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The Man Who Sued the EPA Is Now Running It

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By Ken Kimmell

Voting largely along party lines, Congress just confirmed Scott Pruitt as administrator of the U.S. Environmental Protection Agency (EPA)—an attorney who has spent his professional career suing the EPA to stop the agency from performing its fundamental mission of ensuring clean air and water for all Americans. This confirmation marks a sharp break with precedent; most EPA administrators from both parties have come to the office with a demonstrated commitment to the EPA's mission.

One might even say that this vote signals the end of an era of bipartisan congressional support for a strong federal role in protecting our environment, as this newly confirmed administrator is likely to dismantle the safeguards that both parties have supported since the 1970s.

What that means for all of us who care about clean air and water and the protection of our environment is this: It is up to us to monitor carefully what happens next and to be prepared to spring into action as needed.

Here are some of the key developments I'm watching for:

Will Scott Pruitt Recuse Himself?

As repeatedly noted in his nomination hearing, Pruitt has represented the State of Oklahoma in numerous lawsuits against EPA. Many of these cases are still active today, directed at major EPA regulations, including the Clean Power Plan (which limits carbon emissions from power plants); national air quality standards; mercury emissions from coal plants; methane limits for the oil and natural gas excavation; and a Clean Water Act rule that clarifies federal jurisdiction over bodies of water.

During the nomination hearing, Pruitt did not commit to recusing himself from these cases, but he did say he would rely on advice from the EPA ethics counsel. Common sense tells us that he cannot possibly be impartial on these issues and conflicts of interest abound. For example, the state attorneys general who joined him in the suit against the Clean Power Plan have written a letter to the Trump administration, asking the president to issue an executive order declaring that the rule is unlawful. Responding to this request would, in the normal course of business, require EPA input, since it is an EPA regulation. How can Scott Pruitt possibly participate in any review of that request given that, just a few weeks ago, he himself was one of the attorneys general making this claim?

He must recuse himself, as 30 senators have made clear in a recent letter.

Will Scott Pruitt Cut Federal Law Enforcement?

As a candidate, Trump pledged to dismantle the EPA. He lacks a filibuster-proof majority to change the laws that created the EPA, such as the Clean Air and Clean Water Act. But he could cripple the EPA with budget cuts, which are much harder for a minority to stop.

By wide margins, most Americans favor enforcement of laws that protect our air and water. Cutting EPA enforcement will therefore be unpopular—but Scott Pruitt is likely to argue that we can rely on states to enforce environmental laws, so cutting the EPA's budget won't do any real harm.

This is a dangerous myth.

Having served as a state environmental commissioner, I know from personal experience that state environmental agencies are already strapped. They typically lack the technical experts employed at the EPA and stand in no position to take on additional enforcement responsibilities shed by the EPA.

In Massachusetts where I served, for example, my former agency's staff was cut nearly in half between 2002 and 2012 due to budget cuts, even as the agency's responsibilities grew. That occurred in a state well known for its strong commitment to environmental protection. As a result, my agency was forced to cut back on important and effective programs, such as water sampling to locate sources of bacteria that pollute rivers. If the EPA's budget is cut, it will mean even fewer resources for states, because states now receive a significant share of the EPA's budget to cover enforcement activities.

Second, state environmental agencies sometimes experience political pressure against enforcement that might harm a large employer or impose significant costs on residents. We saw some of this in play in Flint, Michigan, where a state agency did not enforce a law requiring corrosion treatment of pipes to reduce lead contamination; it took an EPA staffer and outside scientists, as well as the residents themselves, to blow the whistle on lax state enforcement.

Third, states are not equipped to deal with the widespread problem of interstate pollution. To cite one of the most egregious examples, the state of Maryland could shut down virtually all in-state sources of air pollution and yet still not be in compliance with health-based air quality standards due to pollution from neighboring "upwind" states. A strong federal law enforcement presence is needed to address the simple fact that air and water pollutants do not honor state boundary lines.

We and others stand prepared to fight crippling budget cuts at the EPA and explain that the protection of our air and water requires both federal and state environmental law enforcement.

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