by GAO Webadmin
Chris Horner, a GAO attorney on many open docket cases and amicus briefs who inform the courts about what's actually going on in the regulatory attacks we're seeing, published an article in the Wall Street Journal on Monday in which he both topics combined.
This article is based on Horner's recent Journal articles: “EPA defies Supreme Court” (August 2023) and “EPA's misleading climate rules won't stand trial” (May 2024). The common thread is that a nefarious band of regulators have gone far too far beyond their legal standards, being not only too clever but also dishonest. What utter dishonesty should be the downfall of their agenda? But this requires a Trump administration willing to fight back just as hard but strictly adhere to the robust findings of recent Supreme Court precedent.
It has to start now, with the transition. Since it's about the cruel mistress, Horner agreed to provide further insight into how a Trump transition and administration would go about quickly repealing Biden's “rules,” among other things. His comments to the GAO include:
Politico reports that right-wing watchdog groups have filed thousands of Freedom of Information Act (FOIA) requests during Biden's administration. As counsel in dozens of lawsuits involving these and other GAO requests, I have seen a trove of records that, while often heavily redacted, provide sufficient context to raise serious concerns and warrant further review. The Trump administration may review any such records in unredacted form to assess any appearance of wrongdoing.
Agencies are unlikely to cooperate. As part of the 2016 Trump transition “landing team,” I followed the required process to request unredacted copies of certain EPA records, some of which were released under FOIA. They appeared to be very important to the transition team's work in developing the plan for a new administrator. Employees at a career agency rejected my requests and those of others.
On Inauguration Day, the bureaucracy loses that control. This time there should be a commitment to take immediate follow-up action as this is the best chance for a timely repeal of unlawful rules.
Unfortunately, this requires not only a lawyer in each agency's legal department dedicated to identifying errors that require confession, but also, for good measure, a business executive or an IT expert capable of reconstructing overzealous deletions .
According to Horner, it is equally important for the Trump team to recognize that while the Biden Clean Power Plan 2.0 is an important rule, it will undoubtedly fall under the major quests doctrine – perhaps even through a postponement from SCOTUS in the first half of the year next year – the Biden EPA's “series of rules” don't necessarily include all major rules unless lawyers convince the court to consider them cumulatively, as the EPA does. To accomplish this, challengers should embrace EPA Administrator Michael Regan's excited statements admitting that he has pushed through the “set of rules” to enforce exactly what SCOTUS ruled in West Virginia v. EPA , the agency does not have the power to enforce: an agency preference over how Americans get their electricity.
EPA's Regan publicly acknowledged this goal, and apparently others did too in heavily redacted internal documents, even though the agency denied in rulemaking that any power plant shutdowns would occur. It's better to simply take Regan at his word that these rules are a cumulative attempt to accomplish something that the major issues doctrine prohibits and ask the court to accept his own confession.
The GAO argued this in its amicus brief in Kentucky v. EPA, and so should challengers if they are serious. In the meantime, the Trump administration should own up to this mistake and seek repeal of these rules, particularly because of their stunning pretextual rule violation.
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