Thursday, February 23, 2017

An EPA Adversary Now Helms the Agency

By Ed Jewell, Energy Fellow

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Last week, Scott Pruitt was confirmed as the Administrator of the Environmental Protection Agency, largely along party lines and despite the impending release of emails ordered by an Oklahoma court regarding Mr. Pruitt’s contacts with the oil and gas industry (because who cares about a few emails?). Unsurprisingly, given President Trump’s overtures to the fossil fuel industry during his campaign and early days in office, his selection of Mr. Pruitt represents a bigly gift for the oil and gas industry.

Scott Pruitt Is More Concerned With Protecting the Oil and Gas Industry Than Protecting the Environment

Unlike some of President Trump’s other nominees for cabinet positions, Mr. Pruitt is familiar with the work of the agency that he has been nominated to lead. In his previous job as the Attorney General (AG) of Oklahoma, Mr. Pruitt sued the EPA over a dozen times in efforts to block implementation of rules to protect clean air and water.

Mr. Pruitt was also instrumental in building a network of Republican AG offices dedicated to fighting EPA efforts under the Obama administration. As chairman of the Rule of Law Defense Fund, Mr. Pruitt and his cohorts sought to slow or thwart implementation of major environmental and public health programs such as the Cross State Air Pollution Rule, Clean Air Mercury Rule, EPA’s update to its national ambient air quality standards for ground-level ozone (smog), the Clean Power Plan, and others. Co-litigants with Mr. Pruitt in these suits against the EPA included the American Fuel & Petrochemical Manufacturers, National Mining Association, Murray Energy, Peabody Energy, Southern Company, American Petroleum Institute, and other representatives of some of the most polluting industries on Earth.

Mr. Pruitt’s actions show greater concern for the interests of the oil and gas industry than for public health and the environment. The New York Times has described Mr. Pruitt’s relationship with oil and gas industry executives as an “unprecedented, secretive alliance.” In 13 out of the 14 challenges to federal environmental regulations that Mr. Pruitt was part of, energy companies that had contributed money to Mr. Pruitt or to Pruitt-affiliated political campaign committees were co-parties. Additionally, Mr. Pruitt copy-and-pasted a letter (with minor, unsubstantial alterations) from an oil and gas company onto Oklahoma AG letterhead, and sent the letter to the EPA representing it as the work of the AG’s office, thereby using the seal of his public office to lend an imprimatur of public interest to the arguments of the oil and gas industry.

One of the core tenets of Mr. Pruitt’s regulatory philosophy is that environmental regulation should be left to the states. However, under his direction, the Oklahoma AG's office cut its environmental enforcement division and redirected resources into a newly created federalism division. Thus, Mr. Pruitt’s actions demonstrate his beliefs that not only should environmental regulation be left to the states (calling into question why he is in charge of the EPA) but that states should then abdicate responsibility for environmental protection as well (calling into question why he is in public service).

Pruitt’s EPA Will Face Legal Roadblocks to Rolling Back Most Obama Era Regulations

While Mr. Pruitt was effective at organizing opposition to the Obama administration’s regulatory efforts, his challenges often failed in court. Courts upheld numerous EPA rules challenged by Mr. Pruitt and his coalition, making them more impervious to challenge from within the agency.

Furthermore, judicial review of administrative actions constrains the ability of the EPA Administrator to make or reverse policies adopted by previous administrations, particularly policies that have already gone into effect. Familiar doctrines such as Chevron deference and arbitrary and capricious review provide outer limits on the Administrator’s discretion. Agencies may be entitled to substantial deference from the courts, but agency actions are far from unfettered.

It is quite common for incoming EPA administrators to take different positions on matters within the agency’s jurisdiction than outgoing administrators. While the agency is allowed considerable latitude in its policy positions, it still must be able to adequately explain why it is changing course and must point to substantial evidence in the record to support its decision. It is not simply enough for the agency to say that there is a new administration in town and so now the agency is going to rescind previous rules. Perhaps most illustrative of this principle is the G.W. Bush administration’s failed efforts to undo the Clinton administration’s Roadless Rule for certain areas of the nation’s national forests.

Therefore, most of the Obama administration’s environmental regulations—which were amply supported by scientific evidence and in many cases have already been upheld against legal challenges (many of them from Mr. Pruitt)—will be tough for Pruitt to undo. Particularly given that numerous federal environmental statutes, existing regulations, and the best available science all contradict his lasseiz faire dressed up as federalism viewpoint.

The early days of the Trump administration are not indicative of an administration that is predisposed to the thoughtful, deliberative process required to compile the necessary administrative record to withstand judicial scrutiny. Additionally, the administration’s actions to undermine the EPA’s work, including efforts to slash the agency’s funding and impugn the role of science in policy making, will likely work against the administration’s anti-regulatory rulemaking efforts by opening the actions to judicial challenges.

Given the current legal structure, Mr. Pruitt's office faces impediments to fulfilling its agenda. Which goes a long way in explaining Steve Bannon's recent statements that efforts are underway to dismantle the regulatory state. So long as Americans continue to push back on the unconstitutional overreach of the Trump administration, and prevent wholesale change of our system of government, the environmental regulations that have protected U.S. water quality, air quality, and public health will likely still be in place when the American political system regains its senses. Just keep pushing back. 

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