Will Scott Pruitt Come to Love EPA Leniency He Once Opposed?

By Andrew Childers

Scott Pruitt’s mission to roll back Obama EPA regulations, particularly on climate, could be as simple as rereading the Clean Air Act.

Pruitt, President Donald Trump’s pick for Environmental Protection Agency, championed narrow readings of EPA power in legal battles with the agency as Oklahoma attorney general. Now, however, the wide latitude afforded to regulators by the courts to interpret the law could prove to be his best tool to undermine or eliminate climate regulations on power plants or limit the reach of the Clean Water Act.

If confirmed as administrator, Pruitt could revive some of the arguments he had offered against Obama-era EPA regulations, reading new limits on the agency’s power that could pass judicial muster, attorneys said.

“When he’s argued in the past that the plain language [of the law] supports his position, you’d also expect to see a repeat of those arguments,” Jonathan Adler, director of the Center for Business Law and Regulation at Case Western Reserve University School of Law, told Bloomberg BNA.

In lawsuits against the EPA, including one attempt to have the EPA’s carbon dioxide standards for power plants, known as the Clean Power Plan, heard in an Oklahoma District Court, Pruitt accused the Obama administration of an attempt to “manufacture ambiguity to expand its interpretative license” of laws such as the Clean Air Act and Clean Water Act.

“That certainly would have been a reasonable interpretation the first time around,” said Seth Jaffe, a partner in Foley Hoag LLP’s Boston office who has argued conservatives should embrace Chevron deference. Courts often grant agencies deference to interpret and implement laws that have ambiguous elements.

But Pruitt’s own interpretive license could be his best bet for clawing back regulations he opposes.

Clean Power Plan Vulnerable

For example, Pruitt could undercut the Obama EPA’s signature climate initiative, the Clean Power Plan, by reinterpreting how the Clean Air Act applies. In that rule (RIN:2060-AR33), issued under the rarely used Section 111(d) of the Clean Air Act, the Obama EPA determined power plants could meet their obligations to curb carbon dioxide emissions by shifting generation from coal-fired units to those burning natural gas or investing in new renewable generation. Pruitt and others argued that forcing utilities to take steps to reduce their emissions that are beyond the fenceline of the regulated power plants themselves is illegal.

Revising the Clean Power Plan to focus on steps individual utilities could take to reduce their emissions, primarily improving the power plants’ heat rate, would prevent far fewer emissions but may be a legally defensible interpretation of Section 111(d)'s requirements, attorneys said.

Pruitt might be be able to kill the Clean Power Plan entirely by determining that regulating carbon dioxide from power plants under Section 111(d) is prohibited because those utilities are already regulated for their toxic pollutant emissions under Section 112. Opponents of the Clean Power Plan had cited conflicting amendments to Section 111(d) that were both adopted when the Clean Air Act was last amended in 1990 as constraining the EPA’s authority, a view Pruitt has endorsed and the agency itself once held.

A rule defining the jurisdiction of the Clean Water Act and the EPA’s finding that the health benefits of regulating toxic pollutants from power plants outweigh the costs could also be subject to new interpretations that a court might find plausible, attorneys said.

EPA Given Leeway to Read Law

Courts typically give federal agencies some leeway when implementing laws that may be ambiguous or unclear, known as Chevron deference. But that same latitude, which Pruitt opposed when suing the EPA, could turn in his favor as administrator.

The U.S. Supreme Court decision that gives Chevron deference its name was itself the result of a change in administration as the Reagan team sought to reconsider how the EPA applied aspects of its air pollution program ( Chevron U.S.A. Inc. vs. NRDC, 467 U.S. 843, 21 ERC 1049 (1984)).

The Chevron decision established a two-part test for review of agency action, which first requires a court to decide if the plain text of the law is clear. If the court decides the law is ambiguous, it then decides whether an agency’s interpretation of the statute is permissible.

Though Pruitt consistently argued that the EPA’s interpretations of the law were unwarranted overreach, it’s not clear whether he’s opposed to Chevron in its entirety. Many conservatives are skeptical of the leeway it gives the executive branch and some recent court decisions have narrowed applications of that deference.

“As an attorney, you always make the strongest argument you can on behalf of your client or cause,” Adler said. “When you’re opposing the government you want to disarm the government’s defenses.”

While Chevron can be a useful tool for an agency seeking to defend its interpretation, winning at court on those grounds can also hamper an agency’s flexibility to change its interpretation going forward.

“If you win, you’re locked into your interpretation. There is a correct interpretation of the statute,” Jonathan Nash, a professor at Emory Law who specializes in federal courts and jurisdiction, told Bloomberg BNA. “If you don’t like the way the court reads it, it locks that in too. It’s sort of a crap shoot.”

To contact the reporter on this story: 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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