Editor’s Note: John Cruden was a senior manager at the Department of Justice for 23 years, most recently serving from January 2015 to January 2017 as assistant attorney general for DOJ’s Environment and Natural Resources Division. He is president-elect of the American College of Environmental Lawyers. Ethan Shenkman was an attorney at DOJ and the Environmental Protection Agency for a combined 16 years, most recently serving as deputy general counsel for EPA from 2014 to 2017 and deputy assistant attorney general at DOJ from 2010 to 2014. He is an adjunct professor of environmental law at Georgetown University Law Center. The opinions expressed in this commentary are solely those of the authors.
Experts: With reports of looming cuts, will Scott Pruit''s EPA lose its ability to effectively implement and enforce the nation's environmental laws?
They say he must harness the talents and expertise of a highly professional career staff, as well as rely on science and facts to ensure a clean, health environment
Scott Pruitt’s confirmation as the Environmental Protection Agency’s administrator has been greeted with a wide range of reactions: welcomed by some who see the new team bringing a fresh perspective; feared by others who predict a period of upheaval at the agency.
In recent days, their concerns have intensified with news of potentially severe budget cuts on the horizon.
Will their fears come to pass? Will the agency lose its ability to effectively implement and enforce the nation’s environmental laws?
We hope not. A dysfunctional EPA is not in anyone’s interest: not those who want to bring about a change in policy direction; not the regulated community, which craves certainty and predictability; not EPA’s dedicated public servants, who seek to protect public health and serve the agency’s mission on a daily basis.
And it’s certainly not in the interest of the vast majority of Americans who care about the agency’s success in ensuring a clean and healthy environment.
In his opening address to the EPA’s employees last month, Administrator Pruitt sought to assuage some of these concerns and start off on the right foot. He commended the agency’s career staffers for their service and looked forward to spending time with them.
He emphasized that “process matters,” and said he wanted to lead an agency of “problem solvers.” He pledged to be a “good listener,” and sounded themes of “civility,” “rule of law” and “transparency.” He quoted the legendary naturalist John Muir, and insisted that one could protect the environment and promote energy and jobs at the same time. “We don’t have to choose between the two.”
Every four or eight years, administrations change. The two of us have lived through several of these transitions. As long-time civil servants – and more recently as political appointees – at EPA and the Department of Justice’s Environment and Natural Resources Division, we’ve worked faithfully to enforce and implement our nation’s environmental laws under both Democratic and Republican administrations.
New administrations have the right to steer the ship in different directions as a matter of policy. Elections matter. But there are fundamentally different paths that an agency’s leaders can follow when they take the helm. In the long run, only an approach that plays to the institution’s strengths, its people and its core mission will be successful. That is why, as former senior legal officers of EPA and DOJ, we will be watching closely not just what the new team does but how they do it.
Administrator Pruitt spoke of these things, too, in his opening remarks, which we took as a hopeful sign, although significant challenges and questions remain. Here is some of what we will be looking for in the first 100 days of the new administration at EPA:
• Will the agency have adequate resources to do its job? A central issue all of America will be watching is whether EPA is sufficiently funded to carry out its mission, including supporting states through grants and revolving funds. News organizations report that a proposal by the Office of Management and Budget would drastically cut the EPA budget by 24% and reduce staffing by 20%.
More than 30 important programs could be eliminated and state funding significantly reduced. They also report that Administrator Pruitt has already expressed concern about the budget reductions to the Office of Management and Budget director. But will that be enough? Meanwhile, the environment division at DOJ must also be adequately resourced to defend and enforce environmental policies.
• How will the new team leverage the talents and expertise of the career staff? A critical component of an agency’s resources is its human capital. Will the new team recognize the value of an enormously dedicated career staff with countless years of expertise in numerous fields – expertise critical to designing new policy initiatives that will be legally defensible and stand the test of time?
Career staff have served in multiple administrations. They know the drill. They serve the interests of the institution and the American people regardless of party. Involve, listen to, and take care of your career staff, and you will see results. On the other hand, arbitrary budget cuts that undermine the ability of employees to do their jobs, and do them well, can be self-defeating.
• How will the new team approach issues of ethics and professional responsibility? On a daily basis, challenging questions confront the leaders of a high-profile agency whose mission is so critical to all Americans, yet whose work is so frequently subjected to intense scrutiny and litigation. Luckily, EPA and DOJ have the highest caliber lawyers and ethics officials standing ready to give advice. Among other things, it will be important for those, including Administrator Pruitt, who previously represented parties in lawsuits against the EPA to determine whether it is appropriate to continue working on the same matters now that they speak for the agency.
• How will they foster a robust and transparent administrative process? Agency policy makers cannot rule by fiat. Laws such as the Administrative Procedure Act, the Freedom of Information Act and principles of due process need to be followed. Providing adequate notice and meaningful opportunity for comment on proposals is one bedrock principle.
Promoting healthy public participation in the decision-making process – involving not only the states and key stakeholders but also vulnerable communities affected by agency decisions – is not only a good idea legally, it produces better outcomes. Indian tribes, for example, are vital partners for EPA; how will the agency ensure they are consulted on decisions that affect tribal resources and communities?
• How will they fulfill their obligation to consider the best available science and base their decisions on well grounded, objective factual records? Let’s face it. Virtually every important decision EPA makes is met with a lawsuit, whether by industry, states, environmental groups or affected communities – or sometimes all of these. The concept of judicial review, where courts often have the final say, is alive and well in environmental law. And in our experience as the lawyers who have defended EPA in litigation for many years, the courts take their job seriously.
Judges don’t make policy, nor should they. But they do expect clear and thorough explanations, supported by robust record evidence. They expect a science-based agency to embrace real science.
Moreover, changes in policy direction, however desirable, cannot be achieved with the wave of a magic wand. As Supreme Court Justice Anthony Kennedy recently reminded us, “an agency’s decision to change course may be arbitrary and capricious if the agency ignores or countermands its earlier factual findings without reasoned explanation… An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate.”
When we served at EPA and DOJ, we found that the right approach leads to the best results, whatever the policy objectives may be. The more the agency respects the role of the courts and the legitimacy of the administrative process, the more the agency will receive judicial deference for its technical and policy judgments. Respecting the rule of law builds credibility with the courts. Disregarding the rule of law produces the opposite.
As we’ve written before, over the last two years, the EPA (represented by the DOJ) had a remarkable record of success in cases involving the Clean Air Act decided by the DC Circuit Court of Appeals (which is often considered the nation’s most important court for environmental law).
Out of 24 such cases, the EPA had a “Cy Young-worthy” record of 22 favorable and largely favorable decisions, versus 2 losses. And the EPA enjoyed a strong record of success in such matters over the last six years as well.
Was that because the judges always agreed with the Obama administration’s policies? Not necessarily. In fact, the EPA’s record of wins and losses broke fairly evenly among judges appointed by Democrats and Republicans. The explanation behind the success? Among the key factors: strong scientific and factual records, thorough explanations, devotion to transparency, responsiveness to public comments, and skillful harnessing of the talents and expertise of a highly professional career staff.
When Administrator Pruitt introduced himself to EPA employees, he drew on the insights of John Muir. There is no shortage of inspirational quotes he could have cited from the “father” of our national parks, including this one: “In every walk with nature one receives far more than he seeks.” May the administrator find this to be true in his walk with the EPA.