Hostile Takeover at the EPA

Anti-democratic governments, which thrive on obfuscating truth, seek to delegitimize and suppress scientists and other authoritative voices that offer accurate information that can be used to hold the government to account… So people who live near facilities that emit carcinogens or other hazardous pollutants are likely to be breathing more of them than before.

I was on a fact-finding mission here in Washington, D.C., to see what was happening at EPA, where I’d started my career as an environmental lawyer. I wondered how much damage was being done to the air, the water, and the land by the agency that is now attacking itself like a disordered immune system.

My friend, Susan (not her real name) has worked at EPA through the last four administrations. We were drinking iced tea in a café near EPA headquarters on a summer afternoon.

She leaned forward and said, “Every week, you see these guys with their bolo ties and their suits walking over from the Trump Hotel across the street. They’re here to tell [EPA Administrator Scott] Pruitt what they want – and they get it. A lot of them are his buddies from the oil and gas industry.”

Another friend, “Michael,” who also spoke confidentially in order to convey candid criticisms, said over lunch, “You can’t sugar coat what’s happening here. It’s even worse than it seems.”

What exactly is happening? And how were my friends doing in the midst of the deregulatory frenzy and the brazen corruption at the top?            

A used Trump Hotel mattress, Ritz-Carlton moisturizing cream, and a Chick-fil-A job

EPA Administrator Scott Pruitt at EPA headquarters.

“He’s totally corrupt,” Susan said. “Just scum, like a little Napoleon. His staff is there to run personal errands for him.”

Indeed, Pruitt uses his staff much the way private executives use their special assistants. But executives in the private sector are using their own funds. When Pruitt’s staff runs errands for him, or tries to find a job for his wife, we taxpayers foot the bill.

In a little over a year, Pruitt has installed a $43,000 soundproof phone booth in his office, sent staffers to get him a used Trump Hotel mattress and Ritz-Carlton Hotel moisturizing lotion, and insisted on flying first class – even when the cost of first-class from D.C. to New York is $1,600 – about six times what coach costs.

He also spent $120,000 on a two-week trip to Italy last year. And, according to the Washington Post, U.S. taxpayers paid for a trip to Morocco for $17,600.

He tried to use his power to get his wife a Chick-fil-A franchise, tells his driver to use the flashing lights and sirens to cut a path through the D.C. traffic to get to restaurants fast, and has spent $3.5 millions of taxpayer money – which would fund a lot of environmental protection – for his 24/7 security detail in the last year.

He also rented a condo for $50 per night from an energy lobbyist whose clients are affected by EPA decisions. Such a deal – far below normal rental prices in D.C. — is likely prohibited by the EPA’s conflict-of-interest rules.

This misuse of public funds has not gone unnoticed. In April, soon after the Government Accountability Office found that the secure phone booth and other items were illegal, the House Energy and Commerce Committee held hearings, quizzing Pruitt about his spending spree.

“Your conduct as administrator has demonstrated a lack of respect for American taxpayers,” said Rep. Paul Tonko (D-N.Y.). “You were never fit for this job.”

The GAO found that the phone booth violated the $5,000 cap on office renovations and decoration that government officials are held to. Even odder, there were already two secure phone booths at the EPA. Asked by Representative Peter Welch (D-Vt.) why he hadn’t used one of them, Pruitt said, “They aren’t close to my office.”

In fact, Pruitt seems never to venture far from his office. Susan said, “I’m half a hallway down from Pruitt’s office on the third floor, and I’ve never even seen him. His office door is always shut and the security guard sits outside guarding him.”

When the Chick-fil-A news broke, a group of U.S. Representatives sent a letter to the FBI and the Department of Justice asking that a criminal investigation of Pruitt’s conduct be opened.

Representative Jamie Raskin (D-Md.) explained on his web site, “This week’s revelation that Administrator Pruitt used his public office – including both his position and EPA staff – to attempt to get his wife a Chick-fil-A franchise is the latest in a string of unethical spending and management decisions that have given rise to twelve federal investigations.”

Still, although he has barricaded himself in a hostile agency, and is fending off calls for his resignation from many Democrats and a few Republicans, he has the approval of his boss.   President Trump dismissed the corruption allegations, saying, “Scott Pruitt is doing a great job within the walls of the EPA.”

Trump and Pruitt attack regs, funding and staff

And what does a “great job” mean? The main goal, from the point of view of the President and his EPA Administrator, is to get the regulatory burden off the backs of industry. To that end, Trump signed Executive Order 13,771. This requires that a government agency putting into effect a new regulation must eliminate two older regulations.

Although most agencies have rescinded one or two regulations, EPA is in the process of eliminating 16. This figure doesn’t take into account the guidance and memoranda directives that are also being axed. No wonder President Trump is pleased with Pruitt.

President Trump with EPA Administrator Pruitt. Trump has praised Pruitt’s stewardship.

The agency’s funding is precarious, too. President Trump’s proposed Fiscal Year 2019 budget for EPA reduced funding by a whopping 23 percent. Congress rejected this reduction last March, however, leaving funding levels essentially unchanged for now. Trump had proposed $5.65 billion, while Congress allocated the same $8.05 billion that EPA had for 2018.

Despite unchanged levels of funding, EPA is seeing steady reductions in personnel. Data from the Office of Personnel Management indicates that EPA staff has now dropped to 14,172, the lowest levels since the Reagan Administration. Staffers who have reached retirement age are speeding up their departure. Some are taking buy-outs.

Other, younger workers leave because they are demoralized. Kate, a young scientist from Virginia, told National Public Radio about her experience at EPA in a June 8 program. She said, “I was not allowed to do any of the field work I was hired to do, so I eventually quit.”

Sometimes the attacks on EPA staff are more direct. Michael described a meeting with Pruitt, a few other EPA staff, and members of an industry group. “Pruitt dressed us down – without knowing or understanding the facts at all – in front of the industry people. He was showing off for them,” he said dryly.

“I was here under Reagan and Bush [George W.] and I’ve never been through anything like this,” he added.

My friend Susan said, “Everyone here has a sense of urgency to get things done while they can.”

For attorneys and many analysts, work will gradually grind to a halt when new enforcement cases against industry polluters are no longer filed. “The enforcement cases in the pipeline are drying up,” Susan said.

Failing to enforce existing laws, eliminating regulations, cutting off the work of monitoring the water and air, buying out some employees, and harassing others – all are taking a huge toll on EPA. And things may get much worse if the budget is slashed, as the President wants.

Guidance that industry complained about is being torn up

“The corruption is a distraction from the policy changes – the real scandals are what’s happening to the air, water and land, and not Pruitt’s running around D.C. to look for the right hand cream,” said Ed. Now retired, Ed had been an attorney in an EPA regional office. He continues to work on an occasional basis for EPA and cannot use his real name.

Three of the five people I spoke with made the point that it is much easier for EPA to change policy or guidance rather than a regulation.

Regulations fill in the gaps and missing details needed to actually implement and enforce laws. First passed in 1970 and amended in 1990, the Clean Air Act, the author’s EPA specialty, is the environmental statute that has both the biggest impact on human health and the biggest price tag for industry.

The Trump administration is revamping regulations intended to reduce air pollution.

Congress enacted provisions in the Act designed to reduce pollutants and focused on both industry and motor vehicles, but it left the details to EPA. When EPA promulgates regulations that fill in the missing details and requirements that implement Congress’ intent, they must follow procedures for rulemaking in the Administrative Procedures Act (APA).

The APA requires a proposed rule, a lengthy opportunity for the public to comment on the proposal, public hearings, and review by the Office of Management and Budget before it can be finalized.

As Susan said, “The APA is slow, but it’s inclusive and it’s hard to reverse.”

On the other hand, if an EPA Administrator writes a guidance letter establishing a certain practice, the next Administrator can rip it up and write his or her new guidance.

And Scott Pruitt has indeed been ripping up the prior administrations’ guidance.

About 75 pollutants are specially categorized as Hazardous Air Pollutants because they are known to cause cancer or other serious health effects. They include cyanide, mercury and nickel compounds, chloroform, hydrochloric acid, and benzene.

In 1995, EPA released a memorandum saying that industrial manufacturers or refineries or power plants that released above a certain amount of these hazardous pollutants (10 tons per year of one, or 25 tons per year of different ones combined) had to install equipment to control these emissions or take other steps to reduce them in accord with what’s called Maximum Achievable Control Treatment (MACT).

And, if the manufacturer or other polluter reduced their hazardous emissions to below the 10/25 levels, they still had to keep on the equipment or take the other control measures.

This was called “Once in, Always in” policy. Now it’s been torn up and replaced.

Once a manufacturer or refinery or power plant reduces its emissions to the 10/25 level or below, it has no need to do anything except stay below the thresholds. It can remove the equipment that controlled the hazardous emissions, or stop following the practices that controlled them – whatever the MACT was, they don’t need to comply with it any more.

So people who live near facilities that emit carcinogens or other hazardous pollutants are likely to be breathing more of them than before the policy change. The threshold amounts are now the standards, so a facility that used to have controls that brought benzene, for instance, down to one ton per year is now free to emit 10, and the facility that emitted 2 or 3 tons of several hazardous pollutants can go up to 25. And in the current deregulatory environment, there will almost certainly be less enforcement of these – and all – limits and standards anyway.

 God wants humans to use natural gas and oil, not ‘keep it in the ground’

Pruitt, who served as a deacon at First Baptist Church in Broken Arrow, Oklahoma, believes that God commands humans to use what God has provided, according to the Baptist News Global publication. Unencumbered by worries about global warming, he enthusiastically embraces fossil fuels.

In fact, if there is a unifying theme around the air-related deregulatory actions that are being undertaken by EPA, it is that burning fossil fuels is good for the economy, and that global warming is not well understood, may not be caused by humans, and that attempting to control greenhouses gas emissions is bad for business.

Since becoming EPA Administrator, Pruitt has advocated these measures, all of which increase the exploration for or burning of oil and gas:

  • Drilling for oil and gas in the Alaska National Wildlife Reserve
  • Withdrawing from the Paris Climate Accord
  • Staying Some Clean Air Act emission standards for oil and gas development
  • Offshore drilling for oil and gas
  • Rolling back fuel economy rules established by former President Obama requiring passenger vehicles to average 50 miles per gallon by 2025
  • Repealing the Glider Truck Rule, which had imposed emissions standards on high-polluting diesel trucks that pair old engines having no pollution controls with new chassis
  • Repeal of the Clean Power Plan, which required reduction of greenhouse gas emissions by power plants nationwide

None of these pro-fossil fuel regulatory moves will go unchallenged. For example, the Clean Power Plan (CPP) was former President Obama’s marquee effort to comply with United States’ greenhouse gas emissions reduction commitments in the 2015 Paris Climate Agreement. It called for power plants to cut their carbon emissions roughly 32 percent by 2030. Rivaled only by motor vehicles, power plants are still the greatest source of greenhouse gas emissions in the country.

Under the CPP, states were tasked with the job of reducing carbon dioxide from their particular mix of power plants. Coal-burning power plants produce the most carbon dioxide and other greenhouse gases, and it seemed likely that some of the country’s remaining 400 coal-fired power plants would close.

Then along came Trump and Pruitt. In March 2017, President Trump signed an Executive Order to dismantle the 2015 Clean Power Plan, thereby giving Administrator Pruitt the go-ahead to repeal it. Trump stated, “We’re ending the theft of American prosperity.”

When EPA proposed to repeal the Clean Power Plan, the public filed more than 4.3 million comments by the April 28, 2018 deadline.

The powerhouse Silicon Valley companies, Apple and Google, joined millions in commenting that there is, in Google’s words “a strong economic case for the Clean Power Plan.” According to the online publication, Verge, Google emphasized that the plan would encourage utilities and companies like Google to keep investing in renewable energy — which Google says is getting cheaper, is desired by both consumers and investors, and is a good source of jobs.

Protestors against Pruitt’s administration of the EPA.

The Bureau of Labor Statistics firmly supports this conclusion. Data from 2017 shows that the two fastest-growing job categories are “solar voltaic installers” and “wind turbine service technicians.”

Google also believes that curbing global warming “is an urgent global priority that requires robust federal policy engagement and strong action from the business community,” its filing says.

In light of the opposition and the trend of the country away from coal, it is extremely unlikely that EPA will be able to easily erase the Clean Power Plan. The Supreme Court ruled in 2007 that greenhouse gases were pollutants that should be regulated by EPA. So when Administrator Pruitt repeals the CPP, his safest legal course would be to replace it with something else that regulates greenhouse gas emissions from power plants. That will, as with the first CPP, take time, and is likely to result in considerable litigation and an uncertain outcome for EPA.

EPA’s war on science

I spoke about the role of scientists in the current EPA with George Allen, a senior scientist at the Boston-based interagency association, New England States for Coordinated Air Use Management (NESCAUM). George was a long-time member of EPA’s Science Advisory Board-chartered Clean Air Scientific Advisory Committee (CASAC).

A superstar on the health effects of bad air, he was on the professional staff of the Harvard School of Public Health for 20 years, and has co-authored 30 publications on different aspects of air pollution and human health.

CASAC was mandated by the 1977 Amendments to the Clean Air Act. The Committee of scientists reviews the scientific bases for the national health-based standards for pollutants such as ozone, lead, and particulate matter.

George said, “There’s been a total purge of CASAC. There will be no more pesky academics on it in this Administration.”

“The new head of CASAC, Tony Cox, thinks that a little bit of pollution is good for you” George said. “And he thinks that ozone and particulate matter don’t hurt you at all.”

George told me that the Union of Concerned Scientists and one of the science advisors purged from CASAC had sued to reinstate her on CASAC and, more broadly, to stop EPA from continuing its anti-science agenda. Their complaint began with an eloquent summary of why science is important in a democracy,

“Science conducted by independent, unbiased scientists plays a critical role in a functioning democracy. It helps lawmakers identify policy priorities. It informs government agencies’ actual adoption and implementation of policy. Perhaps most importantly, it provides evidence against which government action can be measured, and that the public can use to assess whether our leaders are doing their jobs. Anti-democratic governments, which thrive on obfuscating truth, seek to delegitimize and suppress scientists and other authoritative voices that offer accurate information that can be used to hold the government to account.”

As for the larger advisory body of scientists, a 40-member group called the Science Advisory Board that advises on water and Superfund cleanup issues as well as air, George said, “They’ve stuffed it full of industry thugs.”

One of the most alarming efforts to undermine science at the EPA is the repeated attempt by the National Association of Manufacturers and several Republican lawmakers to pass federal legislation requiring that all data underlying EPA rules be publicly available, and that all studies be reproducible. So far, the bills have not been enacted, but now Pruitt is apparently seeking to accomplish the same goals through a rulemaking.

On the face of it, scientific transparency and replicability sound reasonable. So I questioned George, and he said, “A lot of health data is acquired confidentially and is simply not available. So there can’t be full transparency if privacy is protected. When I worked on the ‘Six Cities’ study [a seminal study of on the health effects of air pollution] at Harvard, the data we collected was confidential health data contained in medical records.” Other data may be classified as ‘confidential business information.’

“And.” he added, “the bills require the studies to be reproducible, and it’s not at all feasible financially or in any way to replicate hundreds of studies.” So perfectly sound studies could be ignored and EPA could pursue their political agenda untethered from science.

On April 23, nearly 1,000 scientists sent Administrator Pruitt a letter urging him not to adopt restrictions on the use of scientific studies similar to those proposed in bills called “The Secret Science Reform Act” and “the HONEST Act.” They wrote:

“Proponents for these radical restrictions purport to raise two sets of concerns: reproducibility and transparency. In reality, these are phony issues that weaponize ‘transparency’ to facilitate political interference in science-based decision-making…”Many public health studies cannot be replicated, as doing so would require intentionally and unethically exposing people and the environment to harmful contaminants or recreating one-time events (such as theDeepwater Horizonoil spill). …And requiring the release of all data… could actually compromise research, including intellectual property, proprietary, and privacy concerns.”

And yet, can we expect EPA Administrator Pruitt to be sensitive to scientists’ concerns when he is on record as saying in 2005, according to Politico, that “there aren’t sufficient scientific facts to establish the theory of evolution.”

When I asked Susan to identify the area of EPA that was most harmed by Pruitt, she said, without a pause, “Science is the hardest hit, and the science offices.”

Waiting for a corrective Congress

All of the friends I spoke with are yearning for a blue wave in November to correct the current hostility to environmental protection.

During the early 80s, in the Reagan Administration, there was plenty of antipathy toward EPA. In fact, the Heritage Foundation had recommended that EPA be abolished.

But there was Congress. As Michael said, “There was oversight then. We had a Democratic House. We had John Dingell heading the House Energy and Commerce Committee. He’d convene hearings and subpoena witnesses. And we had Henry Waxman.”

Indeed, the powerful House Committees were the enemies of agency mismanagement and undue industry influence. The House Public Works Committee ended up citing Ann Gorsuch [then head of EPA and Neil’s mother] for contempt of Congress when she refused to produce documents to the Committee relating to a Superfund cleanup. She ended up resigning in 1983.

There is plenty that a strong Congress could do to turn things around.

Susan said, “I’m waiting until November to decide what to do, and whether I stay or leave.”