If one thing’s clear from Donald Trump's EPA nominee's confirmation hearing yesterday, it’s that Oklahoma Attorney General Scott Pruitt (R) wants to fundamentally reshape the agency’s regulatory authority and relationship with the states.
What’s less clear is what that regulatory regime would actually look like.
Trump’s pick to lead the nation’s environmental regulatory agency has sued the federal EPA 14 times in his time as Oklahoma’s top lawyer, challenging agency on a raft of power sector regulations from the Mercury and Air Toxics Standards to the Cross State Air Pollution Rule and the Clean Power Plan.
But in his hearing at the Senate Environment and Public Works Committee, Pruitt told lawmakers those court challenges did not indicate a belief that EPA should not regulate harmful pollutants like mercury or carbon — simply that he disagreed with EPA’s approach. Asked by Sen. Dan Sullivan (R-AK) what his intent was in filing the lawsuits, Pruitt said they aimed “to restore the relationship and ensure the relationship that Congress intended with the states.”
Themes of federalism — the concept of government in which states share power with the federal government — and states’ rights ran strong through Pruitt’s testimony, with the nominee emphasizing the EPA must follow the “rule of law” with its regulatory powers.
“Cooperative federalism is at the heart of many environmental statutes passed by this body,” Pruitt said. “The reason for that is it’s the states that have the resources, the expertise and the understanding of the unique challenges facing the environment.”
Those comments reflect a common GOP complaint that the Obama EPA has overreached its regulatory authority, stretching the Clean Air Act to transform the U.S. generation mix rather than allowing states the authority to shape their power sectors.
But the prospective EPA administrator said that despite his frequent criticism of the agency, the federal EPA still has an important job to do. In the hearing, Pruitt affirmed the agency’s authority to regulate many pollutants that were the subject of his court challenges, including MATS and the CPP.
“I believe that mercury should be regulated under [the Clean Air Act],” he said, later endorsing authority over cross-state pollution and touting EPA’s progress in reducing criteria pollutants under the National Ambient Air Quality Standards.
The same idea applied to carbon. Though he said the EPA overstepped its bounds in the Clean Power Plan, current interpretation of the Clean Air Act requires the agency to do something about CO2 pollution.
"I believe the EPA, under the Mass. v EPA case and the endangerment finding, has an obligation to address the CO2 issue," he said. "But in doing so they need to follow the processes set out by Congress."
"I believe the EPA, under the Mass. v EPA case and the endangerment finding, has an obligation to address the CO2 issue. But in doing so they need to follow the processes set out by Congress."
Scott Pruitt
Donald Trump's nominee to lead the EPA
In the 2007 Mass. v EPA case, the Supreme Court directed the EPA to determine whether carbon dioxide should be considered a pollutant under the Clean Air Act, making it subject to EPA jurisdiction. In 2009, the EPA did just that, releasing an endangerment finding that CO2 and five other greenhouse gases “threaten the public health and welfare of current and future generations.”
Pruitt, along with 14 other attorneys general, challenged that finding in 2012, arguing the EPA failed to specify when the greenhouse gases became harmful in the atmosphere. They lost in front of the D.C. Circuit Court, which ruled the EPA is “not required to re-prove the existence of the atom every time it approaches a scientific question.”
Despite his past challenge of the finding, Pruitt said he would not seek to do the same as EPA administrator, though he left himself some wiggle room.
“There is nothing I know that would cause a review at this point,” he told lawmakers.
Pruitt made clear that his concern for carbon extends from EPA’s legal obligations, and not a personal motivation to combat climate change. Pressed by Sen. Bernie Sanders (I-VT) on his scientific stance, Pruitt told lawmakers he believes the climate is changing, but the ability to measure human impact on the climate is "subject to continued debate and dialogue."
Climate scientists say those types of views — echoed by Trump appointees Rex Tillerson and Rep. Ryan Zinke this week — obfuscate the mainstream consensus that warming is happening at a catastrophic rate, and that humans are the primary cause. As the UN Intergovernmental Panel on Climate Change writes, it is "extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century."
When pressed by Sanders, Pruitt played down the importance of the science, saying his view is “immaterial” to the job because the EPA has a legal obligation to regulate carbon. But he stopped short of saying the problem of climate change requires wholesale changes to the energy system, only reiterating the EPA's legal obligation to regulate carbon.
Those statements put Pruitt’s climate comments in line with his “rule of law” narrative and, as the Hill noted, make it difficult for environmentalists to label him a climate denier. But they also leave the EPA nominee room to reverse course on carbon and the endangerment finding if legal conditions change.
Democratic skepticism
Democratic members of the Environment Committee did not take Pruitt’s word that he would value environmental protection.
Throughout the hearing, Democrats highlighted Pruitt’s extensive ties to the fossil fuel sector, a major industry in Oklahoma, pointing to years of campaign contributions and close policy coordination as evidence that Pruitt’s real allegiance lies not with the rights of states, but with those of polluters.
During his questions, Sen. Sheldon Whitehouse (D-RI) displayed a chart outlining energy sector contributions to Pruitt’s campaigns, including funding from the Koch brothers, Exxon, Southern Co., the Edison Electric Institute and more. Sen. Jeff Merkely (D-OR), highlighted a letter from oil company Devon Energy that Pruitt’s AG office copied nearly word-for-word and sent to the federal EPA as a critique of a federal methane rule.
Pruitt downplayed the Devon Energy letter, saying it was “not sent on behalf of any one company,” but instead in support of the wider Oklahoma oil and gas industry.
“There was concern expressed by that industry on the overreach of the EPA rule,” he said, framing the action as a function of “representing the industry.”
Democrats used the opportunity to point out what they see as a regulatory bias toward fossil fuels. Sen. Cory Booker (D-NJ) pointed out that Oklahoma has one of the highest asthma rates in the nation, and that Pruitt signed on to industry lawsuits against the EPA’s regional haze and cross-state air pollution rules, which are intended to reduce asthma-causing emissions.
“You’ve been writing letters on behalf of polluting industries, how many letters did you write to EPA on behalf of those children [with asthma]?” Booker asked. “Did you ever let any of them write letters on your letterhead to the EPA? Did you ever file one lawsuit on behalf of those kids to help them to have a healthy life?”
Pruitt responded that there is a difference between the industry letters and what Booker described, saying to bring suit as AG he had to show injury to the entire state of Oklahoma.
“Injury?” Booker responded incredulously. “Clearly there is an air pollution problem, and the fact that you have not brought suit in any of the levels you've represented against the industries that have caused pollution is really problematic when you're going to sit in a position which nationally is supposed to be affecting this reality.”
Other Democratic lawmakers expressed skepticism over Pruitt’s commitment to states’ rights. When asked if he would preserve EPA waivers that allow states like California to pursue more stringent emissions standards than the federal government, Pruitt would only say that he would review them as administrator.
“When you say ‘review’, I hear ‘undo’ the rights of the states,” Sen. Ed Markey (D-MA), whose state has adopted many of California’s standards.
Pruitt responded that each EPA administrator has reviewed the waivers and that he “wouldn’t presume the outcome.” But that didn’t satisfy Markey.
“It’s troublesome because obviously what we’ve heard all day is how much you support states’ rights when it comes to these issues," he said. "But now, when it comes to the right of California or Massachusetts or other states’ rights to be able to reduce carbon pollution, you say you are going to review that.”
“It’s troublesome because obviously what we’ve heard all day is how much you support states’ rights when it comes to these issues. But now, when it comes to the right of California or Massachusetts or other states’ rights to be able to reduce carbon pollution, you say you are going to review that.”
Ed Markey
Senator (D-MA)
Democrats also questioned the wisdom of bringing environmental regulation to the state level, when so many pollutants cross boundaries.
“Your passion for devolving power down to states doesn't help us, because our state regulators can't do anything about any of those problems,” Sen. Whitehouse said.
In the end, the hearing did not appear to sway any votes. Democrats appeared unlikely to vote for the Trump nominee, while each GOP senator expressed their support throughout the hearing.
Regulatory ambiguity
In addition to his record, skepticism that Pruitt will actually uphold environmental regulations may stem from ambiguity in his regulatory approach that persisted after the hearing.
Throughout the questioning, Pruitt and Republican senators lambasted the Obama EPA, criticizing every major power sector regulation promulgated over the last eight years.
At the same time, Pruitt upheld the EPA’s authority to regulate the same emissions covered by those policies — from mercury to carbon and ozone.
That begged the question: If not through the Obama administration’s policies, how would a Pruitt EPA go about regulating these emissions? The hearing never got around to an answer.
In response to a question on the problems with the Clean Power Plan, Pruitt said the regulation overreached federal authority because it did not stay “in the fenceline” of the power plant, directing utilities to make investments in renewable energy in addition to plant upgrades. But the nominee gave no details on what his agency would do differently beyond broad allusions to “cooperative federalism” and the “rule of law.”
Pruitt’s surrogates offered little more in terms of concrete policy. Asked what a carbon regulation under Pruitt could look like, Alabama Attorney General Luther Strange (R) gave a similar answer.
“It’s troublesome because obviously what we’ve heard all day is how much you support states’ rights when it comes to these issues. But now, when it comes to the right of California or Massachusetts or other states’ rights to be able to reduce carbon pollution, you say you are going to review that.”
Just how that consultation would differ from the Obama EPA remains unclear. The agency performed significant outreach for the Clean Power Plan, collecting over 4 million comments, holding meetings throughout the country and changing the regulation significantly to reflect state and industry concerns.
In his testimony, Pruitt identified the case Utility Air Regulatory Group v. EPA as one of the limiting factors on EPA’s power to regulate greenhouse gases. In that case, the Supreme Court narrowed EPA’s authority under Mass v. EPA, finding that carbon emissions alone could not trigger the Clean Air Act’s Prevention of Significant Deterioration (PSD) program or Title V permitting requirements, which require more stringent regulation.
C. Boyden Gray, a Pruitt surrogate who served as ambassador to the EU during the first Bush administration, highlighted the UARG case as an example that “there are things that EPA can do, but probably not all that needs to be done” on climate.
“I guess the point that I believe Pruitt was trying to make with the citation of Mass v EPA offset by UARG is yes [EPA can regulate carbon],” he said, “but with limits, and only Congress can broaden the scope.”
Expanding EPA authority to allow it to regulate carbon as the CPP envisions would require an act of Congress, Gray added.
“I think what Gen. Pruitt was saying more increasingly in the afternoon is that Congress has got to exercise its Article 1 authorities and be more careful and instructive about how it grants these broad swaths of authority,” he added.
Prospects for legislative amendments to the Clean Air Act are slim, and in their absence EPA carbon regulation may boil down to something “inside the fenceline,” Gray said.
“Yes, it very well be a key part of the focus,” he said. “It's always been a key part of the focus.”
With no more hearings scheduled, senators will have to make their decisions on Pruitt based on the answers laid out yesterday. A vote on Pruitt has not yet been scheduled, but the senate will take up another critical appointee critical to the power sector — Gov. Rick Perry for Energy Secretary — today in the Energy and Natural Resources Committee.
