Commentary: Conservatives File Suit to ‘Derail Biden Climate Railroad’

Michael Regan
by Philip Wegmann

Michael Regan began his tenure as President Biden’s Environmental Protection Agency administrator by dismissing dozens of outside scientific advisers appointed during the previous administration — part of an effort to “ensure the agency receives the best possible scientific insight to support our work.”

At the time, Regan (pictured) called it a “reset.” Opponents grumbled that it looked more like “a purge.” Now, one of those advisers, Stanley Young, has filed a lawsuit in federal court accusing the agency of violating U.S. law; the suit also seeks an injunction to halt the work of his former committee.

The legal dustup is the latest rearguard action from the right on environmental issues. Conservatives see the case as their best chance to thwart the Biden administration’s multi-agency approach to combating climate change, seen as hostile to the fossil fuel industry.

The Clean Air Act requires that, when setting air quality standards, EPA must seek the advice of a panel of experts known as the Clean Air Scientific Advisory Committee (CASAC). Regan dismissed all seven members of that panel and 47 members of the related Science Advisory Board (SAB) — actions that, Young alleges, left them “unfairly balanced” because “they lack a single member affiliated with regulated industries.”

Young’s fellow conservatives have rallied to his lawsuit, with Garrett Bess, vice president of Heritage Action for America, condemning the firings as part of an effort “to rubber-stamp the Left’s extreme job-killing agenda.” Myron Ebell, director of the Center for Energy and Environment at the Competitive Enterprise Institute, added that the move was meant to ensure the EPA gets “only the advice that it wants to hear.”

Conservatives, and their industry allies, enjoyed a deregulatory boom during the Trump years, though critics often complained the two outside advisory panels at the EPA tilted in favor of industry. The right now fears a heavier regulatory hand from Biden. Enter the lawsuit brought by Young, a statistician who previously worked in the pharmaceutical industry.

“This could be the last chance to derail the Biden EPA’s climate railroad before rules are issued,” Steven Milloy, who served as an informal environmental policy adviser to members of the Trump administration, told RealClearPolitics.

Milloy, who authored the book “Scare Pollution: Why and How to Fix the EPA,” added that if Young and “other honest scientists” are not restored to their positions on the advisory boards, the Biden administration “will likely issue air quality regulations that are literally based on scientific fraud and that have been rubber-stamped by EPA’s illegally selected board of crony science advisers.” If conservatives succeed in court, he predicted, the EPA will have “to start over and pick a truly independent and balanced review panel.”

An agency spokesperson declined to comment on the case, other than to note that the litigation “is still pending” and that the “EPA has nothing to add.” Conservatives sound bullish on their chances in court, noting that U.S. District Court Judge Timothy Kelly, a Trump appointee, will hear the case.

For his part, President Biden is scheduled to head next week to an international climate summit in Glasgow. Administration aides do not want him to arrive in Scotland empty-handed given that an infrastructure bill, which includes much of his climate agenda, remains stalled in Congress.

White House press secretary Jen Psaki told reporters Friday that Biden is willing to take all routes, through legislation or executive action, to meet his commitment “to addressing the climate crisis.” This has opponents of tighter EPA regulation worried.

Conservatives say they don’t believe new carbon rules from Biden would stand up to Supreme Court scrutiny. They point to the legal failure of the Clean Power Plan, former President Obama’s attempt to use the Clean Air Act to meet the terms of the Paris climate agreement, as proof. All the same, they worry that regulations, even ones that aren’t targeted at carbon emissions, could be used to further hamstring the fossil fuel industry.

Earlier this year, more than 150 former government officials signed onto a blueprint for an across-the-board response to climate change called the Climate 21 Project. It acknowledged the possibility that the Supreme Court might strike down new regulations, noting that “while the climate crisis demands an aggressive approach, the constraints and risks of exercising regulatory authority warrant a thoughtful assessment to define where to regulate and where to apply other leverage.”

The report pointed to the Clean Air Act as one fulcrum point: “In addition to the primary air quality and public health benefits these rules would deliver, they would also produce climate benefits; in some cases, pollution control compliance measures would result in [greenhouse gas] reductions.”

The report, which conservatives say outlines “a backdoor” approach to reducing carbon emissions, was authored by Joseph Goffman, now a top official with EPA’s air and radiation office; Brenda Mallory, now chair of the White House Council on Environmental Quality; and Jennifer Macedonia, now deputy associate administrator for policy at the EPA.

Young argues in his lawsuit that the advisory board members who would be informing the actions of those EPA officials were purged in violation of the Federal Advisory Committee Act, a decades-old law that requires the agency field advice from “objective” sources. He also alleges that the new EPA administrator has staffed the CASAC and SAB “with academics who are financially beholden to EPA through multimillion-dollar research grants.”

Elizabeth Sheppard, chairwoman of the CASAC board, which will weigh in on all new Clean Air Act regulations, previously taught at the University of Washington as a professor of environmental science. The Young lawsuit alleges she was associated with more than $60 million in EPA grants. The Trump administration previously barred academics who received EPA grants from serving on advisory panels, a move critics say was illegal and was quickly reversed by the Biden administration.

Ebell of the Competitive Enterprise Institute called that countermeasure “outrageous.” The Biden administration, he added, was “scuttling conflict-of-interest rules so that it could stack what should be an independent panel with reviewers who will essentially be reviewing their own EPA-funded work.”

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Philip Wegmann contributes to RealClearPolitics.

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