Elections Have Consequences: EPA Version

I am posting this because, while some may be shocked, it seems to me that this is what actually happens. You can get all the advantages of learning this, without having to live in Washington D.C.!

People get elected. They have friends who helped elect them. Friends want favors. Agencies grant them. Scandalous, or the natural consequences of a Presidential election? I think it might be interesting to talk about where the line should be. What do you think?

And for those who wonder about how EPA is related to forests.. well here are a few examples. 1. Review of FS and BLM NEPA documents 2. Carbon accounting 3. Forest roads.

Here’s the link to the story and below is an excerpt.

The documents also reveal some of the internal deliberations behind recent controversial EPA decisions, such as the locations of public hearings on an agency rule imposing stringent emissions limits for power plants.

The agency came under fire from legislators representing coal-producing states for holding those hearings far from regions where most of the nation’s coal is produced.

“Instead of the EPA holding a coal hearing in the heart of Coal Country, Kentucky, he has chosen locations such as San Francisco and Washington, D.C.,” Senate Minority Leader Mitch McConnell (R., Ky.) said at the time.

McConnell accused EPA of “once again showing its contempt for Kentucky’s coal miners and their families.”

Emails released by EELI show that EPA decided on the locations for those hearings after consulting with leading environmentalist groups that advocate the complete phase-out of coal power.

“San Fran and Seattle would be friendlier forums but CA has no coal plants and WA is phasing out its one plant,” noted EPA region 8 administrator James Martin in an email to Vicki Patton, general counsel at the Environmental Defense Fund (EDF).

“Choosing either may create opportunities for the industry to claim EPA is tilting the playing field,” Martin told Patton. “Denver would not have that problem.”

The EPA would later deny that Martin used a personal email for EPA business. The FOIAed messages reveal that that was not the case. His email to Patton was sent from a “.me” address.

Martin also advised Patton that hearings in Denver could be used to pressure the natural gas industry. “The gas industry has way more presence here, too. One last point in its favor–it will make Roy Palmer nervous!” he wrote.

Palmer is an executive at Xcel Energy, a leading natural gas utility in Colorado.

6 Comments

    • The Energy and Environment Legal Institute here’s a link..

      Here’s what they state about environmental group litigation

      Related to this, experience showed that the group’s most effective weapon is strategic litigation. Hard-core environmentalist activists like the Natural Resources Defense Council have been highly successful for years in using the court system to enact policy, affect change, and generate significant exposure for their cause. Our organization has discovered the same thing despite being overmatched in terms of resources in many of its legal efforts.

      Also they are interested in agency accountability, just like some environmental litigators are:

      In addition, the organization has established a significant transparency or “paper case” practice through its Freedom of Information Act (FOIA) request program, led by E&E Legal Senior Legal Fellow Chris Horner. Documents produced under FOIA are instrumental in exposing to the public errors, omissions, unethical behavior, intimidation, rule-skirting and even outright fraud on the part of government agencies and their employees. In short, the oft-touted, rarely offered transparency holds federal and state governments accountable to the public.

      “It is clear based on the results of the significant number of FOIA requests we’ve filed that many agencies involved in developing and promulgating energy and environment policies have constantly violated the law and public trust, particularly the EPA,” said Horner. “Activist public employees have been shown to be using fictitious names, personal e-mail accounts and offsite document retention in conducting the public’s business. Worse, these actions seem designed to avoid exposure of inappropriately cozy relationships with the Environmentalist Left and rent-seeking industry, or sexing up the actual facts related to their onerous agenda. The need for stepped-up transparency efforts like E&E Legal’s, to hold the government accountable, speaks for itself.”

  1. Not an easy question. The rule making process is governed by the Administrative Procedure Act, and public hearings are not required. If agencies have discretion to not have hearings at all, they can certainly choose where to have them if they do. If Congress includes requirements for hearings on regulations for a specific statute, they could, if they wanted to, include criteria for where to hold them. So I don’t think there is a legal problem with this example. (And I think D. C. and Denver are both entirely appropriate for federal energy hearings.)

    There do seem to be ethical issues, but when ethics is pitted against politics you rarely see ethics win (both political parties are guilty). I think that’s unfortunate because it plays into the hands of those who don’t trust the government, and would rather get rid of it than try to fix it.

    Maybe EPA is actually playing defense here? It may reasonably suspect that coal interests will use equally questionable tactics at the hearings and is trying to counter-balance that. The Forest Service has done something similar by consciously avoiding the use of public hearings when they fear the public will disrupt them, and opting for the more manageable open house format. Is this unethical?

    • Using private email accounts to conduct the public’s business should be a “red flag” warning every time. The appearance of a cover-up, even where there is no law breaking, will cause more outcry than the violation itself.

    • Jon, maybe you are using “ethics” as a stand-in for “right”.

      If the EPA wants to hear from everyone AND
      they know that people are different in Delta Colorado, say and San Francisco, you could argue that they should do half and half. Or use metros where the states benefit from coal because that mixes rural and urban.

      Or they should have meetings online so everyone interested can participate .

      Or they shouldn’t have meetings at all but allow written comment.

      I don’t think these decisions are “ethical” decisions they are pragmatic decisions as to how best to design the public involvement process.

      It looks like they have an email track showing a public involvement process design where they don’t want to hear from certain people.

      Not to brag, but one of the first times we did Colorado Roadless public meetings, we got a lot of pushback on the design from Professor Squillace and others. We wised up and the next time hired Meridian to facilitate the process of designing our public involvement process, so that all sides felt they were heard, in the design. Although some people still didn’t like the design, having third parties work with everyone smoothed things out and at least everyone was clear on why the process was designed the way it was.

      I don’t think that’s why we didn’t use public hearings. If you spoke to people they wanted a chance to talk and be heard, but they weren’t listening to other people. I had a bunch of discussions with Squillace and he talked about Babbitt listening to the folks about the monument in Utah, and how that was transformative. I agree that the right person making the decision (with good people skills) who listens to everyone and interacts would be very good.

      Even if the person actually making the decision attended all the public meetings and spoke to people it might make a difference. But the bigger the decision (I would say generally above the forest level, but some politically charged decisions happen at the forest level), the less likely that the same agency folks at the public meetings will be in the room when the deals are done.

      I always like the idea of videos of people giving their talks, so that people that don’t want to listen to others but do want to talk, can still talk. The FS could post all these on the website for the project and if the decision makers wanted to look they could and certainly the paid staff working on the project or plan could see them all, and see all the same ones .

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