Law Whispering is Dead, Long Live Law Whispering!
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. 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) — 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.
 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.
 “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