Candidates to Replace Perciasepe Unclear; Difficult Confirmation Process Anticipated

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By Patrick Ambrosio and Andrew Childers  

Aug. 5 — It is unclear whom the White House will nominate to succeed departing Environmental Protection Agency Deputy Administrator Bob Perciasepe, but whoever is selected is expected to face a difficult confirmation process in the Senate, sources told Bloomberg BNA.

Various former federal officials and industry attorneys said any replacement will need to have a strong understanding of the EPA and be able to serve as an effective communicator between the agency leadership and the agency's regional offices, state environmental agencies and the regulated community.

They agreed that the deputy administrator position requires a unique skill set and that it will be difficult for the EPA to replace the well-regarded Perciasepe.

Sources also agreed that whoever the administration chooses to nominate will likely face difficulty in obtaining confirmation by the Senate, which could make the position less attractive to outside candidates.

Perciasepe is leaving the agency to become the president of the Center for Climate and Energy Solutions, with a listed start date of Aug. 11, according to the center's website.

The EPA told Bloomberg BNA in an Aug. 5 e-mail that the agency anticipates “releasing more information” on the deputy administrator position before Perciasepe departs.

Identifying Replacement Difficult

Bill Becker, executive director of the National Association of Clean Air Agencies, told Bloomberg BNA that it will be difficult for the EPA to replace Perciasepe, who had experience working in local government, state government and in the EPA's air and water offices before stepping in as deputy administrator.

“He was a star everyplace he worked,” Becker said. “To find someone to replace him is going to be challenging.”

Becker said he “would not be surprised” if the EPA promoted somebody from within to replace Perciasepe. Becker described the ideal internal candidate as someone who knows the inner workings of the EPA, has run program offices, would be able to step in and make a seamless transition and who knows that he or she “probably” won't be confirmed.

Richard Alonso, a partner at Bracewell & Giuliani LLP and a former official with the EPA's Office of Enforcement and Compliance Assurance, agreed that the choice for a new deputy administrator should be someone who knows the agency. EPA Administrator Gina McCarthy will want “somebody of substance” to fill the deputy administrator role, Alonso told Bloomberg BNA.

Noncontroversial Opinions Needed

Thomas Lorenzen, a partner at Dorsey & Whitney LLP who formerly worked at the Justice Department, told Bloomberg BNA that the new deputy administrator needs to be someone who hasn't staked out positions that are “too controversial,” given the need for the deputy administrator to serve as an effective communicator between the agency and the regulated community.

“They're going to appoint the best person they can think of internally for the acting job,” Lorenzen said.

Scott Segal, an attorney with Bracewell & Giuliani, compared the deputy administrator position to the chief operating officer position at a corporation. He told Bloomberg BNA that while that role would typically be filled by someone who has familiarity with the EPA and understands how government bureaucracy works, the EPA may not need to “play by that rule,” given the significant experience that EPA Administrator McCarthy has in running environmental regulatory agencies.

Quick Confirmation Unlikely

While there was no consensus on whom the likely replacement for Perciasepe would be, sources agreed that the eventual nominee may never actually be confirmed by the Senate.

Segal said Congress has a “lot of questions” about the EPA's June proposal to regulate greenhouse gas emissions from power plants, which could make it less likely that there is a “speedy confirmation” for the deputy administrator nominee.

Alonso of Bracewell & Giuliani pointed out that Congress hasn't even been able to confirm “totally noncontroversial” candidates to fill vacancies, such as the nomination of John Cruden to lead the Justice Department's Environment and Natural Resources Division. Cruden was nominated for the position in December 2013 and has bipartisan support, but he hasn't yet received a confirmation vote by the full Senate.

“If Congress doesn't confirm John Cruden, how are they going to approve somebody from EPA?” Alonso asked.

No Candidate Confirmed Before Elections

Lorenzen agreed that there is a “very high likelihood” that the deputy administrator job will be filled by an acting official for a “very long time.” He predicted that no EPA candidate would be confirmed before November's midterm elections but acknowledged that if the Republicans win the Senate, that could provide an avenue for “at least some” of President Obama's nominees to be confirmed because Republicans would have a responsibility to govern.

Jim Aidala, former assistant administrator for the EPA Office of Prevention, Pesticides and Toxic Substances under President Clinton, noted that there is a “very hostile congressional environment” that could make it difficult to get an EPA nominee through the confirmation process.

Aidala, who now serves as a senior government consultant with Bergeson & Campbell PC, told Bloomberg BNA that even if the EPA nominates a “career” agency staff member in a nonpolitical move, there are still opponents in the Senate who may block any move that would help the EPA operate more efficiently.

Uncertainty Could Limit Choices

Becker of NACAA said that while EPA officials like Janet McCabe, who is currently serving as acting assistant administrator for air and radiation, are effectively doing their jobs despite a lack of Senate confirmation, the uncertainty makes it more difficult for the EPA to fill the deputy administrator position.

Becker questioned whether persons from outside the agency would want to give up their current job and relocate to Washington to serve in an acting capacity for two years without the support of Congress.

Lorenzen agreed that the deputy role could be “less attractive” to outside candidates, given the likelihood that the confirmation process could “drag” and the limited remaining time in the Obama administration.

Pool of Internal Candidates

The main functions of the deputy EPA administrator are to handle the EPA's budget, “shepherd” rules through the interagency review process, coordinate with the agency's 10 regional offices and serve as a “screen” for access to EPA Administrator McCarthy, according to Aidala. He said the No. 2 job at the EPA requires a “very unique skill set” given the variety of important tasks that official handles.

The “natural candidate” to replace Perciasepe is someone who is already working at the agency, with the pool of current assistant administrators and regional administrators as the two starting points for consideration, Aidala said.

While several high-ranking EPA posts are currently held by acting administrators or by officials who have already announced they will soon depart the agency, there are some assistant administrators who have already been confirmed by the Senate to fill their current roles.

Those officials include Jim Jones, assistant administrator for chemical safety and pollution prevention; Cynthia Giles, assistant administrator for enforcement and compliance assurance; and Mathy Stanislaus, assistant administrator for solid waste and emergency response.

Focus Seen on Other Priorities

Alonso said that given Administrator McCarthy's strong air background, the administration could look for a deputy administrator with experience in other programs, such as pesticides or solid waste.

A nominee from the agency's air office could be “tough” to get through the Senate given the opposition to the EPA's air and climate rules, Lorenzen said. He said politics makes it “unlikely” that the new deputy administrator would come from the air office.

Aidala said that while in an abstract scenario the agency might lean toward a “complementary” person to fill the deputy role, given McCarthy's strong air and climate experience, the agency may “double down” on air expertise given the high priority the president has placed on addressing climate change during his second term.

Becker said that while the new deputy will obviously need to have an understanding of air and climate issues given the EPA's priorities, the EPA has those issues “covered very well” between McCarthy, McCabe and the rest of the air office. A new deputy will most likely be spending most of his or her time managing and focusing on other important public health issues that aren't related to air or climate, Becker said.

Jones Has Experience in Air Office

Aidala noted that while the head of the agency's chemical and pesticide office typically wouldn't be considered for the deputy administrator post because that office deals less with regional offices than other programs, Jones also has experience in the agency's air office. Jones served as deputy assistant administrator for air and radiation in 2011, according to the EPA's website.

That time in the air office gives Jones both experience in an office that has a strong regional presence and a “personal connection” with Administrator McCarthy, who ran the air office during that time, Aidala said.

Both Aidala and Eric Schaeffer, executive director for the Environmental Integrity Project and former director of the EPA's Office of Civil Enforcement, noted that there is precedent for the head of an EPA regional office to be chosen to serve as deputy administrator.

Michael McCabe was nominated in 1999 by President Clinton to serve as deputy administrator after spending about four years running the EPA's Region 3 office, which includes Delaware, the District of Columbia, Maryland, Pennsylvania, Virginia and West Virginia.

McCabe eventually rose to the position of acting EPA administrator in the early days of the George W. Bush administration, while eventual EPA Administrator Christine Todd Whitman awaited Senate confirmation.

To contact the reporters on this story: Patrick Ambrosio and Andrew Childers in Washington at pambrosio@bna.com and achilders@bna.com.

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com