What to Watch for in “EPA’s Law Whisperer” Joseph Goffman’s Hearing

Today, Joseph Goffman, the current principal deputy assistant administrator for the U.S. EPA Office of Air and Radiation, will be the subject of a nomination hearing to be the assistant EPA Administrator for the office of air and radiation. This hearing comes after Goffman’s nomination was deadlocked before the Senate Environment and Public Works Committee last year due to opposition over his regulatory work as part of the Obama administration. The leading Republican on the committee, Shelly Moore Capito (WV), has been particularly critical of Goffman, making his nomination this year another one to keep an eye on.

Goffman is known as “EPA’s law whisperer” because according to E&E News, “his specialty is teaching old laws to do new tricks.” While working at the EPA under the Obama administration, Goffman played a key role in crafting the Clean Power Plan, which aimed to cut greenhouse gas emissions from the power sector by 32 percent from 2005 levels by 2030 by creating broad regulatory powers. The Supreme Court stayed the controversial plan in 2016, and then on June 30, 2022, declared the Clean Power Plan unconstitutional in West Virginia v. EPA. Six of the nine Supreme Court justices declared that under the major questions doctrine, Congress is required to speak clearly when granting agencies the power to decide matters of “vast economic and political significance.”

Goffman brings to the table a long history of pushing regulatory limits aimed at restricting the oil and natural gas industry. Here are some key topics to watch for during his nomination hearing.

  1. ‘Back Door’ Air Regulations and the Clean Power Plan

After Goffman helped craft the Obama EPA’s Clean Power Plan – which was blocked by the Supreme Court, repealed by the Trump administration, and later struck down by the Court – he worked in coordination with a group of Democratic Attorneys General to find alternative routes to regulate CO2 emissions.

In 2021, the Wall Street Journal reported that while working as Executive Director of Harvard Law School’s Environmental and Energy Law Program in 2019, Goffman acted as a liaison between Democratic Attorneys General and former EPA attorneys to devise a strategy to regulate CO2 under the EPA using secondary ozone National Ambient Air Quality Standards (NAAQS).

While there was no scientific or legal basis for the EPA to designate CO2 a “criteria pollutant” and set NAAQS for the greenhouse gas, Goffman led a group of former EPA staffers and environmental activists in crafting a back-door approach to regulating ozone. In an email to New York Assistant Attorney General Michael Myers, the EPA officials Goffman recruited to consult with the group of attorneys general laid the strategy bare:

“The science and statute would make a maintenance level NAAQS a hard sell and short-lived, but it’s another interesting angle and possibly a useful gamble.” (emphasis added)

In 2021, a day before President Biden was inaugurated, the same group of Democratic AGs sued the EPA to vacate the agency’s current ozone NAAQS. Through a “sue and settle” approach, the group hopes to fast-track replacement rules that would never pass in Congress. This approach is reliant on having amenable leadership at the EPA – like Goffman – should the lawsuit come to a settlement.

Most concerningly for the Committee that will be evaluating Goffman’s nomination, Goffman’s 2021 ethics records show he never disclosed his work consulting for the attorneys general. Consequently, he has not recused himself from the State of New York et al. v. EPA lawsuit, where he now sits on the side of the defendants after crafting the plaintiffs’ legal strategy.

Key Question(s):

  • Will Goffman try any additional back-door approaches to bypass Congress, despite this kind of agency overreach being struck down by the Supreme Court?
  • Will he recuse himself from State of New York et al. v. EPA?
  1. ‘Ambitious’ EPA Methane Regulations

In addition to developing broad and controversial regulations like the Clean Power Plan, another topic to watch is how Goffman believes the EPA should assert its authority over the oil and natural gas industry on methane regulations.

On November 11, 2022, the EPA proposed a set of rules to limit methane emissions in the natural gas industry that provide minimal flexibility for the use of alternative detection technologies, hinder industry innovation, and have a disproportionately burdensome effect on smaller, independent producers.

E&E News reported that the draft rules include a program called the “Super-Emitter Response Program” (SERP), which would compel operators to inspect their equipment for methane leakage following notification of a potential leak by a third-party monitor. This would, for the first time, “give citizens and communities a formal role in policing petroleum operations.” The Western Energy Alliance and other industry groups have argued that under the Clean Air Act – and given the precedent set in West Virginia v. EPA – the EPA does not have the legal authority to give outside groups a role in emissions regulation.

This “risky methane gambit” has all the markings of “EPA’s law whisperer.” Speaking on the draft methane rules rules, E&E News reported that Goffman said they would be:

“…a marker or a very strong signal of just how extensive and ambitious we would hope the final rule would be.” (emphasis added)

EPA’s proposed methane rules would outsource oversight to environmental activists, opening the door for false reports and abuse of the system, despite the industry’s commitment to efficiently reducing methane emissions, cutting them by 17 percent since 2005. Commenting on the regulations, IPAA’s former President Barry Russell noted:

“EPA’s ‘one-size-fits all’ approach to regulating the oil and natural gas industry is inappropriate and disproportionally impacts conventional operations, low production wells, and small businesses.”

While going on to say:

“There is consensus among companies small and large on the importance of reducing emissions and new breakthrough technologies have been developed to more cost-effectively and efficiently monitor and measure emissions.”

Key Question(s):

  • Does Goffman recognize that the switch to natural gas brought about major reductions in methane emissions, without overly burdensome and prescriptive government regulation?
  • Does Goffman plan to approach methane regulations at EPA with the same “backdoor” strategy he used to attempt CO2 regulations?
  1. Carbon Capture Backlog and Permitting Reform

From carbon capture, to oil and natural gas pipelines, to renewables and grid transmission, an array of important energy projects in the United States are stuck in regulatory hurdles due to backlog in the EPA. Specifically on Carbon Capture and Storage (CCS), Forbes reported on Monday that the EPA has not approved a single permit for a Class VI injection well (used to sequester captured CO2), despite bipartisan support from Republicans, Democrats, and the Biden White House. CCS technology is regarded as a crucial tool to lowering emissions and ensuring cleaner air, a topic that Goffman would surely have an opinion on.

Currently, there are over 40 permit applications for Class VI injection wells pending with the EPA, with nearly ten new permits added in the last month alone, and zero have been approved since the passage of the Inflation Reduction Act. Additionally, the EPA has been slow to grant states primacy over Class IV wells, despite dedicated funding from the 2021 Bipartisan Infrastructure Act to assist in the permitting process.

While North Dakota and Wyoming were granted primacy years ago, four other states have pending applications, with many others interested in the process. Notably, Louisiana’s application has been under review for over 500 days – an issue Gov. John Bel Edwards recently expressed frustration over in a letter to the EPA.

Key Question(s):

  • What does Goffman think about the extreme delays at the EPA in approving both Class VI wells and state primacy applications, given the central role CCS plays in the Biden Administration’s climate policy?
  • Does he believe this backlog is preventing progress on lowering air emissions – goals that both the EPA and Biden administration have publicly supported?

In terms of general permitting, both traditional energy projects and renewable energy projects have faced increased delays and regulatory setbacks. Among other obstacles, federal drilling permits dramatically decreased, the Mountain Valley Pipeline has been under construction for almost seven years, only 21 percent of planned wind farms have begun construction, and energy transmission construction is wildly behind schedule.

  • How does Goffman plan to remove the backlog over permitting across the energy value chain?

Bottom Line: Goffman rose to prominence in the Obama EPA for authoring some of the most controversial air regulations. He continued this trend while at Harvard Law, where he coordinated with state attorneys general to tee up a legal challenge that may open the door for Goffman to continue his “law whispering,” despite Supreme Court precedent that severely limits this kind of legal maneuvering. Now as the next round of his nomination unfolds, these actions, and their effects on energy production and energy security, will surely be scrutinized.

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