Illegal EPA scheming on private email extended to GHG rules

Guest essay by Chris Horner

Former Secretary of State, and presumptive Democratic Party presidential nominee Hillary Clinton is not the only current or former Obama administration official facing investigation for use of a private email account skirting federal record keeping laws. The list of offenders recently grew longer, with an interesting twist.

In late May, House Science Committee chairman Rep. Lamar Smith (R-TX) wrote to the Environmental Protection Agency (EPA) and Department of Energy (DoE) seeking private-account emails of a former key staffer. He was following up on revelations from Freedom of Information Act (FOIA) requests I made on behalf of the Energy & Environment Legal Institute. Chairman Smith also wrote to the former appointee, a man named Michael Goo currently ensconced on Capitol Hill as a Democratic lawyer.

E&E Legal had learned that Goo, also formerly with the environmentalist pressure group NRDC, used his Yahoo email account to correspond on work-related issues with former NRDC colleagues, and lobbyists for Sierra Club and other interests. He did so specifically in developing EPA’s controversial greenhouse gas (GHG) regulations expected to go final later this summer.

Suggesting that his next step will be to request Mr. Goo’s Yahoo emails, Chairman Smith instructed Goo to preserve whatever relevant correspondence he still holds on that account, and to recommend his green-group correspondents do likewise.

In a remarkable parallel, the same morning that these letters issued, Journal columnist Kim Strassel detailed a similar pattern of EPA misbehavior involving its veto of the Alaska Pebble Mine permit. The Goo emails reveal nearly identical same collusive behavior Ms. Strassel detailed but regarding EPA’s far more sweeping GHG regulations.— all the way down to drafting the “Options Memo” with environmentalists, using private email accounts.

(See attachments and screen caps below obtained via the FOIA process)

On May 6, 2010, Goo chose his Yahoo account to send environmental activist and head of Sierra Club’s Beyond Coal campaign, John Coequyt. This email, with the subject line, “nsps idea”, ran an “NSPS Option” by Sierra. NSPS, or EPA’s New Source Performance Standard, is EPA’s first GHG rule and effectively bans future coal-fired power plants in the U.S., at least as drafted (it is expected to be published in final this August).

Again using Yahoo, Goo then superseded this email with a second, saying “sorry dont use the one in the message use the updated one in the attachment and let me if you cant open the attachment” (spelling and punctuation in the original). EPA did not provide this attachment even though it plainly has no claim of privilege, having shared it with an outside lobbyist. This, surely, is one of the documents Chairman Smith will obtain.

Six days later, on May 12, Goo provided EPA colleagues the draft for review NSPS Options Memo he developed with Sierra Club. The next day, on May 13, 2010, he submitted it to then-Administrator Lisa Jackson. (Incidentally, I also discovered Ms. Jackson used her Verizon email account to correspond about EPA’s agenda with Sierra Club president Michael Brune).

Outside lobbyists, including Coequyt, also chose Goo’s Yahoo account to correspond on EPA issues. Later that same May, Coequyt wrote suggesting “Standards of Performance for Existing Sources,” helpfully confessing, “Attached is a memo I didn’t want to send in public”.

Goo of course was precluded by law from using this account this way, and waited more than two years to turn these exemplars over to EPA. We received them in the last of two years of productions under a FOIA lawsuit. Presumably the Science Committee will learn whether these are all such correspondence. The available context suggests that that is unlikely.

Other emails show EPA internally circulating a list of proposed, but shelved, coal plants that Sierra Club wanted to see blocked by whatever standard EPA came up with (April 9, 2011 spreadsheet from Coequyt to Goo and EPA’s Alex Barron titled “Zombie’s” [sic]).

These records prove how EPA gave anti-coal activists an opportunity to review, comment, and shape the strategy EPA would pursue to block development of more coal plants and shutter existing plants. The Agency prepared its global warming regulations with green activists to the exclusion of the coal industry and others. Its lawyer tasked with drafting the Options Memo led that coordination. E&E Legal expects to file litigation challenging the rule on this basis.

In the Pebble Mine case, EPA claims that the behavior “occurred at a very junior level of staff.” Goo was tasked with drafting and providing the Administrator with greenhouse gas rule options, so expect that dodge to gain even less traction here.

Regardless, the federal judge handling the Pebble litigation was not moved by such claims. Even before providing its similar if less damning emails, Pebble’s owners had sufficiently demonstrated coordination for the court to order EPA to stop all veto-related work, while further inquiry proceeds into this collusion and otherwise the propriety of EPA’s actions.

As regards EPA’s greenhouse gas regulations, the E&E Legal had already shown in detail EPA’s collusion with greens, in a special report airing many dozens of FOIA’d emails.

As is the likely outcome in the Pebble Mine case, these revelations should cause a court to overturn EPA’s unlawful actions. EPA must be required to prepare its global warming agenda anew, without conflict, in an open and transparent manner providing such insider treatment to none. The taxpayers, our economy and the law demand nothing less.

Chris Horner is an attorney in Washington, DC, representing several public interest groups on Freedom of Information matters.

Attachment+4_111d+Memo+5+30 (PDF)