As the Trump administration nears a decision on whether to reverse the landmark regulatory declaration that launched the "Green New Deal" movement, the legality and political motivations of the Obama-era environmental regulators are getting a fresh, hard look.

Emails reviewed by Just the News show that Environmental Protection Agency regulators who helped craft the 2009 "endangerment finding" — which declared greenhouse gases could be regulated because they risked public health — were preparing to impose the regulatory powers of the endangerment finding even before the science was wrapped up.

The emails also show there was an open discussion inside the Obama EPA about trying to score a win for liberals in what was supposed to be a scientific process. “You are at the forefront of progressive national policy on one of the critical issues of our time. Do you realize that?” Georgetown law professor Lisa Heinzerling wrote then-EPA Administrator Lisa P. Jackson on Feb. 27, 2009. “You’re a good boss. I do realize that. I pinch myself all the time.”

A day earlier, Heinzerling estimated that the finding would be finalized in August or September 2009, but that imposing regulations like new car emission standards could occur ahead of the science being wrapped up.

Experts told Just the News such communications — which mostly have been relegated to insiders and trade publications — could provide a powerful messaging tool if Trump EPA Administrator Lee Zeldin decides to reverse the endangerment finding.

And there's also a trove of emails yet to be released but itemized on a log of documents the Obama administration insisted on hiding from the public by declaring them "privileged." “I believe the privilege logs support that the [Obama] administration came in determined to do what they then went through the public motions of producing,” Chris Horner, an environment and energy policy attorney, told Just the News.  

Politics preceded the science 

When President Donald Trump took office in January, his “Unleashing American Energy” plan ordered EPA to review the agency’s “endangerment finding,” which has been the basis for much of the federal government’s emissions-focused climate policy. The Trump administration could make its decision as early as this week.

In February, Zeldin reportedly asked the White House to strike down the finding. The 2009 finding, which determined that greenhouse gasses were a risk to public health, allowed for the regulation of greenhouse gas emissions under the Clean Air Act.

Frisbees and flatulence

In October 1999, the International Center for Technology Assessment (ICTA), a D.C. think tank, submitted a petition to the EPA seeking regulation of greenhouse gas emissions under the Clean Air Act. The request was denied, and the group took their request to the Court of Appeals for the District of Columbia, which upheld the denial. 

Massachusetts along with 10 other states, cities and nonprofit organizations, including the Sierra Club and the ICTA, petitioned the Supreme Court on the issue. In a 5-4 decision in 2007, the high court ruled in Massachusetts v. EPA that greenhouse gas emissions fit the Clean Air Act’s definition of an “air pollutant.” So the EPA needed to determine if emissions endanger public health and welfare of the public, or if the science is too uncertain to make such a determination. 

In his dissent, Justice Antonin Scalia argued that, by the majority’s reasoning, “everything airborne, from frisbees to flatulence, qualifies as an ‘air pollutant.’” The ruling did not order the EPA to regulate greenhouse gas emissions. It only set forth a reasoned basis for making a determination of whether or not the agency should do so. 

In December 2008, at the end of the Bush administration, then-EPA Administrator Stephen Johnson issued what became known as the “Johnson memo,” which did not find endangerment from greenhouse gas emissions. 

Aliases and agendas

On Jan. 21, 2009, less than a month after the “Johnson memo” was released, former President Barack Obama was sworn into office. Lisa Jackson was selected to head the EPA. In 2012, Horner, who was then a senior fellow with the Competitive Enterprise Institute, discovered that EPA officials, including Jackson, were using pseudonymous alias email accounts. 

The EPA at the time claimed the use of alias accounts wasn’t meant to shield official business from open records laws, but rather it was meant to filter out millions of emails sent to publicly available accounts so that internal communications flowed more smoothly. 

A week after Obama was sworn in, heavily redacted emails to Jackson, which attorney Horner obtained through Freedom of Information Act (FOIA) requests show Jackson, who was using an email pseudonym, held meetings between Lisa Heinzerling, a professor of law at Georgetown University who wrote the briefs in Massachusetts v. EPA, and climate modelers. The purpose of the meetings was to begin assessing endangerment in response to Massachusetts v. EPA. Jackson used the alias “Richard Windsor” Politico reported.

The emails also show that David McIntosh, former lawyer for the Natural Resources Defense Council and principal advisor to Jackson on legislative climate issues, prepared a memo on the EPA’s activities related to power plants. The memo was withheld from Horner’s FOIA requests. McIntosh and Heinzerling attended a briefing session on January 30 on the “Response to the Endangerment Issue from Mass v. EPA.” 

On Feb. 16, 2009, Allyn Brooks-LaSure, an Obama appointee, sent an email to Jackson, which is also heavily redacted, concerning interviews with The New York Times and the Associated Press, who had apparently got wind that the EPA was planning to regulate greenhouse gas emissions. The subject of the interviews was an “opportunity to outline agenda; endangerment.” 

That day, Jackson emailed Heinzerling to say that “The Sierra Club and other petitioners who have challenged the Johnson memo on PSD [Prevention of Significant Deterioration] will NOT be asking the court to stay the memo tomorrow,” followed by some redacted information. Heinzerling replied “Wow. How did you pull THAT off?” 

Jackson told the Times that she’d asked her staff to review the latest scientific evidence and prepare documentation for an endangerment finding, but she said she had not made a final decision. She made a point to note that the anniversary of Massachusetts v. EPA was coming up that April, and that the EPA staff knows “how momentous that decision could be. We have to lay out a road map.” 

One important item

The index of fully withheld emails (commonly called called a "Vaughn index") was sent on Feb. 22 of that year and shows exchanges between Jackson, Heinzerling, McIntosh and Robert Sussman, senior policy counsel to Jackson, concerning the endangerment and when and how to inform the public about it. 

The following day, Sussman sent an email to the administrator saying he met with Michael Fitzpatrick of the Office of Information and Regulatory Affairs and he wanted to highlight “one important item,” which was redacted. The subject of the email was “OMB/Endangerment Finding.” Heinzerling responded, “We’re planning on doing this.” 

The endangerment finding provided the legal basis for the EPA’s regulation of vehicle emissions. On Feb. 26, Heinzerling emailed Jackson, and CC’ed McIntosh, about the timing of the final endangerment finding. She estimated that the finding would be finalized in August or September, and she noted that the endangerment finding would not need to be final before automobile standards are proposed. 

Through March of 2009, Jackson and Heinzerling discussed a memo to the president on the endangerment finding in emails that are still being kept hidden from public view. 

Concerns about scientific accuracy waved off

In mid-March, Alan Carlin, a career environmental economist and scientist, raised concerns about the technical supporting data (TSD) going into the endangerment finding. “It is also my view that the critical attribute of good science is its correspondence to observable data rather than where it appears in the technical literature,” Carlin said in a March 16 email. “I believe my comments are valid, significant, and contain references to significant new research since the cutoff for the IPCC [Intergovernmental Panel on Climate Change] and the CCSP [Climate Change Science Program] inputs.” 

Carlin urged that his comments be forwarded up the chain of command. Al McGartland, director of the National Center for Environmental Economics at the EPA, emailed Carlin to say his comments wouldn’t be forwarded and that “the administrator and the administration has decided to move forward on endangerment, and your comments do not help the legal or policy case for this decision.” 

In 2011, Sen. James Inhofe, R-Okla., requested the Office of Inspector General examine the procedures that led to the endangerment finding. The report found, among other procedural deficiencies, that the TSD — the scientific literature used in the endangerment finding — “was a highly influential scientific assessment because EPA weighed the strength of the available science by its choices of information, data, studies, and conclusions included in and excluded from the TSD.” That meant the material met the requirements of the OMB for peer review. The EPA believed that since the TSD consisted of peer-reviewed science, it met policy requirements. The report didn’t assess whether the scientific information and data supported the endangerment finding. 

Candid conversations

Horner said that he believes the emails reveal a predetermined conclusion about endangerment, and that they were speaking candidly because Jackson was using an alias. “I believe they were telling the truth when communicating internally. Somewhat paradoxically, I believe these emails even more knowing most of this correspondence was, the other parties knew, with a false-identity email account for the Administrator, which Lisa Jackson called her ‘private’ email [sic] that they clearly did not believe the public knew about,” Horner said. 

Just the News' requests for comment sent to Jackson’s social media account and to Apple, where she is now the vice president of environment, policy and social initiatives, received no response. 

At the end of April, the EPA issued its proposed endangerment finding and opened it up to public comments. By the time the comment period ended in June, the EPA had received approximately 380,000 comments, and the final finding was published in December. 

Francis Menton, author of the “Manhattan Contrarian,” was one of the lawyers for a group of ratepayers known as the Concerned Household Consumer Council, which formed to petition the EPA to rescind the endangerment finding. 

While Menton hadn’t seen the emails, he told Just the News that he wouldn’t be surprised if Jackson and her staff’s minds were made up before they began working on the endangerment finding. “I'm 100% sure that it was. No, I'm not surprised in the least. Now I'm sure if you were to ask them, they would say, ‘Well, that's because we read up on the science,” Menton said. 

Menton said that most climate science produced today would support the endangerment finding, but it lacks a standard of falsifiability, which is a philosophy of science that states that a theory is only truly scientific if it’s possible to establish that it’s false. 

“I would say that it ain't real science unless it's stated in the form of a falsifiable proposition, and unless you are willing to concede what evidence, if it emerged, would falsify your proposition. I've always thought that's the biggest weakness of this. What is the falsifiable proposition? They'll never state it in a way that's falsifiable. And that's the key, in my opinion, to science and to skepticism,” Menton said. 

Background music

Steve Milloy, senior legal fellow with the Energy and Environmental Legal Institute and publisher of “JunkScience.com,” said he’s not certain that any emails suggesting a bias in the procedures the EPA took would factor into the Trump administration’s pending review. “It's good background music for conservatives to hear. I don't know that it's going to make it into a record or be part of the basis or review for getting rid of it,” Milloy said. 

Milloy said that the EPA under Zeldin will need to put out a Notice of Proposed Rulemaking stating that they’re going to review the finding. The EPA may choose to look at the processes by which the Obama administration came to the conclusion it did, which could include the emails. 

Whatever the EPA uses to come to its conclusions, should the the agency overturn the endangerment finding, it will likely face considerable legal challenges. Milloy said he thinks it will lose in the appellate court because it’s “packed with leftist pro-government judges.” However, Milloy said, when it reaches the Supreme Court, which it likely will, it has a fighting chance.

“As long as Zeldin dots all the I’s and crosses all the T’s, I think that'll survive at the Supreme Court level,” Milloy said.