The Senate Environment & Public Works Committee last month issued a damning 73-page report, by the Committee’s Majority Staff, exposing the widespread and corrupting use of “sue and settle” practices by the federal Environmental Protection Agency (EPA), under the Obama Administration, to form and promote its policies. It’s not pleasant reading, and citizens who favor transparency, accountability, and equal access and oppose secrecy, autocracy, and favoritism in government agencies need to be aware, while Congress needs to pass legislation outlawing such behavior not just by EPA but by all federal agencies.
Robert L. Bradley Jr. published a brief article on the report in The Hill. The report itself, Obama’s Carbon Mandate: An Account of Collusion, Cutting Corners, and Costing Americans Billions, is online, and here are the executive summary and key findings:
The U.S. Senate Committee on Environment and Public Works (EPW or Committee) has been conducting oversight of the U.S. Environmental Protection Agency’s (EPA or Agency) efforts to overhaul America’s electricity generation in the name of combatting global climate change.
Since September 2014, the Committee’s oversight has centered on the role played by the Natural Resources Defense Council (NRDC) among other environmental activists in influencing the policy options, technical support, legal rationale, and public relations campaign for these rules.
This Majority Staff Report provides an unprecedented look into the inner-workings of EPA’s rulemaking process – from the time the Agency entered into “sue-and-settle” agreements with environmental activists in 2010 through its June 2014 proposal to limit carbon emissions from existing sources. This Report, for the first time, exposes in depth how the settlement process was abused in a way that prevented the American people and those parties responsible for implementing the rules from knowing basic details of EPA’s plans to regulate, let alone from participating in the process.
This Report is a product of the EPA and NRDC documents obtained by the Committee thus far. These documents reveal excessive email exchanges on not only official government accounts but also use of private or alias accounts by senior EPA officials, meetings at EPA and off-site locations, and phone calls between NRDC and EPA staff dating back to early 2011. In particular, these exchanges demonstrate how EPA and NRDC sought to push the outer limits of EPA’s Clean Air Act authority and to develop the analysis on which these highly controversial and legally suspect proposals are based. Despite public statements by EPA officials to the contrary, documents confirm that NRDC played a very integral and major role in developing these EPA policies.
It is also clear from the documents that the EPA policy makers and environmental activists involved had cozy relationships with each other on not only a personal level but through like-minded activism from years of working together. Indeed, the revolving door has swung freely between the Obama Administration and the environmental activist community.
Although documents suggest EPA and the environmental activists may have not always agreed on tactics, they worked incessantly over the years to develop a unified public message in support of these rules. Such efforts included coordination on press responses and sessions with the White House to discuss messaging. Further, this Report describes efforts to shift the public debate away from using cap-and-trade to fight climate change to touting these rules as needed to limit carbon emissions from power plants to ostensibly improve public health.
Critically, documents illustrate that EPA seemingly misjudged its ability – or was too willing to appease its environmental allies – to appreciate the complexity of the task at hand. EPA initially agreed to finalize rules for new, modified, and existing sources by May 2012, less than a year and a half after the settlement was reached and well within President Obama’s first and potentially only term. That timeline quickly proved unrealistic as EPA realized these rules could cause political problems for the President or add to a regulatory “train wreck” during an election year. Despite environmentalists’ angst over completing the rules before the 2012 election, EPA sought to manage the groups’ expectations until after the President’s reelection. Finally, this Report documents how in 2013 President Obama launched an all-hands-on-deck climate strategy in the form of his Climate Action Plan to quiet threats of additional litigation from environmental activists and to set in motion executive action for what he could not achieve through legislation in order to fulfill his initial climate campaign commitments before leaving office.
- The Environmental Protection Agency (EPA) efforts to regulate carbon emissions from power plants were driven by Obama Administration officials and environmental activist groups who worked to fulfill the President’s climate commitments following the defeat of climate legislation in Congress and lack of support for an international climate treaty. – pages 15-17, 29, 50, and 56
- EPA rushed into a “sue-and-settle” agreement with the Natural Resources Defense Council (NRDC), other environmental activists, and several state and local governments in 2010 to issue unprecedented carbon regulations with little regard to the technical, legal, and policy challenges that that these rules would present. – pages 14-19, 21, 26, 30-39, 45-48, 56, and 61
- EPA played politics with the regulatory process by trying to manipulate rulemaking deadlines to avoid a public backlash close to the 2012 Presidential and 2014 midterm elections, and to push implementation of the rules to the next Administration. – pages 16, 17, 31-34, 40-49, 55, and 64
- The carbon rules were the product of the quintessential “sue-and-settle” scheme where EPA and environmental activists, such as NRDC, continued to negotiate behind closed doors, changing regulatory actions and deadlines without providing the public meaningful notice or opportunity to comment. – pages 17-19, 24, 26, 31, and 40-45
- EPA officials repeatedly misled the American people, the news media, and Congress about their negotiations with environmental activists and the contribution made by these activists to the development of the carbon rules. – pages 4-6,43, 47, 48, 54, 62-64, and 67
- The White House, EPA, and environmental activists worked together to manage the public message on the carbon rules. – pages 28-29, 33-35, 39, 46, 47, 50-51, 54, and 68
- The litigation settlement provided the environmental activists significant leverage to drive the timing of EPA’s rulemaking and to influence the scope of its policies. – pages 30-32, 35, 40-46, and 67
- EPA’s process for developing the carbon rules appears to have deviated from the Agency’s statutory authority under the Clean Air Act and established policies and circumvented transparency laws and public participation requirements. – pages 22, 23, 28, 32, 43, 48-49, and 62-64
- Attorneys with NRDC and other environmental activist groups have worked with EPA to shore up the shaky legal basis for the carbon rules, issuing public statements criticizing opponents of the rule and submitting detailed legal analyses for EPA to rely on and cite in its rulemaking documents. – pages 59-68
- EPA and environmental activists had cozy relationships and egregiously used personal emails and held meetings away from EPA headquarters, thereby avoiding public transparency. – pages 20, 22, 25, 28, 39, 43, 48, and 54-56