Pruitt Has Free Hand on EPA Rules Despite Sitting Out Lawsuits

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By Amena H. Saiyid and Andrew Childers

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.

Pruitt Could Shape Rules

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.

Water Rule Door Left Open

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 reporters on this story: Amena H. Saiyid in Washington at asaiyid@bna.com; Andrew Childers in Washington at AChilders@bna.com

To contact the editor responsible for this story: Paul Connolly at PConnolly@bna.com

For More Information

Pruitt's recusal memo is available at http://src.bna.com/oCO

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