The EPA's Continuing 'Climate' War on Energy

The environmentalist agenda has created extreme disarray in American public policy, with the help of often-careless lawmakers, opportunistic bureaucrats and litigants, sometimes working together, and mischievous judges, all in the name of combatting "climate change." It's a recipe for success for the spectacularly funded opponents of the resource sector to impose an agenda that neither the public nor their elected representatives ever approved.

Yet even the black clouds of Canadian forest mismanagement cannot obscure certain rays of sunshine. Perhaps the most significant of these occurred a year ago, when the United States Supreme Court handed down its opinion in West Virginia v. E.P.A., overturning the Obama-Biden “Clean Power Plan.” That regulatory monstrosity capped greenhouse gases from electricity production with the express purpose of forcing “generation shifting,” from coal to so-called renewable sources. It was an administrative overreach which proved to be the rule’s undoing.

As it was being challenged at the Court, the Biden administration pleaded that they leave it be, since a replacement was already in the works. Thankfully, the Court gave the matter a look. The 6-3 majority in West Virginia did not, as Justice Kagan’s dissent insisted, install guardrails via the announcement of a new doctrine. Instead, the Court splashed bright neon paint on guardrails that had been there all along, even if they were often ignored.

Even Marilyn needed guardrails.

The decision was a robust affirmation of what is known as the Major Questions Doctrine. It stated that “[c]apping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day.’” (Emphasis added.) However, when an agency undertakes “decision[s] of such economic and political significance, i.e., how much coal-based generation there should be over the coming decades,” courts should employ a "raised eyebrow" test.

That is, on questions of this magnitude “penumbras formed by emanations” won’t cut it. In this case the justification was an obscure section of the Clean Air Act of 1963, rarely used but now purportedly an authorization for the Executive branch to instruct Americans how they might purchase their electricity. Thankfully the Court's majority remembered the wisdom of their departed colleague Antonin Scalia, who once said in a relevant case that Congress “does not... hide elephants in mouseholes.”

This ought to spell trouble for the "climate" agenda long-term. Going forward regulatory policies intended to massively shift the nation away from fossil fuels should trigger this review for clear authorization by Congress. Unfortunately Clean Air Act cases by statute first go to the D.C. Circuit Court which was expanded under President Obama. This process prolongs Supreme Court resolution and gives the permanent bureaucracy time to do a great deal of damage before the Court can step in, assuming it does.

The E.P.A. is now being counseled to downplay confessions of broader purpose and claims to have discovered authorities in obscure statutory provisions. That was the key takeaway from a rather glum panel hosted by the Environmental Law Instituted two weeks after the West Virginia decision, entitled “West Virginia v. EPA: Analyzing the Supreme Court’s Decision.” At that event Kevin Poloncarz of Covington & Burling counseled participants “Agencies might be wise if they are going to employ existing tools, to not make political announcements and to [instead] say they are swimming in their lane.” To be clear, he added, “[w]e don’t want the political appointees to get out in front of the lawyers.”

Slow and steady wins the race.

Taking this advice, an insidious new approach to imposing the "green" agenda has arisen. That is using back door approaches — claiming to be merely tightening existing standards. All of them, and with the object of driving politically disfavored energy sources to closure. We know this in part because E.P.A. administrator Michael Regan admitted it. Regan said that, “By presenting all of those rules at the same time to the industry, the industry gets a chance to take a look at this suite of rules all at once and say, ‘Is it worth doubling down in investments in this current facility? Or should we look at that cost and say now it’s time to pivot and invest in a clean energy future?’” Chances are Regan would take that statement back if he could. But the cat's out of the bag.

Two years ago a lead Wall Street Journal editorial entitled “Biden’s ‘Back Door’ Climate Plan,” set forth how emails and slideshow attachments obtained through open records requests and litigation revealed this very strategy of the incoming administration. The editorial summarized in just over 800 words a 25-page amicus brief this writer had just filed in the D.C. Circuit on behalf of Energy Policy Advocates.

This was the brainchild of a man named Joseph Goffman, who had midwifed the Clean Power Plan for President Obama before joining an activist group at Harvard. There he counseled progressive state attorneys general on how to impose climate regulations stealthily. Goffman is has since returned to E.P.A. and set to work doing just that.

As the Journal pointed out, Goffman was hailed as the “E.P.A.’s law whisperer. His specialty is teaching an old law to do new tricks." But law whispering was precisely what the Justices smacked down in West Virginia.

Through Freedom of Information Act litigation, Energy Policy Advocated also obtained an E.P.A. PowerPoint slideshow, now sitting before the D.C. District Court on summary judgment to find out how much more if any the Agency has to release of its contents. Titled “Power Sector Strategy: Climate, Public Health, Environmental Justice — the Building Blocks,” it was created and presented by Goffman to the White House Climate Office two weeks after the inauguration. The slideshow lays out a series of non-climate regulatory programs, never authorized to be used to reduce greenhouse gases, which the "Law Whisperer" proposed should be used for just that purpose.

The E.P.A. is keeping the details of most of the slides, including “Next Steps for Coal-fired Power Plants” — the mere heading of which the Agency also initially withheld — hidden behind a wall of redactions claiming privilege, and that the public would be confused if it saw E.P.A. discussing things we now know it cannot do. Whatever the Court does, the Republican House majority should use its oversight authority to obtain an unredacted version of these slides. This would aide Congress in performing its own duties, and also help the courts to prepare for the inevitable litigation over each of this “suite of rules.”

Sorry not sorry.

Meanwhile we see a serious effort to “new-normalize blackouts,” whose likelihood and severity is being encouraged by the Biden E.P.A. — and indeed, the entire administration in a “whole of government” approach to imposing an agenda never approved by Congress. The messaging point has already gone out that when the engineered disasters come, well, it’s just that damn severe weather. 

Reliability concerns, as well as infeasibility, were issues in West Virginia. They will be again. As will law whispering. The Court should know all of the relevant details about E.P.A.’s backdoor scheme when it tackles this latest wave of regulatory abuse. And all Americans should keep this in mind as their formerly first-world electricity grid teeters on hot and cold days in the coming months and years.