Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...
Stepping aside from lawsuits he brought against the EPA will not hinder Administrator Scott Pruitt’s ability to reshape the climate change and water regulations he challenged as Oklahoma attorney general.
Pruitt, in a May 4 internal memo, announced that for the duration of his administration he will sit out active lawsuits in which Oklahoma was a party. That abstention could be functionally meaningless because in many of them, including those challenging major Obama-era greenhouse gas and water jurisdiction regulations, the Environmental Protection Agency has already sought to halt litigation while it reconsiders the rules Pruitt had opposed.
Pruitt will get to reshape those rules because different ethical standards apply for government officials seeking to recuse themselves from lawsuits versus those for the regulatory process, Kathleen Clark, a law professor and expert on government ethics at Washington University School of Law in St. Louis, told Bloomberg BNA. Because regulations apply generally, Pruitt does not face the same ethical demands when reviewing the rules he had opposed as he does when participating in lawsuits he brought against the EPA, she said.
Even if Pruitt were to sit out the EPA’s reviews of the Clean Power Plan carbon standards for existing power plants and the Clean Water Rule, also known as the waters of the U.S. (WOTUS) jurisdiction rule, the outcome would likely be the same, one law professor said.
“If he didn’t run the show on the new rulemaking, I would expect another political staff with similar views would be put in charge,” Justin Pidot, a professor at the University of Denver Sturm College of Law, told Bloomberg BNA in an email. “While such an individual might proceed somewhat more cautiously because they are not the administrator, I expect the end result would be similar.”
While Clark said Pruitt is doing nothing improper, advocates for the EPA’s regulations intend to press the administrator over his apparent conflicts of interest as he reconsiders the various Obama regulations.
“We need to keep calling attention to the conflict of interests that come from his past position, and at some point it becomes more important to focus on his ties with industry and his bias toward industry,” David Doniger, director of the Natural Resources Defense Council’s climate and clean air program, told Bloomberg BNA.
Pruitt’s memo lists a dozen lawsuits in which he will not participate as administrator, including challenges to carbon dioxide limits for both new and existing power plants, methane standards for the oil and gas industry and federal ozone standards.
One area where Pruitt’s recusal is unclear is in challenges to the Clean Water Rule, which delineates which rivers and streams are subject to Clean Water Act protections.
While Pruitt vowed not to participate in lawsuits challenging the rule in two federal appellate courts, he may still participate in questions currently before the U.S. Supreme Court. Pruitt said Oklahoma was not a party to that challenge, but did file a friend of the court brief on which court is the proper venue to hear lawsuits over the jurisdiction rule.
Pruitt said he would seek a ruling from EPA ethics officials before participating in the Supreme Court proceedings.
“I couldn’t tell whether he was saying whether he was still bound by the impartiality agreement or not,” Clark said. “I don’t think I could tell because he didn’t tell us.”
In fact, the EPA has already begun the process of reconsidering the Clean Water Rule.
“I don’t see how any recusals from judicial review of the Obama [Clean Power Plan] or Clean Water Rule would at all affect his ability to call the shots in new rulemakings that could have the effect of amending or replacing the [Clean Power Plan] or Clean Water Rule,” Richard G. Stoll, a retired partner Foley & Lardner LLP, told Bloomberg BNA in an email. Stoll’s practice focused on federal administrative and environmental law.
To contact the editor responsible for this story: Paul Connolly at PConnolly@bna.com
Pruitt's recusal memo is available at http://src.bna.com/oCO
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)