Environmental Law Faculty on President-Elect’s Pick to Lead the EPA

Michael Wara 1
Professor Michael Wara

President-elect Donald J. Trump has selected Scott Pruitt, the Oklahoma attorney general, to run the Environmental Protection Agency.  In this Q&A, Stanford Law Professors Deborah Sivas and Michael Wara, both environmental law experts, discuss the future of the EPA under Pruitt—who has questioned climate change and states on his AG webpage that he “is a leading advocate against the EPA’s activist agenda.”

Let’s start by reviewing the purpose of the EPA. Can you tell us its primary function and purpose?

Sivas: The EPA itself defines its core mission pretty simply: “to protect human health and the environment.”  The agency basically carries out the environmental laws adopted by Congress—for instance, the Clean Air Act, the Clean Water Act, and a number of other pollution and toxics statutes—by developing and enforcing regulations to implement them.  Many of our environmental laws provide for what is often called “cooperative federalism,” whereby the EPA sets minimum environmental protection standards for the nation in order to protect all communities. The states can then develop more stringent standards for their residents, if they choose.

debbie sivas
Professor Deborah Sivas

Wara: The role of the EPA is to implement and enforce the major environmental laws that have been enacted by Congress including the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act, and others.

President-elect Trump has chosen Scott Pruitt to run the EPA. Why do you think he was chosen—what are his strengths?

Sivas: It seems pretty clear that Pruitt was selected because he has made something of a career out of battling against the EPA, in the courts and in the political arena.  His public rhetoric and his court filings as Oklahoma Attorney General in lawsuits against the EPA make it pretty clear that he wants to be known as a bulldog who will battle virtually every substantive new EPA rulemaking as “unnecessary” and “burdensome.”  He has, for example, sued to challenge the EPA’s cross-state air pollution rule, its mercury and toxics protection rule, its general haze rule, its determination that the Clean Air Act applies to greenhouse gas emissions, its Clean Power Plan, its Waters of the United States rule, and most recently, its methane rule.  The fact that these challenges have, to date, been largely unsuccessful has not deterred Pruitt, who has also unsuccessfully sued the EPA for settling lawsuit by environmental groups.  So I guess you could say his greatest strength is tenacity.  Will he do a good job?

Wara: Pruitt has been a leader under the Obama Administration of State Attorney’s General who are opposed to what they perceive as EPA overreach. He has been an important challenger of EPA settlement’s with environmental organizations that led to commitments by EPA to take action on various issues, including climate. He was a leader among the states in challenging EPA air pollution rules on regional haze, mercury pollution from coal-fired electric power plants, new health-based limits on ozone, and of course, the Obama Administration’s rules on greenhouse gas emissions, most notable the Clean Power Plan. Pruitt and like minded Attorneys General have mostly lost these lawsuits. I think he is an interesting choice because while he is a stalwart in opposition to the Obama EPA’s policies, he lacks experience running a large administrative agency. And he is likely to face opposition from career staff that feel committed to the mission that EPA has pursued for the past eight years.

It has been widely reported that Pruitt questions the causes of climate change and that he believes it should still be debated.  How important is that—for the head of the EPA to question climate change?

Sivas: Pruitt is mostly carrying the fossil fuel industry’s water on climate change.  There is really no longer any serious “debate” that climate change is happening and that its alarming acceleration is largely the result of human activities over the last century and a half.  Having a climate denier as EPA Administrator will likely produce both symbolic and substantive consequences.  On the international side, his appointment signals the U.S.’s withdrawal from global efforts and cooperation around climate change.  Even if we don’t officially withdraw from the historic Paris Agreement process, domestic efforts to implement carbon reduction targets would presumably grind to an abrupt halt under Pruitt’s tenure.  Because the U.S. emits almost one-fifth of the world’s anthropogenic greenhouse gases, his appointment would be a significant setback for global efforts to bend the carbon emissions curve. The loss of U.S. leadership on climate efforts could also cause other countries to pull away from international efforts, thereby magnifying the negative consequences of our own withdrawal.  Because the Paris Agreement is just the initial framework for what has been and will continue to be a difficult and delicate international dance, the timing of Pruitt’s appointment could not be worse.  On the other hand, the U.S. stepping away could create an opening for China to become the world leader on climate issues and renewable energy development.  That unintended consequence does not seem to comport with President-elect Trump’s oft repeated promise to stop China from “eating our lunch.”

Wara: Pruitt has repeatedly questioned the role of man-made greenhouse gases in causing climate change, suggesting there are doubts that merit further study. This is at best misleading and more appropriately characterized as false. He has also suggested that a community of scientists believe this – that is demonstrably false. I think this issue is going to make it especially hard for Pruitt to manage the agency. EPA is an agency composed of lawyers, scientists, economists and engineers that are deeply committed to environmental protection based on sound science. To have the head of the agency rejecting basic facts about humankind’s impact on the environment is likely to engender a lack of cooperation from a large and sprawling bureaucracy.

Do you have an idea of what Pruitt’s focus might be at the EPA?

Sivas: My best guess is that an Administrator Pruitt will prioritize the big splashy rules for reversal.  On the top ten list will surely be the new methane rule for oil and gas operations and the so-called Clean Power Plan rule.  The methane rule attempts to reduce emissions from oil field operations.  Methane is a very powerful greenhouse gas (much more harmful per molecule than carbon dioxide) that co-exists with oil deposits.  Although methane can be captured as a commodity—it is the key component of the natural gas we burn in our power plants and homes—many oil field producers do not do so.  As a result, hundreds of thousands of tons of unburned methane leak into the atmosphere from oil fields.  For instance, a recent study estimated that 275,000 tons of fugitive methane are released each year from the Bakken shale oil fields in North Dakota.  The new rule imposes equipment and process requirements that reduce these fugitive emissions and incentivize fossil fuel producers to capture methane as a valuable resource.  The Clean Power Plan is the U.S. down payment on President Obama’s commitments under the Paris Agreement; it sets new emissions standards for power plants, one of the big sources of carbon emissions.  Ironically, the plan allows each state to choose, among various approaches, how it intends to implement the standards—the very state-centric approach that Pruitt advocates.  Yet because both the power plant and methane rules directly affect his close allies in the oil and gas industry, Pruitt unquestionably has them in his sights.  Both rules are being challenged in court by the industry and some states, including Oklahoma.  Under Pruitt, the EPA will probably choose not to defend them in court and, in fact, to begin rulemaking procedures to rescind then.

Wara: Pruitt will prioritize rollback of the Clean Power Plan and the Waters of the United States Rule. The CPP sets limits on emissions of greenhouse gases from fossil fuel burning electric power plants. The Waters of the US Rule clarifies the reach of the Clean Water Act, and hence the EPA, in limiting actions that cause water pollution. Pruitt is on the record as believing that both rules represent encroachment upon states rights. Rolling back these rules will also be easier because they are both currently the subject of legal challenges. So EPA can change its position in the lawsuits, conceding to the opposing states’ arguments, and then withdraw the rules and draw out the process of revising them. The impact will be a lack of clarity for businesses about how to operate and invest given the likely prospect of future GHG [global greenhouse gases] regulation and water pollution rules. He will also likely target the fuel economy standards, which are due for a review in 2017 that the EPA just completed ahead of schedule. Pruitt will seek to undue the decisions recently made by EPA to stay the course on standards for 2025.

What Obama programs do you think might be at risk? And why is that important?

Sivas: In addition to the methane and Clean Power Plan rules, I suspect Pruitt will look across the agency more generally to see what other Obama initiatives can be rolled back.  For instance, I fully expect reversal on the new EPA rule, drafted in response to confusion created by a number of Supreme Court decisions, defining which wetlands and other waters are subject to Clean Water Act permitting.  Like the air emissions rules, the Waters of the United States rule has been challenged in the courts.  At the very least, a Pruitt EPA will probably decline to defend the industry and some state challenges; it may also initiate a new rulemaking to rescind the regulations.

Another area for potential review and roll back might be vehicle fuel economy standards.  In 2009, the Obama administration negotiated a historic deal with the auto industry, labor unions, state regulators, and environmental groups in the aftermath of a successful lawsuit by California and certain conservation groups.  That deal requires overall vehicle efficiency standards for new vehicles to rise slowly between 2012 and 2016, and then more quickly thereafter, reaching nearly 55 miles per gallon by 2025.  These are fleet average standards, meaning that gas guzzling vehicles like SUVs have to be balanced out across the fleet by much more efficient cars in order to reach the target.  The problem right now is that, with low prices at the gas pump, light trucks and SUVs, which are inefficient but lucrative for auto manufacturers, are being heavily marketed by the industry and constitute a growing share of consumer auto sales.  That makes it harder and harder to meet overall fleet efficiency standards.  So, having reaped the early benefits of the 2009 deal, the industry has now started talking about tearing it up, before the tougher standards kick in.  Setting these standards is a joint effort by EPA and the National Highway Traffic Safety Administration.  I suspect Pruitt will be sympathetic to industry concerns, so I’m worried about the durability of the deal.  The importance of reneging on this deal is that the only way to reduce greenhouse gas emissions from vehicles—the other big carbon source in addition to power plants—is through higher mileage efficiency.  Thus, reducing the mileage standards will only exacerbate climate issues and could potentially derail California’s efforts to promote electric and other clean alternative vehicles.

Wara: All of the Obama Administration’s programs focused on greenhouse gas emissions are at risk. As well as a suite of air pollution regulations that have significant impacts on public health. The broader implications of these actions will be greater morbidity and mortality of US residents impacted by unhealthy air, and loss of US leadership on international efforts to combat global warming.

What policies do you think he should focus on at the EPA?

Sivas: Rather than being the king of rollbacks and deregulation, I would urge Pruitt to focus on how the EPA can help craft policies that create the right market conditions for expanding the economic boom in non-fossil technologies, in both the transportation and energy sectors.  Subsidizing the coal and oil industry through relaxed pollution rules (that is, externalizing pollution costs to the general public) is a short-sighted, lose-lose strategy: The world is impoverished by increased carbon emissions and China or another country becomes the global leader in non-fossil fuel innovation and technology.  Fostering incentives for renewable energy and new transportation options, on the other hand, is the long-term win-win strategy.  We know that the U.S. is more nimble and innovative than any other country and that first-movers reap the greatest economic benefits.

So the question I would pose to Pruitt and Trump himself is this: Why not make American great by committing to policies that will spur the world’s inevitable shift to a non-fossil fuel economy – arguably the biggest new market opportunity ever?

Wara: Until he commits to a vision that involves advancing environmental protection rather than simply rolling back the balanced set of rules that the Obama Administration has promulgated over the past 8 years, I would prefer that he not focus. Given what he has said, focus implies giving authority to states to do less than has heretofore been required under US environmental law. This will lead to less environmental protection, especially for low-income US residents. But he has not articulated any positive vision for his tenure at EPA and so I am willing to wait and see. Sometimes, having to govern instead of being in opposition can alter people’s perspective. Let us hope that this is the case for Pruitt, at least to some degree.

Deborah A. Sivas is the Luke W. Cole Professor of Environmental Law at Stanford and the director its Environmental Law Clinic. Michael Wara is Associate Professor of Law and the Justin M. Roach, Jr. Faculty Scholar at Stanford Law School.