Scott Pruitt Could Tip Regulatory Power From EPA to States

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By Andrew Childers

State regulators could see more autonomy and a new seat at the table as the Environmental Protection Agency drafts federal regulations under Oklahoma Attorney General Scott Pruitt, President-elect Donald Trump’s pick to run the agency.

Pruitt has conceded the federal government does play a role in protection of the environment, particularly when pollution crosses state lines, even though he has joined challenges to just such regulations offered by the Obama administration.

“I believe the EPA has an important role to play in our republican form of government. There are clearly air and water quality issues that cross state lines and sometimes that can require federal intervention,” Pruitt said during a House Science Committee hearing in May 2016. “At the same time the EPA was never intended to be our nation’s foremost environmental regulator. The states were to have regulatory primacy.”

Pruitt, who will appear before the Senate Environment and Public Works Committee for his confirmation hearing Jan. 18, could tip the balance of power on environmental protection toward states. As attorney general, Pruitt has fought back against federal regulations he argues encroach on state authorities—even setting up a federalism division in his office—and has questioned the EPA’s primacy when protecting the environment.

“What does turning more authority back to the states look like to states? What it looks like is flexibility and respect for state decision making and state choices. Right now, I would say there’s room for improvement,” Alexandra Dapolito Dunn, executive director and general counsel of the Environmental Council of the States, told Bloomberg BNA.

EPA Scaled Back as States Take Lead

Nick Loris, an energy and environment-focused economist for the Heritage Foundation, told Bloomberg BNA he supports Pruitt’s apparent approach to have states lead environmental protection efforts.

The EPA should ensure states comply with existing rules and shouldn’t add regulations such as those addressing carbon dioxide or other greenhouse gas emissions, Loris said. If they must, such as if it is court ordered, they should work with states to be reasonable, and in certain cases, such as statute-required regulations, Congress could step in and alter the law, he said.

“There is certainly a need for legislative reform to our environmental statutes to empower states,” Loris said.

Additionally the EPA should steer clear of addressing local or regional challenges, Loris said. That means programs such as the Great Lakes Restoration Initiative should be cut, he said. In this newly limited role, the EPA’s funding could be significantly reduced, he said.

States won’t need more funding necessarily to shift into the front seat—just to be more strategic in their enforcement efforts and in reducing regulatory burdens, Loris said.

States, however, will be looking for increased funding if they are to take a lead on environmental regulation. If Pruitt is serious about delegating more authority to the states, he should also request proportional funding increases for his agency’s State and Tribal Assistance Grants program, Dunn said. If doing this doesn’t appeal to Pruitt—typically Republicans are loath to increase the EPA’s budget for any reason—Dunn said an alternative could be to remove restrictions on how states can spend their existing federal grant money.

“The alternative to not enough resources has to be allowing states to be in more significant control of their workload and their priorities,” she told Bloomberg BNA.

Federal Rules a Backstop

Though Pruitt has said the role of the EPA should be to address pollution crossing state lines, former state environmental regulators said he has previously challenged such federal regulations. The regulators, in a Jan. 16 letter to the Senate environment committee, pointed to Pruitt’s fights against the cross-state air pollution rule and the interstate air pollution rule as an example of this.

With federal regulation and enforcement, it is more difficult for industry to shop around states for the least stringent environmental rules, Eric Schaeffer, executive director of the Environmental Integrity Project and past director of the EPA’s civil enforcement office, told Bloomberg BNA.

Pruitt, however, has touted the expertise of state officials.

“I reject, in fact, I find it offensive, that regulators in Washington believe that regulators in the states somehow aren’t interested in the air that we breathe and the water that we drink in our respective places that we call home,” Pruitt said during May 2014 remarks at a Federalist Society event in Washington, D.C. “I reject that utterly. In fact, I would say to you that Washington, EPA, other agencies that are involved in these areas could learn a lot with respect to the expertise of the states.”

Speedier Plan Approvals

A Pruitt EPA may be less inclined toward “pushing the states around,” William Yeatman, a senior fellow at the Competitive Enterprise Institute, told Bloomberg BNA. The could mean speedier approvals of state plans to implement environmental regulations and more deference to how states go about meeting those goals. That would be in contrast to an Obama EPA that was quick to issue federal plans instead, Yeatman said.

For example, Pruitt in 2011 launched an unsuccessful legal challenge against the EPA’s disapproval of Oklahoma’s regional haze plan. Pruitt argued that the EPA’s disapproval of that plan and decision to implement a federal plan for improving visibility in national parks and protected areas “usurped the right” of Oklahoma to set its own energy policy.

The U.S. Court of Appeals for the Tenth Circuit sided with the EPA in a 2013 opinion ( Oklahoma v. EPA, 723 F.3d 1201 , 77 ERC 1047, 2013 BL 191593, (10th Cir. 2013)).

How Cooperative is Pruitt’s Federalism?

Yeatman predicted Pruitt would also be extremely deferential to states, even those that choose to pursue policies on greenhouse gases, while Dunn said a key area to watch in the coming months is how strongly Pruitt would advocate on behalf of states in a key area of water regulation.

Though the Clean Water Act allows states to ask for regulatory authority over the dredging and filling of their wetlands, Dunn said the Army Corps of Engineers has often denied these requests. Currently, only two states have successfully taken over wetland regulation from the federal government, though Dunn said many others have tried.

She would like to see Pruitt work harder than his predecessors did to try to persuade the Army Corps on this issue.

“This is where, if [he] is truly about getting authority to states that desire this authority, here’s a classic example where he can show leadership,” she said.

Some lawmakers and advocacy groups have praised Pruitt precisely for his approach to cooperative federalism, including Republicans such as Senate Majority Leader Mitch McConnell (Ky.).

Sen. John Barrasso (Wyo.), the chairman of the Senate committee leading the confirmation hearing of Pruitt, touted in a Jan. 17 editorial on Fox News that Pruitt has a strong record of “standing up for states’ rights.”

—With assistance from Patrick Ambrosio, Rachel Leven and David Schultz.

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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