“Whole of government,” backdoor “climate” agenda placed before D.C. Circuit

“To believe the Administrator’s own words, or not to believe—that is the question.”

April 5, 2024: This morning, Government Accountability & Oversight (GAO) filed an Amicus Brief in the U.S. Court of Appeals for the D.C. Circuit in Commonwealth of Kentucky, et al., v. EPA. The brief sets forth how EPA’s recent tightening of the primary standard for particulate matter is an improper pretextual (i.e., backdoor) rule to force “expedited retirements” of politically disfavored facilities in the name of “deciding how Americans will get their energy.” The U.S. Supreme Court ruled in 2022 in West Virginia v. EPA that deciding where Americans get their energy was outside the authority Congress assigned the agency.

As GAO’s brief notes, “So long as one takes Respondent Regan at his word, the Rule is a pretextual attempt to achieve through the back door what the Agency has so far not managed to do through the front door, but without proposing a CO2 or [greenhouse gas] NAAQS in recognition of the substantial legal and political obstacles to doing so, including Supreme Court precedent…. To believe the Administrator’s own words, or not to believe—that is the question.”

FOIA’d emails, often heavily redacted yet highly instructive, support Regan’s March 2022 boast that the Agency planned to tighten every screw at its disposal to force greenhouse gas (GHG) reductions. Such inventive use of regulatory authority is the highly touted specialty of Assistant Administrator for Air Joe “the Law Whisperer” Goffman, hailed for “teaching old laws new tricks”. West Virginia barred the practice as a viable means of imposing such grand projects.

The Administrator euphemized his plan as a “suite of rules”, using “all the tools in the toolbox.”

The White House calls it “whole of government approach” and, risibly, “Advanced smart rulemaking,” with specific references to rules that would issue—under authorities not provided by Congress for the purpose of GHG reduction—for the purpose of GHG reduction.

West Virginia v. EPA was handed down little more than three months after Administrator Regan boasted of his “suite of rules” approach, turning what was at the time already a scofflaw position into a brazen one, were the Agency to persist. It did. In fact, the night that West Virginia was issued, Regan “doubled down” on his gambit in an interview on PBS’s NewsHour. As the brief notes, however, the administrative record contains no hint of this factor actually considered.

Matt Hardin, an attorney representing GAO who filed the brief, notes, “EPA is on record admitting its soot rule is pretextual. This violates the pretext doctrine as enforced in Department of Commerce v. New York, remanding the Trump census question on citizenship back for depositions to supplement the record as to the agency’s true state of mind. That is the minimum remedy the D.C. Circuit should apply to this Rule: which time is the Agency telling the truth?”

Alternately, GAO suggests, the court could just take Regan at his word and vacate the rule.

As GAO’s brief notes, the Rule is further in violation of the U.S. Constitution because the object of the pretext—forcing what Regan called “expedited retirements”—is outside EPA’s authority.

Chris Horner, another attorney representing GAO, said, “The Supreme Court enforced the doctrine against pretext on the hunch that there may have been more reasons why the Commerce Secretary proceeded with a citizenship question in the 2020 census than just those in the record; that standard was good enough for the Trump administration and is better here, with no guesswork required thanks to Administrator Regan’s candid boast about his backdoor plan to force disfavored facilities to close. He offered specifics, making this Rule just one of many rules he cited to which now much receive pretext and, as a result, major questions analysis.”

Finally, GAO brought to the Court’s attention the recklessness of this “work-around” in the face of a reliability crisis created by this same agenda (internal citations omitted):

As further detailed in the Energy Policy Advocates amicus brief in New York et al. v. EPA (supra), the Agency has prioritized finding such backdoor or proxy regulation pathways to force GHG emission reductions since the first days of the current administration; indeed, the Agency initiated this discretionary review of the PM2.5 NAAQS just thirty-three days after the 2020 review was completed (by statute reviews must occur within five years). These plans were never altered even after the Supreme Court rejected “what EPA called ‘generation shifting’ at the grid level—i.e., a shift in electricity production from higher- emitting to lower-emitting producers.” West Virginia v. EPA, 142 S. Ct. 2587, 2593. EPA persisted, pretextually seeking to force premature closure of reliable generation in the face of a crisis of reliability, the critical importance of which EPA acknowledges. The escalating threat of a failing electricity grid following years of this particular policy agenda, as a result of which “coal- and natural-gas-fired power plants are retiring faster than new solar and wind power can replace them,” is not coincidental. This makes EPA’s gambit more obviously a violation of the Clean Air Act, both individually and as part of the “suite of rules,” and this Court must now force EPA to account for its own statements.

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