One of President-Elect Trump's many duties as he approaches his January 20, 2017 swearing in is to appoint his Cabinet. President-Elect Trump needs to select the U.S. Environmental Protection Agency's (EPA) Administrator, which is a cabinet level post. As head of the EPA the Administrator is responsible for directing federal environmental policy and the enforcement of the federal environmental laws including the Clean Air Act, Clean Water Act, the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and many other federal environmental statutes. As of this date President-Elect Trump has yet to name an EPA Administrator. A number of individuals have been mentioned as top contenders for the post. According to a number of reliable sources the five leading candidates are:
Kathleen Harnett White has experience regarding environmental matters, mainly in the State of Texas. Currently she is a Senior Fellow-In-Residence and Director of the Armstrong Center for Energy & the Environment at the Texas Public Policy Foundation. The Texas Public Policy Foundation is a conservative think thank funded by a number of energy companies. Ms. Hartnett White serves as the director of the Texas Public Policy Foundation's Fueling Freedom Project, which seeks push back against the EPA's efforts in regulating carbon dioxide.
Ms. Hartnett White is probably most known for her efforts to cut federal subsidies for renewable energy. According to a 2013 report by the Congressional Budget Office, these subsidies cost the United States $7.3 billion. Ms. Hartnett White proposes vesting more power in the states to regulate the environment instead of relying on the federal government to do so. Ms. Hartnett White has visited Trump Tower and met with President-Elect Trump.
Scott Pruitt currently serves as the Attorney General for the State of Oklahoma. Before becoming the Attorney General of Oklahoma, Mr. Pruitt served as a State Senator in Oklahoma. As the Attorney General for Oklahoma, Mr. Pruitt has filed multiple law suits against the EPA on behalf of the State of Oklahoma. He is also a noted opponent of President Obama's Clean Power Plan. Much like Ms. White, Mr. Pruitt favors vesting the states with more authority in regulating environmental issues. Mr. Pruitt has also met with President-Elect Trump.
Myron Ebell serves as Director of Global Warming and International Environmental Policy at the Competitive Enterprise Institute. Mr. Ebell is also the chairman of the Cooler Heads Coalition, a loose coalition formed in 1997, which, according to the New York Times, is "focused on dispelling the myths of global warming by exposing flawed economic, scientific, and risk analysis." Currently, Myron Ebell is the head of President-Elect Trump's EPA transition team.
Mr. Ebell is most well known as a "climate contrarian." Much like Scott Pruitt, Myron Ebel is a vocal opponent of President Obama's Clean Power Plan, especially the regulations regarding power plants. Mr. Ebell argues that environmental regulations need to balance the environmental costs of power plants with the economic benefits.
Robert Grady is a venture capitalist and a private equity investor. However, Mr. Grady has also worked on many political campaigns and has been the advisor to many public officials. He served as co-chairman of former President George W. Bush's campaign in California in both 2000 and 2004, and as an architect of former Governor Arnold Schwarzenegger's environmental and economic policies during the 2003 California recall election. He was a member of Schwarzenegger's transition team.
In terms of environmental policy, Mr. Grady is most well known for advising President George H.W. Bush on crafting the Clean Air Act Amendments of 1990. According to the EPA, 1990 amendment was "designed to curb three major threats to the nation's environment and to the health of millions of Americans: acid rain, urban air pollution, and toxic air emissions. The proposal also called for establishing a national permits program to make the law more workable, and an improved enforcement program to help ensure better compliance with the Act." The Clean Air Act Amendments passed by large margins in both the U.S. House of Representatives (401-21) and the Senate (89-11).
Jeffrey Holmstead is a partner and attorney at Bracewell LLP law firm and the head of its Environmental Strategies Group. Mr. Holmstead is also the former Assistant Administrator of the U.S. EPA for Air and Radiation from 2001 - 2005. According to Mr. Holmstead's biography, "He was the architect of several of the agency's most important initiatives, including the Clean Air Interstate Rule, the Clean Air Diesel Rule, the Mercury Rule for power plants and the reform of the New Source Review program. He also oversaw the development of the Bush Administration's Clear Skies Legislation and key parts of its Global Climate Change Initiative."
Mr. Holmstead has been recognized by the United States Chamber of Commerce as is one of the nation's leading climate change lawyers. The majority of Mr. Holmstead's practice is advising corporate clients on navigating complex regulatory landscapes and lobbying on behalf of energy companies. On November 18, 2017 Mr. Holmstread filed disclosures terminating many of his lobbying representations. President-Elect Trump has indicated he does not want lobbyists may not serve in his Administration.
The selection of a new EPA Administrator may be made in the coming weeks. The new EPA Administrator will usher in new policies and will likely redirect EPA programs. Interestingly, a number of the candidates who are being considered have been closely involved in litigation challenging the approach of President Obama's EPA especially on issues involving the Clean Air Act, the Clean Power Plan and various climate change initiatives. Many current policies and programs may be changed.
The EPA Administrator, like all Cabinet-level officials except the White House Chief of Staff, requires Senate confirmation. Hundreds of other senior posts and agency heads (over 1,200 positions) require Senate confirmation after background checks. The level of Senate confirmations has in the past created a backlog in committees and left many agencies understaffed. Under the Obama Administration there were many delays in confirmations and top-level agency posts were left unfilled for many months.
Before a nomination may move forward, the candidate must submit several forms and undergo a fair amount of vetting by the White House and FBI. The information gathered in this process (by looking at, for example, financial disclosure reports, criminal checks and questionnaires about ties to foreign governments) may be used by the President or President-Elect to withdraw a nomination or present it to the Senate as evidence in hearings.
1) A nomination is given to the relevant Senate committee. The Senate Committee on Environment and Public Works, chaired by Senator James (Jim) Imhofe (R-OK) will hold hearings on the EPA Administrator.
2) That committee can then hold hearings, vote to move the nomination straight to the Senate floor for a vote or not move on it at all (in which case, the committee effectually kills the nomination).
3) After hearings, the committee votes to report a nomination to the full Senate, requiring a simple majority. It may vote to report the nomination favorably, unfavorably or without recommendation. If a committee sits on an appointment, the full Senate may vote to invoke cloture and move the nomination along.
4) If a nomination clears committee, it moves to the Senate floor for a simple majority vote. Filibusters are not an issue here because Democrats changed Senate rules three years ago to eliminate the 60-vote threshold for most nominations. Supreme Court nominees are still subject to filibuster.
The Republicans barely kept their majority in the U.S. Senate after this year's elections. Rejections of major appointments are rare. Republicans have 51 Senate seats right now and will likely have 52 by January. (Louisiana's Senate race is in a runoff, but the Republican candidate is favored.)
Hearings can and will likely start pretty soon after the 115th Congress is sworn in January 3, 2017. The hearing and legislative schedules have yet to be set. A nominee may not be confirmed, however, until after the President is sworn in on January 20, 2017.
The new EPA Administrator will review and undoubtedly change EPA policies and direction. Executive Orders issued under President Obama may be swiftly changed. Although it may be difficult to make changes to certain regulations, EPA programs and policy can be redirected. The Trump Administration's priorities will be revealed as budgets are developed and sent to Congress for approval.
Whoever is selected as EPA Administrator can expect to be named as a defendant in lawsuits filed in federal court. Instead of states and certain industry sectors challenging and attempting to thwart EPA's policies, we can expect to see a new set of litigants battling EPA in court. Environmental groups are likely to file lawsuits challenging the new Administrator's decisions to reverse what had been viewed as pro-environment positions and initiatives.
Please see the disclaimer at the bottom of this page relating to limitations on this blog and legal advice. Joseph Maternowski is a Minnesota attorney in private practice who practices in the areas of environmental, administrative and real estate law. He advises clients on compliance matters as well as on commercial and residential real estate transactions and on litigation. Joe assists multiple clients on sites that have been impacted by releases of PFAS, PCE and TCE. Thanks to associate Joseph Reutiman for his assistance in preparing this update. Finally, for additional information please contact:
Joseph G. Maternowski
Hessian & McKasy, PA
T: (612) 746-5754