On Sept. 27, the en banc panel of the United States District Court for the District of Columbia will preside over oral argument in State of West Virginia v. Environmental Protection Agency.

This will likely be one of the most momentous cases ever to be decided by any federal court.

At issue: Twenty-eight states and numerous private companies and trade associations are challenging an EPA regulation that seeks to cut carbon dioxide emissions in the energy industry by over 30 percent and nationalize the country’s electric power grid. The 1,500-page regulation, known as the Clean Power Plan, would give the federal government authority over how states use their natural resources.

The Clean Power Plan mandates carbon dioxide cuts to America’s power fleet, forcing states to make difficult, costly decisions such as switching from reliable conventional fuels to intermittent, expensive renewables, such as wind and solar.

The Environmental Protection Agency takes the position that man-made carbon dioxide is causing global climate change and therefore must be tightly controlled, at any cost. Carbon dioxide is essential to life on earth, and the global climate has been heating and cooling for millennia.

Regardless, the Clean Power Plan seeks to reverse what may be natural climate fluctuation at the cost of creating power blackouts, higher energy costs, job losses in the energy sector, and price spikes throughout the nation’s economy, including for necessities such as food and water.

Just as importantly, because carbon dioxide is everywhere and in everything, the Clean Power Plan arrogates enormous regulatory power to the EPA. Such a power grab by a federal regulatory agency is not only illegal, but is flat-out unconstitutional. It usurps states’ rights to regulate the use of their natural resources, in violation of the 10th Amendment.

Months ago, the Supreme Court recognized this troublesome constitutional issue and stayed the EPA’s enforcement of the Clean Power Plan pending resolution of the case in the lower court. In response, the D.C. Circuit decided to hear oral argument en banc before a panel of all judges serving on the court, rather than just the three-judge panel to which it was to have been assigned.

Beyond the constitutional issues, the case raises important issues regarding the rule of law and the extent to which the EPA must obey the law, just like the rest of us. In promulgating the Clean Power Plan under the federal Clean Air Act, the EPA violated the act in at least three ways.

First, carbon dioxide is emitted from “numerous and diverse” sources throughout the nation, not just from power plants. The act requires the EPA to regulate those types of ubiquitous emissions under the National Ambient Air Quality Standards program, which involves a multiyear process to determine the extent to which nationwide ambient air emissions of a particular substance are harmful to human health and welfare.

The next step requires the EPA to determine the extent to which man-made emissions of such a substance should be curtailed to lower national ambient air levels. The Clean Power Plan seeks to shortcut those legal requirements by regulating power plants under the source-specific standards of the Clean Air Act reserved for localized air pollution problems. Although it may be easier for the EPA to do so, the act does not give the EPA that kind of authority.

Second, because power plants as a category are already regulated under a different provision of the act dealing with toxic air pollutants, the EPA has no authority to regulate carbon dioxide emissions from power plants unless it finds that carbon dioxide is directly toxic to human health—a finding it would be impossible for the EPA to make for the obvious reason that carbon dioxide is essential to human life.

Third, the EPA even failed to comply with the source-specific requirements of the act because it neglected to make a finding that carbon dioxide emissions from power plants endanger human health and the environment. Without that endangerment finding, the regulation cannot stand.

These are only some of the issues that the D.C. Circuit will hear at 9:30 a.m. on Sept. 27. The court has devoted the entire day to oral argument, and many lawyers will present their cases. Even more lawyers, media representatives, policy analysts, politicians, and others will be present to observe and listen. We can only hope the court will uphold our constitutional freedoms, rather than kowtowing to the EPA’s power grab. (For more from the author of “With DC District Court Oral Argument, a Chance to Push Back Against EPA’s Power Grab” please click HERE)

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Environmental Protection Agency (EPA) officials are ignoring a federal law requiring them to report to Congress and the public whether biofuels are helping or harming the environment, a government watchdog reported Thursday.

The Renewable Fuel Standard (RFS) program “is a national policy that requires a certain volume of renewable fuel, also known as biofuel, to replace or reduce the quantity of petroleum-based transportation fuel,” EPA inspector general (IG) official Jim Kohler said in a podcast.

“It was created with the intent to reduce greenhouse gas emissions and expand the nation’s renewable fuels sector while reducing reliance on imported oil,” said Kohler, who is an environmental engineer. But the EPA never completed studies that would show whether biofuels are actually reducing greenhouse gases or otherwise helping the environment.

Forgoing these reports “impedes EPA’s ability to identify, consider, mitigate and make policymakers aware of any adverse impacts of biofuels,” Kohler said. “EPA, Congress and other stakeholders lack key information on biofuel impacts needed to make science-based decisions about RFS and U.S. biofuel policy.”

The required reporting “provides for an objective analysis on the environmental impacts and unintended consequences of U.S. biofuel policy. This analysis is important, given conflicting scientific opinions about biofuel impacts, potential impacts outside of the EPA’s regulatory control, and divergent RFS interests.” (Read more from “EPA Defies Law Requiring Verdict on Whether Biofuels Work” HERE)

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Environmental Protection Agency (EPA) officials have accumulated at least $6.3 billion in more than 1,300 obscure spending accounts akin to slush funds that are essentially beyond congressional, media and public scrutiny.

The accounts – which were created through EPA’s Superfund program – are not technically secret because the agency officially acknowledges their existence. But getting concrete details about deposits and expenditures is extremely difficult.

The EPA deposited more than $6.3 billion into an estimated 1,308 special accounts between 1990 and 2015, according to the agency’s website, and has spent more than half of the total. The agency doesn’t publicly report individual special account balances or expenses.

The “special accounts” are financed by legal settlements between the agency and parties responsible for polluting Superfund sites. Funds are deposited and spent without prior congressional approval.

“This is the very definition of an out-of-control agency, if they can raise their own money and not have to go to Congress to have it appropriated,” Myron Ebell, director of the Competitive Enterprise Institute’s Center for Energy and Environment told TheDCNF.

An EPA spokeswoman told TheDCNF the agency manages the accounts “in accordance with the law, congressional intent, and EPA policy and guidance.”

“In fact, EPA management of Superfund special accounts has been reviewed periodically,” she told TheDCNF. “EPA has responded to [Government Accountability Office], [inspector general (IG)], congressional, public and press inquiries regarding special accounts.”

But those reviews are neither regular nor recent.

“EPA lacks transparency in its public reporting of special accounts,” the EPA’s IG wrote in 2009, the last year in which the accounts were reviewed by the independent watchdog. “Such transparency is needed to understand how special account funds are being utilized.”

Two years before the IG comment, the Center for Public Integrity reported reported that “there are hundreds of these accounts, and the EPA doesn’t need congressional approval to spend the money in them, unlike the Superfund trust fund.” The CPI has not returned to the special accounts in the years since.

“EPA generally does not report financial information on individual special accounts due to potential enforcement and/or procurement activities at individual sites,” an agency spokesman admitted, adding that “aggregate information on special accounts, beginning in [fiscal year] 2011, can be found … within the congressional justification document.”

That disclosure is limited in scope and is buried in the document.

Special accounts are necessary to ensure settlement money is only spent on the site a funding party polluted, Mark Schneider, a partner with Perkins Coie who has practiced environmental law for 25 years, told TheDCNF. He also noted that an interested party would need to file a Freedom of Information Act request for additional details.

Congress has annually appropriated an estimated $1 billion for Superfund activities in recent years. The special accounts also annually accumulate millions of dollars from interest.

The accounts also diminish money from a Superfund trust fund financed by congressional appropriations and reserved for orphan sites – places where polluters either can’t be found or can’t pay.

The EPA often begins spending trust fund dollars on Superfund sites, before securing funds from the responsible polluters. But the agency will deposit all settlement money into a special account instead of first reimbursing the trust fund.

That means trust fund money EPA doesn’t immediately replace is unavailable for its congressionally approved purpose of cleaning orphan sites. The EPA keeps such funds in special accounts for years, or sometimes decades, according to the IG.

The process also decreases the trust fund’s end-of-year balance, which could be used to request more congressional funding.

Nearly $28 million, however, was eventually transferred from special accounts to the trust fund, which would ultimately face Congress, according to EPA data. Yet that money came from private parties who were paying to cleanup their own pollution and doesn’t necessarily reflect trust fund reimbursements.

Consequently, polluters could be indirectly helping fund cleanup operations at unrelated Superfund sites.

TheDCNF investigation also found that funds deposited in special accounts skyrocketed after Congress allowed a tax that primarily financed Superfund activities to expire in 1995. The EPA also began heavily stripping appropriated funds previously promised to Superfund sites and began settling more cases with polluters around the same time.

“Increases in de-obligations reflect maturity of the superfund program,” the EPA spokeswoman told TheDCNF. “Factors such as completion of construction projects and enforcement settlements have allowed the agency to appropriately de-obligate funds so they can be used on other projects.”

“The polluter-pays policy is a long-standing policy for EPA and has no relationship with the lapse of Superfund taxing authority,” she said.

An estimated 80 percent of EPA’s enforcement actions ended in settlements through 2007, according to a 2009 Government Accountability Office report, and lawsuits decreased by nearly 50 percent.

“Some attorneys said their clients tend to settle with EPA because responsible parties are unlikely to succeed in avoiding liability in litigation against the federal government,” the report said.

Overall, the Superfund’s performance record is debatable. The EPA claims cleanup construction has been completed at nearly 1,200 sites and that 752 sites are ready for new uses.

But less than one-quarter of all superfund sites have been completely cleaned over the program’s 35-year history, and dangerous substances that endanger humans could remain at as many as 319 sites, TheDCNF previously reported. (For more from the author of “CONGRESS? WE DON’T NEED NO STINKING CONGRESS! Rogue Obama EPA Stashes Billions in Slush Fund Accounts” please click HERE)

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