25 Years at the EPA: Views from the GCs

By Kristy Demas

Michigan Law’s 2017–2018 Environmental Law and Policy Program (ELPP) lecture series kicked off recently with a panel featuring three former general counsels of the Environmental Protection Agency (EPA).

Jonathan Cannon from the Clinton administration (1995–1998); Roger Martella from the Bush administration (2005–2008); and Avi Garbow from the Obama administration (2013–2017) discussed the defining moments of their time as the agency’s top attorney, and the future of the EPA.

Cannon’s tenure began during Clinton’s second term, when the latest iteration of the Clean Air Act determined fine particulates contribute to premature death. The EPA was considering whether cost should be a factor when proposing regulations on particulate matter. Administrator Carol Browner decided cost should not be an issue.

But, Cannon shared, “…that answer didn’t fly with the White House, the Office of Management and Budget, or congressional Republicans. I spent a lot of time on the Hill lobbying for new EPA rules to go through. We took steps to make them less stringent than originally proposed, with longer phase-in periods to make them more palatable.”

Roger Martella was general counsel as the Bush administration grappled with increasingly urgent clean air and water concerns. “President Bush played a transitional role in recognizing climate change and the role of greenhouse gases,” Martella said. “Bush wanted to act but, in the end, he left the next steps to the incoming administration.”

During Martella’s tenure, the U.S. Supreme Court handed down its landmark decision in Massachusetts v. the EPA. The State of Massachusetts had filed suit against the EPA in an attempt to force it to regulate greenhouse gases. In a 5-4 decision, the Court sided with Massachusetts. Martella had expected the Court to affirm the EPA’s view that it was up to Congress, not the EPA, to address global greenhouse gases.

The tide shifted by the time Avi Garbow, AB ’88, became general counsel during the second Obama administration. The EPA was hosting listening sessions for input on regulations from state and local governments, tribal authorities, industry, and private citizens. Garbow, who was the longest-serving EPA general counsel, described a particularly memorable session at a National Conference of American Indians, when a teenaged boy described changes in water quality and fish that he had witnessed in his 15 years. The teen noted that the environment was deteriorating before his eyes. As Garbow explained, “It’s why we have an EPA.”

Garbow believes the impetus to address climate change was galvanized further by a 2013 speech President Obama gave at Georgetown University. “It was one of the president’s most amazing speeches, as he spoke about the moral and economic imperatives to act on climate change. We could see this from our listening sessions, which were picking up speed and generating more than four million comments from stakeholders—and these sessions were taking place before the EPA even put out proposals.” Garbow said at that point, the American public seemed ready for action.

Fast forward to 2017, and the Trump administration talks of reassessing power plant proposals and pulling out of the Paris Agreement. The new EPA administrator, Scott Pruitt, sued the EPA when he was Oklahoma’s attorney general. Professor David Uhlmann, who moderated the conversation, asked for the panelists’ thoughts on where we go from here.

Cannon noted, “The president cannot just rescind laws. There must be proposals, time for public comment, and an internal review process.” He also believes that much of today’s environmental action is happening outside of the federal government—from individual states self-regulating to industry coming up with cost effective and alternative fuels.

Martella agreed that outside forces will do more to influence environmental sustainability and climate change laws and that there will not be a fundamental change during this administration. That takes time and, Martella said, “Trump will be a blip in that timeline.”

Garbow’s response was cautious. “It’s a difficult time to be in the EPA right now, when Trump is calling for 30-percent cuts. He won’t get them, but it sends a message.” Much of the senior administration has already left, and soon environmental groups will ramp up challenges to the EPA, he said. In terms of pulling out of the Paris Agreement, Garbow stated, “…what most people don’t know is that the U.S. pulling out of the agreement will not become effective until after this presidential term ends. It might never be an issue.”