Tested EPA Air Chief to Advance Trump Rollbacks

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By Abby Smith

EPA Administrator Scott Pruitt may have just received the most important tool to implement his rollback agenda: the EPA’s new air chief Bill Wehrum.

The Senate confirmed Wehrum to head the Environmental Protection Agency’s Office of Air and Radiation in a largely party-line vote Nov. 9, sending the agency its second confirmed political appointee after Pruitt. Wehrum was sworn in Nov. 13.

Wehrum—who served in the Bush EPA’s air office from 2001 to 2007, the latter two years as the acting air chief—brings with him agency expertise that Pruitt’s team of outsiders has so far been lacking. And both allies and critics of Wehrum say that prior agency experience will be critical to help turn the Trump administration’s deregulatory plans into reality.

The Trump EPA has hit the pause button on Obama-era climate and air regulations the administration has promised to roll back or rewrite. But that strategy hasn’t been foolproof.

For example, in July the U.S. Court of Appeals for the District of Columbia Circuit slapped down the EPA’s attempts to administratively delay Obama-era limits on methane emissions from new oil and gas wells, forcing the agency to implement the rule.

Former Bush administration officials who worked closely with Wehrum, however, say he can bring a more measured approach to the agency’s rollbacks that could overcome court challenges.

“In a lot of cases, they don’t need to repeal an entire rule to make important regulatory reforms. They just need to go in with a scalpel and make careful, targeted, changes to current programs,” Jeff Holmstead, who served as the EPA’s air chief from 2001 to 2005, told Bloomberg Environment. “With Bill, they’ll have a thoughtful surgeon wielding the scalpel—someone who can make the changes in a way that will take care of the problem and also stand up in court.”

‘Doing Damage’

But others who worked with Wehrum say his experience means he’s a greater threat to the agency than Pruitt, who made his name as Oklahoma attorney general suing the Obama EPA.

“I don’t think I know of anybody who is more capable and inclined of doing damage than Bill,” said Bruce Buckheit, former director of the EPA’s air enforcement division who dealt closely with Wehrum during the Bush administration’s first term.

“Bill is a quiet fellow, personable, smart, an engineer and a lawyer. But he is really committed to undoing this stuff,” Buckheit told Bloomberg Environment.

However, Wehrum’s extensive experience—both in the agency and as an attorney for a decade with Hunton and Williams LLP—could also work against him.

Environmentalists and Democratic lawmakers argue Wehrum’s prior work representing utility and petroleum trade groups in lawsuits against EPA, proves a clear conflict of interest should he rewrite those regulations.

That argument is ripe for use in legal challenges against Trump rollbacks, John Walke, clean air director for the Natural Resources Defense Council, told Bloomberg Environment. His group compiled a list of nearly three dozen cases in which Wehrum represented industry challenges to EPA rules.

A ‘Mastermind’ In the Weeds

A chemical engineer by training, Wehrum has a familiarity with the details of policymaking.

Jessica Furey, who served in the EPA’s policy office and co-founded the Whitman Strategies Group, told Bloomberg Environment she remembers going up to Wehrum’s office “with piles of papers. He was writing regulations,” which she said was unusual for an official at his level.

“That really is a big insight into what he was doing at EPA,” Furey said. “He really cared about the details.”

Wehrum’s technical expertise impressed Holmstead, and he recruited Wehrum—both to his law firm, which at the time was Latham and Watkins LLP, and then to the EPA’s air office after Holmstead was appointed chief.

During the Bush administration, Wehrum worked heavily on efforts to reform the EPA’s air pollution permitting program known as New Source Review, which is technical and complex. New Source Review requires industrial facilities—including coal-fired power plants and refineries—to install modern pollution controls when renovating or building new facilities that significantly increase air emissions.

Buckheit said Wehrum helped to “mastermind” Bush administration efforts to relax the permitting rules.

The EPA’s air enforcement division had found “massive noncompliance” with the program, but Buckheit said Bush officials didn’t want to pursue strict enforcement of New Source Review. A compromise was reached, he said, in which existing enforcement cases could go forward, but investigations of further violations were brought to a halt.

Humpty-Dumpty

Changes to the New Source Review spearheaded by Wehrum had mixed success in the courts. But former Bush officials say Wehrum’s experience will nonetheless benefit the Trump EPA, which plans to revisit New Source Review.

Pruitt in September announced he would form an agency task force on the issue, and the permitting program topped the EPA’s list of burdensome regulations it outlined for review in an Oct. 25 report.

“Bill’s knowledge and his experience with the court’s review of those prior efforts will be of immense value to him and to EPA,” said Tom Lorenzen, an attorney with Crowell and Moring LLP who served in the Justice Department’s environment division from 1997 to 2013.

But Walke said any Trump EPA rollbacks of New Source Review “will be constrained by adverse case law Mr. Wehrum helped create.”

For example, the D.C. Circuit in 2006 strongly rejected an attempt from the Bush EPA to expand the instances in which a facility could be exempt from New Source Review requirements. Judges ruled the Bush-era regulation, advanced by Wehrum, was contrary to the Clean Air Act.

“Only in a Humpty Dumpty world would Congress be required to use superfluous words while an agency could ignore an expansive word that Congress did use,” the D.C. Circuit’s opinion in New York v. EPA read. “We decline to adopt such a world-view.”

Career Staff at the Table

Despite differing views, Walke agreed with former Bush officials that Wehrum’s arrival at the EPA could help to smooth tensions between Pruitt’s political team and the agency’s career staff.

“We have heard that career staff welcome the knowledge and professionalism of Wehrum as a needed balm to the wounds caused by the hostility emanating from Pruitt’s inner circle,” Walke said, citing conversations with several career staffers, including those who are not fans of Wehrum’s rollback efforts.

Wehrum “recognizes those career staff are necessary and valuable to advance the administration’s policies,” a notion Pruitt’s team has not yet “fully embraced.”

Holmstead recalled Wehrum as a compromise builder who would sit “around a conference table with EPA engineers and lawyers and enforcement folks who didn’t see eye-to-eye on a particular issue” and generate “a solution that everyone could support.”

Improving relations with career staff could be contingent, though, on how much running room Pruitt gives Wehrum.

“Whether Bill is allowed to work unfettered with career staff, I don’t know,” Furey said, noting Pruitt’s team appears less inclined to seek technical, scientific, and economic expertise from career staff than prior administrations of both parties.

But Furey added, “Bill’s a smart guy. He’ll figure it out.”

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