The Return of Sue and Settle

by Chris Horner.

Today, Energy Policy Advocates filed a motion for leave to file a brief as amicus curiae in State of New York vs Environmental Protection Agency in the DC Circuit. This is the challenge to EPA’s ozone rule maintaining the current standards, filed by progressive state attorneys general and New York City the day before the Biden EPA took the reins. 

You may recall a 2009 Obama EPA memo, obtained for CEI in the “Richard Windsor” FOIA litigation, laying out the intended reframing of the climate campaign — 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.” This suit is a continuation of that.

Today’s amicus brief builds on and provides the documentary support for a filing by 6 states (TX, joined by AR, LA, MO, MS, MT) which last week sought to intervene citing similar concerns: that the administration seems to be preparing to invoke a “climate crisis” to replace the just-adopted Rule, and that “The intervenor States cannot trust that the federal government will serve as adequate representatives of their interests—or that it will provide an adequate defense of the 2020 rule—going forward.” 

The records excerpted and linked to in today’s brief suggest that fewer truer words have been written in this context than those.  The brief shows that the AGs and the Biden Administration’s Acting Assistant Administrator with responsibility for the Rule consulted on using a replacement, secondary ozone NAAQS — before this Rule was even proposed — as a backdoor to impose a CO2/GHG national standard. This was so radical — as the brief also points out — that Obama’s EPA administrator and green groups at the time worked hard to dispute that they would seek a climate NAAQS. 
My, how things have changed, as the cited emails, privilege logs and other documents (e..g, “ClimateNAAQS.ppt”) attest.

Further, the brief points to records revealing an ulterior motive, a stated silver lining in the event the Petitioners lose: to obtain a declaration that EPA regulations do not displace *all* GHG regulation, in hopes of circumventing that defense employed by energy companies sued in the epidemic of “climate nuisance” litigation.

Energy Policy Advocates suggests to the Court that these factors warrant a hard look at what is sure to soon be sue-and-settle, Step 1

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February 23, 2021 at 04:44AM

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