Special Topics in Environmental Management

Pruitt on the Clean Power Plan

In the nomination hearing for Scott Pruitt, President Trump’s choice to lead the EPA, it was surprising that members of the Senate Environment and Public Works Committee (EPW) asked few questions about how the nominee would address EPA’s Clean Power Plan (CPP) should he be confirmed. This may be because President Trump has already indicated that he intends to withdraw the CPP, and Pruitt will do what the president wants. Of course, Pruitt’s own position on the CPP is well known since, as attorney general of Oklahoma, he has been at the forefront of legal challenges to vacate the rule. The CPP is also under a stay issued by the U.S. Supreme Court pending resolution of litigation challenging it.

While little about the CPP emerged from the EPW hearing, senators followed in writing with many more questions, including specific questions about Pruitt’s position on the CPP. The nominee responded to those questions in a 242-page document made public by the committee. The document can be found here.

Following are responses from Pruitt on the CPP.

  • How would he replace the CPP to ensure the EPA is in compliance with court orders to regulate greenhouse gases (GHGs)?

Pruitt: “It would be inappropriate for me to prejudge an issue that may come before me for decision if I am confirmed as Administrator. If the issue comes before me, I will ensure that the issue is fully and fairly considered with input from staff, as part of a transparent process that seeks input from stakeholders, and that is consistent with EPA’s statutory authorities.”

“The Supreme Court held that GHGs are an air pollutant under the Clean Air Act. It did not address the question of whether regulation of GHGs under the Clean Air Act is warranted. In the subsequent [Utility Air Regulatory Group] UARG decision, the Supreme Court cautioned EPA that there are significant limits on EPA’s authority to regulate GHGs under the Clean Air Act.”

  • Will he seek to replace the CPP with some other program that also would promote the reduction of GHGs nationally?

Pruitt: “While I will not prejudge the outcome of any rule that is the subject of ongoing litigation, if confirmed, I will work to achieve the objectives of EPA-administered laws consistent with the process and rule of law set out by Congress.”

  • What will he say to parents who have children with asthma who are worried that the dismantling of the CPP will exacerbate the illness?

Pruitt: “If confirmed, I will administer environmental laws that protect human health and the environment within the framework established by Congress. I will follow explicit cost-benefit obligations to ensure the benefits are associated with the pollutant being regulated and the costs are reflective of market realities.”

  • Is Pruitt concerned about the loss of energy-efficiency improvements and affordable housing that may result from withdrawal of the CPP?

Pruitt: “I am unfamiliar with EPA’s role and statutory authorities as they relate to affordable housing. I am concerned about the impact regulations can have on the cost of energy for consumers.”

  • Would the loss of the CPP also cause the loss of flexibility the CPP provides to states in developing energy policies?

Pruitt: “The Rule attempted to supplant decisions traditionally preserved for the states, including the establishment of intrastate energy policies, for agency mandated alternatives that would have increased the price of electricity for local citizens and reduced reliability. The notion of flexibility in the Clean Power Plan was conceptual at best. If confirmed, I will work to achieve the objectives of EPA-administered laws consistent with the process and framework established by Congress abiding by the bedrock principle of cooperative federalism, which relies on meaningful collaboration between the EPA and the states to achieve important environmental objectives.”

  • Will dismantling the CPP and cutting back on environmental regulations bring back the coal industry?

Pruitt: “I am unable to say whether United States utilities and electric cooperatives would or would not return to coal as a predominant portion of their fuel mix if the CPP were revoked or other regulations were cut back. The federal Energy Information Administration projects that coal will be an important part of the American fuel mix for the foreseeable future.”

  • Would he recuse himself from leadership over rules, including the CPP, he has litigated against given that professional ethics rules prohibit attorneys from changing sides, as he would be doing if confirmed?

Pruitt: “It is my understanding that recusal obligations do not extend to regulatory rulemaking of general applicability, which does not create a conflict under applicable rules. With respect to my professional obligations as a member of the bar, I am not permitted to ‘switch sides’ as counsel in any matter in which I participated as a lawyer. The standards that would apply to me as EPA Administrator are different as I would not be representing the EPA as a lawyer. Nonetheless, in any matters involving specific parties where I believe that my impartiality may be questioned, I will consult with relevant federal ethics officials to determine whether to participate in a particular matter and provide them with all relevant facts.”