From Government Accountability & Oversight
“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.
Establishing EPA as a separate agency is an example of Nixon’s incompetence (or malevolence). It led to being a tool of radical greens with a “special prosecutor” mindset. Things are never adequately controlled, as that is the mission of EPA to control the environment, regardless of actual benefits.
As to Nixon, yes. But the actual blame, for this and tons of other “schist”, belongs to Congress and, hence, to the dumb asses who voted for those who wanted to us to conform to their “utopia”.
I would argue it is the Democrats/greens in Congress who are content to write very vague legislation, and allow their pet apparatchiks at EPA to “interpret” what they would not want to be responsible for voting for. Congress is ultimately responsible, but a pack of political cowards.
The real problem is that the “apparatchiks” are ALL leftists. They have these plans, most even developed while under a Republican POTUS, ready to implement immediately upon the election of the next Democrat POTUS.
The only solution is for every proposed regulation to have a sentence by sentence notification of WHO wrote that, and when they first wrote that, with penalty of perjury for any failure of meeting those two requirements. If so convicted, tried NOT in DC courts, they shall also lose their federal pensions and any matching funds to 401K, etc. If the timeline of the production of the language is “disappeared”, obstruction charges to be applied.
Note that the Democrats in congress used “obstruction” as their primary attack on TRUMP! during the impeachments.
The Pendleton Act creating the federal civil service was an example of unintended consequences. Chester Arthur was not highly regarded as a President, and that was one reason why.
Repeal of all “Civil Service” protections for any unionized federal employees would be a modest proposal.
Even FDR, knew that unionizing the federal workforce was a bad idea.
The reason is simple.
Government is by its nature, a monopoly.
In the market, when the union for one company goes on strike, the customers can shop somewhere else. Also, if the companies settlement with the union is too generous, the company will be less competitive and will risk going out of business.
Being a monopoly, the “customers” of government have no place else to go when government shuts down. Also, having no competitors, government faces no penalty if its union settlements are too generous.
By the same reasoning, having one union represent an entire industry is also a bad idea. In the auto industry, it resulted in an industry that was unable to compete against foreign competitors, and had to rely on government for relief, against the interests of consumers.
In the early days of its existence, EPA’s rules mandated significant reductions in pollutants. This was achieved at power plants and in automobiles. Those were the obvious steps and most effective steps to take. But since then, EPA has been using the same tools to go after smaller and smaller increments of pollutants. In some cases, the analytical instruments and methods have been able to detect smaller and smaller amounts, which allows EPA to set standards that are lower and lower, no matter what the cost or actual health effects. (LNT comes into play, here.)
So now, EPA is being used to hammer away at “pollutants” that do little harm, because they can. I’m waiting for the time when they give each person a CO2 budget to regulate their exhalations.
EPA’s rules are only lawful to the extent that they comply with Federal environmental regulatory statutes. Where EPA goes astray is when they invent rules that are not so authorized under statutory authority. In which case their rules are subject to litigation. Both those in favor of strong or even abusive Federal regulations, and those who oppose such published regulations, can sue and take their cases to the courts. In recent years, under the current makeup of SCOTUS, the courts have generally sided more often with those who oppose overreaching regulations of EPA.
Yes, of course, NOT.
The EPA causes their problems and it takes YEARS to get courts to block them.
The CO2 endangerment finding is a typical example. And the SCOTUS did not find that the EPA had no right to regulate CO2, which is not a pollutant.
I call BS on that.
I think it will take 2 more SCOTUS conservative justices to actually see the administrative state shut down from overreach. Roberts needs to go, and it seems that regularly one of TRUMP!’S 3 appointees votes in a crazy unexplained way on many major issues.
EPA is a necessary institution because Federal law requires a Federal agency to enforce Federal environmental laws, and also provide Federal oversight of state laws under delegated authorities. But any and all laws can be abused by administrations, and when they do abuse them, those who are injured (“have standing”) can sue the EPA to overturn the rules.
Thankfully we have a SCOTUS that is inclined to do just that.
Having EPA as an independent agency, as opposed to something like being under Interior, is the problem. It is in the same class of troublesome agencies as ATF, in that it draws zealots and unneeded enforcement and rulemaking. Nixon was at best a fool.
Such a fool that he was elected US Senator, Vise President twice and President twice.
No, he was no fool, just a leftist Republican that was POTUS with a Democrat congress, willing to “work with” them towards leftist positions.
His great opening of diplomacy with China followed by Clinton’s allowing China into the WTO has done more harm to the US than any other president.
We can all buy a 83 inch TV for almost nothing from China, but we can’t even build our own military reactor vessels since the US steel industry was priced out of existence by Chinese dumping.
By that time, Nixon was so weakened by the so called Watergate scandal that he was no longer able to fight back against the wishes of Congress.
BTW, compared to previous presidents, Nixon was practically a saint.
LBJ used to joke that an honest politician was one who once he was bought, stayed bought. And he would know.
Every agency should have an expiration date so that it dies if a super majority in both chambers does not vote to extend the date. The EPA has been so thoroughly corrupted that the only way to fix it is to get rid of it.
DC. Goes nowhere even if legally sound.
There is a reason arguably illegal special prosecutor Jack Smith convened a DC grand jury to indict Trump in a clearly Florida jurisdiction case about Mar a Lago document retention under the PRA. Is also partly why Smith will fail at SCOTUS on presidential immunity concerning same. Orals scheduled for 4/21/24.
I’m afraid you’re wrong on the immunity and documents question. But, we’ll see. Enjoy all you’re comments and insights though. “Long may you prosper”!
Miami grand jury and federal court case with Judge loose Cannon came after the DC grand jury.
The prosecution said different crimes occured in different places
Nope – Florida does not regulate, nor have any delegated authority to regulate retention of national security or presidential documents under Federal law by any person, regardless of who they may be. This is strictly a Federal case. See “Supremacy Clause” of the Constitution. And the State of Florida does not have any such laws addressing retention of national security or presidential documents, because the State cannot legislate on such matters under the Constitution.
Whether Trump is found guilty is strictly for the Federal courts to decide. How the decisions work out (presuming multiple appeals all the way to SCOTUS), nobody can say for sure. But the prosecutor and a lot of other persons with knowledge of the applicable Federal law seem to believe that Trump is likely to be convicted. Which is why Trump’s legal team keeps making motions that would delay the case until after the election, because once Trump is in office, that will defer (“toll”) the appeals until after he leaves office.
Once in office, he can PARDON himself. Period!
Then whoever he picks for the new Attorney General will go after every one of the DOJ employees who persecuted TRUMP! for oppression under the color of the law and RICO conspiracy and coordination among them ALL. Massive retribution in the form of disbarment and huge legal fees. Start by putting them in jail for years, in solitary, like the Dems did to Manafort. This will include every attorney who allowed multiple crimes to go unpunished until the statute of limitations expired for Hunter and others.
This should lead to a new definition of “prosecutorial discretion” and remove, at least to the extent as they have removed police “immunity” the ability of prosecutors to be above the law. Allow those harmed by criminals to sue prosecutors who refuse to follow the law. For local prosecutors, impose this requirement by allowing suit in federal court where the reimbursement funds are to be taken from federal money flowing to the local jurisdiction.
First new law by Republican congress to include a retroactive extension of the Statute of Limitations for the crimes that Brandon and Hunter AND HILLARY can be charged under. Apparently this is A OK since Cali and NY did that for Weinstein persecution for “coercive sex” 20 years after the Statute of Limitations expired. Coercive my @ss, all those “actresses” knew what they were doing. The “casting couch” phrase is famous for a reason.
Funny how the Dems persecuted him after he was about to lose all his money and would be of no good for campaign contributions. Made for a great set of show trials.
BTW, what happened to “Me Too”?
Trump has never put 10c of his own money into campaigning after 2016. Hes raised it from donors, all hes said is ‘might’ self fund , but hes tight fisted and charges rent for everything
You should always trust in the Groupthink of university educated experts with letters after their names-
New study reveals transgender movement has ‘gone too far’ (msn.com)
They always know best just like a consensus of Climastrologists.
Lithium batteries being instantly recycled back into the environment from whence they came-
Firefighters spend second night at Kilwinning battery plant blaze (bbc.com)
Thankfully no fossil fuels were used in the recycling process.
“Teaching old laws new tricks” is nothing more than advocating lawlessness. If and when this case reaches SCOTUS, they will strike down any such rulemaking that is not explicitly authorized by Federal law, as this court has ruled repeatedly in recent years. Government lawlessness is much worse than individual lawlessness, in that it impacts everyone not just a limited set of victims personally wronged by another individual.