Barack Obama swept into the Presidency promising a new political order, one characterized by “transparency” and “openness.” Three years later, the President’s lofty campaign promises are belied by the Environmental Protection Agency’s record of suppression.

Federal agencies cannot issue regulations willy-nilly; rather, they are bound to rules stipulating administrative procedure, in order to ensure the voice of affected parties is heard. Obama’s EPA, however, evinces a troubling tendency to circumvent these procedural rules. Regulated entities are being subjected to controversial, onerous regimes, before they even have the opportunity to read the rules, much less voice an objection. The wayward Agency is exercising an unanswerable power, straight out of a Kafka novella.

Consider, for example, EPA’s Cross-State Air Pollution Rule (CSAPR) as it pertains to Texas.  In the August 2010 proposed CSAPR, the Lone Star State was found to be in compliance with the regulation’s particulate matter emissions limits. Without notice, in the July 2011 final CSAPR, EPA imposed on Texas the harshest particulate matter emissions limits of any State. The technology required by EPA’s final CSAPR requires three years to install, but EPA gave the State only 6 months to do so. Recently, the non-partisan operator of Texas’s power grid warned that the CSAPR could lead to blackouts.

Texas was left out of EPA’s deliberations for the CSAPR, but the State will have a voice before the judicial system. In late December, a federal district court in Washington, D.C. stayed implementation of the CSAPR, which was supposed to take effect on January 1, until the court decides on the merits of Texas’s allegations that EPA violated federal laws regarding proper administrative procedure.

The previous example is as blunt a violation of due process as one could imagine. Elsewhere, like in Appalachia, EPA has proven subtler. Mountaintop mining is sanctioned by the 1977 Surface Mining Control and Reclamation Act, and it essential for the competitiveness of Appalachia’s coal industry. Yet it is loathed by environmentalists, which is why EPA has had this industry in its cross-hairs since President Obama took office.

To that end, EPA alleges that West Virginia and Kentucky’s existing water quality standards are unacceptable because they insufficiently protect an insect (the mayfly) from surface coal mining operations. However, EPA already has approved these states’ Clean Water Act permitting regimes, and this complicates matters for the Agency. For environmental federalism conflicts such as this, the Clean Water Act stipulates a resolution process, one that allows states significant participation. EPA, however, didn’t want to delay its crackdown on mountaintop mining removal. Therefore, in April 2010, EPA issued new water quality standards that were officially “non-binding,” but which EPA nonetheless informed States to follow when it issues Clean Water Act permits. And if they do not, EPA has demonstrated that it will veto permits thus granted. The result is that West Virginia and Kentucky are beholden to a regulatory regime characterized by what Rep. Nick Rahall (D-West Virginia) describes as “do or dare permits”: Appalachian States must follow EPA’s “non-binding” guidance, or risk EPA’s veto.

While West Virginia and Kentucky have been shut out of EPA’s deliberations on new water quality standards, they will have their day in court. These States sued EPA, and this spring a federal district court in Washington, D.C. will decide on the merits of their allegations that EPA violated administrative procedure laws in its rush to halt mountaintop mining removal.

EPA is being similarly sneaky in its dealings with New Mexico on a visibility protection policy pursuant to the Clean Air Act. Instead of relying on “non-binding” guidance documents in order to suppress input, EPA is claiming that it has no choice but to ignore New Mexico, due to deadlines established by environmentalist special interest lawyers.

Here’s the background: Under the Regional Haze provision of the Clean Air Act, States are required to improve the view at federal National Parks and Wilderness Areas. On June 2, the New Mexico Environmental Improvement Board unanimously approved a Regional Haze plan that would meet the federal law and EPA’s own rules, at a cost of $34 million.

EPA, however, refused to even consider New Mexico’s visibility strategy. On August 5, the Agency imposed a Regional Haze plan that would cost New Mexico ratepayers $370 million–a nearly tenfold increase over those approved by New Mexico officials. EPA claimed that it did not have the time to consider the state’s plan, because it had to act before an August 22 deadline established by a consent decree with WildEarth Guardians, and environmental litigation organization. At best, EPA’s claim that it had no discretion is malarkey—it has plenty of legal latitude, and EPA’s claim to the contrary is absurd. At worst, this is an incidence of wink*wink* consent decrees, whereby EPA and environmentalist litigation outfits enact policy in the court-house, instead of having to deal with the rigors of proper administrative procedure.

In either case, the result was the same: EPA refused to consider New Mexico’s plan. The state may have been shut out by EPA, but it will be heard by a group of judges. New Mexico has a pending case against EPA in the 10^th federal Circuit Court of Appeals in Denver, Colorado.

For rule-of-law proponents like me, the silver lining is EPA likely will get spanked in the courts. Even so, the country loses, because the President’s campaign talk about transparency and openness has been exposed as mumbo-jumbo.

This blog has kept a close eye on the Environmental Protection Agency’s aggressive expansion of its own authority (see here and here). The latest such power grab is taking place in the western United States, where the EPA is hybridizing disparate provisions of the Clean Air Act in order to engineer greater regulatory authority for itself. These Franken-regs are being used to trump the states’ rightful authority on visibility-improvement policy and impose billions of dollars of emissions controls for benefits that are literally invisible.

In 1977 and 1990, Congress passed amendments to the Clean Air Act providing that states work together to improve visibility at federal National Parks and Wilderness Areas. Together, these amendments are known as the Regional Haze provision. Notably, this provision accords states a uniquely high degree of control relative to the EPA. According to the EPA’s 2005 Regional Haze implementation guidelines, “[T]he [Clean Air] Act and legislative history indicate that Congress evinced a special concern with insuring that States would be the decision-makers” on visibility-improvement policy making. The courts, too, have interpreted the Clean Air Act such that states have primacy on Regional Haze decision making. In the seminal case American Corn Growers v. EPA (2001), which set boundaries between the states and the EPA on Regional Haze policy, the D.C. Circuit Court remanded the EPA’s 1999 Regional Haze implementation guidelines for encroaching on states’ authority.

The important take-aways about Regional Haze are that (1) it’s an aesthetic regulation, and not a public health regulation and (2) it accords states a unique degree of authority. Despite the Congress’s “special concern” that states take the lead on Regional Haze, the EPA in 2011 has proposed to impose a federal plan in North Dakota and Oklahoma, and it has imposed a plan in New Mexico.

• Oklahoma proposed to comply with the Regional Haze rule by fuel switching to natural gas at 6 coal-fired power plants by 2026. In March, the EPA rejected the state’s plan, and issued a federal plan requiring that Oklahoma install sulfur dioxide “scrubbers” that cost $1.8 billion. State officials and the affected utilities claim that the EPA’s preferred controls would increase electricity bills 15% to 20%.

• New Mexico proposed emissions controls that met EPA’s own recommended guidelines for visibility improvement, but the EPA nonetheless refused to even consider the state’s Regional Haze plan.  In August, the Agency imposed a federal plan that cost $700 million more.

• In September, the EPA rejected North Dakota’s Regional Haze submission, and proposed in its stead a plan that is $700 million more expensive. According to peer-reviewed research, the Agency’s preferred plan would affect visibility at the Theodore Roosevelt National Park by such an insignificant amount that only 40 percent of people would be able to perceive the “improvement.”

In light of the fact that the Congress structured the Regional Haze program such that state decision-making is paramount, it’s uncertain whether the EPA has the authority to run roughshod over these states. Indeed, Oklahoma and New Mexico already have filed suit, alleging that the EPA usurped their rightful authority. North Dakota undoubtedly will follow suit when the EPA finalizes the state’s federal implementation plan, as soon as this month. As such, the EPA is going to have to answer for its actions in court.

Presumably in order to preemptively bolster its case against these lawsuits, the EPA attempted to beef up its regulatory power, by claiming that it has an additional, independent source of authority to improve visibility under the Clean Air Act. The first, Regional Haze, is described above. The second is as unprecedented as it is illogical: The Agency claims that the revision of two health-based air quality standards fourteen years ago somehow gives it the authority to impose a federal implementation program for visibility improvement in New Mexico, North Dakota, and Oklahoma.

Here’s what the EPA is arguing. Under the “Good Neighbor” provision of the Clean Air Act, which was added by the Congress in 1990, states must ensure that emissions from upwind states do not impact compliance with federal air quality regulations in downwind states. In 1997, the EPA tightened national ambient air standards for two criteria pollutants–particulate matter and ozone. Accordingly, the Good Neighbor provision requires that states must ensure that their emissions of these two pollutants do not interfere with compliance in downwind states of the 1997 revisions.

Simply put, the EPA updated its emissions limits for two pollutants, so the Good Neighbor provision logically pertains to those two pollutants (particulate matter and ozone). Now, however, the EPA claims that the 1997 revisions to health based standards for particulate matter and ozone requires the agency to ensure that emissions of other regulated pollutants from upwind states do not interfere with downwind states, in addition to particulate matter and ozone. Specifically, the Agency alleges that the Regional Haze plans submitted by New Mexico, North Dakota, and Oklahoma are insufficient to ensure that these states do not adversely affect visibility protection in downwind states.

This is a dubious legal reasoning, because the Regional Haze provision explicitly mandates that states control emissions of haze-causing pollutants that significantly diminish visibility in all federal National Parks and Wilderness Areas, not just ones within their own borders. That is, the Regional Haze provision effectively requires states to meet the Good Neighbor provision. It makes no sense for Congress to create a program requiring states to work together to reduce visibility impairment in the Regional Haze provision, and then to also create a vague, amorphous, ill-defined separate source of authority with one phrase in the Good Neighbor provision, an altogether different section of the law.

More importantly, the EPA has yet to fully approve a single Regional Haze plan. How can the EPA know whether one state is adversely affecting other states’ visibility improvement programs that do not yet exist? Indeed, this is the exact reasoning used by the EPA in 2006, when it published implementation rules for the Good Neighbor provision. In the rules, the EPA said that, “is not possible at this time to assess whether there is any interference with measures in…another State designed to ‘protect visibility’…until regional haze [plans] are submitted and approved.”

New Mexico and Oklahoma already are challenging the EPA’s Good Neighbor Provision power grab in court; North Dakota soon will follow suit. I suspect that they will win. However, if they don’t, and the courts uphold the EPA’s expansive interpretation of the Good Neighbor provision, then the balance of power in America’s system of environmental federalism will have been tipped significantly away from the states and to the federal government. For starters, the EPA would gain a powerful new authority to trump the states’ rightful authority on visibility improvement. But it would affect other air quality regimes, too. On September 15, the EPA used its new interpretation of the Good Neighbor provision to partly justify its plan to impose greenhouse gas regulations for large stationary sources in Texas, over the objection of state officials.

Representative Steve Pearce (R-New Mexico) yesterday removed his name as a co-sponsor of H. R. 1380, which I have dubbed the T. Boone Pickens Earmark Bill.  Rep. Pearce is an outstanding conservative Member of Congress, who is policy oriented and held in high regard by his colleagues, so his defection from the Boonedoggle Bandwagon is an important sign that House conservatives may be starting to rethink their support.  Pearce deserves special credit because the oil and gas industry, which would benefit from the Pickens-Your-Pocket Plan, is the largest industry in his southern New Mexico district.

5.       New Jersey Governor Chris Christie
Christie’s skepticism of global warming alarmism is great. What’s not so great is his continued participation in a regional cap-and-trade energy rationing scheme. For whatever reason, the climate skeptic sounding governor has yet to pull his state out of the Regional Greenhouse Gas Initiative, the aforementioned energy tax.

4.       Florida Governor Charlie Crist (lame duck)
In 2007, Crist signed a series of environmentalist executive orders, which, thankfully, never came to fruition because they were spurned by the State Legislature. Crist earned his spot on this list for his invertebrate take on offshore drilling. When he campaigned for Governor, he opposed offshore drilling; when gas prices spiked in the summer of 2008, he supported drilling; and after the Gulf oil spill this past summer, he reverted back to opposing the practice.

3.       California Governor Arnold Schwarzenegger (lame-duck)
As I’ve explained here, here, and here, the Governator’s environmentalist pandering is empty blathering. For all the talk about California going green, the fact of the matter is that California’s environmentalist energy policies have been ineffectual at achieving anything other than higher energy prices. Rather than environmentalist accomplishments, Schwarzenegger’s only lasting legacy will be the almost-unlimited power he has bequeathed to his successor, Governor-elect Jerry “Moonbeam” Brown. Starting in 2011, the law accords the Governor amorphous, yet absolute, authority to mitigate climate change.

2.       New Mexico Governor Bill Richardson (lame duck)
Using authority derived from 1978 state law, New Mexico Governor Bill Richardson (D) last month imposed a cap-and-trade energy rationing scheme. The lame-duck Governor enacted the energy-rationing scheme administratively on November 2, the same day that voters indicated their displeasure with expensive energy climate policies by electing Susana Martinez (R) to succeed Richardson. She had campaigned against cap-and-trade. To be sure, Richardson’s energy policy is largely toothless; nonetheless, the executive power grab is disconcerting.

1.       Colorado Governor Bill Ritter (lame duck)
It will take a generation for Coloradans to undo the harm inflicted by the Governor Bill Ritter’s much-ballyhooed “New Energy Economy.” At Ritter’s behest: the General Assembly changed the mission of state utilities from providing “least cost” electricity, to fighting climate change; the Public Utilities Commission allowed the nation’s first carbon tax; and Department of Public Health and Environment exaggerated the threat of federal air quality regulations in order to justify legislation that picks winners and losers in the electricity industry.