OVERNIGHT ENERGY: National Guardsman says removing protesters from Lafayette Square was an ‘unprovoked escalation’ | EPA watchdog kicks off probe after agency slashed fuel efficiency regs | Trump offers new FERC nominees

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COUNTER TO THE WHITE HOUSE: A National Guard official will testify that a Park Police operation to remove demonstrators from Lafayette Square in front of the White House on June 1 was an “unprovoked escalation” against protesters “engaged in the peaceful expression of their First Amendment rights.”

These comments are part of the written testimony of District of Columbia National Guard Major Adam DeMarco, who is slated to appear before the House Natural Resources Committee on Tuesday alongside acting Park Police Chief Gregory Monahan. 

DeMarco is expected to testify that he was serving as a liaison between the city’s National Guard and Park Police in Lafayette Square on June 1, the day that protesters there were subjected to pepper balls and smoke canisters in an effort to clear the area. 

After the space was cleared, President Trump walked through the park and was photographed in front of the nearby St. John’s Church.

“Upon arrival, I received a briefing from my liaison with the Park Police and learned that the DC National Guard’s task would be to support a Park Police operation to clear demonstrators from the vicinity of Lafayette Square,” his testimony says. 

“The Park Police plan was to clear H Street between Vermont Avenue to the east and Connecticut Avenue to the west, and move north on Vermont Avenue, 16th Street, and Connecticut Avenue to extend the security perimeter,” he’s expected to say. “The immediate objective of this clearing operation, I was told, was to install a larger security barricade on H Street along the northern edge of Lafayette Square.”

A Park Police spokesperson did not immediately return The Hill’s request for comment. 

In previous comments about the incident, Monahan said that smoke canisters and pepper balls were used to combat “violent” protesters. 

He added that the demonstrators threw bricks, frozen water bottles and “caustic” liquids at officers but did not mention any sort of “operation” to clear protesters. 

However, Attorney General William Barr has told The Associated Press about a meeting that had occurred earlier about moving protesters away from the area. 

In his testimony on Tuesday, DeMarco is also expected to say he did not believe the protesters were violent. 

“Those demonstrators — our fellow American citizens — were engaged in the peaceful expression of their First Amendment rights. Yet they were subjected to an unprovoked escalation and excessive use of force,” he’ll say. 

Read more about the testimony here. 

ON THE ROAD AGAIN: The Environmental Protection Agency’s (EPA) internal watchdog will probe “potential irregularities” in how the agency crafted a rule that drastically rolls back the mileage standards automakers must meet.

The evaluation of the rule comes after a former EPA employee complained career staff were sidelined when the rule was drafted. A review of documents by The Hill found the final rule ignored concerns flagged by the White House.

The notice from the EPA’s Office of Inspector General in part credits Sen. Tom Carper (D-Del.) for spurring the probe and says the watchdog will determine whether the rule was “consistent with requirements, including those pertaining to transparency, record-keeping, and docketing, and followed the EPA’s process for developing final regulatory actions.”

The March rule was issued by both the EPA and the National Highway Traffic Safety Administration (NHTSA), replacing a landmark climate measure under the Obama administration with mileage standards below what automakers have said is possible for them to achieve.

The rule, called the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule, cuts the year-over-year improvements expected from the auto industry from 55 miles per gallon by 2025 under the Obama administration to 40 mpg by 2026.

Career staff at EPA said they were shut out from crafting the rule.

“NHTSA would say nothing about what they were assuming. They wouldn’t give us a copy of their models, they wouldn’t share their assumptions, they wouldn’t share their projections of how much the standards were going to cost,” Jeff Alson, a former senior policy adviser to EPA’s Office of Transportation and Air Quality, told The Hill last year. 

He accused EPA Administrator Andrew Wheeler of lying to Congress about EPA staffers’ involvement in developing the standards. 

After the rule was finalized, internal documents obtained by Carper detailed how EPA staff objected to claims that the new rule would reduce climate change impacts, while other files showed the White House Office of Management and Budget (OMB) said the rule lacked legal justification.

The rule states “this action will result in reductions in climate change-related impacts and most air pollutants compared to the absence of regulation.”

But EPA staff disagreed with that assessment.

“This is not correct,” they wrote when weighing in on the rule NHTSA compiled after the interagency collaboration. “‘The absence of regulation’ … would be the existing EPA standards which are more stringent than those finalized in this action.”

Other rulemaking documents show the EPA was warned of possible legal action before finalizing the rule.

“The legal justification is lacking,” OMB wrote when sending the rule back to EPA after its review, adding that it “reads very cursory.”

“It does not do enough to explain why 1.5 is the right stringency level as a matter of fact or why it is proper as a matter of law,” OMB wrote, referring to the rule asking for 1.5 percent year-over-year improvements in fuel efficiency from automakers, versus the 5 percent required under the Obama administration.

Carper had twice requested an investigation into EPA’s handling of the rule.

“The documents obtained by my office – which have now also been formally requested by the EPA Inspector General – demonstrate significant irregularities and illegalities throughout the Trump Administration’s preparation and finalization of its SAFE Vehicles rule, which was fraught with fatal flaws from the start,” Carper said in a statement to The Hill.

“I’m pleased that the EPA Inspector General is opening an investigation into this rule, which was the product of the most procedurally problematic process my office has ever reviewed. If the EPA IG follows the facts, I have no doubt they will find that the Trump Administration failed to follow the law.”

Read more on the probe here. 

FERC ALERT: President Trump made two nominations to the Federal Energy Regulatory Commission (FERC) Monday, bowing to pressure from Democratic lawmakers who have pushed to maintain the bipartisan split in the commission.

Trump nominated Allison Clements, Democrats’ preferred nominee, alongside Mark C. Christie, who currently serves as chairman of Virginia State Corporation Commission. If confirmed, the two would regulate electricity and natural gas markets alongside other major energy projects. 

FERC’s five-member board is supposed to have no more than three members of any one party, but for much of the year it’s been operating with just four members — three Republicans and one Democrat.

FERC’s newest commissioner, James Danly, was confirmed in March despite requests from Democrats that he be paired with Clements.

“In a political climate that is often paralyzed by partisanship, a bipartisan FERC is more essential than ever. I thank the President and the White House for nominating both a Democrat and Republican today because it is an important step towards restoring a fully seated Commission,” said Senate Energy and Natural Resources ranking member Joe Manchin (D-W.Va.), who had pushed for Clements’ nomination.

Read more on the nominees here. 

LESS ENFORCEMENT: The federal government will not pursue civil enforcement actions in Clean Water Act (CWA) matters where states have already taken action, according to a new Justice Department memo. 

“Civil enforcement actions seeking penalties under the CWA will henceforth be strongly disfavored if a State has already initiated or concluded its own civil or administrative proceeding for penalties under an analogous state law arising from the same operative facts,” says the internal memo from Assistant Attorney General Jeffrey Bossert Clark.

Now, federal lawyers will only be able to pursue civil enforcement actions in such cases with Clark’s “prior written approval.”

Clark wrote in the Monday memo that this will be done to avoid “piling on” and to ensure that federalism and due process are respected. 

The policy does not apply to criminal cases. 

Eric Schaeffer, who formerly served as the director of EPA’s Office of Civil Enforcement, said he fears the new policy will shield bad actors from facing greater penalties.

“None of the state agencies have the kind of penalty authority that…the Department of Justice would have if it brought a case,” said Schaeffer, who now leads the Environmental Integrity Project. “If the feds are pursuing you than your liability is greater than if the state is pursuing you.”

Read more on the memo here. 

ON TAP TOMORROW:

• The House Natural Resources Committee will hold a hearing titled “Unanswered Questions About the US Park Police’s June 1 Attack on Peaceful Protesters at Lafayette Square.”
• The House Energy and Commerce Committee will hold a hearing on reforming drinking water standards
• The House Climate Crisis Committee will hold a hearing on “Building a Vibrant and Just Clean Energy Economy”
• The Senate Energy and Natural Resources Committee will examine the development and deployment of large-scale carbon dioxide management technologies

OUTSIDE THE BELTWAY:

Deutsche Bank says it will no longer invest in fracking or Arctic oil as banks turn away from fossil fuels, Markets Insider reports

What Do a Colorado Coal Mine and the Border Wall Have in Common? asks Denver Westword

Yosemite employee has coronavirus. The national park hasn’t told the public, The Fresno Bee reports

ICYMI: Stories from Monday and over the weekend…

GAO: Pentagon not considering climate change risks to contractors

Report: Oil and gas companies have extensive ties to police groups

Ocasio-Cortez seeks language in budget to block pipelines

National Guardsman: Removing protesters from Lafayette Square was an ‘unprovoked escalation‘

EPA watchdog kicks off probe after agency slashed fuel efficiency regs

Trump makes two FERC nominations, potentially rebalancing commission

Feds to limit water pollution enforcement where states have taken action

FROM THE HILL’S OPINION PAGES:

“Global warming’s impact: Not worst-case but still deadly, if we don’t act,” write Zeke Hausfather, director of climate and energy at the Breakthrough Institute, and Andrew Dessler, a professor of Atmospheric Sciences at Texas A&M University.