New Open Records Lawsuit seeks unredacted AG documents from outside parties relating to “sue-and-settle” scheme
AGs can’t get story straight; telling Wall Street Journal one thing, everyone else (including courts) something else
GAO Files Lawsuit Against Oregon AG for Refusing to Release Emails, Memos from Activists, former EPA Attorneys about Plan to Sue to Impose Climate Agenda
SALEM, OR – Today the public interest law firm Government Accountability & Oversight, P.C. (GAO) reveals it has filed suit under Oregon’s Public Records Law against Attorney General Ellen Rosenblum and the State Department of Justice (DoJ), on behalf of the nonprofit transparency group Energy Policy Advocates, seeking to compel release of withheld email discussions, at least one memo and one Power Point slide show, shared by outside activists who are advising a group of progressive state attorneys general how to sue the U.S. Environmental Protection Agency (EPA) to impose a radical climate scheme rejected by the Obama-Biden EPA.
The specific objective, of a “climate” National Ambient Air Quality Standards or NAAQS (which can be both direct and indirect under the Clean Air Act), was rejected not only by Obama’s EPA and most green-group activists as being too extreme but one prominent green attorney, attempting to dismiss the prospect of a climate NAAQS, said “hell will freeze over” before the Agency attempted that. Baby, it’s cold outside.
Documents obtained to date by Energy Policy Advocates reveal the plan’s chronology, and show the AGs and activists acknowledging that this agenda is simply unattainable through normal processes. They instead developed a lawsuit, held for months now for a new administration to defend against or, as seems to be the plan, enter a “sue-and-settle” consent decree.
Under these “sue-and-settle” deals circumventing Congress to avoid political accountability, and even to some extent the rule making process, “the EPA would often commit to imposing changes that went far beyond what the law required”. It is a way for activist plaintiffs “to impose policies they can’t get through Congress. Their allies in the EPA would invite lawsuits, then settle with the greens by agreeing to implement some or all of their policies in consent decrees. When citizens or business complained, EPA would claim its hands were tied by the settlement.”
The Trump EPA sought to ban this practice on its watch. That the AGs and former Obama-Biden EPA attorneys activists withheld what emails show is a long-planned suit raises the question whether these AGs have coordinated in any way with a political campaign on this plan.
AG Rosenblum and DoJ are withholding entire emails and at least one slide show provided by a former EPA official, turned outside activist, and portions of other records detailing a campaign developed by former career EPA Office of General Counsel lawyers as well as one political appointee from the Obama-Biden EPA – now on the Biden-Harris EPA transition team – all of whom are now working with environmental activist organizations.
Emails obtained from a half dozen AGs over nine months show that Oregon’s DoJ, in the person of privately hired, Michael Bloomberg-funded “Special Assistant Attorney General” Steve Novick, took the lead in liaising with these former EPA attorneys, turned activists.
As the complaint notes:
Energy Policy Advocates requested, in three separate Public Records Law requests, copies of Department of Justice correspondence with former U.S. Environmental Protection Agency officials. These outside, private parties are largely now regulatory policy activists and were expressly referred by another outside activist to attorneys general offices (AGO), in response to one AGO’s request for names of “EPN folks”. “EPN folks” referred to a “501(c)(3)” policy group calling itself “Environmental Protection Network”, launched “to harness the expertise of former EPA career staff and confirmation-level appointees.” All of these parties volunteered to help promote a particular national regulatory agenda, including through pressure brought by state attorneys general offices…
The requested records are of great public interest. They reflect efforts by the Department of Justice to enlist outside advocates in a campaign to impose an activist federal regulatory agenda…
These redactions in emails exchanging thoughts with various former U.S. EPA attorneys on the aforementioned policy campaign include, inter alia, apparent withholdings of discussion, volunteered by these activists, of actress Jane Fonda getting arrested protesting in favor of the desired policy agenda; discussion in that same context of a rumored future Environmental Protection Agency Administrator; the descriptive part of emails’ Subject field; at least one exchange in substantive full; and ten pages redacted in full.
The AGs, led by New York and Oregon, were first connected with these officials by Biden-Harris EPA transition official Joe Goffman. Goffman referred New York’s OAG to former EPA official John Bachmann, who provided advice and directed the AG offices to former EPA Office of General Counsel attorneys for assistance in developing this plan. Mr. Novick led those talks.
Several of these AG Offices have admitted in litigation discovery that they do not have any agreement establishing any privilege between them and these outside activists. Yet they persist in insisting that their collaboration on a political agenda is too sensitive for public scrutiny.
In September, one New Mexico OAG attorney explained that Office’s remarkably obstinate stance against releasing records and in fighting discovery requests by noting, “This is a very confidential issue.” This not an actual exemption allowing AG secrecy, but is rather telling.
Assistant Attorney General Jennifer Steele said in open court last month, again to keep these records secret, “the fact of the affirmative litigation is important here because it’s not – certainly not known to anyone.” On November 12, 2020, OR DoJ claimed secrecy over more discussions they refuse to let the public see on the grounds they were prepared “in anticipation of litigation”.
Meanwhile, in this weekend’s Wall Street Journal, Oregon’s co-lead in this enterprise, the New York Office of the Attorney General, presented a completely different tale in its effort to distract attention from their scheme: “we have no plans at this time to bring litigation seeking to promote one particular approach.”
That’s a problem. GAO attorney Chris Horner comments, “Through this and several related actions in which these AGs are telling a completely different story, EPA hopes to learn which of these irreconcilable claims represents the AGs’ their true position.”
GAO attorney Matt Hardin said about the findings to date, and AGs’ efforts to hide the rest, “This reminds us that we soon could see a revival of sue-and-settle on major progressive priorities for which, rare as it may be, there is a greater appetite among the political class for the outcome than for public credit — which of course carries the risk of political accountability.”
GAO filed suit with local counsel Shawn Lindsay of Harris Berne Christiansen.
Government Accountability & Oversight is a 501(c)3 non-profit organization dedicated to transparency in public officials’ dealings on matters of energy, environment and law enforcement