Emails Show Biden Admin Coordinating with Enviro Group That’s Suing Them

From the Daily Caller

Daily Caller News Foundation



The Biden administration communicated about changes to a landmark environmental law with a major eco-group that is suing the federal government over the law in question, emails obtained by the Functional Government Initiative (FGI) and shared exclusively with the Daily Caller News Foundation show.

The emails, exchanged in May 2021, show that Kristen Boyles, a managing attorney for Earthjustice, contacted the Department of Justice (DOJ) to request information about the White House Council on Environmental Quality’s (CEQ) forthcoming rulemakings on the National Environmental Policy Act (NEPA), a decades-old environmental law. The communications occurred as Earthjustice was suing the Biden administration in an ongoing NEPA lawsuit and show that President Joe Biden’s CEQ was willing to provide at least some information.

At the time of these communications, the Biden administration had not yet made public its specific proposal for the NEPA rulemakings. The administration published the new rules in the Federal Register in October 2021.

“These emails certainly raise suspicions that there is some inappropriate conduct by the DOJ lawyer,” Steve Milloy, a senior legal fellow for the Energy and Environment Legal Institute, told the DCNF. “That the information being privately provided to Earthjustice is then redacted in the FOIA request makes the exchange doubly suspicious.”

NEPA has been one of the most important and contentious environmental laws on the books. Former President Richard Nixon signed it into law in 1970. The law dictates how federal agencies must assess potential ecological impacts of major projects, like new highways, according to the Environmental Protection Agency.

NEPA is also the most frequently-litigated federal environmental statute, according to the Congressional Research Service. Environmental groups often use NEPA lawsuits as a way to hold up energy projects they oppose.

The Trump CEQ modernized NEPA to make it easier to build infrastructure projects in July 2020, reducing the rule’s complexity and its vulnerability to excessive litigation. Earthjustice filed a lawsuit that same month, alleging that the Trump CEQ had illegally overhauled the statute. (RELATED: ‘Sue And Settle’: Biden Admin Agrees To Block Oil And Gas Drilling After Settling With Eco Activists)

Earthjustice Emails by Nick Pope

The emails show that Biden DOJ officials passed along Earthjustice’s questions to CEQ regarding specific aspects of its plans for NEPA rulemakings. The emails also show that CEQ officials were willing to provide at least some of the information that Earthjustice requested. Further, some of the DOJ officials included in the correspondence were also involved in Earthjustice’s NEPA lawsuit against CEQ.

Notably, the government redacted the relevant sections of the communications, citing (b)(5) exemptions. Therefore, it is not possible to decipher the specific information that CEQ was willing to provide to Earthjustice.

A (b)(5) exemption covers “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency,” according to the National Archives. Effectively, the (b)(5) redaction exempts the government from having to disclose its own internal “deliberations about application of law to specific factual scenarios,” according to the DOJ.

“Thank you for convening the conference call today and giving us the information about CEQ’s plans for 3 NEPA rulemakings,” Earthjustice’s Boyles wrote on May 25, 2021, to Clare Boronow, the DOC attorney serving as the government’s counsel in the NEPA lawsuit.

“I’m hoping you can convey our thanks to CEQ and also our request for details about the second and third rulemakings, as those are going to be very important for our clients to decide how to proceed in the litigation,” Boyles wrote to Boronow. “Particularly for the second rulemaking, the parts of the 2020 Regs that CEQ wants to address more quickly, details of what parts of the 2020 Regs will or will not be addressed, repealed or re-instated.”

Boyles copied Gregory Cumming, a DOJ counsel working on the concurrent NEPA case, according to court documents. The DOJ officials then relayed her request to bureaucrats working in the CEQ, who then responded with redacted information that they were “open to providing.”

The next day, Bonorow forwarded Boyles’ message to the CEQ’s Amy Coyle and Justin Pidot, asking if “CEQ is in a position to provide that information.” Coyle responded later that day, outlining what CEQ was willing to provide in response. However, the section of Coyle’s message that would reveal what information CEQ provided was redacted under a (b)(5) exemption.

“Earthjustice is getting inside information in so-called litigation against the government with DOJ’s assistance and apparently participating in CEQ’s rulemaking on matters of national significance, all outside of the public eye,” Pete McGinniss, a spokesman for FGI, said of his organization’s discovery.

The Biden administration had been working for months to effectively undo the Trump CEQ’s moves to streamline NEPA, and ultimately reversed many Trump administration reforms. The Biden CEQ finalized “phase one” of its NEPA rulemaking in April 2022.

Earthjustice applauded the announcement, and encouraged the Biden administration to go further in subsequent rulemakings.

In July 2023, the administration proposed a “phase two” NEPA rulemaking that would bolster the statute to more strongly consider “environmental justice” implications and greater community input, which Earthjustice also commended.

On May 27, 2021, Pidot forwarded more follow-up questions from DOJ to CEQ Chief of Staff Matt Lee-Ashley and Jayni Hein, who also worked for the Biden CEQ at the time. It is unclear what information was relayed in response, as the relevant sections were again redacted under a (b)(5) exemption.

While neither Pidot nor Hein appear to have been directly involved in the NEPA lawsuit, Lee-Ashley submitted an affidavit on June 3, 2021, several weeks after the emails had been exchanged.

“That’s a lot of cheek to claim deliberative process privilege to hide a thread which also happens to reveal a call about disclosing the administration’s deliberative process. With an extant litigant, about its litigation no less,” Chris Horner, a practicing attorney with an extensive background in environmental litigation, told the DCNF about the messages and the government’s justification for redacting crucial parts of the emails.

“Still, if I didn’t know better I would suspect there are two standards in applying the law. Shrug it off for friends—that’s what phone calls are for!— and, to the disfavored, indignantly declare the law to be a sacred shield,” Horner said.

The DOJ declined to comment, referring the DCNF to the CEQ regarding NEPA lawsuit questions. The CEQ and Earthjustice did not respond to requests for comment.

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Tom Halla
December 21, 2023 10:09 am

Describing the relationship between the regulators and the green NGOs as incest minimizes the impropriety.

John Hultquist
December 21, 2023 10:27 am

In this case the following statement becomes literal.
“I’m from the government, and I’m here to help.”

December 21, 2023 10:51 am

“On President Joe Biden’s first day in office, White House press secretary Jen Psaki pledged that the administration would ‘bring transparency and truth back to government.‘ ”

As the saying goes, talk is cheap.

Richard Page
Reply to  ToldYouSo
December 21, 2023 4:43 pm

Didn’t the FBI Investigator in the Ghislaine Maxwell case vow to prosecute every guilty party in her/Epstein’s contact book. Until they found out whose names were in it then everybody get’s a free pass and referred to, suddenly, as a ‘witness’. Of course there’s a two-tier justice system, or rather a three-tier system where the in the 3rd tier it’s perfectly fine to make up stuff about someone you really don’t like, prosecute them for it and use the law as a club, not a shield.

Reply to  ToldYouSo
December 21, 2023 7:17 pm

Same pledge from Obama. Ironic how their administrations were among the most secretive about what they were really doing, bypassing Congress and the elected representatives of the people to shove their diktats in our faces; using lawfare, judges, bureaucracy, and executive orders instead of democratic processes. Whenever I hear a Democrat pledge transparency I roll my eyes and think, “here we go again”.

Rud Istvan
December 21, 2023 10:55 am

IMO a tempest in a teapot. Communication between litigants is a norm, not an exception. We do not know what the communications comprised because that was apparently lawfully withheld. Does not have the look or feel of a Sue and Settle situation. The article itself says NEPA is highly litigated, so this particular litigation communication would not be unusual.

Reply to  Rud Istvan
December 21, 2023 11:35 am

Ummm . . . with careful consideration of the difference between an action being unlawful as compared to it being unethical.

Joseph Zorzin
Reply to  ToldYouSo
December 21, 2023 12:49 pm

and deserving of NOT being unlawful, especially when one side is OUR government

December 21, 2023 10:57 am

To: Clare Bonorow, Amy Coyle

Hello All,

I am e-mailing you to request information about recent contacts and information that you coordinated, and provided, to EarthJustice. I want to thank you for your time, as the information is going to be very useful to myself and associates in regard to our litigation plans.

1) I need your full names and home addresses
2) Job titles
3) Names & titles of direct supervisors

Joseph Zorzin
Reply to  DonM
December 21, 2023 12:50 pm

4) how much was your kickback

December 21, 2023 11:35 am

Story tip.

Speaking of calling out climate shenanigans, this observation could equally apply to UK, Australia and other sideline-players in the missions angst idiocy –

Richard Page
Reply to  Mr.
December 21, 2023 4:46 pm

As far as I remember, the UK govt. were still inviting Greenpiss into the net zero regulation process. I think, anyway.

Joseph Zorzin
December 21, 2023 12:47 pm

Apparently some states have something like “(b)(5)”? A friend sent a FOIA request to the state of Wokeachusetts and got back a reply that included heavily redacted material. I believe they mentioned they could do that for similar reasons- inter/intra agency blah, blah, blah. I can’t understand why any inter/intra agency blah, blah, blah ought to be TOP SECRET unless it’s military. WTF?

Rud Istvan
Reply to  Joseph Zorzin
December 21, 2023 1:00 pm

Without getting too technical, it is the government agency equivalent of presidential executive privilege. The idea is that internal ‘strategic advice and options’ are privileged—nobody else gets to see them.

Joseph Zorzin
Reply to  Rud Istvan
December 21, 2023 1:05 pm

too many privileges in government- we pay them and we should know everything they say and write, IMHO- other than military

Rud Istvan
Reply to  Joseph Zorzin
December 21, 2023 1:46 pm

Repect your POV but mildly disagree. The idea is that the President/Agency cannot get a full spectrum of counsel if everything is exposed to the public.
There are other administrative law guardrails in place for that which should be made public. For example, at the federal level the Administrative Procedures Act of 1946, used to challenge a number of seemingly arbitrary EPA decisions that inadequately responded to mandated public comments.

Richard Page
Reply to  Rud Istvan
December 21, 2023 4:51 pm

Actually, Rud, I think Joseph is right on this – those regulations are being used as a blanket, default setting so they don’t have to tell the little people anything. It should be the other way around – the agency should have to request the privilege and justify the reasons, but not the actual content. It should be treated as the exception, not the rule.

December 21, 2023 1:28 pm

Is that what is called an ‘Amicus Brief”?

December 21, 2023 2:00 pm

Well this certainly doesn’t improve my view of government. Federal, state and local governments all need to be whittled down. They are out of control.

Reply to  Bob
December 21, 2023 11:32 pm

Was just thinking the same. There’s a huge proliferation of non-representative quangos in western “democracies” costing the taxpayer billions.

December 22, 2023 3:35 am

Sue and settle, this has been going on a long time.

December 22, 2023 9:28 pm

Obama’s standard practice was “Sue and Settle.” Don’t fight the suit, settle out of court, and the Green activists get a big payday courtesy of the American Taxpayers.

December 23, 2023 6:24 am

Sue and settle was the norm with the Obama EPA and it continues. That’s how they get around Congress. Some green group would sue. The EPA would accept a prearranged settlement that favored the green position. All tidy and legal.

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