Washington, D.C. –  Today, the U.S. Environmental Protection Agency (EPA) informed the Energy & Environment Legal Institute (E&E Legal) that it had denied E&E Legal’s petition for reconsideration of the Clean Air Act New Source Rule (111b rule) for new Electric Utility Generation Units.   E&E Legal filed its petition on October 29, 2015 asking EPA to withdraw the rule because, as E&E Legal requests under the Freedom of Information Act (FOIA) had shown, EPA had an unalterably closed mind in producing the rule.  E&E Legal documented this with emails between EPA and outside parties that were never made a part of the record as required.

EPA’s decision to deny the E&E Legal petition, and four others, is unusual – indeed peculiar.  Usually EPA takes years to address such petitions.  Sometimes it ignores them altogether.  Today, however, it fired off the five denials in a manner seemingly intended to upset the legal process.  E&E Legal and several other parties have challenged the 111b rule in the U.S. Court of Appeals for the District of Columbia.  That Court has issued a briefing schedule requiring initial briefs in about 90 days.  The denial of the petitions imposes another legal layer on this process, requiring any appeals of the denials to be filed within 60 days, a month before merits briefs are due in the 111b litigation.

E&E Legal’s General Counsel, Dr. David W. Schnare, a 33 year EPA veteran, after reviewing the denial, concluded, “EPA has fallen below even the depths to which agencies too frequently sink in the lame duck year of an administration.  This has an odor of being the same sort of childish prank as outgoing Clinton administration employees removing the “W” from computer keyboards: everything about the move including particularly its timing seems intended to prevent the next administration from seriously considering the faults with the new source rule.”

He continued, “It won’t work.  The next administration will either double down on the current rules, putting many thousands more coal-country citizens out of work and increasing the price of electricity to the promised “skyrocketing” levels, or it will end the war on coal and look for sensible approaches to protecting human health and the environment.”

EPA is playing games.  E&E Legal and its partners filed petitions for reconsideration for both the new source (111b) rule and the Clean Power Plant (111d) rule simultaneously.  EPA only dealt with the 111b petitions.  EPA’s decision to rule on the 111b petitions but ignore the 111d petitions is an odd departure of agency practice, particularly when petitions for reconsideration on other issues have been languishing for years.  EPA seeks to impact the ongoing judicial proceeding on this issue, as opposed to a legitimate effort to deal with the concerns raised by E&E Legal’s and others’ petitions.

Further supporting this appearance, EPA’s arguments in its denial of E&E Legal’s petition are facially silly and without merit.

E&E Legal argued that EPA failed to place into the record for public comment a number of emails that showed collusion with outside parties during development of the new source rule – ones that also showed EPA was taking orders from green activists, rather than conducting a reasoned rule development process.  This is a form of “ex parte” communication that must be made public.  In its denial, EPA furiously counters charges not made, claiming it can have such communication, which every agency can, yet failed to address the actual argument made: EPA had a duty to put the emails into the public record.

EPA cited to Sierra Club v Costle 657 F. 2d 298, 400-402 (D.C. Cir. 1981) for its claim that ex parte restrictions don’t apply, something E&E Legal did not argue. EPA apparently missed the final holding of that Court, to wit: “The court notes that the Act does not prohibit ex parte contacts during rulemaking but instead requires that written communications and transcripts of oral communications be entered in the record.”  Opps.  EPA didn’t do what the case they cite to for support makes plain it had to do.  So much for that part of their denial.

Second, EPA made the risible claim that the emails only applied to a draft 2011 rule that was withdrawn, not the 2014 proposal.  But, the latter rule is a direct outgrowth of the 2011 rule and to argue otherwise is absurd, as the public record also makes clear.  EPA cannot disclaim what came before and pretend it doesn’t apply, merely because the Agency ended up going to a standard even more strict than what outside parties urged it to do, what the outside parties first drafted the plan for it to do in 2011.  All EPA can show is that it went even further than it was told to go in the emails it refused to place into the public record.

“It isn’t difficult to see why Americans are fed up with Washington D.C.,” Schnare concluded.

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.