As Predicted: Sue-n-Settle Yields Biden’s Back Door Climate Plan

Trade press and other news reports yesterday confirmed something GAO readers know, which is that the Biden Administration is transparently re-running the Obama Year 1 “climate” playbook, to obtain praise from foreign leaders and energize the annual climate “Conference of the Parties” — this time, COP26 (or #Flop26 on Twitter).

President Biden has signaled unambiguously that, at both this weekend’s Rome G20 meeting and climate pact talks in Glasgow beginning two days later, he will deepen President Obama’s GHG emission-reduction promises based on the Clean Power Plan, tossed out by the Supreme Court in West Virginia v. EPA. Much of the past week’s mania to try and pass budget “reconciliation,” now “only” with over half a trillion dollars in “climate” schemes if without the regulatory changes originally in the bill was about avoiding Biden’s credibility crisis.

It won’t. Too many recall then-EPA Chief and current Biden White House Climate Advisor Gina McCarthy telling the Paris COP that its climate regs were, in the Guardian’s reporting, “bulletproof”. SCOTUS had other ideas.

The replay of Obama-Biden’s first year in office is that Obama, too, was unable to convince Congress to pass his “climate” agenda, which became inescapable in humiliating and politically damaging fashion the next summer and which prompted the first signal of his ultimate, signature “pen and a phone” approach to governing in the absence of popular support for his ideas.

At the time, the virtue-signal was the Obama USEPA’s greenhouse gas “Endangerment” finding, which launched all manner of economic dislocation and devastation in certain communities and regions of the country, despite that those GHG regulations were subsequently thrown out by the courts. The inevitable havoc was wreaked, and the industries hobbled with tremendous economic and human collateral damage.

Still, it was announced as the Obama delegation jetted off to COP15 in Copenhagen. The obviousness of the stunt had even the NYT wondering about it and Politico and CBS mocking the claim of this being “pure coincidence”.

After pushing this agenda too openly with “capntrade” legislation helped cost the Administration’s party control of the House, Biden is adopting a more opaque approach, if nonetheless following the script to a tee. This time Biden’s EPA is letting its green-group allies know that it will agree with a lawsuit filed the day before inauguration day — so that only the Biden USEPA could defend against it (or…not) — and revisit the primary and secondary “Ozone NAAQS.”

The greens are in on the joke that this will provide what the Wall Street Journal accurately summarized as Biden’s ‘Back Door’ Climate Plan. (That editorial summarized a brief Energy Policy Advocates filed in the DC Circuit on this case explaining how the AGs and now-Biden EPA Air chief Joe Goffman planned this before he was appointed).

It’s weedy, but in short this is a cynical sue-and-settle move created with the assistance of Biden’s EPA Air Office chief, Joe Goffman, when he was advising the plaintiff state attorneys general who filed the January suit, suit, State of New York, et al. v. EPA, prior to the election.

Yes. Read that again. There are no indications in Mr. Goffman’s released ethics records that the Air chief disclosed this work during his ethics clearance, and so he has not recused himself. This could pose problems down the road for the rule (and Mr. Goffman), but as the Obama plan showed one can still largely achieve one’s goals even by promulgating unlawful rules that are tossed in the end.

Today, before USEPA filed whatever it is going to file (GAO has long thought this would be “COB”, since the purpose is to land at G20 and the COP as conquering heroes waving about fresh news, a la Lisa Jackson and the Endangerment finding), five Republican attorneys general asked the DC Circuit to get it on, and “place this case back on track for briefing on the merits,” on “the sole issue in this case: whether the [Trump] Ozone NAAQS Decision was lawfully made by the EPA”.

“And the issue of whether the EPA can lawfully rescind or revise the Ozone NAAQS Decision is not before this Court.”

“If the EPA believes that it has the authority to review the Ozone NAAQS Decision, it may seek to initiate that review, if it so chooses, independent of this Court’s resolution of the instant case.”

The AGs note that the progressive AGs who filed this sweetheart suit, USEPA and greens do not accept this proposal to govern proceedings in NY v. EPA going forward.

Watch for this effort to reinstate and expand, economy-wide the Obama greenhouse gas regulatory state, in the name of meeting promises made in the unratified Paris climate treaty, to become a major issue beginning sometime in 2022.