Pruitt to Defer to Ethics Officials on Sitting Out Lawsuits

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By Brian Dabbs

Scott Pruitt may claim the reins of the Environmental Protection Agency in days, but the Oklahoma attorney general won’t commit to recusing himself from environmental lawsuits in which he continues to participate.

Instead, Pruitt told the Senate Environment and Public Works Committee he will defer to EPA ethics officials for their advice on recusal.

The agency’s ethics position is currently unclear, meaning Pruitt, President-elect Donald Trump’s pick for EPA administrator, could direct the agency to agree with state and industry challenges against sweeping EPA regulation.

During Pruitt’s day-long nomination hearing Jan. 18, Sen. Ed Markey (D-Mass.) pushed Pruitt to unilaterally withdrawal from those suits, but Pruitt repeatedly vowed to defer to the ethics officials.

Buck Stops at Ethics Counsel

“The EPA’s ethics counsel has indicated those cases will require review by the EPA ethics counsel,” said Pruitt, adding that the counsel may determine “recusal could potentially be in order.” An EPA Ethics Office exists under the Office of General Counsel.

Pruitt is involved in several active lawsuits against the EPA, including challenges to the Clean Water Rule, Clean Power Plan, ozone air quality standards, mercury standards and methane limits for the oil and natural gas industry.

Markey said Pruitt’s deferral to the counsel is a “clear line” that the American public will oppose. “If you don’t agree to recuse yourself, then again, you become plaintiff, defendant, judge and jury on the cases that you’re bringing right now as the attorney general of Oklahoma against the EPA,” Markey said. “Otherwise, people are going to think it’s not just the fox guarding the hen house, it’s the fox destroying the hen house.”

Recusal Discretion

In one of many contentious exchanges between Pruitt and committee Democrats, Sen. Kamala Harris (D-Calif.), who served as California’s attorney general until roughly two weeks ago, questioned Pruitt over whether he has the “discretion” to recuse himself from the lawsuits.

Ultimately, Pruitt admitted so.

“Clearly there’s a discretion to recuse,” he said. Harris said public officials should withdraw themselves from situations that bear even the appearance of a conflict.

An EPA spokeswoman didn’t respond to Bloomberg BNA’s request for comment on ethics counsel guidance in this type of scenario.

Pruitt pledged to follow the advice of the counsel. The nominee also said he would recuse himself for one year from all EPA matters involving entities under which he recently served, which include the Southern Baptist Theological Seminary, Windows Ministry Incorporated and the controversial Rule of Law Defense Fund. That one-year pledge was included in Pruitt’s disclosure to the Office of Government Ethics.

‘Dark Money’ Concerns

Sen. Sheldon Whitehouse (D-R.I.) badgered Pruitt to reveal whether he helped raise fossil fuel industry money for the Rule of Law Defense Fund, which Pruitt served on from 2014 through December. The group, linked to Republican attorneys general, promotes the devolution of federal powers to states. Pruitt did not respond directly to that question but said he would work with the ethics officials to address that funding “if presented in the future.”

Whitehouse called the fund a “dark money” operation designed to advance the fossil fuel agenda. The fund, which does not have to disclose its donors due to its section 501(c)(4) status in the Internal Revenue Code, describes itself as a forum for Republican attorneys general to “engage” on policy.

The Office of Government Ethics cleared Pruitt but admitted Jan. 17 the ethics request does not include political affiliations. Whitehouse said the office hasn’t “updated” its disclosure to reflect a new funding environment following the Citizens United v. Federal Elections Commission decision in 2010.

“It gives me little comfort you are not willing to answer those questions here,” he said.

Sharp Committee Division

Democrats also lashed out against the nominee for alleged fossil fuel industry cronyism and his skepticism of the human connectivity to climate change.

Pruitt said the climate change debate continues, but admitted human action has fueled that change “in some manner.” When pressed Sen. Bernie Sanders (I-Vt.) pressed him to elaborate, Pruitt said his climate change opinion is “immaterial.” Sanders then pledged to oppose his nomination.

However, the nominee said he did not want the EPA to devolve its authorities to the states, adding that the agency plays a critical role in water and air, including carbon dioxide protections.

The committee vote to advance Pruitt’s nomination to the Senate floor is shaping up as party-line, as even Sen. Tom Carper (D-Del.), the ranking member, expressed serious concern with the nomination. Sen. Jeff Sessions (R-Ala.), Trump’s pick to head the Justice Department, did not participate in the Pruitt hearing. If Sessions were to recuse himself from a committee vote, the panel would be an even 10-10 member split.

Republicans on the committee, however, largely praised the nominee. An EPA under Pruitt would restore confidence and certainty to the regulated community, much of which have lived in fear of a bullying EPA, committee Republicans said. Pruitt touted a “cooperative federalism” approach that he would prioritize as agency administrator.

A date is not yet scheduled for a committee vote on the nomination.

—With assistance from Andrew Childers.

Andrew Childers in Washington, D.C. also contributed to this story.

To contact the reporters on this story: Brian Dabbs in Washington at bdabbs@bna.com; Andrew Childers in Washington, D.C. at AChilders@bna.com

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

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