EPA General Counsel Pick Criticized Agency’s Rules

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By Abby Smith

President Donald Trump’s pick to be the EPA’s top legal counsel is a staunch critic of the Obama-era regulations he could play a crucial role in unraveling.

Matt Leopold, the former Justice Department attorney in line to be general counsel of the Environmental Protection Agency, has accused the Obama administration of overstepping its bounds in issuing broad rulemakings like the Clean Power Plan and the 2015 Clean Water rule, commonly known as Waters of the U.S., or WOTUS.

If confirmed, Leopold, currently a partner in Carlton Fields Jorden Burt, P.A.'s Tallahassee, Fla, office, would lead EPA’s team responsible for shoring up the legal underpinning for undoing, replacing, or revising those regulations.

Trump announced his intention to nominate Leopold late Sept. 2 alongside a number of other environment and energy picks, including a nominee to head the EPA’s Office of Water.

Leopold would be no stranger to leading the legal team of an environmental agency. He served as the general counsel of Florida’s Department of Environmental Protection from 2013 to 2015 under Republican Gov. Rick Scott. Before that, Leopold worked in the Justice Department’s environment division from 2007 to 2013, during which he worked on the civil trial team for the BP Deepwater Horizon oil spill.

Push for State Authority

Leopold has been a critic of the Obama EPA, and has urged greater authority for states in environmental regulation—a view that is shared by Administrator Scott Pruitt.

“The question is: Where is the space that the states are supposed to occupy, and is the federal government stepping too far into that space?” Leopold said at a January 2016 Federalist Society event. As potential checks on the EPA’s overreach, he suggested updates to the Administrative Procedure Act to include congressional ratification of major regulations from the EPA and other federal agencies, noting Florida’s administrative law already provides such a check.

Leopold also appeared to suggest a re-examination of the Chevron doctrine, under which the court typically defers to a federal agency’s interpretation of ambiguous statutory language. “It’s very important to have agencies making complex scientific decisions in areas of their expertise, but the court is equally able to interpret a statute, sometimes better, than a federal agency,” he said then.

According to Jason Gonzalez, Florida chairman of the Federalist Society and an attorney with Shutts & Bowen LLP, Leopold was an “early favorite” for the EPA’s general counsel. In an email to Bloomberg BNA, Gonzalez said Florida Attorney General Pam Bondi personally recommended Leopold to Pruitt.

“He is unique in that his intellect, experience, and balanced approach have drawn support from across the ideological spectrum. You rarely have someone like Matt who is supported by conservative leaders, as well as the likes of the Everglades Foundation and the Audubon Society,” Gonzalez said.

But other environmentalists are critical of Leopold, who they say will slow-walk environmental regulation to support industry interests.

Linda Young, executive director of Florida Clean Water Network, told Bloomberg BNA that Leopold is “very pro-industry, very unsympathetic to public interest and involvement,” and has “a flexible attitude about regulatory compliance.” Young, whose group has sued the Florida environment agency many times to prompt enforcement and updates of the state’s environmental regulations, suggested Leopold would bring a similar attitude to the EPA ,if confirmed.

People like Leopold “don’t change environmental law, they just ignore it. And when people try to enforce it, they stop them. They change as much as they need to change to quash any effort of citizen participation or enforcement with the law,” Young said.

Prior Experience

But Ethan Shenkman, who served during the Obama administration as the EPA’s deputy general counsel and in the Justice Department’s environment division, said Leopold’s experience as both a career attorney and a political official would serve him well in the EPA’s general counsel.

That dual experience “will help him understand the role of general counsel is not the same as the role of the policymaker,” Shenkman, now with the law firm Arnold & Porter Kaye Scholer LLP, told Bloomberg BNA. A general counsel’s role is “to provide advice on the array of options that are legally defensible” for policymakers to consider.

Shenkman said he crossed paths with Leopold during both his time in the Justice Department and in the Florida environment agency.

He worked closely with Leopold on legal and regulatory issues concerning Everglades restoration when Leopold was representing the state of Florida. Leopold “did a great job,” Shenkman said noting he led Florida “to some very successful collaborative approaches” with the federal government.

Shenkman also said he overlapped briefly with Leopold during his time at the Justice Department, where he was “well-respected.” During Leopold’s time in the Justice Department, he worked on Endangered Species Act and Superfund litigation, as well as Clean Water Act and Clean Air Act citizen suits.

Broadly, Shenkman described Leopold as “very cooperative and team-oriented,” and he suggested his state experience could “lend a very important perspective” because “states are on the front lines of administering environmental laws.”

To contact the reporter on this story: Abby Smith in Washington at asmith@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

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