TRANSPARENCY-IN-GOVERNMENT GROUP FILES AMICUS BRIEF EXPOSING EPA FLOUTING DOCTRINE AGAINST PRETEXTUAL RULEMAKING

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 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 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."

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.

As GAO's brief notes, the Rule is further in violation of the U.S. Constitution because the object of the pretext-forcing what Regan called "Expedited retirements"-is outside EPA's authority.

Chris Horner, another attorney representing GAO, said, "The Supreme Court enforced the doctrine against pretext on the hunch that there may have been more reasons why the Commerce Secretary proceeded with a citizenship question in the 2020 census than just those in the record; that standard was good enough for the Trump administration and is better here, with no guesswork required thanks to Administrator Regan's candid boast about his backdoor plan to force disfavored facilities to close. He offered specifics, making this Rule just one of many rules he cited to which now much receive pretext and, as a result, major questions analysis."

These plans were never altered even after the Supreme Court rejected "What EPA called 'generation shifting' at the grid level-i.e., a shift in electricity production from higher- emitting to lower-emitting producers." West Virginia v. EPA, 142 S. Ct. 2587, 2593.

EPA persisted, pretextually seeking to force premature closure of reliable generation in the face of a crisis of reliability, the critical importance of which EPA acknowledges. 

https://govoversight.org/release-transparency-in-government-group-files-amicus-brief-exposing-epa-flouting-doctrine-against-pretextual-rulemaking/