman). Which seems relevant, what with more of the same being the very reason for bringing in the Law Whisperer.
Then there is that State of New York case. GAO readers may recall that this is about what the Wall Street Journal editorial page called “Biden’s BackDoor Climate Plan”, of effectively imposing a greenhouse gas rationing scheme through Clean Air Act provisions never enacted for such a task. Anyone who sees the emails and attachments reflecting the progression of discussions — the “pretextual pas de deux” — preceding the January 20, 2021 filing of State of New York et al. will wonder why Mr. Goffman did not recuse from EPA’s deliberations over that now-exposed stab at a sue-and-settle by the party he consulted with, or from deliberations over how to use other provisions of the Clean Air Act to force “climate” rules into place.
The short answer is because he did not disclose his consultation with the AGs (New York’s OAG). Well.
That’s bad. Are things actually worse? After all, in West Virginia v. EPA the Supreme Court called a halt to “law whispering”, or let’s pretend the law really lets us do this thing Congress keeps refusing to authorize us to do. And as this PowerPoint — the latest of several iterations or redacted release from USEPA in FOIA litigation also brought by Energy Policy Advocates — makes quite clear, Mr. Goffman came into the administration raring to go with the whole teach the Clean Air Act new tricks thing, as surely was the point.
It sets forth several of those old laws the Biden EPA under Mr. Goffman intends to use to impose the climate agenda. Post West Virginia, that would mean, again, congressional intent be damned.
So, will EPW members ask, is it SCOTUS be damned, as well? West Virginia v. EPA seems to have removed the rationale for bringing Mr. Goffman in, to craft “Biden’s BackDoor Climate Plan“. Which is not a bar to his confirmation, but certainly something to press him on and be wary of (now, the failure to recuse seems to be a different kettle of fish). But, has this attorney been chastened by SCOTUS on his signature move, in a historic smackdown? Or has the activist ideologue won out?
As EPA notes in seeking to get this PowerPoint further unredacted — given there is de minimis foreseeable harm to the Agency in releasing what are now mostly if not all pipe dreams, if expensive ones to the taxpayer (and the economy, in the interim) were EPA appointees to keep bad habits alive until struck down again:
[USEPA] withholds, through redactions of 8 pages of a PowerPoint presentation titled “Power Sector Strategy [on] Climate, Public Health [and] Environmental Justice,” setting forth “proposed strategies” to impose that agenda (Defendant’s Statements of Material Undisputed Facts, ECF No. 16-2, ¶¶ 24-32), through “regulating and reducing power sector pollution” (Shoaff Declaration, Exhibit A, p. 20). As the audience, the White House Climate Office, affirms, this is a February 4, 2021, presentation about using the Clean Air Act (slides 6 – 11) and other statutory authorities implemented by the Agency to impose a “climate” agenda, to restrict the use of certain fuels through air emission and solid waste regulatory regimes.
In West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022), decided June 30, 2022, the U.S. Supreme Court struck down the Agency’s attempt to regulate greenhouse gases (GHGs), specifically carbon dioxide (CO2), under the Clean Air Act’s (CAA) Section 111, “to implement the needed shift in generation to cleaner sources” by using the CAA in a way that “would implement a sectorwide shift in electricity production from coal to natural gas and renewables.” Id. This regulation, known as the “Clean Power Plan,” was one of several Agency attempts in recent years to deploy CAA to restrict GHGs, particularly CO2, by those described outcomes, none of which efforts passed judicial muster.[1] As the Court noted, in striking down EPA’s effort to do so through §111, “Prior to the Clean Power Plan, EPA had used Section 111(d) only a handful of times since its enactment in 1970.” Id. (EPA cites and redacts its discussion of using §111(d) to restrict GHGs on slide 8).
As noted by the Court in West Virginia, there “EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute designed as a gap filler. That discovery allowed it to adopt a regulatory program that Congress had conspicuously declined to enact itself.” Id. The Court again rejected EPA’s claim to possess heretofore unknown authority to impose this agenda in obscure Clean Air Act provisions. Notably, to date, in addition to the redacted material addressing precisely this use of the CAA on slide 8, the other provisions and programs cited in the redacted slides/pages at issue — e.g., effluent Non-attainment provisions (slide 7), air toxics standards (e.g., MATS Rule)(slide 6) Regional Haze (a visibility program[2]) — also have never been discovered to provide EPA the authority to impose this agenda.
Here’s to a meaningful discussion tomorrow over West Virginia and this signature approach of claiming to find elephants in mouse holes, as Justice Scalia first put it, so to conjure an ideological agenda into place regardless of actual congressional grants of authority. Which might reasonably begin with learning why in the world Mr. Goffman never disclosed or recused from these matters in the first place, starting with State of New York.
[1] See, “And this Court doubts that “Congress. . . intended to delegate . . . decision[s] of such economic and political significance,” i.e., how much coal-based generation there should be over the coming decades, to any administrative agency.” West Virginia at 5-6. See West Virginia v. EPA, generally.
[2] “The Regional Haze Rule calls for state and federal agencies to work together to improve visibility in 156 national parks and wilderness areas”. https://www.epa.gov/visibility/regional-haze-program
UPDATE: Here are some relevant filings in Energy Policy Advocates’s effort to get this pre-West Virginia v. EPA roadmap out for the post-West Virginia world to see. Keep in mind the effluent, coal ash, MATS, ozone, and yes even regional haze (visibility) proposals being laid out by the Law Whisperer placed in the Air Office to push climate are to the Climate Office. And no, the Air Office doesn’t administer effluent limitation or RCRA regimes any more than a visibility or the other programs were enacted as programs to force “generation shifting”. These are all “Biden’s Back Door Climate Plans”. Plaintiff’s Amended Statement of Material Facts, Plaintiff’s Opposition to Summary Judgment, Declaration of John Shoaff, EPA’s Vaughn Index.
