PHONE: (740) 338-3100
FAX: (740) 338-3405
www.murrayenergycorp.com
FOR IMMEDIATE RELEASE
November 2, 2016
CONTACT:
[email protected]
Murray Energy Files Objections to the Obama EPA
Regarding Their Illegal “Clean Energy Incentive Program”
In violation of the Nationwide stay of the Clean Power Plan, as issued by the Supreme
Court of the United States (“Supreme Court”) on February 9, 2016 in Murray Energy
Corporation’s lawsuit against the Obama Administration’s Environmental Protection Agency
(“Obama EPA”) so-called Clean Power Plan “CPP”, the Obama EPA has continued to proceed
with illegal rulemaking regarding the CPP, including the “Clean Energy Incentive Program
Design Details” (“CPP Incentive Program”) which was published in the Federal Register on June
30, 2016. In response to this illegal rulemaking, Murray Energy has filed the enclosed comments
highlighting the unlawfulness and impracticality of the CPP Incentive Program.
Mr. Robert E. Murray, Murray Energy’s Chairman, President, and Chief Executive
Officer stated, “The so-called Clean Power Plan is absolutely illegal and constitutes a total
political power grab of America’s power grid. While Murray Energy was successful in obtaining
a Nationwide stay from the Supreme Court, the Obama EPA has continued to flout the law and
the Supreme Court, and continue to implement their illegal agenda. It is deeply offensive to the
Supreme Court, to the employees of Murray Energy and their families, and to the people of the
United States of America to see the Obama EPA continue to promulgate this illegal CPP
Incentive Program without any legal authority. Indeed, as a direct result, thousands of lives and
livelihoods are illegally being destroyed, and low-cost, reliable electricity in America is
disappearing as coal plants and coal mines continue to be forced to permanently close due to
these actions of the Obama EPA.” Mr. Murray added that, “We will continue to forcefully
litigate against the Obama EPA until they cease and desist from promulgating this illegal CPP
Incentive Program and the remainder of their illegal regulatory rampage against the United
States coal industry, which produces the most reliable, lowest-cost electricity in America.”
Any further questions can be directed to [email protected].
***
For further information, contact:
Gary M. Broadbent
Assistant General Counsel and Media Director
Murray Energy Corporation
(740) 338-3100
[email protected]
www.murrayenergycorp.com
PHONE: (740) 338-3100
FAX: (740) 338-3405
November 1, 2016
SUBMITTED VIA REGULATIONS.GOV
Docket: EPA-HQ-OAR-2016-0033
VIA CERTIFIED MAIL (RETURN RECEIPT REQUESTED)
U.S. Environmental Protection Agency
EPA Docket Center
EPA-HQ-OAR-2016-0033
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Re:
Gina McCarthy, Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460
“Clean Energy Incentive Program Design Details,” 81 FR 42940 (June 30, 2016),
Docket: EPA-HQ-OAR-2016-0033
Dear Administrator McCarthy:
The final rule “Carbon Pollution Emission Guidelines for Existing Stationary
Sources: Electric Utility Generating Units,” 80 FR 64662 (Oct. 23, 2015) (the “Power Plan”),
is unlawful, and the Supreme Court of the United States has granted Murray Energy
Corporation’s application for a stay. Thus, your actions continuing to administer the Power
Plan violate the rule of law.
Murray Energy demonstrated in its application to the Supreme Court that you have
no authority to mandate that States issue unachievable emission standards for existing sources.
Section 111(d) of the Clean Air Act only authorizes you to require that States set achievable
emission standards after considering remaining useful life and other factors. Your claim of
unbridled authority to mandate massive reductions in coal use and substitute your preferred
alternative energy sources is nothing less than an exercise of legislative power that Congress
did not and could not delegate to your agency. Nothing in the final rule, preamble, docketed
materials, response to comments, or briefs before the courts has or could redress the legal
infirmities of this unprecedented regulatory overreach.
Even though the Supreme Court issued a stay, you press on, undaunted. Indeed, we
have learned that in response to the Supreme Court stay, your EPA colleague Joe Goffman
sent you a link to Tom Petty and the Heartbreakers’ song I Won’t Back Down, and you replied
“Love it.” 1 Your refusal to comply with an order of the Supreme Court, however, is no
laughing matter, and you are not above the law.
1
E-mail from Gina McCarthy, Adm’r, U.S. EPA, to Joseph Goffman, Assoc. Ass. Adm’r,
U.S. EPA Office of Air and Radiation (Feb. 12, 2016, 1:22 AM) (attached as Exhibit 1).
Docket ID: EPA-HQ-OAR-2016-0033
Murray Energy Corporation Comment on Incentive Program Design Details
I.
The incentive program is stayed by order of the Supreme Court.
You are violating an order of the Supreme Court by engaging in this rulemaking.
There can be no serious question that the Supreme Court’s order granting Murray
Energy’s application for a stay reached the whole of the Power Plan, including the incentive
program. In its application to the Supreme Court, Murray Energy requested that the entire
Power Plan “be stayed, and all deadlines in it suspended, pending the completion of all
judicial review.”2 Murray specifically referred to the Power Plan’s attempt, embodied by the
incentive program, “‘to promote early action.’”3 The Supreme Court, in an unprecedented
order, granted Murray Energy’s application in full and directed without qualification that the
Power Plan be “stayed.”4 The unambiguous effect of the order Murray Energy obtained was
to “halt[]” your Power Plan in its entirety, including the incentive program, and “suspend[]”
your “authority” “to act.”5
The incentive program cannot be separated from the Power Plan that created it.
Although you claim that the present rulemaking is somehow “consistent with and unaffected
by the . . . stay orders,”6 you explicitly finalized the incentive program in the Power Plan final
rule. To wit, you announced that you had “determined to provide a program”—the incentive
program—which was “establish[ed]” “in the final [Power Plan] rule.”7 All that remained, you
said, was to “address design and implementation details”—the program itself was finally
established.8 Indeed, in the present unlawful rulemaking you acknowledge, as you must, that
you “took final action in the [Power Plan] to establish” the incentive program and even
“finalized” aspects of it in the Code of Federal Regulations. 9 Thus, with the Power Plan
stayed and your authority to act suspended, your coercive incentive program is without any
legal support.
Incredibly, you have claimed that “it is not clear whether and to what extent [the
Power Plan’s] deadlines will necessarily be tolled once the stay is lifted” because supposedly
“the legal effect of the stay on the Clean Power Plan’s deadlines is ambiguous.”10 On this
spurious theory, you proceed with this rulemaking, ignoring the fact that Murray Energy’s
specific request that the Power Plan “be stayed, and all deadlines in it suspended,” 11 was
unreservedly granted by the Supreme Court. You also ignore your own position before the
Supreme Court that “a request for . . . tolling [of all deadlines] is inherent . . . in the [stay]
applications,”12 as well as your earlier concession that “tolling [a stayed rule’s] deadlines . . .
returns the rule and parties to the status quo,”13 the very purpose of a stay.14 You know you
2
Appl. for Immediate Stay of Final Agency Action, Murray Energy Corp. v. EPA, No.
15A778 (U.S., Jan. 27, 2016), at 36.
3
Id. at 33 (quoting 80 FR at 64669, 64675).
4
Order, Murray, No. 15A778 (U.S., Feb. 9, 2016).
5
Nken v. Holder, 556 U.S. 418, 428-29 (2009).
6
“Clean Energy Incentive Program Design Details,” 81 FR 42940, 42944 (June 30, 2016).
7
80 FR at 64938; see also, e.g., id. at 64669 (“The EPA is establishing” an incentive program.).
8
Id. at 64670.
9
81 FR at 42946.
10
Id. at 42945.
11
Appl., Murray, No. 15A778, at 36.
12
Resp. in Opp., West Virginia v. EPA, No. 15A773 (U.S., Feb. 4, 2016), at 2–3.
13
79 FR 71333, 71666 (Dec. 3, 2014).
14
Nken, 556 U.S. at 429 n. 1; Wash. Metro Area Transit Comm. v. Holiday Tours, Inc., 559 F.2d
841, 844 (D.C. Cir. 1977) (the purpose of a stay is “to maintain the status quo”).
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Murray Energy Corporation Comment on Incentive Program Design Details
have no basis for suggesting that this rulemaking is consistent with the Supreme Court’s stay,
or that the Power Plan’s deadlines are not stayed. Your attempt to coerce “early action”
despite the stay is therefore wholly inappropriate, as others have advised you.15
Worse still, you cloak your contumacy with sham deference. First you claim that
you “have every respect for the Supreme Court and [its] decision and . . . will keep abiding by
that faithfully.”16 Then, practically in the same breath, you say that the Supreme Court’s stay
order is nothing more than a “speed bump,” that you are “not slowing down” and that you
“will not pause”17 despite a direct order to do so. You have even gone so far as to boast that
the Supreme Court’s stay orders “didn’t mean that anything on the ground had changed” and
that “life is continuing in the exact same direction it was before the stay.”18 Not only do you
violate the law—you actually trumpet your defiance.
This is not what the Supreme Court ordered. You were told to stop, not keep going.
Consequently, you should terminate this illegal rulemaking immediately and conform your
behavior to the clear dictates of the law. Although your lieutenant Janet McCabe gloated that
you are “making gallons of lemonade,”19 the Supreme Court ordered you not to touch these
lemons.
II. The incentive program shows your Power Plan is an unlawful power grab
over America’s electricity sector and an end–run around the Constitution.
Beyond the fact that the incentive program is stayed—and the current rulemaking
therefore patently illegal—the incentive program is being conducted without any authorization
from Congress. What is more, through the Power Plan and incentive program, you are
attempting to seize control of the American power grid by effectively forcing one sector to pay
ransom to your favored sector in order to stay in business. Your actions thus run afoul of
Congress’s exclusive power of appropriation and the Fifth Amendment’s prohibition on the
taking of private property without fair compensation. Your credits are purely of your own
invention, and are divorced from any particular emissions reduction goal established by
Congress. Under ordinary circumstances, tradeable credits are effective and even desirable,
but these are not ordinary circumstances. Strangest of all, you propose to give the credits
directly to yourself to dole out as you see fit, a startling departure from the usual practice.
You claim the authority to mandate whatever emissions reductions you find
appropriate for the entire power sector, but you are unable to point to any source of
Congressionally–delegated authority for this radical overreach. When you rhetorically asked
“[w]hat are the statutory authorities for this action[?],” you could only say vaguely that:
the [Power Plan] is an exercise of the EPA’s authority under Section 111(d) of
the [Clean Air Act]. The legal authority and rationale supporting the [Power
Plan] are discussed in the final rulemaking and accompanying Legal
15
Letter from Jim Inhofe, Chairman, U.S. Senate Comm. on Env’t & Pub. Works, to Gina
McCarthy (Mar. 10, 2016), available at http://www.epw.senate.gov/public_cache/files/
b364b8b7-312b-46cd-b2c3-b7305de4526e/03.10.2016-mccarthy-tolling.pdf.
16
Gina McCarthy, Remarks at IHS Energy CERAWeek Conf. (Feb. 24, 2016).
17
“Message from the Administrator,” E-mail from Gina McCarthy to All EPA Employees
(Feb. 10, 2016, 5:30 PM) (attached as Exhibit 2).
18
Sean Reilly, Rule ‘Alive and Well’—McCarthy, E&E NewsPM (Feb. 29, 2016),
http://www.eenews.net/eenewspm/2016/02/29/stories/1060033195.
19
E-mail from Janet McCabe, Acting Ass. Adm’r, U.S. EPA Office of Air and Radiation, to
Heather Zichal, Sr. Fellow, Atl. Council Global Energy Ctr. (Feb. 11, 2016, 5:56 PM)
(attached as Exhibit 3).
3 of 6
Docket ID: EPA-HQ-OAR-2016-0033
Murray Energy Corporation Comment on Incentive Program Design Details
Memorandum. The rationale and legal authority for the [incentive program] in
particular are also set forth in the final [Power Plan rule].20
Not only does this statement concede the fact that the only purported legal authority for the
incentive program is the same principles that have been stayed by the Supreme Court, but the
obfuscatory non–answer can be summarized readily enough: there is no such authority, the
cited materials do not authorize you to disrupt the entire power sector under the guise of
regulating CO2, and they simply do not say what you claim they say. Assuming that Section
111(d) gives you power to regulate CO2, that provision grants at most limited authority to act
to reduce emissions of certain pollutants, not to requisition the entire American power sector. If
Congress was able and had wished to give you such power, it might have. It did not. 21
Nevertheless, in the Power Plan you claim the power to ensure that “the fast pace of
reductions” you have demanded is accomplished by a sudden shift to the forms of electricity
generation you happen to favor.
Your means are simple to explain. First, you would impose draconian standards on
the coal industry.22 These standards cannot realistically be satisfied, as evidenced by the fact
that the entire Power Plan anticipates and relies upon a significant reduction in coal usage. In
essence, the Power Plan targets coal usage and imposes the entire economic burden of carbon
reductions on those who mine, sell and use coal. Lacking the legal ability to mandate use of
renewables, to accomplish that goal, you would create a pool of 300 million “credits” which
you propose to give to yourself. You “determined that the size of the pool” was “an
appropriate reflection” of the emissions reductions you hope to extort from the power sector.23
Although the basis for your calculation is not much explained—indeed, the number is to all
appearances random—the important thing is that your credits are meant to be traded for
money. You set out the requirements for the mere chance to receive a credit, but made sure
that only the renewables sector can meet them.24 The only way for the coal sector to meet your
demands, then, is to pay money to the renewables sector in exchange for credits you produced
and disbursed singlehandedly—a ransom in all but name—resulting in a coerced cash subsidy
you have not been authorized to provide. Put simply, you would appropriate the power of the
purse from Congress.
As you no doubt are aware, Congress has the exclusive authority to pass federal laws
in this country.25 Congress’s legislative powers include the “sole authority to adopt laws that
authorize the expenditure of public monies and laws that appropriate those monies.”26 To that
end the Constitution clearly provides that “No Money shall be drawn from the Treasury, but
20
81 FR at 42944 (internal citations omitted).
21
It has before in another context, and made itself unmistakably clear when it did so. See
CAA § 404(e). It did not do so here.
22
80 FR at 64831. To that end, you have capriciously set the performance standards for
existing coal and gas power plants at 1,305 lbs. CO2/MWh and 771 lbs. CO2/MWh,
respectively, but set the standards for new plants at an arbitrary 1,400 lbs. CO2/MWh and
1,000 lbs. CO2/MWh, respectively. Id. at 64667, 64512.
23
Id. at 64830.
24
80 FR at 64839-41; 81 FR at 42949-51.
25
U.S. Const. art. I, § 1 (“All legislative Powers herein granted shall be vested in a
Congress[.]”).
26
House of Representatives v. Burwell, 2016 U.S. Dist. LEXIS 62646 (D.D.C., May 12, 2016), at
*4 (referring to U.S. Const. art. I, § 9, cl. 7).
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Docket ID: EPA-HQ-OAR-2016-0033
Murray Energy Corporation Comment on Incentive Program Design Details
in Consequence of Appropriations made by Law.” 27 This constitutional grant works more
effectively than any other to check executive overreach, and indeed Congress’s exercise of its
appropriations power is a “nonnegotiable prerequisite[] to government spending.”28
Congress has control of the public purse and closely guards this control
through its appropriations process. When Congress makes an appropriation, it
is setting an upper limit on an agency’s level of operations. If an agency were
to also use funds from some other source, Congress would lose some of its
prerogative. Thus, an agency may not augment its appropriations with outside
funding without specific statutory authority.29
Through the incentive program, you are exceeding the “upper limit” imposed by Congress on
your “level of operations” and robbing Congress of its prerogative. The entire design of the
incentive program is to enable you to “use funds from some other source” than your lawful
appropriations to fund your favored projects, and the incentive program impermissibly
“augment[s] [EPA’s] appropriations with outside funding without specific statutory
authority.”
Because of the appropriations power, and statutes promulgated under it such as the
Antideficiency Act and the Miscellaneous Receipts Act,30 it plainly would be unlawful for you
to singlehandedly and without Congressional direction create a finite number of credits,
auction those credits to the highest bidder, and distribute the money obtained in that auction
directly to the projects or industry sectors you favor without depositing it in the Treasury and
receiving a Congressional appropriation. 31 Doing so would constitute an attempt “to
circumvent [the Miscellaneous Receipts Act] and the general rule against agency
augmentation of appropriations.” 32 Yet what you propose to do here is the functional
equivalent of an unlawful “augmentation of appropriations” in violation of the Miscellaneous
Receipts Act as well as your own policies,33 for “[t]he fact that no cash actually touches the
palm of a federal official is irrelevant . . . if a federal agency [1] could have accepted possession
27
U.S. Const. art. I, § 9, cl. 7; see also U.S. Const. art. I, § 8, cl. 1. (“The Congress shall have
Power To lay and collect Taxes.”).
28
Burwell at *4; see also 31 U.S.C. § 1301(d) (“A law may be construed to make an
appropriation out of the Treasury . . . only if the law specifically states that an appropriation
is made.”).
29
William G. Arnold, The Antideficiency Act Answer Book (2009), at 85.
30
See the “Antideficiency Act,” Pub.L. 97–258, 96 Stat. 923; the “Miscellaneous Receipts
Act,” 31 U.S.C. § 3302; see also the proposed “Stop Settlement Slush Funds Act,” H. Rep.
114-694.
31
31 U.S.C. § 3302(b) (“[A]n official or agent of the Government receiving money for the
Government from any source shall deposit the money in the Treasury as soon as
practicable[.]”).
32
In re Nuclear Regulatory Commission's Authority to Mitigate Civil Penalties, 70 Comp. Gen. 17,
19 (Oct. 9, 1990).
33
U.S. EPA, “Supplemental Environmental Projects Policy,” 2015 Update, § IV.B.1.a (“EPA
may not play any role in managing or controlling funds” because to do so constitutes an
unlawful augmentation of an appropriation.); see also Memorandum from John Peter
Suarez, Ass. Adm’r, U.S. EPA, to Regional Counsels, et al., “Guidance Concerning the
Use of Third Parties in the Performance of Supplemental Environmental Projects (SEPs)
and the Aggregation of SEP Funds,” Dec. 15, 2003 (“Only Congress can appropriate funds
for a federal agency. Establishing a SEP account where the Agency manages the funds and
determines how they are to be spent would amount to an augmentation of
appropriations.”).
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Docket ID: EPA-HQ-OAR-2016-0033
Murray Energy Corporation Comment on Incentive Program Design Details
and [2] retains discretion to direct the use of the money.”34 Such conduct would subject you to
“remov[al] from office.”35
Your incentive program also violates the takings clause of the Fifth Amendment,
which ensures that “private property [shall not] be taken for public use without just
compensation.”36 You know that “a purely private taking” in which the government takes
from A solely to enrich B cannot possibly “withstand the scrutiny of the public use
requirement,” for it “would serve no legitimate purpose of government” and is “void” ab
initio. 37 But your incentive program does just that, enriching the sectors you favor while
forcing the sectors you don’t to foot the bill on pain of destruction.
You cannot simply arrogate unto yourself whatsoever powers you wish or regard as
expedient. Your Power Plan is stayed by an order of the Supreme Court granting unreservedly
Murray Energy Corporation’s application. That stay reaches the entirety of the Power Plan,
including the incentive program. Your incentive program also contravenes the Constitution.
By careful design, you are not Congress.38 Our system of government depends upon a delicate
balance of powers developed and maintained over centuries. You cannot circumvent the
power of the purse and you cannot ignore the separation of powers simply because it doesn’t
suit your needs. You do not have the authority to proceed with this rule or to coerce
participation in your Power Plan. In order to avoid further violations of the law, you should
withdraw this rule immediately.
Sincerely,
MURRAY ENERGY CORPORATION
/s/ Jason D. Witt___________________
Jason D. Witt, Esq.
Assistant General Counsel
Director of Land Management
Murray Energy Corporation
34
Effect of 31 U.S.C. § 484 on the Settlement Authority of the Attorney General, 4B Op. O.L.C. 684,
688 (1980).
35
31 U.S.C. § 3302(d).
36
U.S. Const., 5th Am.
37
Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 2545 (1984).
38
See James Madison, The Federalist Papers, “Federalist No. 58” (Feb. 20, 1788) (“An elective
despotism was not the government we fought for; but one in which the powers of
government should be so divided and balanced among the several bodies of magistracy as
that no one could transcend their legal limits. . . .”).
6 of 6
EXHIBIT 1
EPA-HQ-2016-003894
To:
Goffman, Joseph[Goffman.J_ oseph@epa, ov]
Cc:
Utech, Dan G. EOP/WHOt _ Ex. 6 - Personal Privacy ]McCabe,
Janet[[email protected] ]; Canegallo, Kn"stie'A.01~11111Ha ' '-~ Ex. 6 Personal
From:
Sent: Fri 2/12/2016 1:22:08 AM
Subject: Re: Travel pool #5/Obama talks about S. Court stay on Clean Power Plan
Love it.
Sent from my iPhone
> On Feb 11, 2016, at 7:54 PM, Goffman, Joseph <Goffman.Joseph@epa gov> wrote
> https://www.youtube.com/watch?v=k2h9HPZhqHE
> -----Original Message----> From :.-_-•-•- adminisiraior.------..._._I
> Sent: Thursday, February 11,20164:56 PM
McCabe, Janet
> To: Utech, Dan G. EOP/WHOI
Ex_. 6 •- Personal Privacy
>
<[email protected]>; Goffman, Joseph
<Goffman:[email protected]
._._._
> Cc: Canegallo, Kristie A. EOP/WHO ._._._._._._._._._._._._.-._.-._._._._.-._._.-.-._._._.
----'-'-'-- Ez:s- Personal 'Privacy ____.___
> Subject: RE: Travel pool #5/Obama talks about S. Court stay on Clean Power Plan
;
> Yes!
> -----Original Message
. -. •-.-•-•-•-•-. -• -• -•-•-•-•---•---•--- -- ------------.-.-EX. 6 -Personal Privacy
> From: Utech, Dan G. EOP/WHC
> Sent:-._._._._......_._.-.-_._._.-._._._.__._._.__
Thursday, February 11, 2016 .4:531 PM*
._._.-._.-.-.-.-.-.-.-.-._ .
McCabe, Janet
> To: i
Administrator
<McCabe:;Janet epa:gov> Goffman; Joseph: < _o . man_.Josepl epa nov>
> Cc: Canegallo, Kristie A. EOP/WHO I
Ex. 6 - Personal P_ riv_ acy
> Subject: FW: Travel pool #5/Obama talks about S. Court stay on Clean Power Plan
> FYI
> From: Nakamura, David [mailto:[email protected]]
> Sent: Thursday, February 11, 2016 01:40 PM
> To: Gabriel, Brian; Allen, Jessica
> Subject: Travel pool #5/Obama talks about S. Court stay on Clean Power Plan
> In remarks at the DNC fundraiser, Obama offered his first public reaction to the Supreme Court's
decision to stay the EPA's Clean Power Plan:
> "The Supreme Court did something unusual this week. The centerpiece of our climate action plan
involves working with states like California to come up with a strategy for reducing their carbon
emissions... We do so under the clean air act, which the Supreme Court says requires the Environmental
Protection Agency to regulate carbon emissions if we can show, as science has clearly shown, damage
to public health. We are very confident we are on strong legal footing here..... But the Supreme Court
issued a stay ...
> "One of reasons I want to talk about this is because in the last couple of days I ve heard people say,
'The Supreme Court struck down the clean power plant rule. That's not true, so don't despair people. This
a legal decision that says, 'Hold on until we review the legality.' We are very firm in terms of the legal
footing here...
ED 000711 000000072-00001
EPA-HQ-2016-003894
> But the reason I bring this up now is to underscore fact this i going to be an enormous generational
challenge; there are going to be people constantly pushing back and making sure we keep clinging to old
dirty fuels and a carbon-emitting economic strategy that we need to be moving away from.
the oil industry, we should
> "We need to be investing in the future, not the past. Instead of subsidizing
be investing in solar and wind and battery technology--all the things that promise us we can generate
enormous power without destroying the planet for our kids and grandkids."
...
> "I could not be prouder of our efforts to mobilize 200 nations around the world to say, This is a
That's the essence of American leadership but that American leadership depends on us,
problem.'
depends on an administration that believes in science, for example."
...
> That's it on the climate stuff. but more to come on his remarks in later report.
> -30-
> Unsubscribe
<http://messages.whitehouse.gov/accounts/USEOPWHPO/subscriber/new?preferences=true >
> The White House * 1600 Pennsylvania Avenue, NW * Washington DC 20500 * 202-456-1111
ED 000711 000000072-00002
EXHIBIT 2
EPA-HQ-2016-003894
----_---------------
To:
From:
Sent:
Subject:
-
--------------------
Administrator
Jones, Jim
Wed 2/10/2016 10:39:31 PM
FW: Update on the Clean Power Plan
Gina, Nice note. You managed to make numerous powerful points in a positive and inspiring
manner. Thanks. Jim
From: Message from the Administrator
Sent: Wednesday, February 10, 2016 5:30 PM
To: Message from the Administrator <[email protected] >
Subject: Update on the Clean Power Plan
Importance: High
The Supreme Court's decision to stay implementation of EPA's Clean Power Plan was disappointing, but
it doesn't change the path that's already been charted for climate action in this country. You can't stay
climate change, and you can't stay climate action.
While litigation over the rule proceeds, EPA must pause on enforcing the rule. But nothing in last night's
decision precludes states from continuing to act on climate. We'll keep working with states that choose to
continue implementation planning and we'll continue to prepare tools to support those efforts. That work
will not pause.
It was our President's commitment and leadership that galvanized an international consensus on the
need for climate action. Virtually every nation on this planet signed-on to take ambitious climate action in
last December's Global Climate Agreement in Paris. The Pope and many other faith leaders, business
leaders, and investors have all called for ambitious climate action now. The energy sector here and
across the world is already shifting to a low carbon future. The U.S. solar industry is creating jobs ten
times faster than the rest of economy. Millions of people are seeing climate change happen right outside
ED 000711 000000036-00001
EPA-HQ-2016-003894
their windows, and on their doorsteps—and they're demanding that EPA address those risks.
So we are doing just that. EPA will continue to pursue a broad range of policies to promote energy
efficiency and reduce harmful emissions from cars and trucks, the oil and gas sector, aircraft, and
hydrofluorocarbons.
And we will defend our Clean Power Plan – the biggest single step this country has ever taken to combat
climate change. The rule fits squarely within the four corners of the Clean Air Act—a statute we have
been successfully implementing for 45 years.
The Plan is strong because it's grounded in the voices, ideas, and expertise that we heard throughout the
extensive public engagement process that we launched in 2013 and continue to this day. Over the years,
we held hundreds of meetings with states and stakeholders and heard from millions of people during the
public comment period. This not only gave us a picture of what was already going on in the power sector,
it also solidified a network of partnerships between and among states and stakeholders.
So many members of the EPA family have dedicated their professional lives to protecting this planet for
future generations and that dedication has made a real difference in people's lives. I am proud of your
great work and am confident that we will keep moving forward. We will get over this CPP speed bump
and move closer and closer down the road towards a low carbon future. For many of us it's been a long
and winding road to get to where we are today, so one more speed bump will not deter us. EPA knows
how to overcome challenges and we know how to defend our actions when they are tested.
I want to thank staff from across headquarters, the regions, and our program offices who devoted
countless hours to the Clean Power Plan's development, outreach, and engagement. You did a fabulous
job developing the CPP. You brought millions of people to the table and so many folks continue to remain
engaged and active in states across the country. And we will all continue to fight for it. For the sake of
our kids and grandkids, EPA is not slowing down.
Thank you.
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EXHIBIT 3
EPA-HO -2016-003894
To:
From:
Heather
t Ex. 6 - Personal Privacy
McCabe, JanetZichal
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Sent:
Fri 2/12/2016 3:21:31 AM
Subject: RE: good vibes your way
That is EXACTLY right.! And just what we've been realizing.
Gina let it rip at a meeting of NACAA/NASECJ/NARUC today and got a standing ovation—it was
awesome.
We're making gallons of lemonade....
Thanks for the note, Heather.
Ex. 6 - Personal Privacy
From: Heather Zichal
Sent: Thursday, February 11, 2016 5:56 PM
To: McCabe, Janet =McCabe.Janet @epa.gov >
Subject: good vibes your way
Hi there - I know it's been a rough week. Just wanted you to know I"m thinking about you.
The big interesting point i think (at least for political folks) is that we went to bed on Tuesday
knowing about the stay and concerned that we'd lose people on implementing CPP — and we
went to bed on Wednesday knowing that we are in exactly the same place that we were before
the ruling.
I'll take it
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