Pruitt: EPA Will Be Ruled by Law

E. Scott Pruitt, Oklahoma’s attorney general (AG) and Donald Trump’s choice to head the EPA, says he believes that carbon dioxide (CO2) emissions from human activity are a factor in climate change and that the Agency has an important role to play in regulating those emissions. Pruitt also said he respects EPA’s CO2 endangerment finding, a critical determination that has led to CO2 regulations during the Obama administration. However, when asked multiple times by Senator Bernie Sanders (I-VT) if he believes that anthropogenic CO2 emissions are the “fundamental cause” of climate change, Pruitt would only repeat that such emissions are a “factor.”

This carefully constructed reply was characteristic of most of Pruitt’s statements and answers during his nomination hearing before the Senate Environment and Public Works Committee. The hearing ranged over Pruitt’s philosophy regarding EPA’s role in environmental protection, the federal/state partnership under the federal environmental statutes, his environmental enforcement record during his 6 years as Oklahoma’s AG, his relationship with the oil and gas (O&G) industry, and his views on several major EPA regulations, including the Clean Power Plan (CPP) and waters of the United States (WOTUS) definition and whether he will have a continuing role in litigation seeking to withdraw those and other rules.

States on the Front Line

Pruitt said that as EPA administrator he, would “work tirelessly … in promoting a healthier environment and stronger economy for future generations by focusing on three core philosophies: rule of law, cooperative federalism, and public participation.

Pruitt’s belief that the EPA has veered outside the rule of law is behind his participation in at least 13 legal challenges to EPA regulations (one senator put the number at 18). Repeatedly, Pruitt said that these suits are grounded in the belief that the regulations disrespect the important role Congress has granted state and local governments through federal environmental statutes.

“Congress has wisely and appropriately directed the EPA through our environmental statutes to utilize the expertise and resources of the States to better protect the environment, and for the States to remain our nation’s frontline environmental implementers and enforcers,” Pruitt said in his opening statement. “If we truly want to advance and achieve cleaner air and water, the States must be partners and not mere passive instruments of federal will. If confirmed, I will utilize the relationships I have forged with my counterparts in the States to ensure that EPA returns to its proper role, rather than using a heavy hand to coerce the States into effectuating EPA policies.”

Ongoing Cases

Several Democrats asked if Pruitt would recuse himself from eight ongoing cases against the EPA. Pruitt said he would meet ethics requirements by recusing himself from the cases for 1 year after taking the EPA position and added that he would recuse himself after that upon the recommendation of the appropriate federal ethics committee. Senator Kamala Harris (D-CA) suggested that Pruitt should proactivity recuse himself from these cases and not wait for a recommendation, but Pruitt did not make that commitment.

Relations with Industry

Pruitt refused to acknowledge that when running for office in Oklahoma he ever asked energy companies for campaign contributions. One Republican senator noted that during the presidential campaign, Hillary Clinton received more cash contributions from energy companies than Trump.

Several Democrats also asked Pruitt about a letter to the EPA he signed, which questioned the accuracy of the Agency’s estimates of methane emissions from O&G activities. The senators said the majority of the letter was transferred verbatim from a document written by an oil company. Pruitt said the letter simply represented the concerns of an affected industrial sector.

CPP, WOTUS, MATS

Pruitt says that regulations should be “regular,” meaning they should provide regulatory certainty to the states and regulated community. This can be achieved only by improved transparency at EPA’s end and by strong state and stakeholder involvement in the rulemaking process, said Pruitt.

Regarding his opposition to the WOTUS definition and the Mercury and Air Toxics Standards (MATS), Pruitt said the EPA did not properly follow the required statutory framework and effectively acted as a lawmaker, not an administrator of the law. For example, he believes the Agency is authorized by the Clean Water Act (CWA) and U.S. Supreme Court opinions to write a WOTUS definition that includes more than navigable waters. But he believes EPA’s current definition leads to regulatory uncertainty and exceeds the discretion the EPA is entitled to under the CWA.

Pruitt says he believes air emissions of mercury should be regulated under Clean Air Act (CAA) Section 112. But he challenged MATS because the EPA failed to conduct the required studies on the cost of the regulation.

According to Pruitt, the EPA did not follow the “proper process” in promulgating the CPP.

Enforcement

As Oklahoma’s top law enforcement official, Pruitt’s major enforcement action against the O&G industry involved a case where an oil company was accused of overcharging for a site cleanup. Democrats pointed out that this case had nothing to do with environmental protection.

One senator questioned Pruitt’s elimination of the environmental enforcement division in the Oklahoma AG’s office. Pruitt responded that environmental enforcement in the state is handled individually by state agencies, in contrast to how enforcement is undertaken in most other states.

Achievements

In terms of environmental achievements, Pruitt described his role in a deal Oklahoma struck with Arkansas over phosphorus levels in the Illinois River. He added that the EPA filled an important backstop role.

“While this was a proud success of cooperation among the states, I also came to appreciate that if we had not solved these challenges among us, EPA would provide a vital function in ensuring the protection of the shared resources,” Pruitt said.

Pruitt also praised the efforts of the Agency in supporting the lead role of states and other stakeholders in forging protections for the Chesapeake Bay.

Renewable Fuel

Several senators from the Midwest were intensely interested in how Pruitt would meet EPA’s statutory obligations under CAA’s renewable fuel standards (RFS) program. The concern is that coming from an O&G state, Pruitt may not favor ethanol production, which is generally opposed by the petroleum and refining sectors. The nominee said he would respect the RFS volume targets contained in the CAA and would “judiciously” exercise EPA’s statutory authority to lower those targets.

Pruitt’s testimony is available here.