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U.S. Senate Confirms Scott Pruitt as EPA Chief, Signaling Conservative Re-Imagining of EPA’s Role in Society and Government

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by John D. Burnside

On February 17, 2017, the U.S. Senate confirmed President Trump’s nominee Scott Pruitt as the new administrator of the U.S. Environmental Protection Agency. Senate confirmation followed weeks of partisan and public attacks against Mr. Pruitt’s fitness to serve as the nation’s chief regulator of clean air, water, and land, as well as strong voices of support from conservatives. President Trump and Administrator Pruitt promise to implement a shift in focus at EPA, promoting deference to states, cooperation with industry, and advancement of economic interests alongside environmental protection.  Some controversial Obama-era EPA regulations will likely be rewritten or abandoned outright. However, the wholesale destruction of the nation’s environmental regulatory infrastructure, as foreshadowed by some commentators, appears unlikely. The atmosphere may be warming but the sky is not falling.

Since President Trump announced his nomination on December 7th, a chorus of Democrats, environmental NGOs, and other left-leaning political voices have publicized their staunch opposition to Mr. Pruitt’s confirmation as EPA Administrator. Remarkably, a group of 400 former EPA officials joined a letter warning Congress that Pruitt “does not share the vision or agree with the underlying principles of our environmental laws.”

Why all the hostility? Famously, Mr. Pruitt, as Oklahoma’s Attorney General, had sued the same agency he now leads in fourteen lawsuits seeking to invalidate several regulations forming the cornerstone of the Obama administration’s environmental policies, including the controversial Clean Power Plan targeting coal-fired CO2 emissions and Clean Water Rule expanding the geographic reach of the Clean Water Act. Mr. Pruitt, acting with dozens of other Republican-led states and industry leaders, had argued that these regulations, among other Obama-era enactments, violated core principles of federalism by unconstitutionally infringing on the rights of the states. Given President Trump’s pledge to undermine these rules and generally weaken what he has described as EPA overreach, the new President may believe that Mr. Pruitt’s litigious history enhances, rather than detracts from, his qualification to lead the agency.

Mr. Pruitt has also received scorn from Democrats and activists for his close relationship with oil and gas companies. For example, as Oklahoma’s Attorney General, Mr. Pruitt signed a letter to EPA critical of its findings regarding air emissions from natural gas wells using language provided by an Oklahoma oil company. Oil and gas interests reportedly have contributed $270,000 to Mr. Pruitt’s election campaigns and have poured hundreds of thousands of dollars more into political action committees run by or supporting Mr. Pruitt. Further, oil and gas companies and trade associations have served as co-parties alongside Oklahoma in many of Mr. Pruitt’s legal actions against EPA. In Senate testimony, Mr. Pruitt has defended his ties with energy as a proper reflection of his role as an advocate of his state’s economic interests. He has also criticized the perception that pro-energy policy and pro-environment policy are mutually exclusive, noting that the nation must reject that “false paradigm.”

Following the Senate Democrats’ last-ditch effort to boycott and delay the vote, Mr. Pruitt achieved confirmation by a fairly comfortable margin of 52 to 46, thanks to a solid Republication majority. One Republican senator broke party lines and voted against confirmation, while two Democrats, from the energy-producing states of West Virginia and North Dakota, voted in favor.

What should we expect from the nation’s new chief environmental regulator? Despite the hyperbole that characterized the confirmation process, Mr. Pruitt took a conciliatory tone in his first address to EPA employees, emphasizing civility and respect for the role of states. Mr. Pruitt emphasized that environmental regulation under his guidance would focus on process and the rule of law, while making it easier for industry to comply with environmental regulations. “Those who regulate ought to know what’s expected of them so they can place and allocate resources to comply,” he observed. A statement issued by EPA praised its new chief, stating that “Mr. Pruitt will lead EPA in a way that our future generations inherit a better and healthier environment while advancing America’s economic interests.”

Clues about EPA’s direction under Mr. Pruitt can be found in his Senate testimony, as well. During the confirmation hearings, Mr. Pruitt expressed views and opinions toward the right of the political spectrum, but he did not portray himself as a radical conservative outlier opposed to environmental regulation. In particular, Mr. Pruitt did not deny the science of climate change, but rather testified that “the climate is changing and human activity, in some manner, impacts that change.” He went on to state that the extent of the impact “and what to do about that” are subject to continued debate. Mr. Pruitt also testified that EPA “has a very important role in regulating CO2,” and he would not seek to reverse the EPA’s 2009 finding that greenhouse gas emissions endanger public health and welfare by contributing to climate change. This so-called “endangerment finding” is the legal underpinning of the Obama administration’s climate change rules, including the Clean Power Plan, which Mr. Pruitt has continued to criticize as contrary to the Clean Air Act.

Regarding the Clean Water Rule, Mr. Pruitt’s testimony attacked the legality of EPA’s attempt to define the geographic reach of the Clean Water Act, but did not oppose the rule’s regulatory objectives in mandating clean water. Instead, Mr. Pruitt asserting that the scope of the “waters of the U.S.” subject to regulation should be clarified by Congress.

Mr. Pruitt’s testimony also expressed more pragmatic approaches and priorities for his administration, including the enactment of rules to implement last year’s amendments to the Toxic Substances Control Act, a renewed priority on remediating contaminated land under Superfund, increased deference to state governments in matters of environmental regulation, and federal intervention into air and water quality issues that cross state lines.

In the end, it appears likely we can expect a shift in EPA’s tenor and approach, with increased deference to states, cooperation with industry, and focus on economic objectives alongside environmental protection. This re-imagining of EPA’s role in society and government is consistent with the transition from a Democratic, left-leaning administration to a conservative Republican one. We will also likely see the repeal or dramatic revision of the more controversial Obama-era innovations, such as the Clean Power Plan and Clean Water Rule. However, we are not likely to see a radical destruction or abandonment of the fundamental mission of EPA as the administrator and enforcer of environmental laws passed by Congress.