McCabe Offers Little New Information After Response Delay Impedes Confirmation

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By Anthony Adragna

April 9 — Senators waited nearly seven months for the Environmental Protection Agency's air chief nominee to respond to questions necessary for her confirmation to go forward but got little back from Janet McCabe besides oft-cited talking points on a host of agency actions, her responses, obtained by Bloomberg BNA, reveal.

McCabe's delay in responding to dozens of questions, mainly from Republican senators, following her April 2014 confirmation hearing effectively killed her chances for Senate confirmation last year due to its workload. President Barack Obama has not re-nominated her to be assistant administrator for the air and radiation in 2015, and the EPA told Bloomberg BNA April 9 it had no sense for when formal re-nomination will occur.

Some energy lobbyists and congressional Republican staff attribute McCabe's failure to be confirmed, in part, to the Obama administration's failure to promptly reply to questions and nominate candidates for agency positions. But others blame lengthy delays in considering nominees, unprecedented information requests from Republicans and the use of the confirmation process to extract political concessions.

Kristina Baum, spokeswoman for the Senate Environment and Public Works Committee, which considers EPA nominations, told Bloomberg BNA in an e-mail the EPA had not submitted required paperwork for any of the four people nominated to agency positions this Congress. Upon receiving those documents or McCabe's formal selection, “we will gladly consider their nominations,” Baum said.

Federal officials can serve in an acting capacity, as McCabe has since July 2013, for 210 days once a vacancy requiring Senate confirmation occurs under the Federal Vacancies Reform Act of 1998 (Pub. L. No. 105-277). Following presidential nomination, the acting official may serve “as long as the nomination is pending in the Senate,” according to federal guidance on the statute.

Sen. James Inhofe (R-Okla.), chairman of Senate environment committee, has said previously the president deserves to have his team in place but promised close scrutiny of federal agency nominees. Committee Ranking Member Barbara Boxer (D-Calif.), meanwhile, has said Republicans “don't want anybody in these roles” and said the confirmation process has been “almost impossible”.

Dozens of Additional Questions

Republican senators peppered McCabe with dozens of questions on a host of EPA regulatory actions during her April 2014 confirmation hearing and then submitted 104 additional ones—known as questions for the record—that had to be answered before her confirmation could proceed, according to the answers obtained through a Freedom of Information Act request.

Those questions focused heavily on topics such as the EPA's carbon dioxide new source performance standards for future power plants, potential revisions to the national ozone standard, the agency's role in developing the federal social cost of carbon figure and the scientific data behind climate change. McCabe responded to the questions on Oct. 30, 2014.

A Senate Republican aide at the time described the delays in responding to the questions as unprecedented. The agency submitted answers just one week after Bloomberg BNA reported on the lag in obtaining answers.

Of particular interest to the senators was the EPA's position on whether carbon capture and sequestration technologies—effectively required under its proposed carbon dioxide pollution standards for new power plants—were adequately demonstrated as required under the Clean Air Act.

“The EPA has proposed to determine that [carbon capture and sequestration] is technically feasible for new coal-fired power plants, because all of the major components of CCS—the capture, the transport, and the injection and storage—have been demonstrated and are currently in use at commercial scale,” McCabe wrote in similar responses to several questions. “In our current rule, CCS has been, or is in the process of being used, on utility units at or beyond the level we have proposed.”

Sen. David Vitter (R-La.), then-ranking member of the Senate Environment and Public Works Committee, said certain state laws and geologic conditions made the use of CCS technologies impossible. He then asked McCabe how the agency's proposed rule would address such limitations.

McCabe responded the agency “has not mandated” use of CCS technologies to comply with the proposed rule (RIN 2060-AQ91) but said a developer would “also have the option of transporting the captured [carbon dioxide], via pipeline, to an area that is suitable for long term storage.”

Job Loss Analysis Questioned 

Inhofe, now chairman of the committee, asked McCabe why the agency failed to conduct required job-impact review of its air pollution regulations as mandated under Section 321(a) of the Clean Air Act. That same argument has been used as the basis for ongoing litigation against the agency (Murray Energy Corp. v. McCarthy, N.D. W.Va., No. 5:14-CV-39, 3/27/15).

McCabe responded: “In keeping with congressional intent, EPA has not interpreted this provision to require EPA to conduct employment investigations in taking regulatory actions. Section 321 consistently has been interpreted by EPA to provide a mechanism for investigating specific allegations by particular employers or employees that specific requirements applied to individual companies would result in layoffs.”

The EPA has, nevertheless, focused “increased attention” since 2009 on the employment impacts of potential actions while preparing its regulatory impact analyses associated with specific rulemakings, according to McCabe.

Scott Segal, a lobbyist for coal companies and power companies at Bracewell & Giuliani LLP in Washington, called McCabe a “incredibly intelligent, dedicated public servant” and told Bloomberg BNA April 9 her work probably was unaffected by her confirmation status. Nevertheless, Segal said the Obama administration probably was in no hurry to engage in a contentious confirmation process.

“The reason why the president doesn’t push the issue for confirmation is that there’s a fear that if a final vote were taken she wouldn’t be confirmed or too many tough questions would be asked,” Segal said. “There are probably a lot of reasons why neither the White House nor Democrats are in a hurry to confirm Janet McCabe.”

Others blamed the dysfunctional confirmation in Congress for McCabe's status. Nominations are now routinely held up to extract political concessions rather than over the qualifications of nominees, some observers said.

“[This is an issue] that Congress has created by not being able to confirm presidential nominations efficiently and effectively,” Amit Narang, Public Citizen's regulatory policy advocate, told Bloomberg BNA. “On substance, this isn’t a big deal in my eyes. I don’t believe that official confirmation by the Senate would make her more effective in her current role, although could potentially give her more perceived authority and legitimacy at the margins.”

To contact the reporter on this story: Anthony Adragna in Washington at aadragna@bna.com

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

Janet McCabe's responses to questions for the record, as obtained through a Freedom of Information Act request, are available at http://op.bna.com/env.nsf/r?Open=fwhe-9vep5m.