Gary Maveal
Detroit Mercy School of Law
The president's nominee to head the nation's Environmental Protection Agency is a staunch opponent of its work. Should this disqualify Scott Pruitt from consideration as the next EPA Administrator? I submit that it clearly does.
The Role to Fill
Founded under President Nixon in 1970, the EPA was borne of a national movement insisting that a federal agency was needed to defend the nation's lands, air, and water from degradation. Citizens recognized that pollution ignored the bounds of state lines - and that individual states lacked the resources or political will to confront polluting industries.
The design of most federal statutes authorizes the EPA to set national standards for polluting activities, which are then implemented by the states. In this way, the EPA avoids the "race to the bottom" by states competing by offering varying (i.e., higher) allowable levels of emissions or discharges.
The role of EPA administrator is a challenging one, overseeing a dizzying array of complex federal statutes protecting the air, water, and endangered species. EPA rules regulate toxins from arsenic to zinc. In addition, the agency oversees a variety of public education and grant programs to inform and study environmental issues across the nation. The administrator must be proficient in assessing scientific data from public and private sources.
In promulgating rules, the positions of affected industries on their costs and benefits must be heard and evaluated. Yet the EPA head must view his or role as an advocate for the welfare of the nation's natural environment and to counter objections to regulations where principle demands.
The EPA's first (and two-time) administrator, William Ruckelshaus, explained how he viewed his role:
"It was important for us to advocate strong environmental compliance, back it up, and do it; to actually show we were willing to take on the large institutions in the society which hadn't been paying much attention to the environment."
Of course, EPA rules and enforcement are subject to challenge in court. A decade ago, twelve states successfully sued the agency for not regulating greenhouse gas emissions; the Supreme Court ruled that carbon dioxide was a "pollutant" under the Clean Air Act and that the EPA had to reconsider its reasons for not regulating automobile emissions of the greenhouse gases. Massachusetts v. EPA, 549 U.S. 597 (2007).
Pruitt's Focus as an Attorney General/Precedent
As attorney general for the State of Oklahoma since 2010, Pruitt has been a leading figure in organizing and promoting the interests of the oil and gas industry and opposing environmental safeguards.
He has pressed more than a dozen suits against the EPA, including challenges to the EPA's:
- Cross State Air Pollution Rule
- Standards limiting mercury emissions from power plants
- Standards for ground-level ozone
- Limits on pollution from new or reconstructed oil and gas facilities.
- Clean Power Plan
- Standards for carbon pollution by new power plants
- Clean Water Rule
In all of these suits, Pruitt has advocated positions aligned with regulated industries based in his state. His election campaigns have been financially supported by oil, gas and coal companies. Pruitt insists that he is looking to protect Oklahoma residents against higher utility rates and other costs of federal regulation. He's also defended his views as grounded in federalism and states' rights to resist over-reaching by the EPA.
Regardless of what has been the primary driver of Pruitt's challenges to the EPA, it is clear that they all pursue the interests of extraction industries. He has also been criticized for his failure to vigorously prosecute environment laws in Oklahoma.
It would be hard to find someone with credentials so starkly opposed to the agency's mission. The closest historical precedent would have to be Anne Gorsuch (Burford), President Reagan's EPA administrator.
Gorsuch was a Colorado legislator also known for a conservative ideology of states' rights and minimizing the size of the federal government. (Her caucus called itself "the Crazies.") In 1981, Reagan named her for the EPA post to bring economic discipline and more respect for the role of states; the latter focus saw her invite "voluntary compliance" by the states with EPA standards.
Gorsuch's other priorities included gutting Clean Water rules, streamlining the process for approval of new chemicals for restricted-use pesticides, slashing enforcement budgets. She relaxed limits on lead in gasoline to exempt small refineries, a change that was later nullified as invalid. In late 1982, Gorsuch was held in contempt of Congress for refusing to produce documents concerning enforcement of toxic waste dumps. See U.S. v. House of Representatives, 556 F.Supp. 150 (D.D.C. 1983). Gorsuch resigned weeks after the Court refused to rule on her challenge of executive privilege.
The Current Climate
Last week, NASA and the National Oceanic and Atmospheric Administration jointly announced that 2016 was the warmest year on record. Scientific American reports that climate scientists, policy experts, and environmentalists are concerned that the new administration will work to scale back U.S. and international efforts to limit CO2 emissions.
On January 20, the White House website was modified and no longer includes any reference to either "global warming" or "climate change." And the president has this week issued an executive order freezing EPA grants and reportedly prohibited the agency's employees from discussing the fact with press or on social media.
Nonetheless, the world community has reached a fragile consensus on climate change in the form of the 2015 Paris accord. On Jan. 25, Exxon Mobil Corp. publicly affirmed its support for the accord as a "monumental achievement."
The EPA administrator must believe that our country can afford the expense of preserving our natural resources for future generations. Allegiance to states' rights and regulated industries must surely be subordinate to advocating the national interests reflected in federal environmental statutes.
Nothing in Pruitt's Senate testimony suggests he has the heart and spirit to lead the EPA.
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Gary Maveal is a professor at Detroit Mercy Law and a member of the Board of Directors of the Michigan Lawyers' Chapter of the American Constitution for Law and Policy.
Published: Fri, Jan 27, 2017
