Legality of EPA Rules Questioned by Environmental Litigators

Friday, 21 Mar 2014 06:09 PM

By Jennifer G. Hickey

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Environmental Protection Agency regulations on coal emissions are unconstitutional because the agency colluded with environmental groups in formulating the rules, an attorney with a nonprofit environmental law firm tells Newsmax.

On March 10, Chris Horner filed an 81-page formal regulatory comment asserting that legal precedent has established that a rule promulgated by an agency is unconstitutional if it was based on information not on the record and if the rule is materially based on the involvement of individuals having an "unalterably closed mind."

Horner's complaint relies in part on EPA officials' emails obtained in his capacity as a senior legal fellow at the Energy & Environmental Legal Institute, an environmental litigation group, through a Freedom of Information Act lawsuit.

"We have demonstrated through these emails that [the EPA] colluded with green groups and that the outcome was predetermined, that they made the decision just months after Obama's inauguration. The public has never had a chance to fully participate in the process," Horner told Newsmax.

Horner in September 2012 had sought the email records of former EPA Administrator Lisa Jackson, who was under suspicion for conducting agency business with a secret email account set up under the name "Richard Windsor."

"The collaboration began almost immediately after the inauguration between these green groups and the EPA. They had a predetermined agenda. The emails we obtained show they began working on this rule just weeks after Obama came into office," Horner said.

The EPA's coal-plant emissions limits, published in the Federal Register in September 2013, are rooted in authority granted to the agency by the U.S. Supreme Court in its decision handed down in Massachusetts v. EPA.

In that 2007 case, the Supreme Court ruled that greenhouse gases are covered by the Clean Air Act's definition of air pollutant, giving the PA the authority to determine whether emissions of greenhouse gases endanger the public health by contributing to air pollution.

The Obama administration made an "endangerment finding" in 2009 allowing the EPA to move ahead with its regulatory action, but Horner said emails demonstrate that the "finding" was reached long before then.

Emails obtained by Horner show administration officials privately corresponding about "the endangerment finding," which contradict EPA's claims that it arrived at this determination after proper consideration of the evidence 10 months later.

"By February 8, 2009, Administrator Jackson was planning on warning power plants that she was intent on regulating their CO2 emissions, and apparently denying a permit based on as yet unchanged regulations," Horner said.

Among the EPA officials involved in the coordination with green groups, including the Sierra Club, were Jackson, current Administrator Gina McCarthy, and former policy chief Michael Goo.

The emails show environmental groups added their voice to the scheduling of public hearings on EPA regulations.

In one exchange between James B. Martin, then-EPA Region 8 administrator, and Vickie Patton of the Environmental Defense Fund, Patton suggests "preferred locations for public hearings."

In an email, Martin — using a nonofficial email account — contacted Patton noting that "San Fran and Seattle would be friendlier forums but CA has no coal plants and WA is phasing out its one plant."

A Sierra Club employee also sent a list of their preferred locations for public hearings and the list was then forwarded to other EPA staff members.

The emails show agency leaders scheduled events that would provide environmentalist groups with the best opportunity to gather public comments on the rulemaking process that supported the EPA's position.

Nancy Grantham, director of public affairs for EPA Region 1, which covers New England, asked an organizer for the Sierra Club's New Hampshire chapter in a March 2012 email to share the group's agenda so the EPA could adjust its messaging accordingly.

"If you could, it would great [sic] if you can send me an email describing what you would like to do in early April in NH — that way I can coordinate messaging with our air offices here and at HQ," Grantham wrote.

Horner said he was told in October 2013 by the EPA that they had identified 120,000 records in response to his FOIA request, but they would only release 100 documents every month.

Horner is currently pursuing another avenue to get information from the EPA by filing FOIA requests with the National Security Agency asking that it produce any surveillance information indicating whether Jackson used her personal email account for government business.

Horner noted that the "the NSA Inspector General has also publicly acknowledged that the programs collected the exact kind of information (metadata) that we seek."

The coordination between EPA and staff at environmental activist groups is not surprising given the revolving door between the two.

EPA official Al Armendariz, who was forced to resign after video emerged showing him pledging to "crucify" oil companies, was able to quickly land a job heading the Sierra Club's "Beyond Coal" campaign.

A review of Center for Responsive Politics data shows many environmental activists went to work for the EPA at the beginning of the Obama administration or were EPA officials during Bill Clinton's administration who went to environmental groups and then returned to the EPA.

For example, Robert Perciasepe, deputy EPA administrator, worked at the agency during the Clinton administration from 1993 to 2001. He began working at the Audubon Society in 2001 before returning to the EPA in 2009.

David McIntosh worked at the Natural Resources Defense Council before serving at the EPA as a senior political adviser to Jackson from 2009 to 2011. He is now a lobbyist with Siemens Corp. as vice president for federal lobbying.

Meanwhile, members of Congress are also questioning the legality of the EPA greenhouse gas rules. Rules for future power plants are the subject of a newly launched investigation by the House Energy and Commerce Committee.

The committee announced its inquiry in a March 12 letter to McCarthy, requesting information on how the proposed rule was crafted and what evidence was relied upon to justify mandates requiring all new coal plants to install Carbon Capture and Storage technology.

Louisiana Republican Sen. David Vitter, a member of the Senate Environment and Public Works Committee, said the EPA is working beyond its authority by requiring technology not commercially available.

"In typical EPA fashion, they're putting the cart before the horse to advance their environmental policy agenda," Vitter said in a statement. "They're moving forward with a controversial rule to regulate carbon based on technology that isn't commercially available. Not only is this wrongheaded, it's beyond the scope of their legal authority."


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