By Ken Kimmell, Union of Concerned Scientists
One well-reported thing about Scott Pruitt, President-elect Trump’s nominee for EPA Administrator, is his penchant for filing lawsuits to block the EPA from enforcing clean air, clean water and climate regulations, rather than suing polluters in his own state of Oklahoma.
This alone ought to provide ample grounds for rejecting his nomination. But a closer look at these lawsuits and the legal arguments Pruitt has advanced (or signed onto) tells an even more disturbing story. The legal arguments are disingenuous, often unprincipled and extreme, and display an unfortunate strategy of saying just about anything to win a case.
Consider these three examples.
Pruitt takes on climate scientists: the 2010 lawsuit challenging the EPA’s “Endangerment” finding
In 2009, the EPA made a long overdue, and wholly unremarkable finding that greenhouse gas emissions from the combustion of fossil fuels may endanger public health and welfare. In this finding, the EPA acknowledged the overwhelming consensus of the scientific community and the multiple lines of independent evidence supporting this conclusion.
While the finding broke no new ground scientifically, it was important legally: when the EPA finds that a pollutant endangers public health or welfare, the Clean Air Act requires the EPA to regulate sources of that pollutant. In this case, that meant power plants, cars, trucks, and other sources that combust coal, oil, and natural gas.
To stop such regulation in its tracks, Scott Pruitt filed a lawsuit to overturn the endangerment finding, which he and his fellow litigants characterized as “arbitrary and capricious.” Believe it or not, Pruitt’s primary argument was that the EPA should not have relied upon the multiple reports on climate change issued by the Intergovernmental Panel on Climate Change (IPCC)(established by the United Nations which synthesizes the work of thousands of scientists), the US Climate Change Science Program (CCSP) (a Bush administration body of 13 federal agencies that issued 21 reports on climate change), and the National Research Council (NRC)(the research arm of the National Academy of Sciences).
Pruitt’s legal brief never quite explains what is wrong with relying upon the world’s most prominent experts, but it claimed that the EPA in effect wrongly delegated its decisionmaking to these bodies.
Here are the rather sharp words the court used when it unanimously dismissed this claim:
This argument is little more than a semantic trick. EPA simply did here what it and other decisionmakers often must do to make a science-based judgment: it sought out and reviewed existing scientific evidence to determine whether a particular finding was warranted. It makes no difference that much of the scientific evidence in large part consisted of “syntheses” of individual studies and research. Even individual studies and research papers often synthesize past work in an area and then build upon it. This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question [emphasis added][Page 27]
Take a moment to digest this: the person nominated to head the EPA sued that agency because it relied upon the work of the world’s most knowledgeable scientists when making a finding regarding the most important scientific question of our lifetime—whether humans are causing global warming.
Pruitt’s lawsuits to block mercury reductions using a rigged cost-benefit analysis
Mercury has long been known to be one of the most potent neurotoxins: ingestion of even very small amounts can have devastating effects, particularly on children. Coal and oil-fired power plants are responsible for more than 50 percent of the mercury emissions in the United States, which travel long distances and deposit in water bodies, leading to ingestion by fish and humans who consume fish. There is effective technology that many power plants use to control mercury and other toxic pollutants, but approximately forty percent of existing power plants do not use it.
In 1990 Congress amended the Clean Air Act to specifically authorize the EPA to address mercury emissions (and other air toxics), but no progress was made due to EPA delays and litigation. In 2011, the Obama Administration issued a rule to cut mercury emissions from power plants.
The rule required approximately 40 percent of existing power plants to install the same proven controls that the other 60 percent had already adopted.
The EPA estimated that it would avert up to 11,000 premature deaths, 4,700 heart attacks and 130,000 asthma attacks every year.
Scott Pruitt and others launched a lawsuit to prevent the EPA from cutting mercury and toxic air pollutants from power plants. He scored an initial victory on a technicality—the EPA had failed to consider cost of regulation at the preliminary stage when it was considering whether to regulate mercury. (I call this a technicality, because the EPA did perform a formal cost benefit analysis at the later stage when it issued the regulation).
The EPA subsequently complied with the court order and used an updated analysis to support the rule. The analysis showed “monetized” benefits of between $37-90 billion versus a cost of $9 billion.
Unsatisfied, Pruitt filed a second lawsuit, this time taking aim at the cost benefit analysis. As was the case with the endangerment finding, Pruitt’s attack led with an absurd argument – this time about cost benefit analysis.
When the EPA tallied up the costs of the regulation, it included direct costs, like the cost of installing the pollution control, and indirect costs, like higher electricity prices. Similarly, when the EPA calculated the benefits of the regulation, it considered direct benefits, like improved public health from mercury reduction, but also indirect benefits, like reductions in other pollutants such as smog and sulfur dioxide because the pollution control technology used for mercury also reduces these pollutants.
Pruitt’s new lawsuit claims that the EPA cannot consider these “co-benefits.” Instead, he contended that the EPA should only be allowed to count the benefits from mercury reduction. His argument makes no sense—the whole point of cost–benefit analysis is to determine whether an overall societal benefit of a regulation exceeds its overall cost. And nothing in the Clean Air Act or in past practice requires the EPA to use blinders when judging the benefit. In fact, for years, under both political parties, the EPA has factored in “co-benefits” and federal guidance on cost-benefit analysis calls for it to be included.
The court has not yet ruled on this specious claim, but it did reject a request to put the rule on hold while it sorted the question out, suggesting the court’s early skepticism of the argument’s merit. Regardless of the ultimate ruling, the bottom line in the case is this: Pruitt indefensibly favored economic analysis of regulations that considers all of their costs, but only some of their benefits.
Pruitt’s interstate pollution lawsuits reveal further hypocrisy
It is revealing to note that, at the same time as Pruitt was suing the EPA to count all the costs (but not all the benefits) of its mercury ruling, he also argued against factoring in costs in a separate lawsuit that sought to block an EPA rule that prevents upwind states from sending their pollutants to downwind states in such quantities as to cause the downwind states to exceed heath-based pollution concentration limits.
By way of background, the EPA has tried for years to address the problem of interstate air pollution, but it is fiendishly complex. Many upwind states emit pollutants to multiple downwind states, many downwind states receive pollutants from multiple upwind states, and some states are both upwind and downwind states. Thus, it is difficult to devise a formula to fairly and effectively apportion responsibility.
In 2011, the EPA crafted a “Transport Rule” to address the problem. They conducted extensive analysis of the costs involved to determine how expensive it would be, per ton of pollutant reduction, to ensure that upwind states do not cause downwind states’ air quality to exceed federal standards. They then gave each upwind state a pollution “budget” for the state to use to reduce the pollutants that were wafting beyond their borders, based on this “cost per ton” reduction benchmark.
Scott Pruitt and others challenged this rule, arguing—believe it or not—that costs of compliance should not be the yardstick, arguing instead for an approach that would have been nearly impossible to administer. Not surprisingly, in a 6-2 vote, the Supreme Court rejected his attack.
The bottom line in this case is this: the EPA focused on a problem that states can’t solve on their own (interstate air pollution). They solved the problem using a cost-effectiveness benchmark that is fair to all states, and that conservatives profess to favor. Pruitt’s attack on this approach demonstrates an abandonment of conservative principles in the service of what appears to be his ultimate objective—stopping regulation.
Opposing science to block regulation
Pruitt’s lawsuits clearly demonstrate that he is against regulation, particularly of the oil and gas industry. That much we already knew. But when one looks at the actual cases he has filed and the legal arguments he has advanced, one sees something even more disturbing—a disrespect for science, a penchant for a rigged method of performing cost-benefit analysis, and a lack of interest in helping to police the problem of interstate air pollution—which clearly must be done at the federal level.
This all adds up to someone who uses the law to block good science. This is not acceptable, particularly for the head of the EPA. And that is why I, and twelve other former state environmental protection agency heads, have signed a letter opposing this nomination.