by GAO Webadmin
Chris Horner, a GAO attorney who has been involved in many public records cases and briefed the court in amicus briefs on the realities of the regulatory onslaught we are seeing, published a piece on Monday article wall street journal Combine two themes.
The project builds on Horner’s two recent Magazine Articles, “EPA defies Supreme Court” (August 2023) and “EPA’s deceptive climate rules won’t hold up in court” (May 2024). The common denominator is that a group of unscrupulous regulators have overstepped their legal bounds and in so doing are not only too smart, but also dishonest. Outright dishonesty should be the downfall of their agenda. However, this would require a willingness on the part of the Trump administration to push back equally harshly, but in strict application of recent Supreme Court precedent.
It needs to start now, with transition. Horner agreed to provide further insight into the Trump transition and how the administration quickly dismantled Biden's “set of rules” and other overreach. His comments to GAO included:
Politico reports that right-leaning watchdog groups have filed thousands of Freedom of Information Act (FOIA) requests during Biden's term. As an attorney in dozens of lawsuits challenging these requests by the GAO and others, I have seen numerous records that, although often heavily redacted, still provide enough context to raise serious concerns and merit further review. The Trump administration can review all such records in unredacted form to assess whether malfeasance occurred.
Agencies are less likely to cooperate. As a member of the 2016 Trump transition “landing team,” I followed required procedures to request unredacted copies of certain EPA records that were released in part under the Freedom of Information Act. They appear to be highly relevant to the transition team's work in drafting a plan for the incoming administrator. The staff at the employment agency declined my and other requests.
The bureaucracy loses that control on Inauguration Day. This time there should be a commitment to follow up immediately, recognizing that this is the best opportunity to reverse illegal rules in a timely manner.
Unfortunately, this requires not only a lawyer in each agency's general counsel's office dedicated to discerning whether there was an error that warranted admission, but certainly a business executive or IT professional who can reconstruct any Overzealous removal.
Horner believes it's also important for the Trump team to recognize that while Biden's Clean Power Plan 2.0 is a major rule, it will undoubtedly fall under the major issues doctrine – and may even make its way through the Supreme Court next year. The suspension of the first half was achieved. 2019–Biden EPA's “bundle of rules” won't necessarily all be primary rules unless lawyers convince courts to view them cumulatively, As the U.S. Environmental Protection Agency does. To that end, challengers should seize on EPA Administrator Michael Regan's excited remarks acknowledging that he pushed for “a set of rules” to enforce the Supreme Court's ruling. State of West Virginia v. Environmental Protection Agency The agency does not have the authority to mandate: agency preferences for how Americans get their electricity.
The EPA's Regan has acknowledged the goal publicly and appears to have been acknowledged by others in heavily redacted internal documents, although the agency denied in making the rule that it would lead to the retirement of any power plants. It would be best to take Regan at his word that the rules are a cumulative attempt to do things prohibited by the material issues doctrine and ask the court to accept his own confession.
GAO argued this in its amicus brief State of Kentucky v. Environmental Protection Agencyand if the challengers are serious, so should they. In the meantime, the Trump administration should admit this mistake and work to repeal these rules, especially since they are egregious violations of the no-excuse rule.
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