GAO had occasion to read the USEPA’s brief filed in the D.C. Circuit in Commonwealth of Kentucky v. EPA, a matter in which over half the states have sued the Agency challenging its decision to suddenly and dramatically tighten a primary National Ambient Air Quality Standard (NAAQS) for soot.
This rule was pre-announced in March 2022 as one of the trumpeted “suite of rules” to force “premature retirement” of coal-fired facilities, as the most efficient means of reducing GHGs. It was most notable for so clumsily omitting—nay, denying—the previously, serially, egregiously announced “climate crisis” rationale behind the rule.
As EPA Administrator Michael Regan infamously put it, the Agency intended to impose a “suite of rules” under various authorities unrelated to regulating greenhouse gases (GHGs), but “to marry a range of EPA authorities” granted by Congress for other purposes but to attain what Regan described as the most efficient means of GHG reduction: forcing plants to close.
EPA’s brief responding to the lawsuit is maddeningly disingenuous. In its brief, the Agency repeatedly deflects the States’ claim that the Agency is improperly using this regulation to pursue a climate agenda, with what is in context a juvenile-sounding there’s nothing in the administrative record to support that! Well, yes. How insightful.
As GAO pointed out in its amicus brief, given that the CAA doesn’t allow climate as a consideration in setting a primary NAAQS, saying so in the administrative record would have been seppuku. If EPA has anything, it’s lots of lawyers. The result, however is as GAO indicated: an administrative record that is woefully incomplete.
Meanwhile, outside the record, Administrator Regan couldn’t stop bragging YOU’RE DAMN RIGHT I ORDERED THE CODE RED!
Which leads GAO to wonder, does that rule against pretext formalized by Chief Justice Roberts joined by the then-four liberal justices in the Department of Commerce v. New York (the census/citizenship question case) exist, or was it just because Trump?
As this gentleman framed his prognostication about the future of administrative law, the same day the WSJ ran a piece on the newly formalized doctrine by GAO counsel in Commonwealth of Kentucky, Chris Horner: “to the extent that the courts continue to police pretextual agency explanations…“.
Yep. For that to occur, the States will have to drop the gloves and call out EPA (and challenge the courts to have one standard, no matter who the president).