Chris Horner, a lawyer for GAO in many open records cases as well as amicus briefs informing the courts what is actually going on with the regulatory onslaught we are seeing, had a piece in Monday’s Wall Street Journal combining both topics.
This item built on Horner’s most two recent Journal pieces, “The EPA Defies the Supreme Court” (August 2023) and “EPA’s Deceptive Climate Regulations Won’t Stand in Court” (May 2024). The common thread is that a scofflaw band of regulators have gotten far too far over their legal skis, and in so doing were not only too clever but dishonest. Which outright dishonesty should be their agenda’s downfall. However, this requires a Trump administration willing to fight back just as hard, but toward strictly applying a robust body of recent Supreme Court precedent.
It needs to begin now, with the transition. Word counts being the cruel mistress they are, Horner agreed to provide further insights into how a Trump transition and administration would go about expeditiously rescinding Biden’s “suite of rules,” among other overreaches. His comments to GAO include:
Politico reports that right-leaning watchdog groups filed thousands of Freedom of Information Act (FOIA) requests during the Biden tenure. As counsel in dozens of lawsuits over these requests for GAO and others I have seen troves of records that, while often heavily redacted, nonetheless provide sufficient context to raise serious concerns and warrant further scrutiny. The Trump administration can review all such records in unredacted form to assess the appearance of malfeasance.
Agencies are unlikely to cooperate. As part of the 2016 Trump transition “Landing Team,” I followed the prescribed process for requesting unredacted copies of certain EPA records that had been released, in part, under FOIA. They appeared to be highly relevant to the transition team’s work drafting the plan for an incoming administrator. Career agency employees denied my requests, and those of others.
The bureaucracy loses this control on inauguration day. This time there should be a commitment to follow up, immediately, recognizing this best chance for timely reversal of unlawful rules.
Sadly, this requires not just one attorney in each agency’s general counsel’s office committed to discerning whether errors requiring confession occurred but, just to be sure, also an enterprise management, or IT, professional, capable of reconstructing any overzealous deletions.
Just as important, according to Horner, is for the Trump team to recognize that while the Biden Clean Power Plan 2.0 is a major rule and will doubtless fall under the Major Questions doctrine—possibly even via a stay by SCOTUS in the first half of next year—the Biden EPA’s”suite of rules” are not necessarily all major rules unless the lawyers convince the court to view them cumulatively, as EPA does. To do so, the challengers should seize on EPA Administrator Michael Regan’s excited utterances admitting that he pushed the “suite of rules” to force precisely what SCOTUS ruled in West Virginia v. EPA the Agency does not have the power to force: an agency preference as to how Americans get their electricity.
EPA’s Regan admitted this goal publicly, and seemingly others also did in heavily redacted internal documents even while the Agency denied, in the rule makings, that any power plant retirements would result. Better to just take Regan at his word that these rules are a cumulative attempt at something the major questions doctrine prohibits, and ask the court to accept his own confession.
GAO argued this in its amicus brief in Kentucky v. EPA, as should the challengers if they mean business. Meanwhile, the Trump administration should confess this error and target rescission of those rules, in particular, for their breathtaking violation of the rule against pretext.