Trump’s Nominee for EPA – Resetting Cooperative Federalism

This past week brought another Trump nominee, Scott Pruitt, Oklahoma’s Attorney General, who was named to lead the U.S. Environmental Protection Agency.  In nominating Pruitt, the President-Elect had this to say:

For too long, the Environmental Protection Agency has spent taxpayer dollars on an out-of-control anti-energy agenda that has destroyed millions of jobs, while also undermining our incredible farmers and many other businesses and industries at every turn.  [Pruitt] will reverse this trend and restore the EPA’s essential mission of keeping our air and our water clean and safe. [M]y administration strongly believes in environmental protection, and Scott Pruitt will be a powerful advocate for that mission while promoting jobs, safety and opportunity.

And Pruitt is quoted as saying:

The American people are tired of seeing billions of dollars drained from our economy due to unnecessary EPA regulations, and I intend to run this agency in a way that fosters both responsible protection of the environment and freedom for American businesses.

Pruitt has minced no words about his disagreements with what he sees as an activist EPA, suing the agency for expansive regulations involving the Clean Power Plan (CPP) and Waters of the United States (WOTUS).   Amber Phillips of WashPo has called Pruitt the Obama EPA’s “worst nightmare.”

No doubt many EPA employees and groups are very anxious what this means for the agency and our nation’s environmental protections.  I’ve talked with many of them.

Environmental groups have called Pruitt an “unprecedented disaster,” likening him to Darth Vader and condemning him to the “hall of shame” along with the likes of Anne Gorsuch, Reagan’s pick for EPA, who, after three years, resigned following a contentious battle with Congressional Democrats, including being held in contempt for refusing to hand-over documents to Congress.

I personally think the criticism is unfair and reflects the hyper-partisanship that has permeated this election.  What Pruitt’s critics fail to mention is that he is not alone in his views of the Obama EPA as an over-reaching, activist agency.  He is one of 24 state AGs to sue the agency over the CPP and among 28 to sue over the WOTUS rule.  Perhaps what makes Pruitt a lightening-rod is that he has lead the charge in criticizing and trying to beat back the Obama EPA.

To the surprise of many friends, I have lauded Pruitt’s selection – and remain cautiously optimistic. I’ve heard from several of them.   “How could you support someone with no environmental experience,” or “Why would you support putting the fox in charge of the hen house . . . .”

So let me explain.

I don’t know Pruitt personally, but have heard him speak at Federalist Society functions and followed his work as a no-nonsense, law-and-order Attorney General.  Contrary to the caterwauling of the political left, there is nothing in his record to indicate Pruitt hates EPA or the environment.   If you really want to understand his motivation, Pruitt is opposed to a federal government that has increasingly strayed beyond its constitutional and statutory authorities, and an agency that has adopted job-crushing rules that yield fewer and fewer environmental benefits while adding more and more costs to the economy.   According to the Heritage Foundation, under President Obama, since 2009 the regulatory state has grown by 229 major rules at a cost of $108B annually.  Among all the federal agencies, the highest costs come from EPA ($54B).

More than anything else, Pruitt believes that states must assume a greater role in the important business of environmental protection. According to Pruitt, states are not just extensions of the federal government, but rather are independent sovereigns with their own constitutional and statutory authority to make decisions regarding natural resources within their jurisdictions. And he is absolutely correct on this point.  And I have long argued that greater devolution of environmental protection to states is a healthy and logical next step in the maturation of our nation’s environmental laws and a way to make even greater environmental progress.

Importantly, this is not just about States’ rights, mind you, allowing states to do willy-nilly as they please.  This is about resetting the relationship between EPA and the states, and respecting the role of states and the structure of cooperative federalism.  The federal and state governments each share an important role in protecting the environment.  Our federal laws will remain critical for serving as the floor for environmental protection, yet allowing states to go above and beyond what federal law demands.  But cooperative federalism, if done correctly, should give states greater flexibility to experiment with new approaches to carrying out those laws and fixing big environmental problems.

Pruitt’s confirmation is shaping up to be an epic battle.  But I’m confident, if he keeps in mind and articulates certain key points, he will be confirmed.  First, the American public cares deeply about clean water and air – it’s baked into our DNA. Second, transparency and good science are essential to wise stewardship.  We care about good government and notions of fairness, and expect decision-makers to make sound decisions based on sound science and good economics.  Lastly, while states may be ready to take on more responsibility, we need a relevant EPA to ensure that the rules of the road are followed – and that includes strong enforcement to work with states to enforce our federal environmental laws.  Lastly, environmental groups and the courts will play a significant role in ensuring our federal laws are upheld and protecting against the “race to the bottom”, which is the fear of many who care about these issues.

So to  my friends who fear a Trump EPA, a roll-back of environmental regulation does not necessarily mean a roll-back of environmental protection.  And, in fact, I’m confident, if Pruitt remains focused on strengthening the concept of cooperative federalism and surrounds himself with like-minded policy-makers committed to pragmatic environmentalism, we will witness even more environmental progress than we got under the Obama EPA.

[Update: Dec. 12, 2016]

Here is General Pruitt speaking before Federalist Society earlier this year.

 

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