Tread Carefully on Policy Conflicts, Watchdogs Warn New EPA Head

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By Abby Smith

Andrew Wheeler won’t have much time to get his bearings as acting EPA administrator before his feet are held to the fire by Scott Pruitt’s critics.

Those critics said they are more emboldened than ever to bring the Environmental Protection Agency’s flaws to light as the agency’s No. 2 moves up to helm the ship.

“It’s critically important to keep the pressure on EPA and Wheeler,” Austin Evers, executive director of the watchdog group American Oversight, told Bloomberg Environment. “We view Scott Pruitt as a symptom of a much larger disease that plagues the entire Trump administration when it comes to conflicts of interest and ethics problems.”

But Wheeler—a former energy lobbyist and Capitol Hill staffer who’s described as a careful, behind-the-scenes leader—may not be as likely to face allegations of lavish spending and abuses of office as his predecessor did.

Wheeler’s path will be instead mired by potentially thornier conflicts, as he has to navigate making decisions that affect his former lobbying clients, which span the coal, energy, utility, agriculture, and mining sectors. As he does, Wheeler will have to convince the public—and potentially the courts—that he is acting objectively.

“He is now the place where the buck stops,” Stan Meiburg, former EPA acting deputy administrator from 2014 to 2017, told Bloomberg Environment. “It will require him to be even more careful.”

Murray’s Action Plan

Wheeler’s critics have already homed in on his work for coal mining giant Murray Energy Corp., a vocal opponent of many EPA climate and air regulations. Last year, the coal company offered the EPA, as well as the Department of Energy, an action plan calling for the elimination of several Obama-era rules, such as greenhouse gas limits for power plants and restrictions for ozone and other air pollutants.

Meiburg, the former EPA official who now directs graduate programs in sustainability at Wake Forest University, said Wheeler isn’t likely to ever satisfy his critics. Thus, his challenge will be to clearly articulate the rationale behind the agency’s policy decisions, with the help of the EPA ethics counsel.

“It’s not exactly a secret that the administration is in accord with many of the elements in the so-called action plan,” he said, referring to Murray Energy’s wish list. “I think the question there will just be [Wheeler’s] ability to say when he makes a decision, ‘I appreciate the fact that this was on the list, but I made this decision independently and these are my reasons.’”

If Wheeler isn’t careful, a court could throw out an EPA action by ruling that the acting administrator prejudged the outcome. That could ultimately jeopardize the Trump administration’s policy agenda.

List of Recusals

But Wheeler didn’t lobby the EPA for Murray Energy or any other client in the past two years, according to an EPA spokesperson. He is also prohibited from participating in any matter involving his former clients until April 28, 2020, the spokesperson added.

Robert Murray, head of Murray Energy, told Bloomberg Environment in a statement that he hasn’t had contact with Wheeler since he started as EPA’s No. 2 in April.

Wheeler’s May 24 recusal statement, addressed to Pruitt and agency ethics officials, lists seven other former clients that could pose potential conflicts: Xcel Energy, Growth Energy, International Paper, Martin Farms, Sargento Food Inc., Underwriters Laboratories, and Energy Fuel Resources Inc.

Senate lobbying records don’t offer many specifics about what issues Wheeler lobbied on for the companies, beyond general energy-, environment-, or agriculture-related topics.

The new acting administrator will also sit out discussions on Energy Star and Trump administration efforts to prop up coal and nuclear plants using the Federal Power Act, the recusal statement said.

Wheeler’s list of recusals is unlikely to grow, Jeff Holmstead, an attorney with Bracewell LLP in Washington and former EPA air chief during the George W. Bush administration, told Bloomberg Environment.

“Whether he is deputy or acting administrator, the ethics issues will be exactly the same,” he added.

Not Comprehensive Enough

Watchdog and environmental groups, however, said Wheeler’s recusal statement isn’t comprehensive enough.

“I’m not sure you can reconcile Wheeler’s limited recusal with the breadth of his portfolio,” American Oversight’s Evers said.

Wheeler doesn’t have a waiver under President Donald Trump’s January 2017 executive order that prevents administration officials who were registered lobbyists from participating in issues on which they lobbied in the prior two years before they began government service. Evers said the lack of such a waiver appears to prohibit Wheeler from working on large swaths of EPA policies.

“Only Andrew Wheeler knows the full scope of what work he did as a lobbyist for the coal and energy sectors,” Evers added. “If he is not being forthcoming, it would be difficult for an ethics official to help him navigate the complexities of applying” ethics rules.

Democrats Set Expectations

Democratic lawmakers have already signaled they’ll be watching Wheeler closely. Sen. Sheldon Whitehouse (D-R.I.) has, in three separate letters, demanded more information from the EPA about its communications with Murray Energy about the action plan.

Wheeler, during his November 2017 confirmation hearing, told Whitehouse he had seen the document but didn’t have a copy.

“I hope Andrew Wheeler will be the honest broker we knew at the Environment and Public Works Committee,” Whitehouse said in a statement.

A spokesman for Whitehouse said the senator hasn’t yet received a substantive response from the EPA to any of his letters about the action plan.

Sen. Tom Carper (D-Del.), the top Democrat on the Senate environment committee, wants a meeting with Wheeler to discuss the EPA’s future. He challenged the new acting administrator to restore public trust in the agency.

“The damage Scott Pruitt has done to the agency will not easily be undone,” Carper wrote in a July 6 letter to Wheeler. “While you and I have not always agreed, and will not always agree, on every environmental policy matter, it is my hope and expectation that you will carefully consider the lessons of the past as you prepare to chart the agency’s future.”

—With assistance from Sylvia Carignan and Amena Saiyid.

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