By John Walke, Natural Resources Defense Council
The Trump EPA is reversing clean air enforcement positions against coal-burning power plants that EPA has taken and that federal courts have upheld not once, but twice. Moreover, the Trump administration promises EPA enforcement relief to all industrial polluters covered by a Clean Air Act program designed to ensure industries control their increases in harmful air pollution. These retreats, along with other reversals in EPA practices, reflect the Trump administration granting effective amnesty from legal requirements that protect Americans and uphold the Clean Air Act.
All of these reckless steps are taken in a memorandum from EPA Administrator Scott Pruitt that EPA quietly released after hours on the same day that Pruitt appeared before a congressional oversight committee for the first time since taking office. He made no mention of the enforcement reversals or attacks on clean air safeguards during his testimony.
In Pruitt’s memo, EPA effectively adopts the position of a coal-burning power plant defendant in a clean air enforcement case, DTE Energy, represented by the same law firm where the political head of EPA’s clean air office worked before the Senate confirmed him last month. Pruitt announces EPA will exercise its “enforcement discretion” not to enforce the Clean Air Act against not just power plants, but all industrial polluters, that fail to properly project how much they will increase harmful air pollution following construction projects. The Trump EPA is reversing course on enforcement stances that EPA is taking in lawsuits today, including in cases where federal courts have sided with EPA and against defendant positions that the Trump EPA now adopts.
The Trump EPA enforcement retreat amounts to permission for industrial polluters to commit fraud and make false projections about their increased emissions, so long as those projections are “procedurally” adequate—even if they are substantively bogus and ultimately harmful to air quality. EPA specifically promises polluting lawbreakers it does not intend to enforce the law against failures to perform “required” air quality analysis, or failures to follow emissions calculation requirements. Memo at 8. What’s most remarkable is EPA is presently in court enforcing against Clean Air Act violations that led the Trump EPA Administrator to issue a memo saying, “Never mind. We won’t enforce against that lawbreaking from now on.”
Equally remarkable, the central promise and approach of Pruitt’s memo—that EPA will not “second guess” polluters—is precisely the approach that a federal appellate court has characterized as a straw man. In the second U.S. v. DTE Energy case, the federal appeals court wrote that “the focus on so-called ‘second-guessing’ is misplaced,” because obviously EPA may bring enforcement lawsuits to challenge a company’s improper emissions projections. The court continued by noting “the EPA definitely is not confined to a ‘surface review’ or ‘cursory examination.’” The Pruitt memo confines EPA enforcement to just those indefensible failings, in a concerted political effort to obstruct EPA enforcement against companies’ improper air pollution projections. Pruitt says archly that “the court decision does not compel the EPA to pursue enforcement in such situations.” EPA won’t pursue enforcement at all, you meddlesome judges.
Pruitt’s action plainly is meant to sabotage the ongoing clean air enforcement case against DTE Energy. Worse, Pruitt openly disavows the possibility of similar enforcement cases against other industrial polluters during the Trump administration. Pruitt promises that “EPA does not intend to pursue new enforcement cases in circumstances such as those presented in the DTE matter.” Enforcement sabotage, through and through.
I confess I’m struggling to convey just how reckless this Pruitt memo is. At one point, the memo “clarifies” the EPA regulations to mean that when a company projects emissions increases and follows procedural requirements, EPA will not challenge false or wrong or even fraudulent projections unless there is “clear error” in application of the procedures. Forget the substance of the projections—the intended or actual air pollution increases. Nothing in the Pruitt memo says that a company’s projection of pollution increases needs to be right or even reasonable; indeed, the clear import is polluter projections need be neither.
The only example of a “clear error” exception in the Pruitt memo is applying an incorrect number in the regulations during those procedural steps; applying the right number during the procedural steps and giving that piece of paper to the government suffices, even if the company’s pollution projection is manipulated, unreasonable, wrong or it results in unlawful air pollution increases.
Moreover, the memo goes out of its way to reverse EPA’s regulatory and enforcement practice to allow companies to purport to “manage” projected air pollution increases to prevent significant increases, but to do so in completely unenforceable ways. EPA to date has not recognized unenforceable industry claims, for the simple reasons that there is no way to ensure that companies have been or will be controlling pollution in the way they claim, and no way to enforce any failures to control pollution increases after the fact. Incredibly, the Pruitt memo says that the mere “intent” of a company to manage emissions increases—notwithstanding failure to do so—is good enough for government under the Trump administration. Memo at 6. Enforcement sabotage, through and through.
These are upside down approaches to how Americans should expect EPA to enforce clean air protections to protect U.S. air quality.
This is not simply capitulation by the Trump EPA. It is abdication of EPA’s law enforcement responsibilities to uphold the law against polluters that may be knowingly breaking the law, and that EPA believes may be breaking the law. Administrator Pruitt says that matters not—procedural niceties will suffice, and EPA will not “second-guess” those polluters through inquiry or disagreement.
By effectively promising industrial lawbreakers that EPA will not enforce certain Clean Air Act requirements, Pruitt’s memo represents a Trump administration attempt to grant amnesty from these requirements. The memo uses coded language about what EPA will “focus on” and what EPA “does not intend to pursue” to bless activities that the law considers violations. As noted, the memo even “clarifies” what the EPA regulations mean, re-casting those regulations to mean something they do not say.
Pruitt’s memo predictably uses boilerplate language that EPA includes in memos when the agency wants to let regulated industries rely on winked agency promises of deregulation, at the same time that EPA wishes to be immune from citizen lawsuits to uphold the law, and immune from judges reviewing improper final agency action that breaks the law. It’s especially perverse for an EPA Administrator that testified in Congress in the morning against the evils of EPA guidance documents, to turn around in the evening and issue a guidance document that deregulates clean air responsibilities and promises to abdicate EPA’s duty to enforce the law.
But the perversity goes well beyond that: in 2002, the Bush administration EPA weakened the clean air regulations at issue here, to insert loopholes and exemptions that let industry increase harmful air pollution significantly and evade any modern pollution controls to reduce emissions. A central author of those 2002 Bush EPA clean air rollbacks was a former industry attorney named Bill Wehrum. Mr. Wehrum left EPA to join the law firm of Hunton & Williams, where he and his colleagues represented coal-burning power plant companies. But wait, it gets better (pronounced worse). Among the power plant companies that Hunton & Williams represents is DTE Energy, the defendant in a Clean Air Act enforcement case that sought to exploit one of the loopholes Mr. Wehrum added to weaken the clean air regulations. The DTE Energy clean air enforcement case is the driving force, and the high profile enforcement retreat, at the heart of Mr. Pruitt’s memo.
And Mr. Wehrum? Now he is the political head of the Trump EPA air office tasked with carrying out these clean air regulations. Mr. Wehrum’s name does not appear on Pruitt’s abdication memo. Presumably, the DTE Energy case appears on a list of matters from which Mr. Wehrum recused himself. He should have. Nevertheless, the public deserves to know what role, if any, Mr. Wehrum, Hunton & Williams, and/or DTE Energy played in producing this Trump administration give-away to polluting industries.
For good reason, law enforcement agencies like EPA rarely issue so-called “enforcement discretion” guidance that promises not to enforce some aspect of federal law: these promises undermine the Rule of Law and the public’s confidence in law enforcement; they threaten the concerns and rights protected by the law, such as clean air & Americans’ health; and in their worst form, these promises can suggest a sordid collusion of interests with corporations that skirt the law. As a Reagan administration EPA policy put it, enforcement discretion promises “may erode the credibility of EPA’s enforcement program by creating real or perceived inequities in the Agency’s treatment of the regulated community.” That Reagan-era enforcement policy still stands, and it is a testament to why enforcement discretion promises are highly unusual.
At EPA, there is a specific enforcement office process for issuing what are called “no [enforcement] action assurances” to specific facilities, in specific situations, based on case-specific circumstances. The Trump EPA has issued “no action assurances,” for example, ‘for the import of power generators to be donated for use in communities impacted by Hurricanes Harvey and Irma in Texas and Florida, to assist in recovery efforts.’ But proper EPA “no action assurances” promising the exercise of “enforcement discretion” ordinarily are issued by the highest-ranking official of EPA’s Office of Enforcement and Compliance Assurance. See, e.g., here. At the very least, EPA policy dating to 1984 requires the “advance concurrence” of the enforcement office.
Pruitt’s “enforcement discretion” memo represents a form of “no action assurance” that differs from any I have previously seen in several highly unusual, even unprecedented ways. First, I know of no other EPA “enforcement discretion” guidance that was issued in the middle of a pending enforcement case against a corporate defendant accused of the very failings that the agency says it will turn a blind eye to, henceforth.
Second, the added insult to injury here is federal courts twice have sided with the legal views of EPA enforcement officials prosecuting these failings, while rejecting the defendant’s contrary views.
Third, I am unaware of any “enforcement discretion” promise or no action assurance signed by the EPA Administrator. Pruitt’s decision to do so clearly is intended to assure corporations that EPA’s enforcement retreat and grant of amnesty enjoy the highest level of political support. Amazingly, the memo even goes out of its way to trace that high level political support all the way back to President Trump. Pruitt says his memo is consistent with an agenda to “reduce burden on regulated sources in accordance with recent Presidential actions,” citing a Trump executive order and memo to ‘reduce regulatory burden’ and ‘enforce regulatory reform.’
Fourth, here’s an insider observation from my days working as an EPA attorney: it is extraordinary, possibly unprecedented, for EPA to issue an “enforcement discretion” assurance that omits the name of even a single official from EPA’s enforcement office. Pruitt is the memo’s author, the addressees are Regional Administrators, and the only two officials copied on the memo are Pruitt’s chief of staff and the political deputy to the head of EPA’s air office, Bill Wehrum. Interesting.
An already-miserable memo ends, aptly, on a foreboding note. In the memo’s last paragraph, Pruitt observes that states are approved by EPA to carry out the clean air program in question. He goes on to say, however—cue ominous film soundtrack—that if EPA “later determine[s] that the [clean air program] approved [by EPA] is deficient, the EPA has authority. . . to call for a state to revise its regulations.” This none too subtle threat signals that states that fail to follow the Trump EPA rollbacks could face demands by EPA to weaken state regulations.
These outrageous Trump EPA actions raise a host of questions that Americans deserve the answer to: Were Mr. Wehrum’s former law firm, Hunton & Williams, DTE Energy or any other non-governmental parties involved with this memo or the process that led to it? What about Mr. Wehrum, or his deputy? Who helped write the memo? Did EPA’s enforcement office write it? Were they consulted about it? If so, in what capacity and when? Were EPA and Department of Justice lawyers prosecuting the case against DTE Energy and handling its appeals, involved or consulted? What about enforcement officials in EPA regional offices, where power plant cases often are prosecuted? And EPA’s Office of General Counsel, what roles, if any, did it play in this fiasco? Has EPA assessed how much harmful air pollution could increase from Administrator Pruitt’s effective grants of amnesty and abdication of law enforcement duties?
Many more questions and concerns are certain to emerge about the Trump administration’s abdication and other reckless actions described here.
NRDC will submit a Freedom of Information Act Request to EPA to obtain all records associated with this sordid transaction. Congress and EPA’s Office of Inspector General also should investigate these deeply troubling actions.
Finally, NRDC will consider challenging Administrator Pruitt’s action in court. An agency like EPA may not issue guidance that relieves regulated industries of legal obligations, unless the agency first undertakes notice-and-comment rulemaking that provides the public fair opportunities to comment and oppose unlawful or harmful actions. The Trump EPA did not do this.
In the meantime, nothing in the Administrator’s action stops states, public health and environmental groups, and ordinary citizens from bringing enforcement lawsuits to uphold clean air protections that the Trump administration proclaims it will not.