June 2014

Infused with the Festivus spirit, I’m airing the following grievances regarding the Supreme Court’s ruling in UARG v. EPA, which was rendered Monday:

Grievance #1, to the Supreme Court: Why Didn’t You Heed Your Own Words!?!

The first part of Justice Scalia’s opinion of the Court presents a cogent case that statutory provisions must be read in context. Alas, this first part was completely ignored by the second part of the opinion, which effectively gave EPA everything it wanted.

In Section A of the ruling, the Court rejected EPA’s claim that greenhouse gases triggered PSD and Title V requirements under the unambiguous terms of the Clean Air Act. Moreover, the court in this first part found that the agency’s interpretation was unworthy of deference because it was “inconsistent with the design and structure of the Act as a whole.” So, a fundamental takeaway from Section A of the UARG ruling is that the courts and EPA must bear in mind the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”

However, in the very next Section (B), the Court reverses itself. To be precise, the Court found that EPA could proceed with “Best Available Control Technology” requirements for greenhouse gases, even though the statutory context makes plain the fact that Congress never intended to authorize such a regulatory regime.

For starters, BACT is the primary regulatory requirement of the PSD program, and it’s pretty strange that the trigger for PSD is narrower than the trigger for the primary regulatory requirement pursuant to the PSD program. This is counter intuitive: If GHGs don’t trigger PSD, then why would they trigger PSD’s primary requirement (i.e., BACT)? That’s one strange Venn Diagram, no? Given this statutory context, it seems obvious that GHGs don’t belong in the PSD program, including any of its constituent provisions.

Second, under the terms of the Clean Air Act, BACT is a site-specific determination. In rendering a BACT determination, the permitting authority must weigh the costs versus the environmental benefits of implementing pollution controls at the proposed facility. But you can’t do that for greenhouse gases, because there are no environmental benefits attendant to the technology. Indeed, EPA administrator McCarthy has conceded to Congress that the agency’s rules won’t actually impact the climate. Thus, when you read the statute in context—that is, if you do what the court prescribes in the first part of the ruling—then it is obvious that BACT and GHGs are “fundamentally incompatible.”

Grievance #2, to the Petitioners: Stop Pretending That You Won!!!

As reported, UARG must seem like an amazing ruling: The stakes were huge, and no one thinks they lost. For example, here’s EPA’s claim that it won, and here’s the Wall Street Journal saying that EPA lost. The Journal’s sentiment was backed by virtually all the petitioners, including Attorneys General and the U.S. Chamber of Commerce. EPA’s position was backed by all the respondents.

My organization, CEI, was among the petitioners, and, much as it pains me, I agree with EPA and the environmental special interests. In my humble opinion, we just got our asses whipped. Allow me to elaborate.

[click to continue…]

A policy’s gravity is roughly proportional to the hyperbole it engenders from its opponents. By this admittedly loose metric, H.R. 4012, the Secret Science Reform Act, is of great import. Consider the following charges leveled by House of Representatives Science, Space,  & Technology Committee Ranking Member Eddie Bernice Johnson in her opening remarks during a committee markup of the bill on Tuesday:

• The Secret Science Reform Act is a “pernicious assault” on EPA
• It is “anti-science”
• H.R. 4012 is an “insidious attack” on the agency.

Ranking Member Johnson’s purple tone is echoed by a chorus of special interests, including all of the major green groups and also the fake white coats at both the American Lung Association and the Union of Concerned Scientists.

The essence of this “pernicious assault” on EPA is aptly summed by the bill’s sponsor, Rep. David Schweikert: “public data for public policy.” In fact, EPA justifies billion dollar regulations on putative health benefits derivative of epidemiological research that the agency won’t share with the public. Instead, the agency will share the underlying data only with parties sympathetic to the agency’s regulatory agenda. Hence, the Secret Science Reform Act, which would make “publicly available” all “scientific and technical information relied on to support” a given regulation. Again, the simple purpose is public data for public policy.

Quite contrary to what the ranking member would have the public believe, the notion of “secret science” isn’t some wild-eyed Tea Party fantasy. Recently, Committee Chairman Lamar Smith received a letter in support of H.R. 4012 from 80 scientists, including George Wolff, former chair of the EPA’s Clean Air Scientific Advisory Committee in the Clinton administration and Forrest J. Remick, former commissioner of the U.S. Nuclear Regulatory Commission in the George H.W. Bush administration. They wrote that the bill would “make the agency’s regulations more accountable, credible, and enforceable.”

The bill passed out of Committee on a party line 17-13 vote. I attended the markup and what follows are some scattered thoughts: [click to continue…]

First, we learned that EPA brass repeatedly promoted a fake spy who had been defrauding the agency for a decade. Then, the Inspector General reported that an EPA employee received bonuses, despite having been caught watching 2-6 hours of porn a day. Today, however, comes the biggest management outrage of them all…In an article actually titled, “EPA Employees Told To Stop Pooping in the Hallway,” Fedblog’s Eric Katz reports:

Management for Region 8 in Denver, Colo., wrote an email earlier this year to all staff in the area pleading with them to stop inappropriate bathroom behavior, including defecating in the hallway.  

In the email, obtained by Government Executive, Deputy Regional Administrator Howard Cantor mentioned “several incidents” in the building, including clogging the toilets with paper towels and “an individual placing feces in the hallway” outside the restroom.

That’s disgusting and terrible, but it’s not even the most revelatory aspect of this sordid tale. Evidently, leadership at EPA Region 8 was flummoxed as to how to address this poop-perpetrator (poopetrator?) matter, so it consulted with workplace violence “national expert” John Nicoletti. And only upon receiving the esteemed Mr. Nicoletti’s advice—that poop in the hallways is a health hazard—did the powers that be at EPA Region 8 swoop into action, and send an all staff email. I can’t imagine a less impressive managerial response.

Remember, all the time that EPA wastes on fake spies, porn addicts, and public poopers is time that the agency could have devoted to its long-neglected statutory responsibilities.

The big UARG, et al. v. EPA, et al. decision dropped this morning. I’ve posted the decision below. What follows are my snap reactions. I’ll update when I’ve better digested the rule.

Only two justices (Alito & Thomas) rendered a correct interpretation of the Clean Air Act and found that greenhouse gases are “fundamentally incompatible” with the Prevention of Significant Deterioration program, including the requirement for Best Available Control Technology, and also the Act’s Title V permitting program. As a result of today’s unfortunate ruling, which was basically an adoption of the American Chemistry Council’s opening position/Judge Kavanaugh’s dissenting opinion*, EPA will continue to try to hammer a square peg (regulating GHGs) into a round hole (the PSD/Title V programs). It should be noted that there are no actual environmental improvements attendant to EPA’s climate rules, because they won’t in any way impact climate change.

There is a possible silver lining. This term, in the course of permitting EPA regulatory regimes for visibility improvement and interstate pollution (either by ruling or refusal of cert) the Supreme Court facilitated an expansion of EPA discretion to interpret the Clean Air Act however the agency saw fit. With today’s decision in UARG, we at least have established a line in the sand regarding deference to agency decision making: The agency will not be permitted to blatantly re-write laws.** This is, alas, a pretty low bar.

*Ultimately, all of the industry & state petitioners adopted the ACC’s argument–which, again, effectively prevailed–as a fall back, secondary argument to their primary case, that GHGs are incompatible with PSD & Title V. The ACC argument, in turn, is very close in nature to D.C. Circuit Judge Brett Kavanaugh’s dissent to that court’s refusal of an en ban hearing of the 3 judge panel’s UARG decision. In a nutshell, ACC/Kavanaugh argued that GHGs can’t be a trigger by which a stationary source is made subject to PSD, but they can fall within the ambit of BACT, which is the major PSD requirement. Such a reading is somewhat counter-intuitive: BACT is a component of PSD, but applies more broadly than PSD. The practical impact is that non-GHG emissions can trigger PSD for a source; and a part of PSD is BACT for GHGs. Confusing, right?

**The agency had attempted to “tailor” the Clean Air Act in order to make workable the agency’s long-standing interpretation that the emission of any regulated pollutant by a “major” stationary source could trigger PSD. The Court’s 5-4 ruling rejected this interpretation, because it necessitated a rewriting the Act and also resulted in a large expansion of federal power. As I explain in the above endnote, even if GHGs aren’t a PSD trigger, stationary sources subject to PSD still will have to adopt the major PSD requirement (BACT) for GHGs.

UARG Decision

Last week’s primary document dump used a case study of an ongoing lawsuit (Sierra Club, et al. v McCarthy) in order to demonstrate the inner workings of a legal strategy employed by environmental special interests known as “sue and settle.”

For this week’s primary document dump, we’re again focusing on sue and settle. In particular, we’re addressing the suspicious lines of communications maintained by ex-EPA Region 6 administrator Al Armendariz with plaintiffs in pending sue and settle litigation. Before he became EPA Region 6 administrator, Armendariz was a “technical advisor” to WildEarth Guardians, and he also maintained a close relationship with Sierra Club (an organization for which he is currently employed, after resigning from EPA amid controversy for having compared his enforcement style to a crucifixion). During his time at the EPA, these environmental special interests filed a number of deadline citizen suits that led to sue and settle negotiations. We have evidence that EPA lawyers had to intervene in order to impose a recusal on their colleague Armendariz, which I’ve reconstructed in the four emails immediately below:

11 November 2010, 6:02 PM: An email among EPA employees acknowledges a deadline citizen suit filed by two environmental special interests: Sierra Club & WildEarth Guardians. Notably, the email indicates that EPA never even considered defending its prerogatives to set its own priorities. Instead, a negotiated consent decree is assumed.

11 November 2010, 6:11 PM: Only 9 minutes after learning about the sue and settle negotiations, EPA’s Lawrence Starfield emailed EPA Region 6 administrator, in order to preemptively recuse Armendariz from the case, due to prior relationship with the Sierra Club. It is unclear what was Armendariz’s relationship with Sierra Club had been. Currently, Armendariz works for Sierra Club’s “Beyond Coal” campaign.

11 November 2010, 6:25 PM: A quarter hour later, Armendariz responded to Starfield. In his response, the EPA Region 6 administrator rejects Starfield’s conclusion regarding the need for a recusal. Armendariz then tells Starfielf that, “if needed” he could “call Jeremy [Nichols] at [WildEarth Guardians] and grab [EPA Region 6] an extended deadline.” Jeremy Nichols is described on WildEarth Guradians website as, “Director of the Climate and Energy Program, taking action to fight fossil fuels, promote clean energy, slash greenhouse gases.” On Armendariz’s cv, Nichols is listed as a personal reference. [click to continue…]

Back on June 6th, OSTP (the White House Office of Science and Technology Policy) officially declined to reexamine its highly-publicized January explanation for the extremely cold winter.  According to that video, The Polar Vortex Explained In 2 Minutes, the likely culprit was global warming; this was supposedly demonstrated, in Director John Holdren’s words, by “a growing body of evidence”.

In a Data Quality correction petition that we filed with OSTP in April, we pointed out that the body of evidence supporting Holdren was in fact shrinking, not growing.  (In fact, it shrank even more earlier this week, when yet another contrary study came out.)  But OSTP ducked the issue, claiming that its Director had only been expressing his “personal opinion”, and that therefore the Data Quality Act didn’t apply.

Note that the video is posted on the White House youtube channel and has been touted by other OSTP staff.  OSTP never corrected any of the many reporters who interpreted it as being the White House line.  If Holdren’s mere “personal opinion” was dressed up in this much official garb, then how much more formality would have accompanied an “official” statement?  Would herald angels have burst into song?

So today we filed an appeal with OSTP of its decision.  It’s reprinted below, but here’s the gist of it:

“OSTP’s rationale is sheer nonsense, concocted in order to escape its legal responsibilities for highly questionable scientific assertions that produced a huge number of self-aggrandizing headlines.  Moreover, even if its rationale is correct, OSTP still has a responsibility to prominently label the statements at issue as personal opinions, so that neither the media nor viewers of its web site continue to mistake them as official agency positions.”

That’s right, OSTP.  If you’re serious about this being your Director’s personal opinion, then put a fat red rubber-stamped disclaimer saying that on the video.  Better yet, take the video off your website before some government auditor asks why agency resources are being used to promote personal opinions.

You’ve got wonder whether global warming is affecting these people’s judgment.

You’ve likely read or heard about how a supposed technological glitch resulted in the loss of ex-IRS official Lois Lerner’s emails from the very period of time when she allegedly used state power to prosecute the President’s political enemies.

Lerner’s “honest” mistake evokes an even more blatant circumvention of transparency laws and ethical norms: Landmark Legal Foundation v. EPA, 272 F. Supp. 2d. 70 (2003).

The case originated in September 2000, in the immediate wake of a media report that the EPA, which was then headed by Carol Browner (formerly President Obama’s climate ‘czar,’ once a card-carrying member of the Socialist International, and now at the Center for American Progress), intended to promulgate a raft of regulations during then-President Bill Clinton’s lame-duck session.* In response to this article, the Landmark Legal Foundation filed a FOIA with EPA, requesting identification of all rules or regulations that EPA planned to promulgate during the lame duck session. Litigation ensued.

In the course of the suit, the federal district court for the District of Columbia issued an injunctive order prohibiting EPA from destroying any relevant records. That an injunction was necessary is telling. Nonetheless, in blatant contravention of the court’s order, “the hard drives of several EPA officials were reformatted, email backup tapes were erased an reused, and individuals deleted emails received after that date.”

According to the Court:

Here, EPA’s conduct of reformatting computers and erasing email backup tapes continued for over three months after the Court issued its order. This scheme shows both frequency and severity sufficient to justify the award of Landmark’s legal fees. This conclusion is bolstered by the unique nature of this case. EPA’s conduct was directly related to the subject matter of this FOIA litigation-Landmark sought information, and EPA destroyed it. Attorney’s fees covering the entire span of the contempt dispute are appropriate because EPA’s contempt was not merely incidental litigation conduct, but goes to the heart of the case. The Court concludes that the appropriate sanction for EPA’s contumacious violation of this Court’s January 19 order is to impose sanctions in the form of Landmark’s attorney’s fees and costs incurred as a result of EPA’s contumacious conduct.

Read all about it for yourself. I’ve posted the court’s July 24, 2003 decision at the bottom of this post. [click to continue…]