Trump’s EPA Pick Crosses the Federalism Divide

How will a hard-core states’ rights advocate mold Washington’s approach to pollution?

Oklahoma Attorney General Scott Pruitt
AP Photo/Sue Ogrocki
Jason Plautz
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Jason Plautz
Dec. 15, 2016, 8 p.m.

As at­tor­ney gen­er­al of Ok­lahoma, Scott Pruitt built a ca­reer on fight­ing for states’ rights and against what he called over­reach from the En­vir­on­ment­al Pro­tec­tion Agency. Now, as the po­ten­tial next head of the EPA, how will a state cham­pi­on play in the fed­er­al bur­eau­cracy?

Con­ser­vat­ives, like Sen. Mike Lee of Utah, couldn’t be more thrilled. At an en­ergy con­fer­ence hos­ted by the Texas Pub­lic Policy Found­a­tion last week, Lee railed against a “cent­ral­ized reg­u­lat­ory au­thor­ity” that’s ig­nor­ant of “the con­cerns of people in com­munit­ies.” Whip­ping out a pock­et Con­sti­tu­tion, Lee said Pruitt would “put Wash­ing­ton and es­pe­cially fed­er­al en­ergy policy back on the side of hard­work­ing Amer­ic­ans.

“Pruitt … knows the bur­eau­crat­ic mind-set he’s up against. I’m con­fid­ent he’s not go­ing to shy away from the battle,” Lee said.

Oth­ers fear that Pruitt will start strip­ping the agency from with­in, let­ting states lay down for fossil-fuel in­terests and put­ting a halt to more ag­gress­ive cli­mate reg­u­la­tion. The EPA is already built on a “co­oper­at­ive fed­er­al­ism” sys­tem that sub­jug­ates ma­jor en­force­ment and reg­u­lat­ory au­thor­ity to the states, with the fed­er­al gov­ern­ment tak­ing an over­sight role.

Pruitt is likely to roll back sev­er­al en­vir­on­ment­al rules, but will have lim­ited au­thor­ity to turn back bed­rock pro­tec­tions in the Clean Air Act and Clean Wa­ter Act (roll­backs will also face court chal­lenges from the Left). The ad­min­is­tra­tion could trim EPA en­force­ment budgets, and Pruitt could in­still a cul­ture that al­lots more power to the states.

The Trump trans­ition team de­clined to make Pruitt avail­able for an in­ter­view, but his pre­vi­ous ex­per­i­ence shows his state-fo­cused en­ergy philo­sophy. After tak­ing of­fice in 2011, Pruitt es­tab­lished a “fed­er­al­ism unit” in the state gov­ern­ment to push for states’ rights in court. Ori­gin­ally com­posed of just the so­li­cit­or gen­er­al, the of­fice now has four staff mem­bers and has been the root of the state’s law­suits against Wash­ing­ton on Obama­care, abor­tion rights, and the en­vir­on­ment, among oth­ers.

A bulk of them have been against the EPA. Pruitt has chal­lenged the Clean Power Plan lim­its on power-plant pol­lu­tion, lim­its on mer­cury and ozone, and the Wa­ters of the United States rule. Al­though law­suits against the EPA are noth­ing new, they’ve taken on in­creas­ingly par­tis­an in­tens­ity in re­cent years. As the head of the Re­pub­lic­an At­tor­neys Gen­er­al As­so­ci­ation, Pruitt helped or­gan­ize a core of AGs who fre­quently ap­pear to­geth­er on law­suits against the EPA.

In an in­ter­view, West Vir­gin­ia At­tor­ney Gen­er­al Patrick Mor­ri­sey said Pruitt has been “one of the real lead­ers of RAGA” and “one of the folks that people point to as someone who has gone after fed­er­al over­reach.” Marty Jackley, the at­tor­ney gen­er­al for South Dakota, said Pruitt helped com­mu­nic­ate among states as EPA rules came down.

“I can hon­estly say that pro­tect­ing the en­vir­on­ment is primar­ily the role of private landown­ers in a state, and rarely does the EPA play a role in that pro­tec­tion,” Jackley said. “It’s not un­com­mon for an at­tor­ney gen­er­al to be con­tact­ing the U.S. at­tor­ney about where en­force­ment jur­is­dic­tion ought to be. We need to get back to that co­oper­a­tion, and I hope [Pruitt] can bring his ap­proach to show that private landown­ers, states, and AGs are an im­port­ant part.”

That his­tory has en­vir­on­ment­al­ists and Demo­crats alike wor­ried about his ap­point­ment. Pruitt is sure to face plenty of ques­tions from Sen­ate Demo­crats over­see­ing his nom­in­a­tion about his ques­tion­ing of the sci­entif­ic con­sensus on cli­mate change and his ties to the state’s fossil-fuel in­dustry (former George W. Bush press sec­ret­ary Ari Fleis­cher told Politico that Demo­crats should aim all their fire at Pruitt in as­sess­ing Trump’s Cab­in­et).

How he might del­eg­ate power to the states, however, will be key. EPA already hands over plenty of power, es­pe­cially on en­force­ment of pol­lu­tion laws, with its re­gion­al of­fices form­ing a closer back­stop. Dav­id Konisky, an as­so­ci­ate pro­fess­or at In­di­ana Uni­versity’s School of Pub­lic and En­vir­on­ment­al Af­fairs, said that de­pends on states ac­tu­ally up­hold­ing their end of the bar­gain.

“What we’re likely to see is a real vari­ab­il­ity in out­comes. The risk comes from states who are more in­clined to cut corners where they can,” Konisky said. “There are many les­sons from Flint, but one is that EPA gave a long leash to Michigan’s [de­part­ment of en­vir­on­ment­al pro­tec­tion]. It didn’t cause the crisis, but it con­trib­uted to its length and tep­id re­sponse.”

Plus, it’s long been noted that pol­lu­tion doesn’t obey state lines; East­ern states are es­pe­cially wary of air pol­lu­tion from the cen­ter of the coun­try drift­ing in­to their areas.

It’s an is­sue that the Obama EPA sought to ad­dress through the Cross-State Air Pol­lu­tion Rule, which ordered some states to re­duce emis­sions of sul­fur di­ox­ide and ni­trous ox­ides that con­trib­ute to smog. Pruitt was one of sev­er­al AGs who sued, un­suc­cess­fully, to over­turn the rule.

Sup­port­ers say they’re not try­ing to re­store the coun­try to the dirty air that led to the cre­ation of the EPA in 1970. Pruitt him­self told a Sen­ate pan­el last year that EPA “has played a very im­port­ant role his­tor­ic­ally in ad­dress­ing wa­ter and air-qual­ity is­sues that tra­verse state lines.”

John Walke, an at­tor­ney with the Nat­ur­al Re­sources De­fense Coun­cil, said Pruitt’s law­suit showed that his sup­port for states’ rights is “a ca­nard at its core” that would “sab­ot­age safer pro­tec­tions and stand­ards that ap­ply na­tion­ally.

“He must weak­en fed­er­al law in or­der to al­low states to weak­en their own prac­tices in­side their states,” Walke said. “There’s an en­vir­on­ment­al civil war that Pruitt’s rhet­or­ic threatens to re­turn us to by al­low­ing a race to the bot­tom among so-called red states in the South­east and Mid­w­est that would like to pol­lute at high­er levels.”

Zach C. Cohen contributed to this article.
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