Group tells court EPA took ‘marching orders’ from lobbyists

Source: Ellen M. Gilmer, E&E reporter • Posted: Tuesday, February 23, 2016

As a throng of challengers file legal briefs criticizing the Obama administration’s Clean Power Plan as overreaching and unconstitutional, one group is stepping forward with a simpler, but serious, allegation: U.S. EPA let lobbyists write the rule.

The Energy & Environment Legal Institute told the U.S. Court of Appeals for the District of Columbia Circuit on Friday that EPA’s controversial climate rule should be sent back to the drawing board because the agency crafted provisions of the plan through “backdoor dealings” with environmental lobbyists.

“Clearly EPA was taking its marching orders from outside the agency,” said David Schnare, general counsel for the conservative watchdog group. “Well, that’s against the law, frankly.”

In its filing and a related report, the legal institute refers to specific ex partecommunications between Michael Goo, a former senior policy adviser at EPA, and staffers at the Sierra Club, Natural Resources Defense Council and Clean Air Task Force. The group says Freedom of Information Act requests revealed emails from 2011 in which Goo used both his official and personal email accounts to share planning documents and drafts of rule provisions with members of the environmental groups. Goo previously worked as NRDC’s climate legislative director.

EPA and the Clean Air Task Force declined to comment on the allegations. David Goldston, director of government affairs for NRDC, said the group stands by its advocacy work.

“NRDC advocated for a plan to cut carbon pollution in a way that maximized utility flexibility and minimized cost,” he said in an emailed statement. “We stand behind our work to ensure citizen input in public policymaking.”

The Sierra Club also defended its efforts, noting that the emails with Goo came before EPA’s Clean Power Plan proposal and addressed concepts that did not form the basis of the Clean Power Plan.

“The Sierra Club has a very effective Beyond Coal campaign and we have been aggressively fighting to protect our air, our water, and our communities from toxic coal pollution for years,” spokesman Adam Beitman said in an email. “So, no one should be surprised that our work includes contacting public officials. … Of course, distorting the facts to help big polluters is par for the course for the fossil fuel front group pushing these attacks.”

The legal institute has been tracking EPA communications with interest groups for years and released a report last summer making similar claims about emails between agency officials and environmental groups during the Clean Power Plan rulemaking process (EnergyWire, Aug. 3, 2015).

“The result of this deficiency is that commenters could not have known that the Rule was drafted through such extensive ex parte contacts with environmental groups with whom Mr. Goo once worked when employed by NRDC,” the group said in the filing. “Such secrecy is inconsistent with fundamental principles of due process, fair notice, and accountable government.”

The legal institute’s filing was separate from the two opening briefs filed by more than 150 states, utilities, coal companies and business groups Friday (EnergyWire, Feb. 22). Those briefs focused on core legal issues and procedural problems with the Clean Power Plan and were subject to strict word counts from the court. Schnare said his group, represented by the Free Market Environmental Law Clinic, made a supplemental filing — which has not yet been formally accepted by the court — to emphasize transparency concerns that did not make it into the other briefs.

“When you have 82 lawyers around a table trying to sort out who gets which words and who gets to hold the pen, some issues just don’t get the space,” Schnare said. “When ours got carved, we were the only ones standing up and saying, ‘Look, these transparency issues are critical to our client.'”

He added that he’s not sure the D.C. Circuit will agree to consider the institute’s arguments when the judges already have 40,000 words’ worth of briefing against the Clean Power Plan but argued that the transparency issue is critical and distinct from the other legal contentions.

“It’s just such a different perspective,” he said. “We don’t know what the court will do. At least the concepts are out there, and they’re in the public.”