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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