The EPA’s Secret Staff Emails show the agency took dictation from green lobbies in possible violation of the law.
http://www.wsj.com/articles/the-epas-secret-staff-1450483019
States and businesses are suing to stop the Obama Administration’s anticarbon Clean Power Plan, and now they have new evidence to seek a preliminary injunction.
The Energy & Environment Legal Institute has obtained government emails that show the EPA secretly worked with environmental lobbyists to craft its Clean Power Plan regulating greenhouse gases. The emails show this secret alliance designed a standard that would be impossible or economically ruinous for existing coal plants to meet—in order to force their closure.
The New York Times first reported that in 2014 environmentalists Dan Lashof, David Doniger and David Hawkins—all with roots at the Natural Resources Defense Council (NRDC)—drafted a “blueprint” that “influenced” the greenhouse gas rules. That wasn’t the half of it.
The emails, obtained through Freedom of Information Act requests, show that this trio and other environmentalists essentially wrote the rule. Their inside man was Michael Goo, who worked at the NRDC before becoming the EPA’s Associate Administrator for the Office of Policy. The emails show intense 2011 communications between Mr. Goo and high-level officials at the NRDC, the Sierra Club and the Clean Air Task Force. Mr. Goo used a private Yahoo email account to send multiple drafts of his options memo to these outside groups, which returned them with draft instructions.
The communications show that Mr. Goo kept these outsiders apprised of internal EPA deliberations. For instance, Conrad Schneider, an official at the Clean Air Task Force, on May 11, 2011 asks Mr. Goo to send him the “latest unit efficiency concept” the agency is debating.
Mr. Schneider also provides Mr. Goo with his staff’s “reactions” to Mr. Goo’s “read out from the meeting from the Administrator”—meaning Mr. Goo was briefing outside groups on his discussions with then-EPA chief Lisa Jackson. The collaboration on standards and algorithms is so detailed that at one point Mr. Schneider chides Mr. Goo that he needs to keep his “units straight” since he is confusing concepts.
On May 5, 2011, Mr. Goo sent a version of the options paper to the Clean Air Task Force, which sent back additions and changes. After also running the paper by the Sierra Club, that document was stamped “deliberative” and sent to Ms. Jackson—meaning it was now agency work product. Meet the EPA’s secret staff.
One question is whether this violates the Administrative Procedures Act, which governs the writing of regulations and takes a dim view of outside, special-interest organizations secretly drafting government rules. It might also violate the Federal Advisory Committee Act that requires federal officials to interact with private entities in a prescribed and open manner. The EPA is already facing a legal challenge for violating this law by secretly working with environmentalists on its pre-emptive veto of Alaska’s Pebble Mine.
“I’ve been involved with EPA regulations for more than 25 years, and I’ve never seen anything like this before,” Jeff Holmstead, a former EPA assistant administrator in the Bush Administration, says. “It is remarkable that a senior official would use a private email account to evade federal law and secretly give an outside group a seat at the table when regulations are being developed.”
The EPA’s interlocutors here are environmental litigators and political insiders who understand federal law. This may explain why they communicated with Mr. Goo through his private Yahoo email. In a May 2011 email, the Sierra Club’s John Coequyt says: “Attached is a memo I didn’t want to send in public.”
That May 2011 memo contains a legal analysis of the Clean Air Act and how EPA can evade it. “It obviously would not be a reasonable interpretation of the statue for EPA to set a standard that no existing plant can achieve,” says the memo. But it goes on to explain that “ambiguity” in the law allows EPA to set a standard that “is not achievable by any plant nearing the end of its ‘remaining useful life’ as defined by EPA.” The memo explains the EPA can “define” a plant’s “remaining useful life” any way it wants, and use this to shutter existing coal plants.
About a year after that memo, the Sierra Club’s Mr. Coequyt sent an email to Mr. Goo that cites then-new EPA Administrator Gina McCarthy’s comments that, under the new rule, “coal will remain viable.” Mr. Coequyt’s email reads: “Pants on fire.”
In an April 2011 email with the subject line “Zombies,” Mr. Coequyt sends Mr. Goo a list of 16 coal plants that companies “shelved because of uncertainty over” the upcoming rule. Mr. Coequyt warns that “if a standard is set that these plants could meet, there is a not small chance” that the companies might revive the proposal. The EPA’s final standard was too tight for that to happen.
***
A Sierra Club spokesman declined to comment. Mr. Goo has since left EPA and a spokesman for him dismissed our questions as “a red herring” raised by “a professional climate skeptic.” The EPA responded that the “Clean Power Plan was developed through an extensive public outreach process” with hundreds of stakeholders at public hearings: “For an action that generated 4.3 million public comments, to imply that one group or person had any undue influence on the Clean Power Plan’s development is ridiculous and absurd.” As if Mr. Goo shared his work product with all those commenters.
Credit for exposing these emails goes to Chris Horner, an attorney for the Energy & Environment Legal Institute, who has doggedly pursued FOIA requests. That job has taken longer than it should have because Mr. Goo withheld his private Yahoo emails from the EPA for years, despite the law’s clear intent that official communications be subject to FOIA.
Mr. Horner has submitted some of this correspondence to the D.C. Circuit Court of Appeals, which is overseeing a consolidated case challenging the regulation, and it adds to the evidence that should cause the court to put a stay on so costly a rule.
Comments are closed.
