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As the Trump administration nears a decision on whether to reverse the landmark regulatory declaration that launched the “Green New Deal” movement, the legality and political motivations of the Obama-era environmental regulators are getting a fresh, hard look.
Emails reviewed by Just the News show that Environmental Protection Agency regulators who helped craft the 2009 “endangerment finding” — which declared greenhouse gases could be regulated because they risked public health — were preparing to impose the regulatory powers of the endangerment finding even before the science was wrapped up.
The emails also show there was an open discussion inside the Obama EPA about trying to score a win for liberals in what was supposed to be a scientific process. “You are at the forefront of progressive national policy on one of the critical issues of our time. Do you realize that?” Georgetown law professor Lisa Heinzerling wrote then-EPA Administrator Lisa P. Jackson on Feb. 27, 2009. “You’re a good boss. I do realize that. I pinch myself all the time.”
A day earlier, Heinzerling estimated that the finding would be finalized in August or September 2009, but that imposing regulations like new car emission standards could occur ahead of the science being wrapped up.
Experts told Just the News such communications — which mostly have been relegated to insiders and trade publications — could provide a powerful messaging tool if Trump EPA Administrator Lee Zeldin decides to reverse the endangerment finding.
And there’s also a trove of emails yet to be released but itemized on a log of documents the Obama administration insisted on hiding from the public by declaring them “privileged.” “I believe the privilege logs support that the [Obama] administration came in determined to do what they then went through the public motions of producing,” Chris Horner, an environment and energy policy attorney, told Just the News.
Politics preceded the science
When President Donald Trump took office in January, his “Unleashing American Energy” plan ordered EPA to review the agency’s “endangerment finding,” which has been the basis for much of the federal government’s emissions-focused climate policy. The Trump administration could make its decision as early as this week.
In February, Zeldin reportedly asked the White House to strike down the finding. The 2009 finding, which determined that greenhouse gasses were a risk to public health, allowed for the regulation of greenhouse gas emissions under the Clean Air Act.
Frisbees and flatulence
In October 1999, the International Center for Technology Assessment (ICTA), a D.C. think tank, submitted a petition to the EPA seeking regulation of greenhouse gas emissions under the Clean Air Act. The request was denied, and the group took their request to the Court of Appeals for the District of Columbia, which upheld the denial.
Massachusetts along with 10 other states, cities and nonprofit organizations, including the Sierra Club and the ICTA, petitioned the Supreme Court on the issue. In a 5-4 decision in 2007, the high court ruled in Massachusetts v. EPA that greenhouse gas emissions fit the Clean Air Act’s definition of an “air pollutant.” So the EPA needed to determine if emissions endanger public health and welfare of the public, or if the science is too uncertain to make such a determination.
In his dissent, Justice Antonin Scalia argued that, by the majority’s reasoning, “everything airborne, from frisbees to flatulence, qualifies as an ‘air pollutant.’” The ruling did not order the EPA to regulate greenhouse gas emissions. It only set forth a reasoned basis for making a determination of whether or not the agency should do so.
In December 2008, at the end of the Bush administration, then-EPA Administrator Stephen Johnson issued what became known as the “Johnson memo,” which did not find endangerment from greenhouse gas emissions.
Aliases and agendas
On Jan. 21, 2009, less than a month after the “Johnson memo” was released, former President Barack Obama was sworn into office. Lisa Jackson was selected to head the EPA. In 2012, Horner, who was then a senior fellow with the Competitive Enterprise Institute, discovered that EPA officials, including Jackson, were using pseudonymous alias email accounts. Jackson used the alias “Richard Windsor” Politico reported.
The EPA at the time claimed the use of alias accounts wasn’t meant to shield official business from open records laws, but rather it was meant to filter out millions of emails sent to publicly available accounts so that internal communications flowed more smoothly.
A week after Obama was sworn in, heavily redacted emails to Jackson, which attorney Horner obtained through Freedom of Information Act (FOIA) requests, show Jackson, who was using an email pseudonym, held meetings between Lisa Heinzerling, a professor of law at Georgetown University who wrote the briefs in Massachusetts v. EPA, and climate modelers. The purpose of the meetings was to begin assessing endangerment in response to Massachusetts v. EPA.
