Transparency-In-Government Group Files Amicus Brief Exposing EPA Flouting Doctrine Against Pretextual Rulemaking


“Whole of government,” backdoor “climate” agenda placed before D.C. Circuit


April 5, 2024: This morning, Government Accountability & Oversight (GAO) filed an Amicus Brief in the U.S. Court of Appeals for the D.C. Circuit in Commonwealth of Kentucky, et al., v. EPA. The brief sets forth how EPA’s recent tightening of the primary standard for particulate matter is an improper pretextual (i.e., backdoor) rule to force “expedited retirements” of politically disfavored facilities in the name of “deciding how Americans will get their energy.” The U.S. Supreme Court ruled in 2022 in West Virginia v. EPA that deciding where Americans get their energy was outside the authority Congress assigned the agency.

As GAO’s brief notes, “So long as one takes Respondent Regan at his word, the Rule is a pretextual attempt to achieve through the back door what the Agency has so far not managed to do through the front door, but without proposing a CO2 or [greenhouse gas] NAAQS in recognition of the substantial legal and political obstacles to doing so, including Supreme Court precedent…. To believe the Administrator’s own words, or not to believe—that is the question.”

FOIA’d emails, often heavily redacted yet highly instructive, support Regan’s March 2022 boast that the Agency planned to tighten every screw at its disposal to force greenhouse gas (GHG) reductions. Such inventive use of regulatory authority is the highly touted specialty of Assistant Administrator for Air Joe “the Law Whisperer” Goffman, hailed for “teaching old laws new tricks”. West Virginia barred the practice as a viable means of imposing such grand projects.

The Administrator euphemized his plan as a “suite of rules”, using “all the tools in the toolbox.”

The White House calls it “whole of government approach” and, risibly, “Advanced smart rulemaking,” with specific references to rules that would issue—under authorities not provided by Congress for the purpose of GHG reduction—for the purpose of GHG reduction.

West Virginia v. EPA was handed down little more than three months after Administrator Regan boasted of his “suite of rules” approach, turning what was at the time already a scofflaw position into a brazen one, were the Agency to persist. It did. In fact, the night that West Virginia was issued, Regan “doubled down” on his gambit in an interview on PBS’s NewsHour. As the brief notes, however, the administrative record contains no hint of this factor actually considered.