EPA’s Zeldin strategizes changes to Obama-era climate rule that would withstand enviro litigation

While there are several routes EPA Administrator Lee Zeldin could take to overturn the determination, his public statements over the past two months suggest he’s pursuing a strategy in which the review of the determination is done with an eye toward making any outcomes of that review survive the inevitable legal challenges.

“So let’s just be honest with the way we conduct science. Let’s not bias it, whatever the results show. We make informed, educated decisions based off of it, and we should be maximum transparent with the public,” Zeldin said on the “Just the News, No Noise” TV show.

Climate legislative effort

In 2007, the Supreme Court ruled in Massachusetts v. EPA that the agency under George W. Bush erred in 2003 when it denied a petition from a group of private organizations to regulate greenhouse gas emissions from new motor vehicles, which the petitioners argued were causing climate change. The court’s ruling didn’t require the EPA to regulate the emissions, but it gave the EPA the authority to determine if those emissions pose a risk to health and human well-being.

Emails reviewed by Just the News in March showed that officials at Obama’s EPA were preparing to impose the regulatory powers of the endangerment finding well before the proposed finding was issued in April 2009.  For example, Lisa Heinzerling, a professor of law at Georgetown University who wrote the briefs in Massachusetts v. EPA, emailed then-EPA Administrator Lisa P. Jackson, who was using the alias “Richard Windsor,” with an attached memo related to the EPA’s activities on power plants.

Heinzerling had included the memo to prepare Jackson for a meeting with Carol Browner, an environmental lawyer who previously served as EPA administrator during the Clinton administration, and Browner’s team. Chris Horner, an environment and energy policy attorney, obtained the emails through a Freedom of Information Act request in 2013, when he was with the Competitive Enterprise Institute. While the email was released in response to the request, the attached memo was withheld in full.

Emails also show Heinzerling and Jackson in correspondence with David McIntosh, former lawyer for the Natural Resources Defense Council and principal advisor to Jackson on legislative climate issues, concerning his work with climate modelers. The emails began as soon as Jackson became head of the EPA.

“On Monday EPA career staff and I met with Waxman staff to discuss the modeling needs of their climate legislative effort,” McIntosh wrote to Jackson in a heavily redacted email dated Jan. 31, 2009.

The email refers to the staff of Henry Waxman, a Democrat who served as a representative of California from 1975 to 2015. Waxman sponsored a bill in 2009 that would have capped greenhouse gas emissions, and he offered an amendment to the Stop the War on Coal Act of 2012, which would have removed language from the bill repealing the endangerment finding. The House passed Waxman’s bill, but the Senate took no action on it. The House rejected his amendment.

Unorthodox approach

This bias toward developing science in service of a political agenda may have been the reason that the agency took what Zeldin’s EPA is calling an “unorthodox approach” to making a determination. This approach, Trump officials say, also ignored the impact of regulations that would follow the determination.

“The 2009 Endangerment finding has had an enormously negative impact on the lives of the American people. For more than 15 years, the U.S. government used the finding to pursue an onslaught of costly regulations — raising prices and reducing reliability and choice on everything from vehicles to electricity and more,” Energy Secretary Chris Wright said in an EPA statement announcing the intention to review the finding.