Misrule of Law: How Scott Pruitt Yanks Our Vital Safeguards

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By David Doniger, Natural Resources Defense Council

Environmental Protection Agency Administrator Scott Pruitt often says he’s committed to “the rule of law,” and that “regulations should be regular.”

His M.O., however, has been neither regular nor lawful.

Much of the attention has been on Pruitt’s plans to gut the Clean Power Plan and the Clean Water Rule.  (He proposed repealing the Clean Water Rule today.)  We’re fighting those rollbacks tooth and nail.

But there’s lots more going on as well.

Pruitt’s other early actions show a pattern of arbitrarily staying, suspending, or delaying important existing health and environmental safeguards in total disregard for the rule of law and regular procedure.

Each delay seems calculated to buy time to repeal the underlying protections.

Here’s the rub:  existing standards are supposed to stay in effect – and polluters are expected to comply – unless and until they are properly changed.  That requires Pruitt to follow the same process by which those standards were established in the first place:  issuing a proposal, holding public hearings and taking public comment, and publishing a final decision showing compliance with the law and support in the factual record.

But like the Red Queen, for Pruitt it’s first the verdict, then the trial.

Too often, he’s met with CEOs or lobbyists for big energy and chemical polluters, and privately assured them he’ll yank the health and safety standards they find inconvenient.

He rarely meets with anyone our environmental laws are meant to protect, or who suffers when safeguards are snatched away.  They only find out when Pruitt issues a press release or a tweet.

And then he yanks the protections we rely on before conducting the required rulemaking to change them.

The same dodgy moves have been seen in other agencies, like the Interior, Labor, and Transportation Departments.  But none seem quite so dedicated to evading the rule of law as EPA Administrator Pruitt.

Here are eight critical protections Pruitt has already pulled back, in his short tenure so far.  Each time, he’s violated the Administrative Procedure Act and our clean air, clean water, or pesticide safety laws.

NRDC and others have gone to court to stop these violations.  In one case, we’ve gotten results already.  In others, decisions are expected soon.

Curbs on Methane Leaks From Oil and Gas Delayed More Than Two Years

Right on the eve of the June compliance deadline, Pruitt suspended Clean Air Act limits on rampant leakage of methane and other dangerous air pollutants from the oil and gas industry.  NRDC and partners sued to block his initial 90-day stay, and a decision is expected soon.  But Pruitt only doubled down, proposing to extend the stay for two more years – even while admitting that the delay in curbing this pollution will “have a disproportionate effect on children.”  Pruitt’s disregard for kids will not stand up in court.

Smog Standards Delayed At Least a Year

In a June letter to governors, Pruitt announced a one-year delay in steps toward meeting the health-based standard for ozone smog – time lost that will put the health of more than 150 million Americans at risk.  Without any legal authority for a blanket delay, and without taking any public comment, Pruitt told the governors he’ll push back by a year the October 2017 deadline for designating the areas of the country that don’t meet the ozone standard.  That gives industry an extra year to curb its smog-causing pollution.  Kids, elders, folks with asthma – they’ll have to lump it for the extra year.  NRDC will go to court next month to block this delay.

Meanwhile, Pruitt is “reviewing” the smog standard itself – he sued to block EPA from updating that standard as Oklahoma attorney general – and considering raising the level of pollution that our children, grandparents, and neighbors with lung diseases will be allowed to breathe.

Ban on Neurotoxic Pesticide Put Off Five Years

Pruitt rejected EPA scientists’ recommendation to ban the neurotoxic pesticide chlorpyrifos on food crops.  Ten years after NRDC and others first petitioned EPA to ban this dangerous chemical linked to learning disabilities in children, EPA was under court order to make its decision by March 2017.  But Pruitt denied our petition and postponed action until as late as 2022, putting the interests of Dow Chemical ahead of our children, and listening to the Agriculture Department instead of his own agency’s scientists.  (The Associated Press reported Tuesday that Pruitt met with the CEO of Dow days before making this decision.)  We’re hauling Pruitt back to court.

Pesticide Worker Safety Delayed At Least a Year

EPA is responsible for protecting pesticide workers – the men and women who apply toxic pesticides – as well as the general public.  Long-overdue protections for pesticide applicators were set to come into effect this year.  But one of Pruitt’s first acts was to delay these certification, training, and safety standards – which he’s now put off until May 2018.  Farmworker and environmental groups have sued to block the delay.

Chemical Plant Explosions and Accidents Safeguards Postponed Two Years

Pruitt acted quickly to shelve long-overdue safeguards against deadly chemical plant accidents – explosions, fires, and leaks that kill dozens of workers and endanger thousands in surrounding communities.  (Check out the home page of the U.S. Chemical Safety Board, the federal agency charged by the Clean Air Act with investigating the causes and prevention of chemical plant accidents.)  Accident prevention rules required by the Clean Air Act were finally about to come into effect this year.  But Pruitt snatched them away this June at the asking of the chemical industry, first for a couple of months, and then delaying them until 2019.  In the interim, Pruitt is expected to try to weaken or repeal these rules.  Labor and environmental organizations have gone to court asking for an order to quickly block the delay.

Coal Power Plant Water Pollution Standards Stalled Indefinitely

Pruitt has indefinitely stalled deadlines for coal fired power plants to meet clean water standards for their discharges of toxic metals and other pollutants, while he considers broad changes to the rule that industry wants him to make.  Pruitt claims unprecedented authority to suspend the existing standards while he mulls over those changes.  These tactics aren’t allowed under either the Administrative Procedure Act or the Clean Water Act.  Environmental organizations have sued to block Pruitt’s blatant evasion of the rule of law.

Landfill Pollution Limits Delayed for Years

Landfills leak methane and toxic and smog-forming pollution from decomposing trash.  Last year EPA updated landfill pollution standards for the first time since the 1990s.  Industry objected, and in May Pruitt suspended the standards, initially for 90 days.  At the same time, he’s preparing a much longer delay while he considers industry-proposed changes.  Neither move is legal.  NRDC and partners sued to block the initial stay, and we’ll oppose the extended one too.

Dental Mercury Pollution Limits Stalled – But EPA Gives Up After Lawsuit

In December EPA finished writing common-sense water pollution standards to cut annual discharges of five tons of mercury – a potent brain poison – from dental offices.  But the Trump White House blocked the rule, which hadn’t yet been published in the Federal Register.  NRDC sued, because duly-promulgated, publicly-issued standards can’t be yanked back just because they haven’t yet appeared in the Federal Register.  This is the only story so far with a happy ending.  Pruitt changed his mind after we sued and let this rule go forward in June.

See a pattern here?

It’s basic “rule of law” 101 that EPA Administrator Pruitt can change existing standards only through the same rulemaking process that it took to create those standards in the first place.  Make a proposal, hold public hearings and take public comment, and justify your decision on the law and the facts.

And it’s basic “rule of law” 101 that existing standards are supposed to remain in place, and companies are supposed to comply with them, unless and until they are duly changed through this rulemaking process.

With the barest exceptions that don’t apply here, the EPA Administrator may not yank existing safeguards out of operation while he mulls over changing them.  It doesn’t matter who is asking, industry or environmentalists.  He has no authority to do this.

But Scott Pruitt apparently thinks there’s one “rule of law” for him and another for the rest of us.

That’s why NRDC and our environmental and labor partners are taking Scott Pruitt to court, again and again.  We’re going to prove him wrong.  We’re going to make regulation regular again.

Originally posted here.

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