Why the U.S. Senate Must Reject Joe Goffman for the EPA

By Chris Horner

January 10, 2024

News reports indicate that the U.S. Senate is likely to soon hold a floor vote on the nomination of former Obama Environmental Protection Agency (EPA) “climate” guru Joe Goffman to be Assistant Administrator for the Office of Air and Radiation at the Biden EPA. Illustrating his importance in the administration’s push to impose that agenda which Congress still has never approved, Goffman immediately joined the Biden transition team in late 2020 and has served in an acting capacity or otherwise in-waiting since.

His advancement faced serial postponements. The 2023 confirmation hearing before the Senate Environment & Public Works Committee was a missed opportunity to explore questions about not just Mr. Goffman’s fitness for the position, but whether he even can legally and ethically serve. It is now up to individual senators to air the many problems raised by this nomination.

Goffman’s agenda is clear even if his methods are obscured by the trait for which he has been hailed of “Law Whispering,” orteaching old laws new tricks. Critically, during Goffman’s tenure the U.S. Supreme Court specifically proscribed that very idea in the landmark decision West Virginia v. EPA, declaring as unconstitutional this administrative “re-imagining” of authorities to claim the ability to do things Congress never tasked agencies with doing. 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).

Early manifestation of the problem is laid out in a March 17, 2021 Wall Street Journal editorial. That in turn pithily summarized a February 2021 amicus brief filed on behalf of Energy Policy Advocates in State of New York v. EPA, the progressive state attorneys general effort to orchestrate a sue-and-settle to impose stronger ozone standards as a means of forcing the ‘climate’ agenda of greenhouse gas reductions.

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.

Who else would the attorneys general (AGs) have turned to for such “law whispering?” As the brief and the editorial explain, the AGs — specifically through the lead plaintiff, New York —consulted with Goffman on how to impose through the backdoor what Congress and the courts kept denying them through the front. It sets forth emails and attachments reflecting that the AGs and activists acknowledged that this agenda is simply unattainable through normal processes. They instead developed a lawsuit filed the day before Donald Trump left office, ensuring it would be responded to by friends. That is, it suggests the plan was a sweetheart, “sue-and-settle” consent decree. You’ll never guess who then assumed authority for that decision.

In this progression of  discussions — the “pretextual pas de deux” — preceding the January 20, 2021 filing this suit,Goffman ultimately referred the plaintiffs to a network of former EPA employees who had retired to become out-in-the-open activists.

Goffman did not disclose his role consulting with New York or other plaintiff AGs in his ethics onboarding process.

After re-joining EPA to run the Office whose work he advised litigants on how to question, that same Air Office dragged out the proceeding, insisting for years that it simply didn’t know what it ought to do: retain the Trump decision to not tighten ozone regs, or conclude that the AGs and Goffman were right all along.

Joe Goffman should have recused himself from these deliberations. Just ask The Washington Post, unless the paper has changed its standards with the change of administrations. He did not, but instead has brazenly affirmed in a sworn declaration to the D.C. Circuit that this is indeed what’s going on.

That was all before West Virginia v. EPA in which the Supreme Court called a halt to “law whispering.” Still, as this PowerPoint obtained 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. Administrator Regan clumsily confessed to this as well just over two months before the Court handed down its opinion in West Virginia.

As I detailed in an August piece in The Wall Street Journal, neither EPA nor Goffman have been deterred by the Court’s admonition. This alone should put an end to his tenure, as the official directing this lawlessness. However, other key questions arising from his failure to disclose certain work prior to re-joining EPA have long cast doubt on Goffman’s nomination.

West Virginia v. EPA seems to have removed the rationale for bringing Mr. Goffman in, which was to craft “Biden’s BackDoor Climate Plan.” Which while not a bar to his confirmation, certainly is something to press him on and be wary of (the failure to recuse seems to be a different kettle of fish). The Senate must ask, is this attorney chastened by SCOTUS declaring as unconstitutional his signature move, in a historic smackdown? Or has the activist ideologue won out?

Congress, of all institutions, ought to embrace SCOTUS’s restoration of congressional primacy in lawmaking, slamming Goffman’s 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 embrace might reasonably begin with asking why in the world Mr. Goffman never disclosed or recused from these matters in the first place, starting with State of New York.

It is incumbent upon the Senate to finally assess Mr. Goffman’s record before re-joining the agency, what he did and did not disclose about that record, and how it is possible he has remained involved in a key item for which he served as a critical advisor.

Chris Horner is an attorney in Washington, D.C.

This article was originally published by RealClearEnergy and made available via RealClearWire.