Emails show a bloodied but unbowed EPA after rule freeze

By Elizabeth Harball | 06/03/2016 01:23 PM EDT

Six minutes past midnight on Feb. 10 — five hours after the Supreme Court stayed President Obama’s signature climate change rule — a U.S. EPA assistant administrator expressed shock in an email to her colleagues in the Office of Air and Radiation.

"Can’t believe this," Lori Stewart wrote to acting air chief Janet McCabe and Joe Goffman, the air office’s associate assistant administrator and senior counsel.

Emails between top EPA officials after the high court’s surprise decision to stay the Clean Power Plan, obtained by E&E through a Freedom of Information Act request, reveal both disappointment and a dogged determination to move forward on the rule after the Supreme Court’s unprecedented decision to stay the regulation.


In the days after the stay was announced, the rule’s supporters sent emails of encouragement to EPA Administrator Gina McCarthy and other agency officials.

"Thinking of you today — hang in there," Cheryl LaFleur, a member of the Federal Energy Regulatory Commission, told McCarthy on Feb. 10.

"Very thoughtful statement — thank you!" McCarthy replied.

Wrote Heather Zichal, former deputy assistant to Obama for energy and climate change, in a Feb. 11 email to McCabe: "I know it’s been a rough week. Just wanted you to know that I’m thinking about you."

EPA officials and their supporters cheered the news that a number of states would continue working on the Clean Power Plan despite the stay.

Zichal ended her email to McCabe on an up note: "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 Wednesday knowing that we are in exactly the same place we were before the ruling."

McCabe’s reply: "That is EXACTLY right!" She added, "We’re making gallons of lemonade."

Union of Concerned Scientists President Ken Kimmell wrote in a Feb. 12 email to McCabe: "I imagine that you must feel shell shocked right now. I know I do. I wanted you to know that we will do everything we can to keep progress moving while the litigation is pending, and to influence the outcome of the ruling on the merits."

McCabe told him, "Keeping the momentum — of which there is a lot — moving is critical, and a lot of entities, including states and utilities, are speaking up to say so," and she thanked Kimmell for his efforts.

Staff circulated news and press releases about states that would continue or halt planning for the rule.

"Very cool," McCarthy wrote on Feb. 10 in response to a press release from Virginia Gov. Terry McAuliffe (D) announcing his state would continue working on the rule.

In a Feb. 11 email, McCabe wrote "Think how remarkable it is to have even three states (VA, CO and now PA) voluntarily say they are going to move forward on a federally required program that is stayed — really, I’m not sure that’s ever happened before."

In a Feb. 15 email, Region 3 Administrator Shawn Garvin wrote that he heard from Maryland officials that their state would also keep up work on the rule.

A Delaware official, Philip Cherry, also wrote to EPA after the stay was issued saying the state intended to continue working on a plan to comply with the rule. "We wanted to be sure EPA knew of our intentions, and our support for the CPP overall," he wrote.

The stay stirred questions outside of Washington, too. Groups representing state regulators quizzed EPA leaders about the stay’s impact. Some of the questions were obvious. Would the agency extend its deadline for initial state responses beyond September 2016? Others had deeper implications. Could the stay disrupt the goals of the international climate agreement signed in Paris last December?

McCabe wrote that "these questions are pretty much what we expected" in an email to staff before a conference call with state groups Feb. 16.

Christopher Grundler, director of EPA’s Office of Transportation and Air Quality (OTAQ), in a Feb. 12 email said it was "way cool" that McCarthy received a standing ovation for her speech in her first public appearance after the stay was announced, noting in the subject line it "has lifted me out of my post SCOTUS funk."

"I’m sure she’ll say something at the all hands meeting next week too," McCabe said in reply. "So all depressed OTAQ employees should attend."

Scalia’s death

In the days after the stay, EPA communications staffers prepared talking points for McCarthy and other high-ranking officials.

William Niebling, a senior adviser for congressional affairs, said "I know it’s not a fun topic" and asked whether press advisers were prepping McCarthy for a congressional hearing.

"Given that she’ll get the question anywhere she goes, do we need to do something different to prep her for House Ag? Or are you talking her through it anyway?" Niebling asked in a late-night email on the day of the stay.

Director of Public Affairs Liz Purchia on Feb. 11 shared editorials from The New York Times and The Washington Post with McCarthy, McCabe and Goffman.

"NYT calls into question the court’s political nature. WaPo calls on congress to do something on climate," she said.

As news broke of the Feb. 13 death of Supreme Court Justice Antonin Scalia — a critical vote in the 5-4 decision to stay the Clean Power Plan — top EPA officials sent around emails alerting each other of the news.

"Justice scalia died" was the subject line of an email sent by EPA’s top enforcement official, Cynthia Giles, to McCarthy and McCabe.

Wrote Goffman to McCabe: "May his soul find peace."

Many of the emails received by E&E were redacted for being "deliberative" or protected by attorney-client privilege. For example, EPA did not release emails where staff were preparing answers for reporters about what states should do following the stay and whether a September deadline for initial plans would apply.

Reporters Emily Holden, Robin Bravender and Evan Lehmann contributed.