Donald Trump plans to nominate Oklahoma Attorney General Scott Pruitt to head the Environmental Protection Agency — a pro-industry, anti-regulation pick that suggests big, big changes could be in store for environmental policy.
The EPA is in charge of creating and enforcing federal regulations around air and water pollution, largely guided by laws like the Clean Air Act and Clean Water Act, which were first passed by Congress in the 1970s. Under President Barack Obama, the EPA has been particularly active in formulating new rules on coal-fired power plants, cars, trucks, and oil and gas operations — all with an eye toward reducing conventional air pollutants and curbing the greenhouse gases that cause climate change.
Pruitt has been an ardent opponent of these efforts for years. He calls himself the “leading advocate against the EPA’s activist agenda” and has long insisted that states can often regulate pollution better than the federal government can.
Ever since becoming Oklahoma’s top prosecutor in 2011, Pruitt has joined or led state lawsuits to block virtually every major federal regulation around climate and air pollution that Obama’s EPA has put forward. He sued to stop a major rule to limit mercury pollution from coal plants. He sued to stop a rule to reduce smog pollution that crossed state lines. (Both rules largely survived these challenges.)
At the moment, Pruitt is part of a lawsuit to block the EPA’s efforts to address global warming via the Clean Power Plan — which aims to reduce carbon dioxide emissions from power plants. Pruitt has also questioned and misrepresented the science of climate change. In a piece for National Review last May, he wrote: “Scientists continue to disagree about the degree and extent of global warming and its connection to the actions of mankind.” (That is not really true.)
Pruitt was a private attorney in Tulsa during the 1990s before becoming an Oklahoma state senator from 1998 to 2006, rising to the rank of Republican whip. Hailing from a state with major oil and gas operations — though also a fair bit of wind power — he has generally been far more sympathetic to industry arguments than environmentalist concerns over the course of his career.
Back in 2011, Pruitt wrote a letter to the EPA arguing that federal regulators were overstating the amount of air pollution from natural gas wells. As the New York Times’s Eric Lipton later discovered, this letter was actually written by lawyers for Devon Energy, one of the state’s largest oil and gas companies. Pruitt appears to have simply passed it along.
And this wasn’t an isolated incident, Lipton explained: “Devon officials also turned to Mr. Pruitt to enlist other Republican attorneys general and Republican governors to oppose a rule proposed by the Bureau of Land Management that would regulate hydraulic fracturing, or fracking, on federal land.”
Pruitt will have leeway to dismantle Obama’s EPA rules — though it won’t always be easy
In general, a new administration has a fair amount of leeway to set a new direction for the EPA. And Pruitt’s broad priorities seem clear: less federal regulation, way less concern about climate change, much more leeway for states to oversee their industries however they see fit.
Even so, as Harvard law professor Jody Freeman explained in this in-depth interview, it’s not always so simple for a new EPA administrator to come in and rip up everything the old EPA did.
Take Obama’s Clean Power Plan, a regulation finalized in 2015 that aims to reduce carbon dioxide emissions from the power sector. This rule has been stayed by federal courts, which are still debating its fate. But if it gets upheld, the EPA will be required by law to implement the plan. If Pruitt wants to repeal and replace it, he will have to go through a lengthy new agency rulemaking process.
“The EPA would have to go out for public comment on that — and that usually takes a year or two,” Freeman explained. “The EPA would also have to address the fact that the agency already had decided the Clean Power Plan, so why are they changing their minds now? What is in the record to support that change? They’d have to make an argument for why they’re reconsidering it, and they would have to defend that in court, because any change would get challenged” — either by states or environmental groups.
Pruitt has some options for undoing Obama’s climate rules, though environmental groups are likely to challenge him in court. The new EPA “might try to argue that they don’t think they have the authority to regulate greenhouse gases from existing power plants,” Freeman said. “Or they could argue that even if they do have that authority, they think there’s a better approach to the standard [than the specific regulation Obama’s EPA set up]. They could say they have a narrower approach to setting the standard, and they might get deference from the court. But that would play itself out in years of litigation.”
And that’s just one rule. If Pruitt wanted to undo other Obama-era rules, he would have to go through the same process for each of them — and would continue to face court challenges. “If an agency changes its mind,” Freeman says, “it has to come back in and defend the new rule the way it would defend the original rule. You have to be able to defend it as non-arbitrary. And in cases where industry is already relying on the first rule, or where there’s a really strong scientific record for the first rule, the burden on the agency is a little tougher for changing its mind. So there is a legal standard here.”
That said, a new EPA administrator hostile to federal regulation could certainly work to prevent new rules from being issued — and he could even slow-walk enforcement of existing pollution regulations.
“A very determined administration that really wants to pull back on implementation and enforcement will find ways to pull back,” Freeman said. “They can give more leeway to the states, for example, when the states draft their plans for complying with pollution rules [like the EPA’s ground-level ozone standard]. You can imagine ways of making it easier for states that don’t want to work very hard. Or bringing fewer enforcement actions.”
“The president can also ask for less money [for the EPA],” Freeman added. “And even if he doesn’t, Congress can just cut the budget. Congress can insert, in big omnibus budget bills, little riders that say agencies can’t do specific things. There can be death by a thousand cuts in this way.”
By all appearances, the EPA is set for a major shift in policy direction under Pruitt. The big question is how easily he’ll be able to steer a complex bureaucracy that doesn’t change course overnight. Note that both Ronald Reagan and George W. Bush came into office hoping to take apart key EPA environmental rules, yet were often stymied by the courts, by green groups skilled at litigation, by career officials, and by sheer inertia. We’re about to find out if the Trump/Pruitt era is radically different.