DC Circuit Filing Reveals “Pretextual pas de deux”, “Collusive” Litigation Between EPA and Progressive Attorneys General to Vacate Legitimate Ozone Standard, Part of What Advocates Called a “Long Shot,” “Useful Gamble” to Impose Climate Agenda Through Backdoor - Climate Litigation Watch

DC Circuit Filing Reveals “Pretextual pas de deux”, “Collusive” Litigation Between EPA and Progressive Attorneys General to Vacate Legitimate Ozone Standard, Part of What Advocates Called a “Long Shot,” “Useful Gamble” to Impose Climate Agenda Through Backdoor

Amicus Brief also points to ‘silver lining’ outcome if the AGs lose: help climate ‘nuisance’ plaintiffs, as also promised in “Highly Improper” Biden-Harris campaign vow

Emails expose Biden EPA call for 90-day stay to get up to speed; records show EPA’s Acting Assistant Administrator, Petitioners prepared for this moment for more than a year

Suit is culmination of plan — revealed in early Obama EPA memo — to the “shift from making this about the polar caps [to] about our neighbor with respiratory illness…”

The government-transparency group Energy Policy Advocates has filed a Motion for Leave to File a brief as Amicus Curiae in State of New York v. Environmental Protection Agency, which challenges the December 2020 Ozone National Ambient Air Quality Standard or NAAQS. Citing to a substantial volume of correspondence, privilege logs and other documents obtained through public records requests and litigation, the group shows “to vacate a properly enacted Rule… necessarily requiring the agency to promulgate a replacement rule, which it will use as a pretext to attempt a reinvention of the Clean Air Act’s National Ambient Air Quality Standards (“NAAQS”) program as a back door mechanism to regulate non-criteria pollutants, over which EPA has other statutory authority to regulate, but which it has failed to find a legally sanctioned means of regulating …. The replacement regulation the Parties consulted on together was for the purpose of thwarting, rather than implementing, Congressional intent in the Clean Air Act by using a program never intended to serve as an end-run framework for economy-wide decarbonization, to impose a regulatory regime denied the Parties to date.”

Excerpting numerous such records, the group argued to the Court, “The petition in this matter is pretextual and seeks to create an arbitrary regulatory outcome, not to vacate one. Worse, it seeks to do so for what records express to be improper purposes. This Court must uphold the current Rule to prevent such an end-run around current law and sound policy.”

The brief states, among other things (some citations omitted):

The current state of the law is to the Parties’ express frustration, however the Rule is not unlawful, nor is it arbitrary and capricious. 

Sections 108 and 109 of the Clean Air Act (“CAA”) govern criteria pollutants.1 Neither carbon dioxide (“CO2”) nor a greenhouse gas (“GHG”) proxy for CO2 is listed by Respondent USEPA as a criteria pollutant subject to NAAQS. Public records obtained by Proposed Amicus Energy Policy Advocates affirm that the Parties seek the regulatory effect of restricting CO2/GHGs as criteria pollutants governed by NAAQS. Unfortunately and contrary to duly-enacted law, however, they seek to do so without proposing a CO2 or GHG NAAQS, in recognition of the substantial legal and political obstacles to doing so. 

When Petitioner Attorneys General and the Respondent’s official presently responsible for the NAAQS programs, including the Rule at issue, Joe Goffman,2 consulted about how to force greenhouse gas regulations through the CAA’s NAAQS program in late 2019, the AGs were exploring regulating CO2 as a criteria pollutant,3 thereby triggering a CO2 or GHG-equivalent NAAQS. That proposition has long been understood to carry considerable risk.4 President Obama’s first EPA Administrator, Lisa Jackson, rejected a climate NAAQS as not “advisable.”5 One prominent environmentalist group attorney, also seeking to quell controversy over the prospect early in the Obama administration, said “hell will freeze over before there’s a NAAQS for CO2.” 

Records show the Petitioners’ plan evolved out of perceived necessity because of the legal and political obstacles inherent in attempting to declare carbon dioxide a criteria pollutant, and in order to circumvent the federal judiciary’s foreclosure of direct frontal attempts to impose GHG standards in Util. Air Regulatory Grp. v. Envtl. Prot. Agency (573 U.S. 302 (2014) and West Virginia et al. v. EPA, 15-1363, 2019 U.S. App. LEXIS 29593 (D.C. Cir. Sep. 17, 2019). That plan became to try and use a secondary ozone NAAQS to regulate GHGs.

The records EPAA has obtained illuminate in detail how the challenge now before this Court itself seeks an arbitrary and capricious outcome, an outcome that sets in motion a coordinated effort among the Parties to vacate (requiring replacement of) the properly enacted Rule. Petitioners and Respondent, as currently staffed, planned the replacement to include a secondary NAAQS for ozone which transmogrifies the NAAQS program to regulate non-criteria pollutant CO2/GHGs, after activists were frustrated in their pursuits through proper channels. These records reflect a shared objective of Petitioners and Respondent to thereby fundamentally transform the Clean Air Act’s NAAQS provision into an unrecognizable and never intended framework for economy wide decarbonization.

Other emails show former EPA officials now openly turned activists counseling these AGs to use an ozone NAAQS as a GHG regime as “a long shot…[if] possibly a useful gamble.” 

The brief notes another, possibly even more troubling aspect of the friendly litigation:

This approach of using a secondary ozone NAAQS as a “back door” to a desired but unattainable regulatory outcome is improper on its face. Further, however, records detailing the 2019-2020 planning efforts also revealed an alternate desired outcome or “motive” for this challenge, in the event the judiciary rejects a secondary ozone NAAQS as a GHG regulatory scheme. That motive is equally improper: to assist private plaintiffs against private parties in climate “public nuisance” litigation by obtaining a declaration, effectively, that the predominant “nuisance” claims are not in fact displaced by EPA regulatory authority under American Electric Power v. Connecticut, 131 S. Ct. 2527, 2539, 564 U.S. 410, 426 (2011). Given that using the federal government to assist such private plaintiffs is also something the new administration promised to direct its Attorney General to do — highly improperly — by the new administration during the 2020 presidential campaign (see infra), Proposed Amicus also seeks to provide this information to the Court.….

Some of these public records obtained by Proposed Amicus also articulate other purposes for the instant matter. In addition to using the replacement ozone NAAQS, which this suit seeks to necessitate, as a Trojan Horse to import the politically elusive regulatory regime for greenhouse gases, public records demonstrate an improper and illegitimate intended use of the regulatory process here. Records suggest that the Petitioners expect that if their “long shot” “useful gamble” fails to pay off, by losing in litigation triggered by the replacement rule, i.e., originally by this suit, they possibly might provide private tort litigants a better chance of succeeding in “public nuisance” litigation by obtaining a clear declaration that the spate of climate “nuisance” claims are not in fact displaced by American Electric Power v. Connecticut.[1]

Energy Policy Advocates excerpted for the Court correspondence obtained over the course of more than a year of requests, appeals and litigation, concluding, “This Court should decline the Petitioners’ invitation to become entangled in political gamesmanship, or oversee Respondent’s acquiescing in a pretextual suit to vacate a properly adopted Rule for these preordained purposes. It should instead uphold a Rule that was lawfully enacted using the ordinary regulatory process, and leave it to subsequent regulatory processes or legislative enactments to change such a Rule, rather than sanction the described, pretextual pas de deux.”

The Records 

Among the relevant public records obtained by Energy Policy Advocates are documents showing that as of October 2019, at the latest, Petitioners’ offices of attorney general, seeking to force GHG regulation, were consulting with Joe Goffman specifically seeking strategies to reimpose and expand the Obama Administration’s “Clean Power Plan,” which was stayed by the United States Supreme Court in West Virginia v. EPA. Mr. Goffman was at the time employed at Harvard Law School which boasted that he was “’EPA’s Law Whisperer’ because ‘his specialty is teaching old laws to do new tricks’,” and that “he was one of the chief architects of the ground-breaking Clean Power Plan.”[2]

Following initial discussions among themselves about approaching this problem by seeking to declare CO2 a criteria pollutant, Petitioner Offices of Attorney General (“OAGs”) led by New York consulted with Mr. Goffman specifically because the former sought “people who have made the case for using NAAQS” to regulate GHGs. These documents suggest that deliberations with a network of former EPA officials, now turned activists, with whom Mr. Goffman put them in contact led to Petitioner OAGs settling on the use of secondary NAAQS in lieu of openly trying to compel a politically and likely legally unattainable GHG NAAQS, after taking “a hard look at the steps needed to actually develop a GHG NAAQS, as well as to implement it,” and “issues in setting the NAAQS” for “CO2 and other GHG”.  Email Subject fields reveal that OAG consultations with Mr. Goffman and his network, and among Petitioner OAGs included, e.g., “GHG NAAQS — Structure of the discussion tomorrow at 3,” “NAAQS call,” and “GHG calls debrief.”

Mr. Goffman arranged for former senior career EPA officials to counsel these OAGs, led by New York, telling former Associate Director for Science Policy and New Programs John Bachmann, inter alia, “You may be able to talk [New York OAG’s Michael Myers] through the some [sic] NAAQS issues and/or identify others who would be good to talk to.” Records show that Mr. Bachmann then explained at length the reasons for and means of using a secondary ozone NAAQS as the backdoor to obtain the desired greenhouse gas regulatory regime. 

The challenge filed in the DC Circuit last month and led by New York seeks to vacate the Rule, manifesting that plan devised months ago by activists now appearing as friendly litigants.

Mr. Bachmann provided Petitioner New York an unambiguously titled document “ClimateNAAQS.ppt”, which New York then circulated to other Petitioner OAGs as part of their extensive follow-up on Bachmann’s recommended course, leading to the instant matter. Bachmann noted that “new legislation requiring specific actions would be much better than NAAQS, and yet I’m mindful of the obvious problem of how to get such legislation even with a new administration”. His “ClimateNAAQS.ppt” slide show stated, inter alia:

Policy Assessment decisions

• Primary standards: GHG do not cause health effects, but subsequent changes in climate can do indirectly

• But Primary NAAQS attainment date is 10 years after designation

• Secondary Standards: Climate is listed in the Act as a welfare effect

• Secondary Standards attainment “as expeditiously as practicable”

Petitioners’ consultation with Bachmann, which addressed the impracticality of seeking to impose NAAQS by declaring CO2 or GHGs as criteria pollutants — which has the added political burden of requiring standards be attained in ten years, while a secondary NAAQS (for e.g., ozone, particulate matter) has no such deadline — led to Bachmann’s suggestion that “We can test run a GHG NAAQS now” using secondary NAAQS.[3]

Supporting the secondary NAAQS approach were suggestions passed through Bachmann to Petitioner OAGs from retired EPA Office of General Counsel lawyer Nancy Ketcham-Colwill, after Bachmann spoke with Petitioner New York OAG and explained the OAGs’ wishes to both Ms. and Mr. Ketcham-Colwill.[4] The Ketcham-Colwills provided counsel on “using the NAAQS for GHGs,” in an email conveyed by Bachmann, that:

First, the most promising avenue for using the NAAQS may be to set just a secondary NAAQS (no margin-of-safety conundrum, no statutory attainment deadline). The ANPR discusses that option and there’s a decent legal argument for it since GHGs don’t directly (e.g., through inhalation) harm human health and the first listing criterion is whether the pollutant is reasonably expected to endanger public health OR welfare. The CAA definition of welfare include effects on climate, and Congress added that effect to the welfare definition in 1970 out of concern for anthropogenic climate change…

As we discussed, a NAAQS, even a secondary NAAQS, would take lots of time to implement, so is both a long shot and a longer-term strategy, when what we need is something more sure-fire and quick. But that would take legislation. Personally, we strongly believe that the next Administration should have a double-barrel strategy of pushing for legislation AND moving forward with CAA regulation (and other measures) in case Congress stalls out, as usual…

In our note yesterday we had said that even a 2dary NAAQS would surely be set below current levels given the CAA standard-setting criteria, but perhaps an argument might be made that current levels haven’t bought us dangerous warming — yet (the effects of CO2 concentrations take years to fully assert themselves). The standard-setting criteria for 2dary standards call for protecting public welfare from “any known or anticipated adverse effects,” so just avoiding “dangerous” warming might not cut it, particularly since climate change is already fueling more fire, floods, extreme weather, etc. But setting a NAAQS at current levels would avoid nonattainment NAAQS requirements for a while. Actually, the NAAQS would probably need to be set at the CO2 level expected for the time period relevant for designations. 

The science and statute would make a maintenance level NAAQS a hard sell and short-lived, but it’s another interesting angle and possibly a useful gamble.

As Energy Policy Advocates noted to the Court, “This “long shot,” “useful gamble” does appear, from the available record, to be where Petitioners ended up after consulting with Goffman, and the parties to whom Goffman referred Petitioners. Proposed Amicus respectfully states that Petitioners and Respondent have no interest in maintaining the standard that went into effect in December after the most recent notice and comment rulemaking. 

Keeping up the pretext, this week the Biden EPA sought to hold the suit in abeyance for 90 days, to give great thought to the collusive effort and discern what its position ought to be.

In truth, and as these records further affirm, this plan now initiated is in furtherance of the reframing of climate as set forth in a 2009 Obama EPA memo, obtained for the Competitive Enterprise Institute in its “Richard Windsor” FOIA litigation: the “shift from making this about the polar caps [to] about our neighbor with respiratory illness…”, acknowledged by the Obama EPA as necessary due to “climate change in the abstract [being] an increasingly – and consistently – unpersuasive argument to make.”All of which is useful to bear in mind in the upcoming campaign to insist that the backdoor effort, cynically undertaken to avoid political accountability for an agenda the public does not support, is really about air quality and “our neighbor with respiratory illness.”

[1] Further troubling and adding to concerns that this, too, is or will be pursued as a shared objective of the regulatory actions set in motion by the instant case is that the new administration ran for office vowing to deploy its Department of Justice to assist the same plaintiffs in private litigation. See, specifically, “Biden will instruct the Attorney General to…(iii) strategically support ongoing plaintiff-driven climate litigation against polluters.” https://joebiden.com/environmental-justice-plan/ (last viewed February 11, 2021). Similarly, Proposed Amicus also notes correspondence it obtained of Bachmann pointing Petitioner New York OAG to a then-recent law review article convincing him that “there are reasons to push a GHG NAAQS approach other than an intent to actually do one.” Howard M. Crystal et al., Returning to Clean Air Act Fundamentals: A Renewed Call to Regulate Greenhouse Gases Under the National Ambient Air Quality Standards (NAAQS) Program, 31 Geo. Env’t L. Rev. 233, 235 (2019).The article argues, inter alia, that even losing an effort to obtain GHG through NAAQS, in court, might nonetheless erode the defense of private parties sued in an ongoing epidemic, coordinated in part by the same Petitioners according to other public records of “public nuisance” climate litigation. American Electric Power v. Connecticut. “To be sure, in 2011 the Supreme Court ruled that federal nuisance claims against power plants over greenhouse gas emissions are displaced by Clean Air Act Section 111, because that provision expressly provides for the EPA to regulate those plants’ greenhouse gas emissions (which it did with the CPP). However, in more recent cases defendants and their allies are arguing that even entities that are not regulated under Section 111 remain immune from tort liability, on the grounds that any and all such regulation of greenhouse gases must be done by the EPA in light of its comprehensive power under the Clean Air Act. If it turns out the EPA cannot enact a greenhouse gas NAAQS, these defenses to climate change tort suits will have less force. Accordingly, resolving the scope of the EPA’s power to regulate under a NAAQS—even if it meant Congress expressly removing that power—may be an improvement over the current status quo, under which the possibility of a greenhouse gas NAAQS theoretically exists, but the EPA refuses to act.” Crystal, et al. at 283 (citations omitted)).

[2] “Joseph Goffman joins Environmental Law Program as new executive director,” October 2, 2017,

 https://today.law.harvard.edu/joseph-goffman-joins-environmental-law-program-new-executive-director/ (last viewed February 11, 2021).

[3] “[R]ecommending that climate be considered in setting a secondary PM NAAQS as a basis for recommending the same thing for ozone during public comments I’ll deliver in person at CASAC’s December 5th meeting down here. Ozone is short lived climate forcer, and it would force more attention on methane as a precursor. We can test run a GHG NAAQS right now……”(ellipses in original) Also, “recommendations to consider the effects of climate in the review of the secondary standard for ozone.” 

[4] “Nancy and Jim Ketcham-Colwill who worked on parts of the [2008 GHG ANPR] at EPA [who] had thoughts on some retired EPA lawyers and I’ve left a message with probably the best one for your purpose.” https://climatelitigationwatch.org/wp-content/uploads/2021/02/20201123-VT-OAG-Records-Produced-Redacted-Final.pdf