President Trump’s environmental chief appears to be battling his own agency. Global Insight assesses an internal struggle at the EPA that could have dire consequences for the fight against climate change.

On 28 March 2017, the United States President Donald Trump paid a surprise visit to the Environmental Protection Agency’s (EPA) neoclassical headquarters in Washington DC’s Federal Triangle. Formally, he was there to declare an end to ‘the war on coal’. Informally, agency staffers say he was launching a war on the EPA.

Coal miners in khakis and carbon executives in suits had front row seats as the President ordered a review of every rule that covers the exploitation of energy. Lest any doubt his top target, the President mused that no rule ‘threatens our miners, energy companies and economy more’ than the Clean Power Plan, linchpin of the Obama EPA’s policy to slow global warming.

By phasing out coal-fired plants, the Clean Power Plan would do as much for the planet as taking 160 million cars off the road.

EPA staffers – cleared from the room and forced to watch by closed-circuit television – recall their bitter impressions in an oral history by Christopher Sellers. The speech was ‘about basically dismantling the whole climate change program,’ says one, yet ‘the word climate change was never used’. Another wondered when human health would be mentioned: ‘Apparently never!’ Having only learned of the visit in an email titled ‘Our Big Day Today’, ‘The question many of us had was who is “our” referring to? Was it the many EPA career staff that worked for years developing the work that was rescinded or revoked? Was it the EPA career staff that should be jubilant the President came to the EPA to poke a finger in our eye…?’

 

 

As a self-dubbed ‘beachhead team’ of Trump advisers invaded the EPA, the feeling gelled among the lifelong green regulators that they were ‘the enemy’. With a security detail of up to 30 personal guards, Administrator Scott Pruitt certainly didn’t exude trust. In his office, Pruitt searched for surveillance devices, put fingerprint readers on the locks, and installed a sound-proof phone booth. Pruitt required staffers to be escorted in his presence, and forbade them from taking notes. But, mainly, it was his regime’s regulatory policy that rankled. ‘There’s a general consensus among the career people that at bottom they’re basically trying to destroy the place,’ said another participant in the oral history.

Jody Freeman, who served as White House as Counselor for Energy and Climate Change in 2009–2010, thinks they’re right. ‘There is a cynical story here about trying to incapacitate the government,’ she says. ‘That if you work hard enough to demoralise the staff and to devalue science and expertise, you can dismantle the capacity of the government to regulate.’ To be sure, the EPA’s seen rollbacks before, she adds. ‘But we’re talking here about a different scale [and] a total rejection of the agency’s traditional public health mission.’ On this view, Pruitt is following through on the vow of former White House Chief Strategist Steve Bannon to ‘deconstruct’ the regulatory state.

Pruitt declined comment through his spokesperson, but Jeff Holmstead (former Deputy Administrator of the EPA in the George W Bush administration who was reportedly considered for EPA Chief in the Trump administration) offers a more benign take on Pruitt’s agenda. ‘I think deconstruction is a vast overstatement,’ says Holmstead, ‘because deconstruction can only be done by Congress. I take the Administrator at face value when he says the EPA is getting back to basics. Certainly there’s an attempt to streamline the agency. [It’s a vision] based on the rule of law, and the conviction that the EPA is authorised to do only what Congress intended it to do.’

The Pruitt agenda and the Rule of Law Defense Fund

Educated at an evangelical Baptist college in Kentucky, Pruitt first became the scourge of the EPA as Attorney General (AG) of Oklahoma. There, he abolished his office’s environmental unit and founded a ‘federalism unit’ to roll back Obama rules in court. Pruitt leveraged his power by heading the Republican Attorneys General Association (RAGA), where he launched an anti-regulatory advocacy arm, funded by undisclosed ‘dark money’, known as the Rule of Law Defense Fund. His mission was to coordinate a nationwide legal attack on Obama-era regulation – effectively weaponising the Republican AGs against the environment. Pruitt sued the EPA 14 times, with two of the suits appropriately captioned Pruitt v EPA. He also tried to stall Democratic state AGs’ investigation of ExxonMobil Corporation for promoting climate change denial.

 

 

As a candidate for Oklahoma AG, as well as the head of RAGA and its Rule of Law Defense Fund, Pruitt was bankrolled by the fossil fuel and power sectors, and by the Koch family of energy billionaires. When The New York Times won the Pulitzer Prize in 2015 for a series showing state AGs to be the puppets of lobbyists, Pruitt was Exhibit A. In one notorious instance, Pruitt let Devon Energy, an Oklahoma-based fracking giant, ghostwrite a letter in his name to the EPA, resisting a rule that would limit methane leakage from natural gas wells. The coal miner Murray Energy sent a cheque to RAGA shortly after Pruitt intervened in support of Murray’s suit against the EPA over-regulating carbon emissions.

Pruitt’s most noted achievement in the Obama era was to lead the coalition of Republican AGs who won a stay of the Clean Power Plan while the courts weigh its legality. Less noticed, but perhaps more important, Pruitt swiftly mobilised Republican AGs to oppose the confirmation of a Democrat to replace Justice Antonin Scalia. This too advanced the aims of fossil fuel donors. For staying the Clean Power Plan was Scalia’s last major vote. When Scalia passed away the next week, with 14 months left in Obama’s term, environmentalists expected that the Supreme Court would swing back in favour of the Clean Power Plan. (One over-optimistic columnist called Scalia ‘the vanished robe that saved the globe’.) But a letter from Pruitt, the day after a Democratic justice was nominated, helped persuade Senate Majority Leader Mitch McConnell to defy tradition and delay Scalia’s replacement until next election. McConnell regards this as his most historic decision, and environmentalists agree.

Environmentalists see President Trump’s EPA as particularly perilous for several reasons. First, global warming is catastrophic and irreversible. Second, control of Congress means there is no call for the ousting of a highly controversial administrator, as it did for the Reagan-era Anne Gorsuch, for example. Third, as Pruitt illustrates, the South has helped to move Republican ideology in the direction of fossil fuel boosterism – displacing the moderate business environmental tradition personified by William Ruckelshaus, who headed the EPA after it was created by President Nixon, and led an environmental restoration after Gorsuch.

‘The US is the only place in the world where we see such a powerful organising and politicising of anti-climate change policy,’ says Sellers. ‘It’s really quite unique. It’s tied up with the new domestic energy boom, with the cooptation of evangelical Christianity, with the spread of conservative think tanks and policy networks. The conservative blogosphere and media bubble has really enabled it.’

Nervous career staffers were not reassured when the EPA filled its management ranks with five veterans from the office of Senator Inhofe, of snowball fame, starting with Pruitt’s Chief of Staff. Pruitt’s second-in-command Andrew Wheeler was not only an Inhofe man but a lobbyist for Murray Energy, America’s largest privately held coal miner. The toxic unit chief arrived from the American Chemistry Council, as did the head of public affairs. The congressional liaison boasts BP on his resume. One senior lawyer decamped from the American Petroleum Institute. Another (who is now gone) came from RAGA and its Rule of Law Defense Fund, after cutting her teeth at a libertarian nonprofit backed by the Koch family.

Perhaps unsurprisingly, Administrator Pruitt gives industry his ear. The Washington Post found that, on average, he meets with industry interests once every business day, while meeting with environmentalists barely once a month. One of his earliest steps was to unban a nerve gas pesticide manufactured by Dow Chemical, which donated $1m to the Trump inauguration.

 

 

Murray Energy donated $300,000 to the Trump inauguration, on top of $1m for the Trump campaign, and has a history of supporting Pruitt. Soon after the inauguration, its Chief Executive Officer Robert Murray gave the administration a secret action list of 16 policy wishes that the President’s agenda would closely track. The coal baron sat in the front row when the President paid his surprise visit to the EPA. And the issue he seems to care about most? Global warming.

Leaving the Paris Climate Accord was one of the first boxes ticked on Murray’s checklist. The EPA’s website now deems climate change language ‘outdated’. The main climate page has disappeared, and the category vanished from the drop-down list of ‘Environmental Topics’. The EPA’s draft strategic plan for the Trump years omits mention of climate change (with only brief allusion to air toxics or wetlands protection). The US National Security Strategy now ignores the threat to global stability posed by climate-fuelled wars and refugee crises, which it had recognised since the George W Bush administration. US agencies no longer account for rising flood risks in funding infrastructure. And they no longer account for the ‘social cost of carbon’ in assessing new rules.

Science itself appears to be outdated in some contexts. The EPA’s Office of Science and Technology Policy removed ‘science-based’ from its mission statement. The EPA has purged over 80 per cent of its Board of Scientific Counselors. The agency drove out dozens through a creative redefinition of ‘conflict of interest’. Under the current understanding, a scientist funded by the EPA is conflicted, whereas a scientist funded by industry is pure as the driven snow.

Pruitt professes to be animated by a philosophy of ‘federalism’, which would give the states primacy over the environment, and ‘originalism’, which would restrict the EPA, absent specific new laws, to pollution problems that were understood in 1970. The subtext is that Obama’s rules – above all the Clean Power Plan – reflected an arrogant end-run on Congress by a self-righteous executive, justified by an over-aggressive interpretive style. Instead, Pruitt purports to be focused on traditional water and air pollution and, especially, toxic waste.

As a matter of history, Sellers says EPA originalism is nonsense, because the environmental laws were expressly designed to evolve with science. John Cruden, former US Assistant AG overseeing environmental enforcement, says Pruitt showed no concern for federalism when he disbanded the Oklahoma AG’s environmental unit, or attacked California’s freedom to enact stricter car fuel standards. Avi Garbow, EPA General Counsel in the Obama administration, argues that ‘federalism animated all the work we felt we were doing for eight years’. After all, both Obama EPA chiefs started as state regulators, he notes. ‘One thing I think the Obama EPA can’t be faulted for is our engagement,’ says Garbow. ‘The Clean Power Plan had a record number of comments, and a record number of meetings with all stakeholders.’

If the Trump regime truly cared about old-fashioned pollution, greens argue, it would not have proposed a 31 per cent cut in the EPA’s budget, or undermined enforcement across the board. They see Pruitt’s rhetoric as window dressing for an attack on the planet pursued nakedly in the service of industry – with a preference for companies that are ideologically extreme and politically generous. Whatever his motives, Pruitt is officially Trump’s champion deregulator. By the count of the Office of Information and Regulatory Affairs, the EPA rescinded 16 rules in 2017.

‘When it comes to economy-strangling regulations, Pruitt is, as [the President] likes to say, “a total killer”,’ former Special Assistant to Trump and Deputy White House Strategist Andy Surabian wrote with approval. ‘From day one, he began dismantling Barack Obama’s legacy with startling effectiveness and cunning. And for this, radical environmentalists and other left-wingers despise him.’

Indeed, many environmentalists basically share this view. ‘Pruitt’s been quite effective,’ says Freeman, now a Harvard professor. ‘Unlike other cabinet secretaries, he’s very methodically going about his business, and he has good legal talent advising him.’ At a minimum, the EPA has avoided the sort of hasty, self-defeating overreach that instantly doomed the initial travel ban. Benjamin Wittes of the Brookings Institution once described the spirit of the Trump administration as ‘malevolence tempered by incompetence’. Some fear that Pruitt represents competent malevolence. Across all agencies, Harvard and Columbia law schools counted 33 environmental policies killed in President Trump’s first year, and another 34 under assault.

A few of these moves take instant effect. For instance, executive orders pulled US support for the Paris treaty’s Green Climate Fund, and revived the Keystone and Dakota pipelines to carry oil from Canadian tar sands. In March, a new memo ended the EPA’s ‘Once In, Always In’ policy for toxic air pollutants. Now polluters may backslide rather than maintain the strictest level of controls once they’re in violation. Senator Ed Markey tweeted that this could be the Trump regime’s ‘worst environmental sin yet’.

Likewise, enforcement of the laws on the books fell immediately. A New York Times comparison of the EPA’s first nine months under Obama and Trump found that enforcement cases were down by a third, fines by 61 per cent, and injunctive relief by 88 per cent. And that’s before an October memo killed the EPA’s ‘sue and settle’ policy – achieving by fiat a goal that Pruitt had sought by litigation as Oklahoma AG. Environmentalists may no longer strike an agreement with the EPA as soon as they sue the agency for poor enforcement. ‘It boils down to creating obstacles for citizens to publicly enforce statutes,’ says Freeman.

However, the worst fears faded that enforcement would be radically defunded when Congress rejected the 31 per cent EPA funding cut pushed by the President in favour of a flat EPA budget. At least for this year.

The White House might aim to ‘deconstruct’ the regulatory state. But with rare exceptions, deconstruction takes time. Most deregulation must go through an arduous rulemaking – really an ‘unrulemaking’ – and then pass muster in court. As Gina McCarthy puts it, ‘It takes a rule to undo a rule.’

The battles over the biggest rollbacks therefore lie ahead. For starters, Pruitt aims to weaken the rule on methane leaking from gas wells – the very rule that Devon Energy attacked on Pruitt’s letterhead when he was Oklahoma AG.

The Trump EPA wishes to rescind the 2015 Clean Water Rule, and open to development thousands of streams and wetlands that flow only part of the year. It might also foul many waterways with heavy metals by letting states regulate coal ash pits. In a ground-shifting move for the transit sector, the EPA plans to lower car fuel efficiency standards, while querying California’s power to set higher standards. (California and 16 other states have already filed suit.) In the power sector, Pruitt says he will undo Obama’s rule on greenhouse gases from new power plants. But first and foremost, he seeks to revoke and replace Obama’s plan for existing plants. Probably Pruitt’s top target as Oklahoma AG, the Clean Power Plan is verifiably first on Murray the coal baron’s hit list.

With all of these major moves legally untested, former Chief Counsel Garbow says the jury’s out on Pruitt’s effectiveness. ‘The ultimate outcome of the administration’s agenda is difficult to predict because very few cases have actually gone to court,’ he says. ‘There will be challenges, and courts will have to decide in 2018 and 2019. All of which will either make the agenda stand for a long time or make it quite short-lived.’

While the Clean Power case itself awaits a new rule, other early legal skirmishes have signalled that courts don’t plan to roll over for environmental rollbacks. Thus, the DC Circuit in July quashed the EPA’s quest to let gas wells spew greenhouse gas into the atmosphere while the courts deliberate. And a Montana federal court in August ordered a new environmental review for a coal mine because ignoring the social cost of carbon was ‘illogical’. Still, most of the agenda is too immature to be litigated.

‘When it comes to the “deconstruction of the administrative state”, we’re not even in round one,’ says Cruden, who is now President of the American College of Environmental Lawyers. ‘We’ve mostly just seen previews of coming attractions. In the next year we’ll start seeing final decisions -- but we’ll also see significant pushback by environmentalists. There’s going to be a tsunami of litigation.’

The future of clean power

Coal miners in khakis again gathered around Pruitt when he announced repeal of the Clean Power Plan in the ironically named town of Hazard, Kentucky. Echoing the President during his surprise visit to EPA headquarters, the Administrator declared ‘the war on coal’ to be over. In truth, the economic war to preserve coal is doomed, while the legal war has no end in sight.

Economists agree that coal will continue to be steadily displaced as a power source as an assured result of natural gas’s price advantage. They also regard coal’s importance to the US economy as mainly symbolic. US coal employment edged up by 1,300 in President Trump’s first year, according to the Bureau of Labor Statistics, to 52,200. That’s only a fraction of the 250,000 jobs in the US solar industry, according to the Solar Foundation, even after a 10,000 job dip.

 

 

Lawyers attacking the Clean Power Plan have long argued, with some plausibility, that President Obama needed to twist an old law to cover climate because he was unable to steer a new climate law through Congress. On their reading, Clean Air Act section 111(d) contemplates reducing pollution only within the ‘fenceline’ of the power plant (for instance, by fixing a boiler). Achieving the same aim by promoting energy efficiency or clean energy in the wider economy, the argument goes, overshoots the law’s authority.

Supporters of President Trump say the EPA should have the discretion to revoke the Clean Power Plan by reverting to the old reading of the Clean Air Act. If an interpretation was standard for 45 years, they reason, then it’s obviously permissible. And if it’s permissible, then courts must defer to the Agency.

While it’s easy to imagine judges might allow Pruitt to kill the power rule, it’s harder to envisage that they might let him replace it with an empty letter. In Massachusetts v EPA (2007), the Supreme Court found a mandatory duty to regulate carbon pollution under the Clean Air Act. In AEP v Connecticut (2011), it wouldn’t let tort law regulate carbon in the power sector, because Congress had taken that task on itself. In 2009, the EPA found that global warming ‘endangers’ health and, in 2012, the DC Circuit affirmed that finding. This would suggest that the scientific and economic case for carbon regulation has been getting stronger, not weaker.

In order to justify repeal of the Clean Power Plan, a flimsy 38 pages has been filed by Pruitt’s EPA. Environmentalists say the cost-benefit analysis uses three major sleights of hand. It assumes away up to 3,600 deaths by positing that a little fine particulate matter poses zero risk. It excludes billions of dollars in energy efficiency cost savings. And it overlooks billions in benefits outside the US. Clean Power Plan sceptics respond that, if the plan went beyond the law’s authority, then costs and benefits are legally irrelevant. Still, sleight of hand would seem a weak foundation for any new rule.

Pruitt’s new rules are more likely to endure if he listens to voices of business moderation. ‘The Obama EPA took some positions that went well beyond what was authorised by statute, so a lot of these regulatory programs need to be fixed,’ says former EPA Assistant Administrator Holmstead. ‘But the reforms need to be done in a careful and thoughtful way to make sure they’re actually durable. It’s not helpful to industry or the public to have regulatory whiplash, where you go from one extreme to the other. Virtually everyone I meet with believes that climate change is real and manmade. Most of my clients don’t want a wholesale undoing of what Obama did, because parts were sensible. A lot of the folks I work with in industry see the need for regulation; they just want it to be reasonable and implementable and cost-effective – and everyone should want that.’

The Trump administration’s withdrawal from the Paris Agreement discomfited big business. The car industry was content with California’s tight fuel standards – yet Pruitt is challenging them. Would the Trump EPA dare to repeal the finding that global warming is bad for you? Holmstead says it would never be so foolish. But while big business may be at peace with the Paris pact and the endangerment finding, both appear prominently on the Bob Murray hit list that the Trump agenda is tracking.

 

 

For all of Pruitt’s zeal, he has never clearly aimed to overturn the EPA’s foundational finding on global warming. But, if Pruitt is removed, the acting chief would be the former Inhofe aide and Murray Energy lobbyist Wheeler – who has publicly agitated for rolling back the endangerment finding.

Pruitt’s removal has become a real possibility because of a long list of non-policy scandals – capped by Pruitt receiving a sweetheart deal on a Washington, DC rental apartment from the wife of an Oklahoma energy lobbyist. Yet, those who are committed to battling climate change should be careful what they wish for. In contrast to the Reagan administration, a scandal-ridden anti-environmentalist might well be replaced with an even more extreme anti-environmentalist.

Whoever runs her old agency, McCarthy expects the EPA to overreach. ‘The rules were done well, and changes have to be carefully justified,’ she says. Yet this EPA ‘is not even talking to their own career staff to understand how their change in policy could be properly reflected in law. [Courts will] have difficulty if the Agency’s policies now dictate that science will be unduly influenced by business, if there are shortcuts taken in the rulemaking process, if they haven’t identified scientific or legal reasons why final rules should be revisited.’ In short, she argues, Pruitt ‘will have a very hard time overturning [our] rules’.

Even if the courts unplug the Clean Power Plan, McCarthy remains optimistic. ‘My advice to everyone has been that you can worry, but worry shouldn’t make you stand still. And it shouldn’t make you think that because this administration does not appear to be committed to climate science and in many ways doesn’t seem committed to the requirements under the law, in terms of the EPA and its mission and its responsibilities, it does not mean that the US lacks commitment. I know we still care about the core values that the EPA was created to uphold and to advance, and I sure know that cities and towns and the business community are stepping up as the federal government falls asleep.

‘The most important thing I want to make sure an international community in particular understands is that many of the states are already at levels of reduction that the Clean Power Plan didn’t require until 2022. Our energy system is changing to move toward clean energy and that’s being driven by a market. [W]hen we did the Clean Power Plan, we made sure to underpin that market as best we could and send longer-term signals. But, even if this administration moves forward with a rule that repeals the Clean Power Plan, the international community needs to understand that it’s time lost, and there will have to be battles in court, but [we will not] shift away from clean energy.’

Freeman, the ex-climate czar, warily shares McCarthy’s optimism about the power sector. But the Clean Power Plan would insure against hiccups in the free market, and go beyond current trends by forcing laggard states to cut their emissions too. In the economy as a whole and in the long run, Freeman is convinced it will take national programmes to bring global warming under control. ‘I’m a fan of state and local government commitment,’ she says. ‘I’m a fan of the corporate sector making commitments to try to address greenhouse gas emissions. Huge fan. But I think we have to be realistic about the fact that this kind of problem requires federal leadership… I think we need to temper our wishful thinking that [localities and businesses] will somehow just replace what the federal government can do.’

Michael Goldhaber is the IBA’s US Correspondent. He can be contacted at michael.goldhaber@int-bar.org