FOIA

Transparency Group Sues Biden White House Over “Climate Disinformation” Records

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Government transparency group Energy Policy Advocates (EPA) filed suit on Thursday against the Biden White House’s Office of Science and Technology Policy’s refusal to produce correspondence pertaining to one of an increasing number of initiatives to combat opposition to the administration’s political agenda as “disinformation.”

Specifically, EPA argued:

“The request sought certain described correspondence of two named officials, Eric Lander and Jane Lubchenco, over an eight-week period of time, on any email account used at any time for work-related correspondence, that was sent to one or more of six or five named outside parties, respectively. This request pertained to an OSTP “event on countering climate change denial and delay” in which the Office brought in political activists to discuss, e.g., social science which might explain political opposition to their demands. See, e.g., Maxine Joselow, “White House schedules first event on countering climate change denial and delay,” Washington Post, February 24, 2022. …

The requested records will inform the public of high-profile ethics revelations at OSTP and media coverage thereof, and also the genesis of a tendentious event and campaign out of OSTP. The described meeting seeking to counter political opposition, one of many Biden administration initiatives seeking to do so by styling opposition as “disinformation” (“deliberate disinformation campaigns that are as insidious as they are invidious”, https://www.whitehouse.gov/ostp/news-updates/2022/02/25/readout-of-white-house-climate-science-roundtable-on-countering-delayism-and-communicating-the-urgency-of-climate-action/), was the subject of substantial national and international media coverage.

The public deserves to know, without further delay, the genesis of the aforementioned tendentious effort.”

EPA’s complaint also noted that the group sought the described emails with outside activists on any email account, citing:

“in this request that one of the two officials, Ms. Lubchenco, had been shown during a prior stint as a political appointee in a different agency during a previous administration to have continued to use her previous employer’s “.edu” email account for official federal work-related correspondence, and also detailed Defendant’s own history, during that same administration, of employees having been found to engage in the practice of using non-official email accounts for work-related correspondence.”

 

 

Media, Biden Admin Team Up on “Race to the Bottom”

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Documents produced by the Treasury Department in FOIA litigation with Energy Policy Advocates lay out the apparent manufacture of the Administration’s “race to the bottom” narrative deployed to support increasing the U.S. corporate income tax rate.
These records bring to mind the White House’s recent behind-the-scenes enlistment of a helpful press corps to change the tone of reportage on economic performance and inflation, to one of cheerleading and insistence on lowering expectations — after the WH had private meetings with certain media figures to bemoan the sudden drop in favorable coverage, a frenzy of print and broadcast commentary declared that Biden is being unfairly covered, particularly on the economy.
And the reversal was particularly clumsy on economic coverage, too, with a cascade of suggestions that maybe the surge in inflation isn’t actually regressive and most harmful on the poor after all and, come to think, inflation might be a “good thing“.
These docs further suggest how and why such things happen between the media and administrations with which the press as a whole typically sympathize.
The “race to the bottom” phrase (often attributed originally, if in a different context, to Justice Louis Brandeis) in support of Biden tax increases popped as a fashionable talking point in March. Providing a window into the process of an administration-media joint here in a March 14, 2021 email we see a Treasury official passing along to colleagues a note about his work to obtain desirable coverage with Washington Post White House economics reporter Jeff Stein:
Stein drops the phrase seven times in his news item.
Secretary Yellen then deployed the term in a March 23 House Financial Services Committee hearing.
Two weeks later, Yellen gave a speech on April 5 speech rolling out her part of the pincer movement, followed by a WSJ oped published the evening of April 7 and run (and put in perspective by the editors) in the April 8 paper.
The WaPo news story that the writer hurried to give the Administration a heads up about, when his editors moved it up, indeed used the phrase 7 times…twice more than the Secretary used it in her WSJ piece even though it was her thrust (she submitted it with the title “Corporate tax is a race to the bottom”). That’s service.
(Looks like an interesting b5).

Recusal Watch: Who is Gina McCarthy Injecting into the Process to Advise Administration?

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We already know of some loose compliance with disclosure and recusal matters in the Biden Administration, specifically pertaining to its push to impose the “climate” agenda without congressional authorization — expected to soon manifest itself in an Environmental Protection Agency filing before the DC Circuit next Friday, 10/29/21 in State of New York et al. v. EPA (in a major sue-and-settle move developed before the election with the assistance of Biden’s Acting Air Office chief, EPA will announce it is rescinding and replacing the Trump ozone standard, which EPA will then use to transform the Clean Air Act into an economy-wide decarbonization scheme it was never enacted to be).

Energy Policy Advocates has requested White House Climate Advisor Gina McCarthy’s recusal memo and records pertaining thereto. The Biden Administration has been rather less than compliant in those pursuits. Meanwhile, it appears Ms. McCarthy is roping in and introducing preferred outside “experts” to advise the administration on its climate scheme, with everyone careful to avoid offering or seeking details in writing.

Could this be problematic? With the Biden White House having very deliberately brought in its team of climate activists in such a way to avoid Senate confirmation, congressional oversight and FOIA, it would take a media willing to ask questions and get answers to find out. 

Curious Chronology re DoI Official’s Ethics Claims

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“1001” Reasons Congress Needs More Information

A timeline of events surrounding Elizabeth Klein’s appointment as Senior Counselor to the Secretary of the Interior sheds some light on the Department’s ethical lapses and raises even more questions.

January 21, 2021  Elizabeth Klein, recent-former Deputy Director of the Michael Bloomberg group created to plant activist attorneys in state AG offices to, among a very few other things, file suit against federal agencies including the Department of the Interior, joins the Department of the Interior, per Klein’s LinkedIn page.

April 24, 2021  WaPo reports that bipartisan Senate opposition has scuttled Klein’s expected appointment to be Deputy Secretary of the Interior.

May 25, 2021  House Natural Resources Subcommittee holds a hearing at which Klein testified and during which the following exchange occurred:

Representative Boebert: Ms. Klein, the White House pulled your potential nomination to be the Deputy Secretary because your conflicts of interest were so severe that you faced bipartisan opposition. Has the ethics office at the Department provided you with a recusal list? Yes or no.

Ms. Klein: Thank you for that question. Yes, I have been consulting on an ongoing basis with our ethics officials and am taking my responsibilities and ethics requirements seriously and I have an ethics agreement that I operate under.

Representative Boebert: So, you have been provided with a recusal list. Who and what matters are you currently recused from and would you provide the Committee with that full list?

Ms. Klein: I am happy to provide the list.

(emphasis added)

June 3, 20201 Reps. Westerman, Gosar and Boebert send letter to Klein/DoI reminding them of this exchange and the promise to produce, noting there has been no production, and requesting records by COB June 10, 2021. These include:

  1. A copy of Ms. Klein’s signed ethics pledge.
  2. A copy of the information Ms. Klein provided to DOI’s Ethics Office describing her work at SEEIC.
  3. A document describing the role and responsibilities of the Deputy Director of SEEIC during Ms. Klein’s tenure in the position.
  4. A document listing the regulatory challenges supported or advocated by SEEIC or its legal fellows.
  5. A document listing the matters and actions on which Ms. Klein advised or supported through her work at SEEIC.
  6. A document listing the decisions, deliberations, and actions that include Ms. Klein’s participation as a DOI employee from January 20, 2021 to June 2, 2021.

June 4, 2021 DoI provides Klein with “Ethics Guidance on Recusal Obligations”, “supplement[ing] and replac[ing] the interim ethics guidance on recusal obligations provided to you in earlier draft memoranda”.

June 5, 2021 (Saturday)  Klein provides a signed and dated (that day) “Ethics Recusals & Screening Arrangement” stating, inter alia, “this memorandum fulfills the requirement established in Section 4(a)(iii) of Executive Order 13989 entitled, “Executive Order on Ethics Commitments by Executive Branch Personnel” (Jan. 20, 2021) (Ethics Pledge).”

June 10, 2021  DoI writes to the Committee to provide these documents, seemingly affirming in its cover note that Ms. Klein had no ethics agreement in place at the time she testified that she was operating under an ethics agreement. This raises concerns, particularly given 18 USC §1001 (which sets forth criminal penalties for providing false information to the U.S. Government).

May 28, 2021   Days after Ms. Klein’s appearance, United States District Court for DC Judge James Boasberg schedules a hearing for June 4, 2021 on Energy Policy Advocates’ (EPA) motion for a preliminary injunction to compel DoI to release Klein’s ethics recusals letter and related documents, under a federal FOIA request and lawsuit filed by EPA.

At the hearing Judge Boasberg orders the case to proceed under an expedited briefing schedule, moving it forward on the calendar by many months.

This makes Ms. Klein’s ethics records, including any pledge in effect on May 25, 2021, and all back-and-forth in preparing any ethics and recusal agreement and other related documents, subject to a federal court’s order for expedited consideration.

As such, regardless of any follow-up legislative oversight, further records informing a conclusion about this testimony should become available in coming weeks.

EPA Heavily Redacts Official’s Recusal Information

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The Biden Environmental Protection Agency (USEPA) has released selected, often heavily redacted records pertaining to the conflicts and recusals for Principal Deputy Assistant Administrator, and Acting Assistant Administrator for Air and Radiation (i.e., “climate”), Joe Goffman.

The recusal statement is notable for what it does and does not include. As for the redactions, they appear to be heavy-handed given past EPA practice. The refusal in full to release draft recusals appears to be an improper withholding of the “back-and-forth” known to be subject to release.

Readers may recall Energy Policy Advocate’s amicus brief in State of New York et al., v EPA, which revealed Goffman’s role consulting for progressive attorneys general on particular regulatory matters presently before USEPA, and under Goffman’s present remit. For example, the scheme to use the “NAAQS” regime to sneak in what the Wall Street Journal called “Biden’s ‘Back Door’ Climate Plan”.

There is no mention of any such work or recusal in what USEPA did release…including the recusal statement (it seems that learning what the drafts contain will require litigation). As such, these records sharpen the question — increasingly appropriate for Biden’s climate “all-star” team — of what Goffman disclosed about his prior work to his ethics officer(s) and when he he disclosed it.

The release is timely, incomplete though it may be. Appointees can remain in an “Acting” capacity for a limited number of days. There is scuttlebutt that the Biden White House intends to game the law and calendar to keep Goffman in place as “Acting” AA for as long as possible to put off or even avoid subjecting him to the scrutiny/accountability of the confirmation process.

The “Back Door Climate Plan” and the past consulting with AGs adverse to USEPA in litigation on matters in Goffman’s portfolio may well be two reasons for that.

In an interview last week with Politico — he is getting around these days (and ducking the same question, as well as at least one question about the NAAQS scheme) — Goffman dodged a question whether he expects a change in his status as only one of two confirmable USEPA appointees about whom the White has yet to produce paperwork.

Do you want to be nominated to be the assistant administrator for air and radiation?

I haven’t thought about that in quite a while. I’m extremely content with what I’m doing now on a day-to-day basis.

The recusal letter and what it contains — as well as what it does not — seems likely to be an issue in the event the Biden Administration seeks to formalize Mr. Goffman’s role and subject him to the required accountability. Given the increasingly obvious reluctance to facilitate congressional oversight and exploration of these activities, presumably the Senate Environment and Public Works Committee plans to schedule a hearing on its own.

Supremely Good Timing

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You likely have heard that the Supreme Court reached the right decision today in BP plc et al. v. City of Baltimore. That opinion concerns a mildly weedy procedural mater (whether the 4th Cir. erred in holding that it lacked the power to consider all of the defendants’ grounds for removal), but a critical one given the circumstances, and an opinion which should help in removing these cases to federal court where they belong.

All of these suits represent transparent attempts to manufacture state jurisdiction for a campaign whose proponents previously admitted was a national one to substitute verdicts for Congress’s refusal to adopt certain policies. This opinion serves as another reminder of the importance of the state vs federal jurisdictional issue in the wave of “climate” litigation washing over state courthouses around the country.

In the City of Baltimore case, GAO client Energy Policy Advocates (EPA) filed amicus briefs establishing what it had obtained, at the time, showing what these suits were about: obtaining a “sustainable funding stream” to underwrite governmental spending ambitions, and to coerce the defendants into becoming lobbyists for and funders of further lobbying for a national “climate” regulatory regime targeting hydrocarbon energy for extinction.

Tomorrow, EPA will release a report that reveals, for the first time, damning details confirming who is actually conducting this purportedly governmental litigation campaign and how they are doing it, as described in the parties’ own hand.

EPA’s work under state freedom of information laws has now made it no longer credible to continue questioning who is really bringing these nominally governmental suits into being. Specifically, this puts to rest forever an unfortunate claim by a federal judge almost precisely three years ago of “a missing link between the activists and AGs.” Not anymore.

This should be relevant to all pending state climate litigation, and other efforts such as Exxon Mobil’s move currently before the Texas State Supreme Court to obtain pre-suit discovery, and learn what is behind these raids by, e.g., California cities on Texas-based companies to fill the municipal coffers, and the plaintiffs’/advisors’ associated advocacy. Given what EPA has now learned and produced for public education, it seems inevitable that such efforts would be replicated to examine other suits filed in the Midwest and on the East Coast.

On remand to the Fourth Circuit — and in other fora in coming months — EPA looks forward to shedding more light on these improper litigation tactics.

HAPPY ANNY, MOST CYNICAL EPA MEMO EVER

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Timely milestone for one of the most cynical documents obtained during the Obama administration

With the signs increasing that the Biden EPA plans to use National Ambient Air Quality Standards (“NAAQS”) to impose its climate agenda without the political peril of congressional votes, GAO wishes an infamous Obama-Biden memo a Happy, Very Timely Anniversary.

This particular memo, titled “Strategic Communications Conversation” to which PR advisor Allyn Brooks-LaSure attached a “Non-Paper” (that also was non-provided), was dated on this date in the early months of the Obama-Biden EPA, and broken on January 26, 2015. It turned up in the “Richard Windsor” trove of records obtained by the Competitive Enterprise Institute from then-Administrator Lisa Jackson’s false-identity email account, an account used promiscuously by current Biden officials Gina McCarthy and Joe Goffman.

It’s quite something to read this memo, written at precisely this point in the Obama-Biden administration, and with new sue-and-settle examples, erm, “reconsidering” Bush regulations piling up (more on that later).

This is particularly important given signs detailed to the DC Circuit here, laid out here, and very nicely summarized in today’s Wall Street Journal here, that EPA is preparing to issue a secondary ozone “NAAQS”, in a brilliantly craven move to even further obscure what it is up to on CO2. (Recall, even Obama’s EPA Administrator Lisa Jackson rejected a climate NAAQS as not “advisable”. One prominent green attorney said “hell will freeze over” before that came to pass. Well, Texas just froze over, at least, and with the help of this very agenda.)

What this memo shows is EPA’s recognizing it had to move its global warming campaign away from the failed model of discredited Big Green pressure groups and their “mascots” the polar bears and polar ice caps, that “climate” has proved “consistently — an unpersuasive argument to make.” In it we see the birth of the breathtakingly disingenuous “shift from making this about the polar caps [to] about our neighbor with respiratory illness…”.

Doubling down on the cynicism, it continued:

Children:…By revitalizing our own Children’s Health Office, leading the global charge on this issue, and highlighting the children’s health dimension to all of our major initiatives – we will also make this issue real for many Americans who otherwise would oppose many of our regulatory actions.

Here we see the conviction, manifested, that if they yell “clean air” and “children” enough about something they, the media and the green groups will ultimately get their way.

Which perfectly segues into today’s blockbuster Wall Street Journal editorial, “Biden’s ‘Backdoor’ Climate Plan,” about how “Democratic AGs, green groups and a top Biden environmental regulator are colluding on a plan to impose the Green New Deal on states through a back regulatory door” — “to hasten a replacement ozone rule that regulates CO2” — “because they know they can’t pass it through the front in Congress.”

Dem AGs: Whoa, There on the Infrastructure Projects, Easy Does it on the Economic Recovery

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As far back as June 2020 progressive AGs already banded together to make sure promiscuous claims of a so-called COVID “emergency” didn’t unleash projects that were actually “shovel ready”. Could lead to economic recovery.

Shut down the economy in the name of a COVID emergency? How dare you question that.

Spend trillions for the same reason? Absolutely.

Suspend laws in the name of a “climate emergency”? Of course.

But expediting those things that (even the very same) politicians insist are their top priority — infrastructure projects — to, you know, actually put people back to work and get them built? Don’t get crazy.

H/t Energy Policy Advocates.

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