For Immediate Release:
March 10, 2014

Craig Richardson
[email protected]

EPA’s Endangerment Finding, Proposed “New Source Performance Standard” (NSPS) Marred by Collusion and Predetermined Agenda with Leftist Green Groups

E&E Legal Files Regulatory Comment Arguing NSPS Is Unconstitutional

Washington, D.C. – In a formal regulatory comment submitted today, the Energy and Environment Legal Institute (E&E Legal), with assistance of the Free Market Environmental Law Clinic (FME Law), affirms that senior officials within the U.S. Environmental Protection Agency (EPA) came into the agency having predetermined the current “war on coal” that it holds out as being the product of internal deliberation and a public rule making process. Also, discovery of widespread private email accounts by senior Agency officials involved with this project, wholesale destruction of all text messages by the past two administrators, and a “naked transfer of wealth” all establish that EPA’s global warming rules lack a constitutional basis.

Within days of President Obama’s first inauguration, EPA officials like former Administrator Lisa Jackson, current Administrator Gina McCarthy, and former policy chief Michael Goo conducted a secretive and collusive campaign with groups like the Sierra Club to use carbon dioxide or CO2 emissions to pursue the campaign to bankrupt the coal industry in America.

As early as February 8, 2009 emails show an administration officials privately corresponding about “the endangerment finding” — which EPA claims compelled its current rules to shut existing and ban new coal-fired power plants — though EPA only claimed to have arrived upon this controversial move as a result of a proper consideration of the evidence ten months later. This came, coincidentally, as then-Administrator Jackson left for the failed Kyoto Treaty talks in Copenhagen, where she arrived to a hero’s welcome from Europeans because of this move.

However, “emails reveal the administration improperly colluded with green pressure groups, from which most of these EPA officials came, and that the rule making was a farce, with the outcome predetermined,” said FME Law attorney Chris Horner. “The public never in fact had the ability to participate in the process after all.”

Horner explains that the record supposedly underlying the EPA’s “global warming” agenda is incomplete thanks to two practices known within the Agency that flagrantly violate several federal laws. These are the epidemic use by appointees of nonofficial email accounts to move select correspondence outside of EPA control, subjecting them to destruction of an extent unknown but which the courts are going to have to compel EPA to find out; also, the wholesale destruction of every one of thousands of text message transcripts for correspondence by the past two administrators, and, the evidence suggests, other officials provided that alternative to email.

E&E Legal submitted these facts in comments on EPA’s proposed New Source Performance Standard (NSPS), which takes aim at coal-fired power plants on the basis of CO2 emissions. As with the endangerment finding, the EPA is carrying out this rule making process in collusion with the same groups it aligned itself with from the very start of the Obama Administration, from which it drew much of the team crafting the agenda.

While what these emails confirm may seem axiomatic given then-candidate Obama’s vow to “bankrupt” coal-fired power plants in this country, and then-candidate Joe Biden vowing “No new coal plants here in America,” it is not legally permissible. E&E Legal further explains how these vows, the collusion, and President Obama’s serial admission that his objective was to “finally make (renewable energy sources) profitable” violate others’ constitutional due process rights, abusing the state’s police powers for impermissible ends.

E&E Legal also makes the case in its comments against the constitutionality of what the courts call a “naked transfer of wealth”, in this case from a politically deselected industry, coal, and those who burn it to produce electricity to “renewable” energy companies, which have been at the heart of exposed “crony capitalism” in this administration.

“The NSPS is a blatant attempt to implement the vows to ‘bankrupt’ a politically deselected industry so that they ‘finally make (the political welfare case of windmills and solar panels) profitable’ — both of which objectives President Obama admitted to,” said Horner.

E&E Legal argues that the proposed rule, which seeks to control greenhouse gases (GHG) under the Clean Air Act, are unconstitutional as a substantive due process violation of the Fifth Amendment because it constitutes a naked transfer of wealth from one sector of the electric generation industry to other entities of that industry.

“While EPA argues the rule is necessary to ‘protect’ Americans from unsubstantiated and unproven threats related to greenhouse gases, in reality the rule is just a continuation of the war of coal, which seeks to bankrupt the industry, and by doing so, allow other power sources that cannot stand on their own to take up the void that remains,” said David Schnare, E&E Legal’s General Counsel. “From a legal point of view, and based on case law, NSPS is a naked preference for non-coal electricity generation, a naked transfer of wealth from the coal industry to natural gas and renewable energy generators, and one lacking in a rational basis and outside the zone of reasonableness, and this is clearly unconstitutional.”

The Energy & Environment Legal Institute (E&E Legal) is a 501(c)(3) organization engaged in strategic litigation, policy research, and public education on important energy and environmental issues. Primarily through its petition litigation and transparency practice areas, E&E Legal seeks to correct onerous federal and state policies that hinder the economy, increase the cost of energy, eliminate jobs, and do little or nothing to improve the environment.

The Free Market Environmental Law Clinic (FME Law) provides litigation and research services to qualified clients. We concentrate on cases involving landmark free-market pro-environmental litigation; use of open records and data quality laws to force greater governmental accountability and transparency; and, cases that allow the Clinic to help create the next generation of free market oriented attorneys.