2014

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…]

On Sunday morning’s Platts Energy Week with Bill Loveless, Janet McCabe, acting head of EPA Office of Air and Radiation, told the host that the agency is “very sensitive” to the reliability impact of its rules. All the evidence suggests otherwise.

For starters, consider that EPA Administrator Gina McCarthy recently said that she’s “tired” of hearing about the reliability threats posed by the agency. Of course, it’s improbable that one can be “very sensitive” to an issue one is “tired” of discussing.

Consider as well Commissioner Philip Moeller’s opening remarks during last week’s Federal Energy Regulatory Commission reliability conference, in which he stepped on EPA’s reliability analysis in the course of praising the North American Electric Reliability Council:

[At the 48:15 mark] FERC Commissioner Philip Moeller: The final observation is that I hope you’ll [he is referring to NERC] always keep your independence…we want you to tell it like it is. And I think back to your projections on what the bulk power system—on what would happen with MATS rule (the “the Mercury and Air Toxics Standards,” also known as the “Utility MACT”)—and you took public criticism from the Chairman of this commissions and the administrator of the EPA for essentially predicting exactly what would happen. Losing 67 GW. You were right. You did the right thing. [You] took heat for it, and going forward we’re going to need that sort of honesty and objective analysis.

To summarize Moeller’s remarks: EPA was wrong to criticize NERC’s warning over the ridiculous Utility MACT. At that time, EPA defended itself/offended NERC by pointing to a reliability assessment that the agency had conducted in the course of crafting the pointless, politicized Utility MACT. According to EPA’s analysis of its own rule, there was nothing to worry about, as the regulation would have a negligible impact.

As noted by Commissioner Moeller, events have since discredited the agency’s reliability assessment.

With EPA’s history of undue optimism regarding the reliability impact of its rules in mind, it is disconcerting that the agency is projecting that its just-released climate regulations for existing power plants would adversely affect reliability in three regions of the country. Reports InsideEPA’s John Siciliano ($):

EPA in the resource and reliability analysis concedes that in three regions of the United States the changes caused to the grid by the ESPS could cause at least a 5 percent decrease in their electricity reserves. “The EPA believes changes below 5 percent are unlikely to raise concerns over reliability,” the agency says.

The three regions where EPA’s Integrated Planning Model (IPM) review of the ESPS shows potential reserve impacts above 5 percent that could cause reliability problems are: New England under the control of the New England Independent System Operator; the Southeastern Reliability Corporation states of Georgia, Alabama, part of Mississippi, and the panhandle of Florida overseen by the North American Electric Reliability Corporation (NERC); and the state of Florida comprising its own NERC reliability corporation, known as FRCC.

See for yourself. Below, I’ve reposted EPA’s reliability analysis, according to which three regions–encompassing New England, the deep South, and the Gulf panhandle–will face potential problems keeping the lights on as a consequence of the regulation. In light of EPA’s history of low-balling the impact of its rules, one wonders how much worse is the threat in reality. [click to continue…]

An article I wrote was published last week in the Appalachian Natural Resources Law Journal. It’s titled “Deadline Citizen Suits: An Idea Whose Time Has Expired.” In it, I argue that Congress included two legislative innovations in the Clean Air Act of 1970–(1) deadlines and (2) citizen suits to enforce these deadlines–in order to achieve two ends: (1) limiting regulatory capture and (2) expanding participation in the regulatory process. However, in the ensuing decades, these statutory means, far from achieving their intended purpose, have instead engendered the very problems they were originally intended to mitigate. EPA’s chronic non-performance of its non-discretionary, date-certain duties has facilitated deadline citizen suits establishing virtually all of the agency’s priorities. By this dynamic, EPA’s regulatory initiative has been captured by environmental special interests. These green groups, moreover, exhibit many of the characteristics, including a revolving door and also heavy political spending, that were attendant to the “capture” of New Deal regulatory agencies by industry. Below, I’ve posted a copy.

Deadline Citizen Suits: An Idea Whose Time Has Expired

Platts Energy Week with Bill Loveless: EPA Office of Air & Radiation acting head Janet McCabe gave an Orwellian interview on Sunday morning’s Platts Energy Week with Bill Loveless. Below, I’ve parsed a few of her statements:

Janet McCabe opens the interview by saying, “Flexibility is really the key to this proposal, and it comes from the Clean Air Act itself.”

[Truth of the Matter: By “flexibility,” she means piling unfunded mandate upon unfunded mandate. The agency’s climate rule is based on 4 “building blocks.” The first, efficiency improvements at individual power plants, is in line with EPA’s historical interpretation of the Clean Air Act. The second, third, and fourth “building blocks”—environmental electric dispatch, green energy mandates, and demand-side management programs—comprise the preponderance of the standard, and each one is a discrete policy of the sort that has been the exclusive preserve of State governments since the New Deal. Of course, States would have the “flexibility” to use less energy to meet the goals based on these “building blocks,” either outright or indirectly via a cap-and-trade energy rationing scheme.]

Bill Loveless: “What happens if States don’t meet these goals in 2030? Would they be penalized in the end, if they were just short of those goals?”
Janet McCabe: “No. EPA approach is always to work with States to get them to be successful.”

[Truth of the Matter: What McCabe claims was indeed once true, before the Obama administration, which has demonstrated an unprecedented willingness to run roughshod over States.]

Bill Loveless: “Is there a risk that this plan would result in much higher electricity prices and much less reliability in electricity markets.”
Janet McCabe: “Of course, we’re very sensitive to that…We think that the costs are very reasonable, especially when you look at the economic and public health benefits.”

[Truth of the Matter: EPA is, in fact, insensitive to reliability. And the costs of the rule are very unreasonable, because there are no economic and public health benefits.]

Watch the whole interview below: [click to continue…]