Regulatory Capture of the E.P.A.
President Trump and the 52 senators who facilitated Pruitt's assent to the top of the EPA knew about his track record of using Oklahoma public office to advance the private interests of polluting industries.
They knew of the 14 lawsuits Pruitt brought against the EPA as Oklahoma Attorney General in an effect to curtail regulations on these industries.
They knew of the massive financial contributions Pruitt has received from these industries throughout his political career.
They knew of the scandalous incident in which Oklahoma Attorney General Pruitt forwarded an email drafted by a lobbyist for Devon Energy criticizing the EPA's method of measuring methane emissions from natural gas production to the EPA after simply adding his letterhead and making some minimal alterations.
And they knew of his refusal to explicitly acknowledge during his confirmation hearing that we need to move away from fossil fuels in order to halt climate change and that the EPA has a role to play in leading this transition.
The president and these 52 senators thus knowingly facilitating the regulatory capture of the EPA.
As we stare down impending ecological catastrophe, these 53 politicians have appointed to lead the EPA a man who, not only isn't working to prevent such a catastrophe, but is actively working to facilitate the damaging behavior of the industries that are primarily responsible for this crisis.
If we do not manage to prevent the massive political upheavals, disastrous consequences for our food supplies, huge waves of human migration, and social unrest climate change is likely to bring, there will be many culprits to blame. These 53 individuals have now added their names to that list.
Published: January 24, 2018
What Is The EPA And What Is It Supposed to Do?
The Environmental Protection Agency (EPA) is a public institution.
That is, it is a taxpayer funded organization created to advance the public interest.
It was created in 1970 to carry out the following mission:
1) Ensure Americans are protected from environmental risks to their health.
2) Ensure the country’s efforts to reduce such risks are based on the best available scientific information.
3) Ensure that federal laws intended to protect the environment are enforced fairly and effectively.
4) Ensure that protection of the environment is considered in the country’s natural resources, health, economic, energy, transportation, agriculture, industrial, and trade policies.
5) Ensure that Americans, the government, and businesses have access to the accurate information needed to ensure environmental risks to human health are managed.
6) Ensure that the U.S. is a leader in working with other countries to protect the global environment.
It’s important to note that the EPA is a regulatory agency. This means that it does not create legislation related to protecting the environment; the power to do so lies solely with Congress. Rather, the EPA writes regulations which implement the environmental legislation passed by Congress.
New rules and proposed rules are published in the Federal Register.
Regulations that are implemented are then codified annually in Title 40 of the U.S. Code of Federal Regulations (CFR).
Once the EPA has written environmental regulations, it also enforces them.
In addition to writing and enforcing environmental regulations, the EPA gives grants to a variety of organizations.
For example, it may provide a grant to an educational institution in order to fund a scientific study meant to guide the country’s environmental policy.
It also provides grants to state-level environmental programs and non-profit organizations.
During the 2016 fiscal year, the E.P.A. spent 45% of its budget on grants.
The EPA also conducts its own environmental studies through its scientific research arm, the Office of Research and Development.
In short, the EPA is a public institution created to write and enforce regulations, issue grants, and conduct scientific research in order to protect Americans from environmental risks to their health.
Who is Scott Pruitt?
The man who now leads the Environmental Protection Agency actually has a long history of working with and receiving donations from the fossil fuel industry - an industry he is now tasked with regulating.
Pruitt won his bid 2010 for Oklahoma State Attorney General and won a second term running unopposed in 2014.
As Oklahoma Attorney General, Pruitt sued the EPA 14 times in an effort to block various regulations on smog, mercury, arsenic, and other pollutants.
And 13 of the 14 suits against the EPA included at least one co-litigator who had donated – either directly or via an employee or member – to Pruitt’s campaign for Oklahoma attorney general or to a political action committee affiliated with Pruitt.
This perversion of the state attorney general’s role meant that Oklahoma’s top lawyer, whose job was to sue companies who do not comply with state law, instead joined those companies in suing the EPA.
Of the 14 suits Pruitt mounted against the EPA, seven were resolved and six of these seven resulted in defeats for Pruitt.
Aside from a history of receiving money from the fossil fuel companies he was meant to oversee as a state attorney general and the fact that he joined those companies in suing the EPA to reduce regulations on them, we have seen evidence of explicit cooperation between Pruitt and the fossil fuel industry working together to change regulatory policy.
In a particularly revealing case, the chief of lobbying for Devon Energy, an oil and gas production and exploration firm, actually drafted a letter for Pruitt, which Pruitt sent on to the EPA after making some minimal changes to the wording and simply adding the letterhead of the Oklahoma state attorney general's office and his signature. The 2011 letter criticized the EPA’s methodology for measuring methane emissions from natural gas production.
Devon Energy would go on to donate hundreds of thousands of dollars to the Republican Attorneys General Association – an organization that works to elect Republicans as state attorneys general throughout the country – which, at the time, was led by Pruitt.
In another demonstration of the tangled web of relations between Pruitt and the fossil fuel industry, Pruitt co-authored an op-ed criticizing a coalition of attorneys general for announcing plans to investigate whether Exxon Mobil knowingly deceived the public by downplaying the risks from climate change despite its own internal scientists believing climate change to be a threat.
Prior to Pruitt’s authoring of this op-ed, Exxon had been a regular donor to the Republican Attorneys General Association.
In the shadowy world of government corruption, where influence is often bought through donations registered in obscure financial filings or wielded during backroom meetings with lobbyists, rarely is an instance of institutional corruption so self-evident as in the case of Scott Pruitt as Oklahoma State Attorney General: fossil fuel companies financed Pruitt's campaigns, as well as those of his Republican Attorney General colleagues, and Pruitt in turn did their bidding.
It’s also revealing that Koch Industries, a behemoth U.S. fossil fuel conglomerate, lobbied for Pruitt’s confirmation to lead the EPA.
Koch's LD-2 form for the first quarter of 2017 reveals that in addition to lobbying on an assortment of environmental regulations, it actively worked to assure Pruitt's confirmation to the EPA.
(You can learn more about LD-2 forms here.)
Clearly, Pruitt’s history of opposition to the EPA’s mission and his close relationship with an industry overseen by it make him unfit to lead it.
Pruitt’s Confirmation Hearings
Beyond having been tied to the fossil fuel industry throughout his political career in Oklahoma, Pruitt also made statements during his confirmation hearing for the EPA administrator job that made clear he was unsuited to lead the agency.
On January 18, 2017 hearing, Senator Bernie Sanders and Pruitt engaged in the following exchange:
Sanders: “Why is the climate changing?”
Pruitt: “Senator, in response to the CO2 issue, the EPA administrator is constrained by statues....”
Here Pruitt is attempting to minimize the EPA’s role in addressing climate change by pointing to the fact that the EPA does create not legislation (i.e. statutes) but rather implements legislation passed by Congress.
Of course, this is disingenuous because, while it is true that the EPA does not create legislation, and therefore cannot solve climate change on its own, the manner in which the EPA chooses to interpret and implement legislation influences how successfully it performs its duty of protecting the environment (see, for example, the section below on how different EPA administrations have chosen to define “waters of the United States” and the implications of these changing definitions for the safety of our drinking water).
Sanders followed up by stating “I’m asking your personal opinion.”
To which Pruitt replied, “My personal opinion is immaterial to the job of the......”
Sanders: “Really. You are gonna be the head of the agency to protect the environment and your personal feelings about whether climate change is caused by human activity and carbon emissions is immaterial?”
Pruitt: “Senator, I’ve acknowledged to you that human activity impacts the climate.”
Sanders: “Impacts? The scientific community doesn’t tell us it impacts, they say it is the cause of climate change. We have to transform our energy system. Do you believe we have to transform our energy system in order to protect the plant for future generations?”
Pruitt: “I believe the EPA has a very important role at regulating the emission of CO2.”
Sanders: “You didn’t answer my question. Do you believe we have to transform our energy system away from fossil fuel to do what the scientific community is telling us in order to make sure that this planet is healthy for our children and grandchildren?”
Pruitt: “Senator, I believe that the administrator has a very important role to perform in regulating CO2.”
So the 100 Senators voting on whether Pruitt should lead the EPA had not only his years of using public office to advance the private interests of fossil fuel companies to consider, but also his refusal to explicitly acknowledge during his confirmation hearing that we need to move away from fossil fuels in order to halt climate change and that the EPA has a role to play in leading this transition.
It was clear that a vote for Scott Pruitt to lead the EPA was a vote for the EPA to become a captured agency.
Nomination and Confirmation
Nevertheless, Pres. Trump nominated Scott Pruitt to become the 14th Administrator of the EPA.
And Pruitt’s nomination was confirmed on February 17, 2017 by the Senate with the support of the following 52 Senators:
Michael B. Enzi
Michael D. Crapo
Orrin G. Hatch
Patrick J. Toomey
Richard C. Shelby
Richard M. Burr
Shelley Moore Capito
What’s worse, the vote on Pruitt’s confirmation was rushed through in order to beat the impending public release of thousands of pages of emails containing exchanges between Pruitt and fossil fuel companies, electric utilities, and political groups tied to Charles and David Koch, the brothers who run Koch Industries.
The emails were released on February 22, 2017 under a court order issued in response to a lawsuit filed by the Center for Media and Democracy, a watchdog group.
Their release ultimately shed further light on the close relationship Pruitt maintained with the industries he was meant to oversee as Oklahoma attorney general.
So, had the Senators who supported Pruitt's appointment to led the EPA waited until after their release to hold the vote, the emails would have further demonstrated that a vote for Pruitt to lead the EPA was a vote for the EPA to become a captured agency.
Despite knowing that the email release was coming, the Republican controlled Senate held Pruitt’s confirmation vote on February 17, 2017.
These 53 individuals (Pres. Trump and 52 senators) thus knowingly facilitated the regulatory capture of the Environmental Protection Agency by appointing a life-long opponent of the Agency to lead it.
They knew his record as Oklahoma attorney general, they were aware of his cozy relationship with the fossil fuel industry, and they had his statements during his confirmation hearing.
And, to avoid a larger public backlash against the move, they rushed through the confirmation vote before a batch of emails demonstrating just how unfit Pruitt was for the job were set to be released to the public.
What Has Scott Pruitt Done Since Taking Over the EPA?
Since taking over as Administrator of the EPA, Scott Pruitt has, predictably, moved to undue hard won environmental protections for the water we drink and the air we breathe, all in the interest of the industries the EPA is meant to regulate.
1) The EPA has Moved to Undo Protections on Drinking Water
In 1948, the Federal Water Pollution Control Act was enacted.
The act was reorganized and expanded in 1972 and this expanded version has come to be known as the Clean Water Act.
The purpose of this Act is to “restore and maintain the chemical, physical, and biological integrity of Nation’s waters.”
And responsibility for administering the policies contained within the Act lies with the Administrator of the EPA:
"Except as otherwise expressly provided in this chapter, the Administrator of the Environmental Protection Agency ... shall administer this chapter."
However, confusion remained over just which waters were covered by the Act because of the Act's vague focus on “navigable waters.”
The Act's use of this phrase left many questions unanswered: how do we determine where a navigable waterway begins and ends? Does “navigable waters” include streams that flow partly underground? What about small wetlands?
To definitively answer these questions, the EPA issued a rule entitled the Clean Water Rule: Definition of ‘Waters of the United States’ on June 29, 2015, commonly referred to as the Waters of the United States (WOTUS) rule.
The Rule clarified what was covered by the Act and widened its protections to include thousands of waterways and wetlands.
This included small streams which provide drinking water to 117 million Americans.
The Clean Water Rule went into effect on August 28, 2015.
But the rule change was opposed by the National Mining Association and some in the pesticide manufacturing, timber, railroad, oil, and homebuilding industries.
And on October 9, 2015, the U.S. Court of Appeals for the 6th Circuit issued a nationwide stay against the rule, the result of 18 states challenging the protections, meaning that the rule could not go into effect.
(You can learn how executive orders work here.)
The Order instructed Scott Pruitt and the Assistant Secretary of the Army for Civil Works to review the Clean Water Rule.
Upon completion of the review, Pruitt was to propose either rescinding or revising the rule.
On July 27, 2017, the EPA published a proposed rule in accordance with the executive order.
The proposed rule would
“replace the stayed 2015 definition of “waters of the United States”, and re-codify the exact same regulatory text that existed prior to the 2015 rule.”
It would thus prevent the 2015 definition's protections for the drinking water for 117 million Americans sought by the 2015 definition from being implemented.
Note that the rescinding of a rule adopted by a previous administration does not in and of itself constitute regulatory capture. Doing so may simply indicate a disagreement over how best to achieve the needed environmental protections.
But there is no indication that drinking water protections are even a consideration for Pruitt. This is not merely an attempt to replace a particular rule with one a new administration views as better suited to achieving the agency's mission; this is a reversal of a rule without so much as an acknowledgment of the protections it provides. There is no proposed replacement rule that attempts to provide those same protections through different means or in a better fashion.
Moreover, the decision has to be viewed in the context of the individual making it, and his track-record of using public office to advance private interests, and in the context of all the other below mentioned actions he has taken that run counter to the EPA's mission.
2) Pruitt has Denied that the Release of CO2 causes Climate Change
Pruitt weaseled his way through his confirmation hearing by simultaneously claiming to believe that human activity is contributing to climate change (“Senator, I’ve acknowledged to you that human activity impacts the climate.”), but also that his opinion on the matter had no bearing on his capacity to lead the EPA (“My personal opinion is immaterial to the job of the......”) but also that EPA’s hands were tied by Congress (“Senator, in response to the CO2 issue, the EPA administrator is constrained by statues....”), but also that the EPA had an important role to play in addressing climate change (“I believe the EPA has a very important role at regulating the emission of CO2.”).
Apparently, the cognitive dissonance flew over the heads of 52 Senators.
But, with the nomination sealed, an unshackled Pruitt sat down for a March 9, 2017 interview.
During the interview, Pruitt was asked if he believed that the release of CO2 was the primary cause of climate change.
Pruitt replied, “[N]o, I would not agree that [CO2 release] is a primary contributor to the global warming that we see. But we don’t know that yet. ... We need to continue the debate and continue the review and the analysis.”
This statement runs counter to the scientific consensus amongst climate scientists.
For example, a 2014 report by the Intergovernmental Panel on Climate Change concluded that, “It is extremely likely that more than half of the observed increase in global average surface temperature from 1951 to 2010 was caused by the anthropogenic increase in [greenhouse gas] concentrations and other anthropogenic forcings together.”
And Pruitt has moved to project this anti-scientific views onto the EPA.
3) Pruitt’s EPA has Removed References to Climate Change from the its Website
On April 28, 2017, the EPA announced that its website was “undergoing changes that reflect the agency’s new direction under President Donald Trump and Administrator Scott Pruitt.”
The process involved “updating language to reflect the approach of new leadership” and the elimination of “outdated language.” It further stated that “content related to climate” was being reviewed.
Since then, the EPA has moved to scrub references to climate change from its webpage. and all pre-Trump administration EPA webpages have been moved to an archive.
Below is a screenshot of the climate change section of the EPA’s website as it appeared on January 19, 2017, the day before Trump’s inauguration.
The webpage offered information about what climate change is, why it's happening, and what we can do to stop it.
But search for this page now and here’s what you’ll see:
You'll find a statement saying that the webpage is being updated to "reflect EPA's priorities under the leadership of President Trump and Administrator Pruitt."
Translation: We're working to get rid of any mention of climate change at the regulatory institution most responsible for addressing it.
The systematic effort to remove any mention of climate change is representative of the fact that the Trump-Pruitt EPA is a captured agency: faced with what an overwhelming majority of climate scientists believe is impending ecological disaster, the agency most central to addressing this challenge has chosen to pretend nothing’s wrong.
By refusing to acknowledge the very existence of an extinction-level threat, the EPA is failing to meet 5 of its above mentioned objectives:
1) Ensure Americans are protected from environmental risks to their health.
2) Ensure the country’s efforts to reduce such risk are based on the best available scientific information.
3) Ensure that protection of the environment is considered in the country’s natural resources, health, economic, energy, transportation, agriculture, industrial, and trade policies.
4) Ensure that Americans, the government, and businesses have access to the accurate information needed to ensure environmental risks to human health are managed.
5) Ensure that the U.S. is a leader in working with other countries to protect the global environment.
4) Pruitt’s EPA May Have Engaged in Scientific Censorship
The EPA prevented three scientists scheduled to attend an October 23, 2017 conference in Rhode Island from presenting their research findings on the effects on climate change on New England’s largest estuary.
The EPA did not provide an explanation for the last-minute cancellation other than to say that, “EPA scientists are attending, they simply are not presenting. It is not an EPA conference.”
This statement implies that it is long standing EPA policy to not present EPA research at non-EPA conferences, but fails to answer why, if that is indeed EPA policy, the three scientists were ever scheduled to speak at the conference in the first place.
Indeed, reading the statement in isolation would leave one with the false impression that the scientists were never scheduled to present to begin with.
The lack of satisfactory answers to explain this incident should be viewed in the context of other anti-climate science actions the EPA has taken under Pruitt’s leadership, such as removing the climate change section of the EPA’s website, and in the context of actions taken by other parts of the Trump administration.
For example, the Guardian has revealed that the Trump administration’s US Department of Agriculture has instructed its staff to avoid using the phrase “climate change” and instead use the phrase “weather extremes.”
Taken together, it appears the EPA’s decision to prohibit its scientists from presenting climate change related research at a conference may have been an effort to engage in scientific censorship.
5) Pruitt Has Appointed Industry Employees to the EPA’s Science Advisory Board
In line with his effort to turn the EPA into a ward of the country’s most polluting industries, Pruitt has placed industry employees on the EPA’s Science Advisory Board, a body that advises the agency on what areas it should conduct research in and reviews the scientific information the EPA is using or has proposed using as the basis for its regulations.
Prior to taking her seat on the Advisory Board, Kimberly White was a senior director at the American Chemistry Council (ACC), an industry trade association that works to promote the interests of chemical companies and has spent millions of dollars lobbying on their behalf.
The ACC has also previously taken the EPA all the way to the Supreme Court in an effort to fight agency regulations on greenhouse gas emissions.
The EPA has also added Robert Merritt, who has worked as a manager for French oil company Total, and Merlin Lindstrom, who previously worked for Phillips 66, an American fossil fuel company, to the Advisory Board.
And, just for kicks, Pruitt has appointed Michael Honeycutt as the Board’s Chair.
As the chief toxicologist of the Texas Commission on Environmental Quality, Honeycutt has argued that stricter EPA rules for ground-level ozone (a.k.a. bad ozone) would not be beneficial and that we may be better off focusing on indoor air quality instead because “Americans likely spend at least 90 percent of their time indoors,” as though we shouldn’t care about the quality of our air for the time we do spend outdoors, or that somehow our homes, schools, and offices are hermetically sealed so that we can safely allow the outside world to become inhospitable to humans without it affecting the quality of our indoor air.
In another instance, Honeycutt has said, “I haven't seen the data that says lowering ozone will produce a health benefit. In fact, I've seen data that shows it might have a negative health benefit.” Here the man literally argues that air pollution might be healthy.
So in addition to turning the Science Advisory Board over to the industries the EPA is supposed to regulate, Pruitt has placed at the top of the Board a man who denies basic science, because without doing so, it just wouldn’t be insulting enough to taxpayers.
In addition to placing industry employees on the EPA’s Science Advisory Board, the EPA has dismissed several academics who served as members of its Board of Scientific Counselors, a group that provides advice to the EPA’s Office of Research and Development, the agency’s internal scientific research arm.
A spokesman explained the decision saying, “The administrator believes we should have people on this board who understand the impact of regulations on the regulated community.”
Translation: We’re turning the Board over to industry.
The Environmental Protection Agency (EPA) was created in 1970 to protect Americans from environmental risks to their health.
It does this by creating regulations which implement environmental legislation passed by Congress.
However, Pres. Trump nominated, and 52 senators confirmed, Scott Pruitt to lead the EPA.
Prior to becoming the head of the EPA, Pruitt had a long history of accepting campaign donations from polluting industries.
He also sued the EPA 14 times when he was Oklahoma's state attorney general to reduce regulations on those polluting industries.
In one case, he forwarded to the EPA a letter drafted by the chief lobbyist for Devon Energy, which argued against the EPA's methodology for measuring methane emissions from natural gas production, after simply adding the Oklahoma state attorney general's letterhead to it and some minor editing.
Since becoming head of the EPA, he has moved to undue protections on drinking water for an estimated 117 million Americans, denied CO2 release is responsible for climate change, removed references to climate change from the EPA's website, may have engaged in scientific censorship, and appointed employees of polluting industries to the EPA's Science Advisory Board.
Pres. Trump and the 52 senators that voted to confirm Pruitt as head of the EPA knew he would take such steps to roll back environmental protections because they knew about his long-standing close ties with the fossil fuel industry when he was Oklahoma's state attorney general.
They thus knowingly facilitated regulatory capture.
EPA Headquarters in Washington D.C.