Trump's EPA Pick Is Poised to Slide Past a Lawsuit Into Office

The “leading advocate against the EPA” may soon run the agency.

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By ROBINSON MEYER

President Donald Trump has a way with scandal. His biggest controversies are so huge, so ludicrously bamboozling, that they suck up much of the attention in the country. The smaller disputes facing  his staff can therefore slip by unnoticed. In his three-week-old administration, perhaps no man has benefited from this more than Scott Pruitt, Trump’s nominee to lead the U.S. Environmental Protection Agency and the current attorney general of Oklahoma.

In the past week, Scott Pruitt has gotten sued by his own state’s ACLU, defied oversight requests from Senate Democrats, and ridden roughshod on his own state’s public-records law. In any other administration, that level of dispute might have made the front page. Now, Democrats will be lucky to cram it into the back of a news cycle before the Senate votes on Pruitt’s nomination at the end of this week.

This is a lost opportunity for anyone who cares about environmental protection at the national level. The nomination of Betsy DeVos, a Republican donor who appeared not to know about basic federal education law, led to constituents clogging Senate switchboards. But the EPA wields much more power over air and water pollution than the Department of Education does over schools. And unlike DeVos, Pruitt is a tireless and knowledgable advocate for his cause of cutting environmental protections. He knows the statutes that govern the EPA, and (like the Obama administration) he knows how to interpret them to bring about his policy ends.

If he sails into office later this week, then the mass of Americans who are concerned about the environment—but who don’t closely follow environmental news—may wonder how he got there.

The most famous Pruitt incident teed up this week’s controversy. In October 2011, soon after he had taken over as attorney general of Oklahoma, Pruitt sent a letter to the EPA, alleging that the agency was “significantly overestimating” methane pollution from the dozens of fracking operations in his state. He doubted whether the United States would save $30 million by adopting a new climate-focused rule, as the agency claimed.

By itself, this letter may not have been so odd: Republicans in oil-rich states often see an easy enemy in the EPA. What is unusual is that—as The New York Times uncovered in late 2014—the letter had not been written by Pruitt, even though it was sent to the agency above his signature and below state letterhead.

Instead, it had been written by lobbyists working for Devon Energy, an Oklahoma City-based oil-and-gas firm. Pruitt received the letter in an email from 

Devon, changed two sentences and a couple spare words, and apparently forwarded it to the administrator of the EPA with his own name at the bottom.

Devon Energy later donated hundreds of thousands of dollars to the Republican Attorneys General Association, while Pruitt was its chairman.

This is not a new scandal: The Times won a Pulitzer for that reporting in 2015, which was only possible through public-record requests to Pruitt’s office. What’s now of note is what apparently happened next. Watchdog organizations allege that Pruitt’s office implemented a plan to make sure this kind of investigation never happens again. The Oklahoma attorney general’s office simply stopped responding to almost all significant records requests starting in early 2015, they say.

Between January 2015 and last month, the Center for Media and Democracy, a liberal watchdog organization, submitted nine public record requests to the Oklahoma attorney general’s office. This week, it finally received a reply to its first request, filed more than two years ago: a set of 411 emails exchanged between Pruitt and local oil companies. That sounds like a lot—except that the attorney general’s office had initially said more than 3,000 emails were coming.

“It’s surprising to us that there were so few records,” said Nick Surgey, the director of research at the Center for Media and Democracy. Most of the records they received were mass newsletters and not the one-on-one correspondence they believe exists. And Surgey knows that some emails are missing: Three years ago, The New York Times published the text of at least 27 emails that should have been included in this week’s request but were not.
Meanwhile, Pruitt’s office has yet to reply to eight more public-records requests. The Center for Media and Democracy and the ACLU of Oklahoma are suing Pruitt’s office to force it to comply with the state’s open-records law. A hearing is scheduled for Thursday.

“This is entirely because of Pruitt that there has been this delay. He runs that office, and he could’ve said to his staff, ‘You’ve really got to clear the backlog. Let’s make sure there’s no cloud over my record on transparency,’” said Surgey. “That has not happened.”

The Oklahoma attorney general’s office says it was planning on fulfilling the Center for Media and Democracy’s open-records request before the suit was filed. “Our office continues to complete the remaining requests in the order in which they have been received,” said Lincoln Ferguson, the office’s press secretary, in a statement. “Fulfilling open records requests is part of our office’s regular business practice and has been in no way affected by CMD’s lawsuit.”
“The fact that they have now filed suit despite our ongoing communications demonstrates that this is nothing more than political theatre. The Office of Attorney General remains committed to fulfilling both the letter and spirit of the Open Records Act,” he added.

Many government officials run sluggish public-records departments. Pruitt’s case is different because he made open records part of his Senate testimony. Asked in writing by Senate Democrats about his communication with local agriculture companies, or about whether he had employed private counsel while serving as A.G., he replied with identical language: “Such information can be requested from the Office of Attorney General through a request made pursuant to Oklahoma’s Open Records Act.”

Pruitt could have provided those documents willingly or directly answered the Senate’s questions. He just chose not to.

Secrecy is not the only knock against Pruitt. As attorney general of Oklahoma, he sued the EPA at least 14 times. He tried to block mercury and ozone protections that he thought were too onerous. He sued on behalf of an oil company to prevent enforcement of the Endangered Species Act. His own website calls him “a leading advocate against the EPA’s activist agenda.”

His philosophy of regulation seems to rest on transferring the federal government’s power to enforce its environmental laws to the states. (When asked by Senate Democrats which rules issued under the Clean Air and Clean Water Acts he supports, he did not supply one.) But even as he was pushing for these changes nationally, he dismantled the environmental-protection unit within the Oklahoma attorney general’s office.

On his face, he will be the EPA administrator most hostile to the agency’s mission since the first years of the Reagan administration under Anne Gorsuch Burford. Burford left the agency after three years, unpopular and disliked, having accidentally won more power for the agency in the Supreme Court. (Her son, Neil Gorsuch, was nominated by President Trump to that same court two weeks ago.) 

When people talk about the virtues of environmental regulation, they often hearken back to the nightmares of the 1960s and 1970s. They cite the burning Cuyahoga River, smog-choked Los Angeles, and the thousands of early deaths through asthma and heart failure. The United States adopted strict environmental laws (and under a Republican president, no less) because of the horrors of that period.

But we are entering a similarly consequential time for environmental regulation. The price of renewable energy may soon finally become competitive with coal. The ongoing global solar-and-wind boom could transform both America’s energy market and its manufacturing economy. (Because turbines are costly to transport and depend on valuable intellectual property, they are usually produced within this country.) Solar and wind will lead to major-emission reductions from the power sector: a key step in the fight to mitigate climate change.

Whether wind and solar are allowed to change the U.S. energy market will depend on federal leadership across agencies. Pruitt, who was in regular correspondence with the fossil-fuel industry, does not seem like the ideal choice to lead the agency that holds the power industry’s reigns.

Perhaps that’s why the conservative-leaning Dallas Morning News has opposed him. “There is room, especially under a Republican president, to adopt a less-aggressive stance at the EPA than has been its posture under President Barack Obama,” writes the paper’s editorial board. “But there is such a thing as an over-correction.”

Pruitt’s coziness with the fossil-fuel industry, it writes, “could prove disastrous on a national level. And it’s just one reason why he’s profoundly unsuited to lead the agency charged with safeguarding Americans’ health and environment.”