Pruitt: The Black Pot

Time and again, the Sierra Club has witnessed EPA nominee Scott Pruitt’s self-serving agenda at work in Oklahoma, where, as state attorney general, Pruitt has repeatedly partnered with the state’s largest polluters to block health and environmental safeguards. The Oklahoma regional haze case is just one example of how Pruitt repeatedly misused his position and government and judicial resources to attempt (and fail) to advance his state’s rights agenda to curb an ostensibly “activist” EPA.

Talk about the pot calling the kettle black! Unfortunately for the people who breathe air and drink water in the United States, and for everyone on the planet concerned about climate change, Pruitt’s string of failed attempts to chip away EPA’s authority have proven fruitful in furthering his political aspirations. His refusal to acknowledge either the economic opportunity presented by clean energy -- despite thousands of wind energy jobs created in his own state -- or the dangers of air pollution, is right in line with the extreme agenda of the next administration.

In the Oklahoma regional haze case, Pruitt joined with Oklahoma’s largest power company to challenge EPA’s decision under the Clean Air Act to limit harmful sulfur dioxide emissions that diminish scenic views in national parks and protected areas across the region. The EPA plan required the company’s two largest coal plants to install modern pollution controls that many others in the industry had long been using. Public health experts found that, in addition to clearing the haze in treasured recreation areas, the standard would prevent hundreds of missed school and work days due to pollution-related health problems every year.^[1]

The Clean Air Act gives the state of Oklahoma the opportunity to develop plans to implement and comply with it. But, because pollution does not stop at state borders and some states tend to race to the bottom to compete for dirty business, Congress gave EPA ultimate authority to act where states propose to enact inadequate plans that don’t protect people and the environment, like Oklahoma did in the regional haze case. The Clean Air Act is unambiguous on this arrangement, and the courts have consistently upheld EPA’s authority to protect people and our environment.

EPA was compelled to reject Oklahoma’s regional haze plan and implement its own because the state’s plan would have allowed the coal-fired power plants to increase air pollution emissions. As the federal court found, the state’s plan was “rife with errors,”^[2] including overestimating the costs of pollution controls by a factor of six.

Pruitt used the Oklahoma haze case to push for a dramatic change in existing law that would diminish EPA’s authority to ensure nationally-consistent clean air standards are met, bombastically arguing that “EPA illegally usurped state authority.”^[3] This argument demonstrates Pruitt’s crusade against a supposedly “activist” EPA is like the pot calling the kettle black. Pruitt’s tiresome refrain of EPA overreach is contrary to the clear language of the Clean Air Act, and well-settled law that EPA has authority to disapprove a state plan that does not comply with federal statutory requirements. Though Pruitt’s state’s rights arguments have been consistently rejected by the courts, his extreme positions have kept him prominent in the headlines.

Pruitt, however, admitted his argument was baseless in a matter of seconds when faced with direct questioning about where his state’s rights theory could be found in the statute from the Tenth Circuit panel of judges. Judge Lucero pointed out that “there [was] an irreconcilable conflict” in Pruitt’s argument, and Pruitt quickly capitulated that EPA does have authority to review state decisions.^[4]

Undeterred by the Tenth Circuit’s thorough rejection of his argument, Pruitt continued to push the same baseless, and hastily-conceded argument to request review at the Supreme Court, brazenly claiming that the imaginary “conflict over federal-state authority” in the Oklahoma haze case represented “a recurring problem of national importance.”

Pruitt’s so-called “state’s rights” crusade is a misnomer. Pruitt’s goal is simply to advance the interests of industrial polluters who support him with campaign contributions, at a dangerous expense to public health. While giving more power to the states sounds innocuous, it is precisely because the states failed to protect the public from toxic air pollution that Congress created bedrock environmental laws like the federal Clean Air Act and Clean Water Act. Before that time, many state regulators were too cozy with the industries they were supposed to be regulating, and did not serve as true watchdogs.^[5] The need to reign in states was also a key reason why Congress and President H. W. Bush amended the Clean Air Act in 1990 to strengthen its provisions. As the Court of Appeals for the D.C. Circuit explained, “the [pre-1990] approach, which specified the ends to be achieved but left broad discretion [to state regulators] as to the means, had done little to reduce the dangers of key contaminants.”^[6]

Pruitt has pursued his polluter-backed witch-hunt against EPA without respect for government resources, state or federal, and certainly without respect for the authority of the federal courts or the federal agency he's been tapped to lead. Perhaps the most glaring example of Pruitt’s wasteful litigation tactics are his premature challenges to EPA’s proposed rules for Oklahoma haze and the Clean Power Plan before they were finalized, which the courts quickly tossed out.^[7] It did not give Pruitt pause that one of the most rudimentary principles of administrative law is that courts can only review final agency action; after all, he scored a few more headlines.

As the Sierra Club has consistently pointed out, besides being a tremendous waste of state and judicial resources, using the Attorney General’s office to attempt to create new law eroding EPA’s authority over states was never in the best interest of the state of Oklahoma and its citizens. While Pruitt spent untold taxpayer resources fighting for fossil fuels that came from out of state, and lost resoundingly, Oklahoma wind energy continued to boom and other utility companies chose a cleaner path.

Americans need an EPA Administrator who is guided by science and committed to protecting public health, not a puppet for the polluters.  Urge your Senators to oppose Scott Pruitt’s nomination.