Regulation whispering is useless, lengthy dwell legislation whispering!

From government accountability and oversight

By web admin

Scotu’s opinions? We don’t need stinking SCOTUS opinions!

The Senate Environment and Public Works Committee has announced a hearing for Wednesday to confirm former Obama Environmental Protection Agency climate guru Joe Goffman as deputy administrator for the Bureau of Air and Radiation at the EPA. Goffman has served as an actor or otherwise waited since joining the Biden transition team, but that matter had previously been postponed because Democratic members failed to show up.

Goffman is hailed in GreenWorld as the EPA’s “law whisperer,” who teaches old laws new tricks, as Energy Policy Advocates wrote in his amicus brief in New York State et al. v. (U.S.) EPA. This letter lays out what Open Records productions reveal about how progressive attorney generals led by New York have worked with activists to devise a plan to somehow push through the “climate” agenda through the Clean Air Act. To do this, they reached out to a network of former EPA employees who are also outside activists, after being referred to them following NY OAG’s consultations on the plan with none other than Joe Goffman. Now awaiting confirmation of a position where he can decide whether he and his allies will go through with it.

No, he has not retired from New York or related matters. More on this strange condition in a moment. First, consider the further puzzling fact that in the wake of these machinations, the US Supreme Court issued a landmark ruling calling for an end to “law whispering.” In fact, SCOTUS ruled specifically in relation to using the Clean Air Act to enforce a climate agenda (indeed a plan devised by Mr. Goffman). Which seems relevant, which with more of it is the real reason for bringing in the law whisperer.

Then there’s this case in upstate New York. GAO readers may recall that this is about what the Wall Street Journal editorial page has dubbed “Biden’s BackDoor Climate Plan” to effectively enforce a greenhouse gas rationing scheme through Clean Air Act provisions that were never used for such a task were issued. Anyone viewing the emails and attachments reflecting the progress of the discussions — the “fake pas de deux” — accompanying the January 20, 2021 New York State et al. will wonder why Mr. Goffman does not disengage from the EPA’s deliberations on this now-exposed lawsuit stabbing and settlement by the party he consulted with, or from deliberations on how other provisions of the Clean Air Act are being used may be withdrawn to “enforce climate” rules in effect.

The short answer is because he has not disclosed his consultation with the AGs (New York’s OAG). So.

This is bad. Are things really worse? After all, in West Virginia v. EPA, the Supreme Court put an end to “law whispering,” or are we pretending the law really allows us to do what Congress consistently refuses to authorize us to do. And as this PowerPoint makes clear — the latest of several iterations or redacted publications by USEPA in FOIA litigation also filed by Energy Policy Advocates — Mr. Goffman came into administration ready to deal with the whole thing, the Clean Air Act teach new tricks join in how safe was the point.

It contains several of those old laws that the Biden EPA under Mr. Goffman plans to use to enforce the climate agenda. Again, according to West Virginia, that would mean the intention of Congress was doomed.

So will EPW members ask if SCOTUS is doomed too? West Virginia v. EPA appears to have eliminated the rationale for bringing in Mr. Goffman to create “Biden’s BackDoor Climate Plan.” That’s not an impediment to his confirmation, but certainly something to push and watch out for (now, failing to back down seems like another kettle of fish). But was this lawyer chastised by SCOTUS in his characteristic move in a historic slugfest? Or did the activist ideologue win?

As the EPA notes in trying to get this PowerPoint further unredacted, given that the agency suffers de minimis foreseeable harm in releasing what are now largely, if not all, pipe dreams when released to the taxpayer (and the economy in the meantime) expensive EPA officials have been keeping bad habits alive until they are crushed again:

[USEPA] Withholds, by editors of 8 pages of a PowerPoint presentation entitled “Power Sector Strategy [on] climate, public health [and] Environmental Justice”, setting out “proposed strategies” to enforce this agenda (Defendant’s Statements of Material Undisputed Facts, ECF No. 16-2, ¶¶ 24-32), through “regulating and reducing pollution in the energy sector” (Shoaff Declaration, Exhibit A, p. 20). As acknowledged by the audience, the White House Climate Office, this is a February 4, 2021 presentation on the use of the Clean Air Act (slides 6-11) and other regulatory bodies implemented by the agency to create a “Climate “-Agenda to enforce restrictions on the use of certain fuels through air emissions and solid waste regulatory systems.

In West Virginia v. Environmental Protection Agency, 597 US ___ (2022), decided June 30, 2022, the US 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 necessary shift in power generation to cleaner sources” by using the CAA in a way that would “implement a sector-wide shift in power generation from coal to natural gas and renewables.” ID. This regulation, known as the “Clean Power Plan,” was one of several attempts by the agency in recent years to use CAA to limit greenhouse gases, particularly CO2, through the results described, none of which have passed court review.[1] As the court noted in frustrating EPA’s efforts to do so through §111, “prior to the Clean Power Plan, EPA had used §111(d) only a few times since its passage in 1970.” (The EPA cites and edits their discussion of using §111(d) to limit greenhouse gases on slide 8).

As noted by the West Virginia court, “The EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-standing but seldom-used statute designed to be a stopgap. This discovery enabled him to pass a regulatory program that Congress had conspicuously refused to pass.” ID. The court again dismissed EPA’s claim that it had previously unknown authority to enforce this agenda in obscure provisions of the Clean Air Act. Notable to this day, in addition to the redacted material dealing specifically with this use of the CAA on slide 8, are the other regulations and programs cited in the redacted slides/pages that are the subject of discussion – e.g. toxicity standards (e.g MATS rule) (Slide 6) Regional Haze (a visibility program[2]) – were also never discovered to give the EPA the authority to enforce this agenda.

Here’s to a meaningful discussion tomorrow about West Virginia and that characteristic approach of claiming to find elephants in mouseholes, as Justice Scalia first put it, so as to invoke an ideological agenda independent of the actual authority of Congress. Which could reasonably begin with learning why Mr. Goffman has never disclosed or backed down on these matters in the first place, beginning with New York State.

[1] See: “And this court doubts that “Congress. . . intends to delegate. . . Decision[s] of such economic and political importance’, ie how much coal production there should be in the coming decades, for each administrative agency.’ West Virginia at 5-6. See generally West Virginia vs. EPA.

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

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