Law Whispering is Dead, Long Live Law Whispering!

From Government Accountability & Oversight

By Webadmin

Scotus opinions? We don’ need no stinking SCOTUS opinions!

The Senate Committee on Environment and Public Works has announced a Wednesday confirmation hearing for former Obama Environmental Protection Agency climate guru Joe Goffman to be Assistant Administrator for the Office of Air and Radiation at the EPA. Goffman has served in an acting capacity or otherwise in-waiting since joining the Biden transition team, but this affair had previously succumbed to postponements due to Democratic members failing to show.

Goffman is boasted of in GreenWorld as being the EPA’s “Law Whisperer”, teaching old laws new tricks, as Energy Policy Advocates explained in its amicus brief in State of New York et al. v. (US) EPA. That brief laid out what open records productions show about how progressive state attorneys general offices, led by New York’s, worked with activists to craft a plan to impose the “climate” agenda through the Clean Air Act, somehow. To do so they turned to a network of former EPA employees cum outside activists, having been referred to them following NY OAG’s consultations on the plan with none other than Joe Goffman. Who now awaits confirmation to a position where he gets to decide whether he and his allies pull it off.

No, he hasn’t recused from New York, or related matters. More on that strange state of affairs momentarily. First, consider the further confounding fact that, subsequent to those machinations, the U.S. Supreme Court issued a landmark opinion calling a halt to “law whispering”. In fact, SCOTUS ruled specifically in the context of using the Clean Air Act to impose a climate agenda (indeed, a plan crafted by Mr. Goffman). Which seems relevant, what with more of the same being the very reason for bringing in the Law Whisperer.

Then there is that State of New York case. GAO readers may recall that this is about what the Wall Street Journal editorial page called “Biden’s BackDoor Climate Plan”, of effectively imposing a greenhouse gas rationing scheme through Clean Air Act provisions never enacted for such a task. Anyone who sees the emails and attachments reflecting the progression of  discussions — the “pretextual pas de deux” — preceding the January 20, 2021 filing of State of New York et al.  will wonder why Mr. Goffman did not recuse from EPA’s deliberations over that now-exposed stab at a sue-and-settle by the party he consulted with, or from deliberations over how to use other provisions of the Clean Air Act to force “climate” rules into place.

The short answer is because he did not disclose his consultation with the AGs (New York’s OAG). Well.

That’s bad. Are things actually worse? After all, in West Virginia v. EPA the Supreme Court called a halt to “law whispering”, or let’s pretend the law really lets us do this thing Congress keeps refusing to authorize us to do. And as this PowerPoint — the latest of several iterations or redacted release from USEPA in FOIA litigation also brought by Energy Policy Advocates — makes quite clear, Mr. Goffman came into the administration raring to go with the whole teach the Clean Air Act new tricks thing, as surely was the point.

It sets forth several of those old laws the Biden EPA under Mr. Goffman intends to use to impose the climate agenda. Post West Virginia, that would mean, again, congressional intent be damned.

So, will EPW members ask, is it SCOTUS be damned, as wellWest Virginia v. EPA seems to have removed the rationale for bringing Mr. Goffman in, to craft “Biden’s BackDoor Climate Plan“. Which is not a bar to his confirmation, but certainly something to press him on and be wary of (now, the failure to recuse seems to be a different kettle of fish). But, has this attorney been chastened by SCOTUS on his signature move, in a historic smackdown? Or has the activist ideologue won out?

As EPA notes in seeking to get this PowerPoint further unredacted — given there is de minimis foreseeable harm to the Agency in releasing what are now mostly if not all pipe dreams, if expensive ones to the taxpayer (and the economy, in the interim) were EPA appointees to keep bad habits alive until struck down again:

[USEPA] withholds, through redactions of 8 pages of a PowerPoint presentation titled “Power Sector Strategy [on] Climate, Public Health [and] Environmental Justice,” setting forth “proposed strategies” to impose that agenda (Defendant’s Statements of Material Undisputed Facts, ECF No. 16-2, ¶¶ 24-32), through “regulating and reducing power sector pollution” (Shoaff Declaration, Exhibit A, p. 20). As the audience, the White House Climate Office, affirms, this is a February 4, 2021, presentation about using the Clean Air Act (slides 6 – 11) and other statutory authorities implemented by the Agency to impose a “climate” agenda, to restrict the use of certain fuels through air emission and solid waste regulatory regimes.

In West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022), decided June 30, 2022, the U.S. Supreme Court struck down the Agency’s attempt to regulate greenhouse gases (GHGs), specifically carbon dioxide (CO2), under the Clean Air Act’s (CAA) Section 111, “to implement the needed shift in generation to cleaner sources” by using the CAA in a way that “would implement a sectorwide shift in electricity production from coal to natural gas and renewables.” Id. This regulation, known as the “Clean Power Plan,” was one of several Agency attempts in recent years to deploy CAA to restrict GHGs, particularly CO2, by those described outcomes, none of which efforts passed judicial muster.[1] As the Court noted, in striking down EPA’s effort to do so through §111, “Prior to the Clean Power Plan, EPA had used Section 111(d) only a handful of times since its enactment in 1970.” Id. (EPA cites and redacts its discussion of using §111(d) to restrict GHGs on slide 8).

As noted by the Court in West Virginia, there “EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute designed as a gap filler. That discovery allowed it to adopt a regulatory program that Congress had conspicuously declined to enact itself.” Id. The Court again rejected EPA’s claim to possess heretofore unknown authority to impose this agenda in obscure Clean Air Act provisions. Notably, to date, in addition to the redacted material addressing precisely this use of the CAA on slide 8, the other provisions and programs cited in the redacted slides/pages at issue — e.g., effluent Non-attainment provisions (slide 7), air toxics standards (e.g., MATS Rule)(slide 6) Regional Haze (a visibility program[2]) — also have never been discovered to provide EPA the authority to impose this agenda.

Here’s to a meaningful discussion tomorrow over West Virginia and this signature approach of claiming to find elephants in mouse holes, as Justice Scalia first put it, so to conjure an ideological agenda into place regardless of actual congressional grants of authority. Which might reasonably begin with learning why in the world Mr. Goffman never disclosed or recused from these matters in the first place, starting with State of New York.

[1] See, “And this Court doubts that “Congress. . . intended to delegate . . . decision[s] of such economic and political significance,” i.e., how much coal-based generation there should be over the coming decades, to any administrative agency.” West Virginia at 5-6. See West Virginia v. EPA, generally.

[2] “The Regional Haze Rule calls for state and federal agencies to work together to improve visibility in 156 national parks and wilderness areas”.

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Tom Halla
March 5, 2023 11:09 am

The plan struck down in West Virginia v EPA was quite similar to one that Congress had just rejected, so Obama attempting it administratively was even more unauthorized.

Reply to  Tom Halla
March 5, 2023 8:17 pm

One key piece of litigation related to the Clean Air Act was the 2007 Supreme Court case Massachusetts v. EPA, which in a 5–4 decision, had found that the EPA was mandated by Congress to regulate greenhouse gas emissions and can be sued for failing to enact rules to this end under the Clean Air Act”

The recent Inflation Reduction Act had some sections which are said to overturn the Supreme courts newest ruling in West Virginia case as greenhouse gases can be regulated

Clyde Spencer
Reply to  Tom Halla
March 6, 2023 8:31 am

Obama did the same thing with gun control. He issued an executive order, rationalizing it based on his complaint that he was tired of waiting on Congress to take action. What he, and others, failed to notice was that his statement implicitly acknowledged that it was the purview of Congress, and he was usurping their power.

Jeff Alberts
Reply to  Tom Halla
March 6, 2023 12:31 pm

The real EPA? Or the NGO EPA mentioned in this article.

Seriously though, can’t you guys come up with acronyms that aren’t already US gov’t organizations? Makes reading these things very confusing, and stupid.

CD in Wisconsin
March 5, 2023 11:14 am

“That’s bad. Are things actually worse? After all, in West Virginia v. EPA the Supreme Court called a halt to “law whispering”, or let’s pretend the law really lets us do this thing Congress keeps refusing to authorize us to do.”


Along with attacks on free speech among other things, it is my opinion that we are seeing more and more cases where the U.S. Constitution (and how it is interpreted) doesn’t matter anymore to the leftist ideologists and activists. The Constitution is being subordinated to the ideology and belief systems of people like Goffman and his ilk. They are so intoxicated on their own sense of self-righteousness and virtuosity that they have almost appear to have designated themselves demi-gods. The Constitution and a general understanding of law only matter when it serves their purposes.

When individuals in government demonstrate this mindset, we are headed down a road with no happy ending. And I don’t want to know what the end of that road looks like. If we are all asleep at the wheel while this is happening, we deserve the situation that we as a nation find ourselves in when all is said and done. The country becomes a worse place, not a better one.

Reply to  CD in Wisconsin
March 5, 2023 8:20 pm

Inflation Reduction Act changes the law for the EPA and its regulation of greenhouse gases, its said to overule the Supreme Court s decision.

michael hart
Reply to  CD in Wisconsin
March 5, 2023 10:09 pm

Puts me in mind of the recent “law whispering” that preceded SCOTUS overturning Roe vs Wade. I’m not offering an opinion about the decision but the unprecedented leak about the upcoming decision led to angry demonstrations outside the house of at least one SCOTUS judge.
Not good. But somebody working for the judges was politically OK with doing that in a clear attempt to raise a mob. Not good at all.

March 5, 2023 11:15 am

Recuse ?
Hes not a judge and an EPA official is a political appointment anyway

Reply to  Duker
March 5, 2023 12:04 pm

And so is subject to no ethical standards at all?

Reply to  Duker
March 5, 2023 12:30 pm

Conflict of interest in public office is conflict of interest, period. It has nothing to do with being a judge and everything to do with it being a political appointment.

Reply to  davidmhoffer
March 5, 2023 4:07 pm

Have you looked at the long list of Trump appointees and ‘actings’ for how that works ?
‘Trump nominates acting EPA head, an ex-coal lobbyist, to run agency’That was already an ‘acting’
Thats how it works, a President gets to choose his appointees

A minor job, the Assistant Administrator for ‘Air and Radiation’ is only one of 12 such positions below the Administrator

Im sure the Assistant Administrator/General Counsel handles all the legal cases such as State of New York et al. v. (US) EPA

This dudes previous organisation wasnt a party to the proceedings , merely an amicus or busybody

Last edited 2 months ago by Duker
Reply to  Duker
March 5, 2023 5:26 pm

Matters not. An open bias is an open bias. Doesn’t matter which president.

Reply to  davidmhoffer
March 5, 2023 8:10 pm

You are making it up.
It only applies for judicial not policy or administrative roles
Like I said he doesnt handle the EPA legal cases , the General Counsel does. he would have no exposure to the legal case at all…and nothing to ‘recuse’ from

Did the guy from Boeing when he became deputy Defense secretary not do a deal on the new Air Force One . Im not complaining , just the idea that he worked for a major defense contractor before becoming 2IC at defense was deliberate not an accident.

Reply to  Duker
March 5, 2023 9:10 pm

I’ve served on several committees where I recused myself over certain issues. I assure you I am not a judge.

Reply to  Duker
March 5, 2023 9:54 pm

You appear to be trying to apply the original english definition while ignoring modern common useage.

Use another word if you wish, but stacking the committee and stacking the bench with people who are biased toward a single position are pretty much the same thing.

Clyde Spencer
Reply to  davidmhoffer
March 6, 2023 8:35 am

It would seem that the appointee is doing what was expected of him by the person who appointed him. Elections have consequences.

Rud Istvan
March 5, 2023 11:24 am

Law whispering of all sorts has taken a major body blow with the now several ‘major questions’ opinions reining in the administrative state. Biden’s student loan forgiveness plan will be the next to founder on the now clearly established major questions doctrine. It it beautifully simple and clear. On ‘major questions’, unless Congress has been clear about delegation of the question subject matter authority, it cannot be presumed and must be legislated.

Of course, this just shifts the debate to what is major. We know that forced redoing of the country’s electricity generation by EPA is. We probably know (from the oral argument) that the President’s half a trillion of student loan forgiveness based on HEROS is. Biden’s team will probably give us further examples.

Christopher Chantrill
March 5, 2023 3:25 pm

Don’t forget that if you are a nice liberal lady that reads the New York Times and listens to NPR and proudly bought her first EV last year, this guy is a hero.

March 5, 2023 6:01 pm

Did I read that some people and departments are ignoring Supreme Court rulings? If that is true arrest them, fire them from any government position for life.

March 5, 2023 7:45 pm

they will do what they want to do, unless stopped. The ‘stoppers’ at this point don’t seem to care. It is part of the never-ending battle of attrition, with the leviathan of ‘progressive’ bureaucracy steadily crushing citizens’ rights, states’ right, and constitutional laws under the donkey hooves. While the elephant laughs. A big black pill. Notice folks.

March 6, 2023 1:47 am

Yet another example of how leftists use the admistrative bureaucracy of government to sneak their policies in without any oversight or accountability to the people those policies affect. It’s benevolent tyranny. They are convinced of their own sanctimony; that their ideas—too unpopular to survive debate and a vote in Congress—are for the betterment of mankind, so bypassing democratic processes is not only excusable, but preferable. We opened the door to de facto lawmaking by the Executive Branch agencies like the EPA with the Administrative Procedure Act of 1946 that allowed the FDA, EPA, USDA, etc. to make “rules” and established a “public comment period” to present a false veneer of being democratic. The public comment period provides no accountability whatsoever. There is no vote, no election by the People of the bureaucrats, no way to stop their policies if the majority of the electorate dislike them. The Constitution is clear that lawmaking resides solely in Congress where our elected representatives debate and compromise and remain accountable to their constituents who can replace them if they don’t like their policies. The Administrative Procedure Act is the most destructive, anti-democratic force in our government. It is a legacy of the Wilson-Roosevelt enthusiasm for socialist ideas and unconstrained government that were rammed through during the 30’s and 40’s. It is time to repeal and replace it. Let agencies hire experts and suggest policies, but only allow Congress to turn them into law. Keep our Congress so busy with rulemaking minutiae that they don’t have time to blithely pass sweeping thousand-page, trillion-dollar “stimulus” and “reform” bills that no one has read.

And yes, with 535 people debating and disagreeing, much less rulemaking will get done, which was an intended feature of the type of government our Founders designed, not a bug.

Gridlock is the next best thing to having constitutional government – Steven Hayward

Last edited 2 months ago by stinkerp
Clyde Spencer
Reply to  stinkerp
March 6, 2023 8:40 am

As Mark Twain famously said, “No man is safe while Congress is in session.”

Andy Pattullo
March 7, 2023 11:17 am

Best to remember at this juncture that the reason the Supreme Court may eventually stop this nonsense is that it is staffed through nomination by previous presidents with a majority of judges whose intent is to uphold the literal meaning and intent of the US constitution. Americans who care about their future and that of coming generations need to keep this in mind when November 2024 rolls around.

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