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EPA Adminstrator Scott Pruitt: “The Days Of ‘Sue And Settle’…Have Ended.”

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EPA Administrator Scott Pruitt joined me this morning:




HH: Aside from President Trump, the man who is doing the most on the domestic policy agenda in Washington, D.C. is the administrator of the Environmental Protection Agency, Scott Pruitt, formerly the attorney general of Oklahoma, and a longtime friend of mind. You heard me say over and over on this program how excited I was that he was nominate, how hopeful I am for what he does at the EPA. He joins me now for the first time in his position as administrator of EPA. I’m going to have to get used to calling you Administrator Pruitt as opposed to General Pruitt, General Pruitt. Welcome, good morning.

SP: (laughing) Well, good morning to you.

HH: You are making the New York Times’ head explode, you and the President. And I want to, instead of focusing on the reaction, ask you first to state what has EPA done on two things – the Clean Power Plan and the Waters of the United States?

SP: Well, we have taken two very significant steps. We’ve started the rulemaking process to provide clarity and regulatory certainty with respect to WOTUS, Waters of the United States, and the Clean Power Plan. I mean Hugh, as you know, both with respect to the WOTUS and the Clean Power Plan, the courts have intervened, unprecedented. The U.S. Supreme Court issued a stay against the Clean Power Plan because of its likely unlawfulness. The previous administration reimagined its authority under the Clean Air Act to regulate CO2 with stationary sources in a way that just isn’t consistent with the framework that Congress passed. And with WOTUS, the Waters of the United States, this agency went out and reimagined the definition of what a water of the United States equals so it included puddles and dry creek beds all over the country. It was a power issue. Really, both of these issues were about power. It’s about displacing state authority, displacing the oversight that states have in industry as far as providing clean air and clean water, and trying to make all decisions from here in Washington, D.C. So we have begun a progress on both fronts to undo, rescind, dial back those unlawful actions and to provide clarity to the marketplace.

HH: Now Administrator Pruitt, I want to remind people you were an attorney general. You are a sworn officer of the law. You know what you are doing. And what you are doing is via the rulemaking process, the Administrative Procedures Act. Will any regulatory move you make, will you commit that it will be done via notice and comment rulemaking appropriately under the APA and not in the cover of darkness, not a 30 second strike with a phone and a pen?

SP: Absolutely. In fact, one of the things we’ve done internally, Hugh, is send a memo out to our regions and also to headquarters to say that the days of sue and settle, the days of consent decrees governing this agency where the EPA gets sued by an NGO, a third party, and that third party sets the agenda, sets the timelines on how we do rulemaking, and bypassing rulemaking entirely have ended. And we’ve sent that out across the agency.

HH: Now can we pause on that, because although some conservatives might want to rush forward, and I am actually attracted to sue and settle on some, because of the Endangered Species Act, the ridiculous abuse. But I can set it aside if we publicly set it aside and explain to people why the rule of law compels that. So take a swing at that, if you will, Administrator Pruitt.

SP: Well, I mean, look, the Congress has adopted the Administrative Procedures Act for a reason. When regulators make decisions in Washington, D.C. that impact citizens and industry across the country, we need to hear from them. We need to understand how it’s going to apply in Texas and Oklahoma and Kansas, and all over the country. And so it’s an opportunity. When you file a rule, it’s a proposed rule, and you take comment for a period of time, and it’s the obligation of the agency to respond to that comment, to deal with those issues that are raised by respective states and citizens and industry across the country And then you finalize the rule with that information in hand. When you use the courts, you know, when someone sues, a third party, and NGO, Sierra Club or otherwise, sues the EPA and then the EPA outside of the regulatory process enters into something called a judgment consent decree and then changes statute, changes timelines, changes obligations under a statute. That’s regulation through litigation. That’s an abuse of the process. And whether it’s for conservative causes or liberal causes, that’s still a breach of the process and should not be done.

HH: You see, that is originalism, and I want now to compliment whoever on your team, and if it was you, you, for coming up with the idea of EPA originalism, because the Clean Power, the Clean Air Act, the Clean Water Act, the Endangered Species Act, the National Environmental Policy Act, are all Republican-authored laws…

SP: Yes.

HH: …put forward by Richard Nixon and signed by Richard Nixon in order to advance the Teddy Roosevelt conservationist cause. But they’ve gone far beyond their boundaries, like the Waters of the United States rule on puddles contravening even the Rapanos decision issued by, you know, if you use Justice Kennedy’s opinion, the narrowest view. It’s out of control, and I don’t think the country quite gets what EPA originalism means and how important it is.

SP: No, you, I really appreciate you saying that, because the core mission of the EPA is very important. There are air quality issues. There are water quality issues that cross state lines, and the importance of being that national agency that ensures that we are respecting those kinds and focused upon those kinds of that relief is very important and a key mission of the EPA. But what’s happened in the last several years, as I indicated earlier, is a reimagining of authority, an assertion of authority and power that is just inconsistent with the framework. You mentioned, you know, process and how important that is. The rule of law is the other part that’s very important, Hugh, because really what you’re saying is that Congress has spoken and said EPA, you have this authority under the Clean Water Act. You have this authority under the Clean Air Act, and the TSCA and all these other types of environmental laws have been passed, but no more. And you should work with the states and partner with them to achieve those outcomes. What’s happened over the last several years is just simply a disregard of that, and that’s what we’re trying to get back to.

HH: Congressman Henry Waxman was so adamant about trying to pass a global warming climate change bill, and his own caucus rebuked him and would not send it forward, and the Senate would not accept it, and it is not the law. And so President Obama put forward the Clean Power Plan, which I believe is deeply illegitimate because of the fact it followed the rejection of the effort to pass a law. But you, you know, the environmental reporter club really doesn’t want to hear that, Administrator Pruitt. Are you able to get the message through that you’re about the law, not about their policy agenda?

SP: Yes. I mean, Lord Acton talked about political atheism, and that’s exactly what you’re describing, is that results are all that matter to these groups. Process and rule of law should be disregarded. And that’s something that we have to, you know, what happens when you take that approach? Well, what we’ve had in the last several years – uncertainty. You’re not advancing the environment. You’re not actually advancing clean air and clean water, because when you do those things, you have litigation. Litigation causes uncertainty in the marketplace. Those that are regulated don’t know what’s expected of them, so they can’t invest and meet the obligations to achieve clean air and clean water. So it’s a mess. And so really what happened yesterday with the Clean Power Plan is cleaning up the mess, you know, clearing the decks, if you will. We’ve begun that process to rescind that type of approach, and then set a new path forward. You know, you mentioned CO2, Hugh. I mean, there are two major points on the continuum. Massachusetts V. EPA, a Supreme Court case in 2007 that said what, that the EPA had to make a decision on whether to regulate CO2, not that it had to, but it had to make a decision whether it should. And then in 2009, there was an endangerment finding that was issued by this agency. The Congress has never spoken on this issue. And so there’s a very fair and fundamental question that needs to be asked. Are the tools in the toolbox to address the CO2 issue? This agency has tried twice to do so – the tailoring rule, which was struck down in the UR decision, and the Clean Power Plan, which the Supreme Court issued an unprecedented stay to stop its enforcement. So those questions have to be asked and answered. Those in Congress that believe that this is a priority issue perhaps need to reevaluate the authority under the Clean Air Act and see if it actually the tools are in the toolbox. But we’re going to have a very humble view of our actions under the Clean Air Act. We’re going to operate within the framework, respect state interest and partnership, and achieve very tangible outcomes on the environment for both air, water and land.

HH: You know, Administrator Pruitt, this is why the left does not like you very much, is you are very articulate in putting this forward and very persuasive in your defense of it. And therefore, they’re going to come after you hammer and tong. And I know you know that, but they’ve been doing that for years. Tell me about your relationship with President Trump. You’ve been in the Oval a lot with him talking about this stuff. Is he fully committed to this regulatory reform agenda to get back to the rule of law?

SP: Yeah, every time the President sees me, he says you’re cleaning out the arteries. So, and look, we can be pro-growth, pro-jobs and pro-environment, and that’s what he and I have talked about. And only this past administration made us choose sides. And each administration prior recognized that America is wise enough, innovative enough, committed enough to the environment. Wealthy nations take care of the environment. So as we promote growth, as we promote wealth, as we become more wealthy as a country, we take better care of the environment. We can do both. You know that old saying you can’t have your cake and eat it, too? Whoever says that doesn’t know what you’re supposed to do with cake. And that’s what we’re focused on, Hugh, is making sure we have a pro-growth, pro-jobs agenda, and a pro-environment agenda, and we can achieve both.

HH: And I would add a pro-rule of law agenda. This actually transcends EPA, but you are part of this. It’s that we just have to have everyone realize the Congress writes the laws, not agencies, 45 seconds to you, Administrative Pruitt.

SP: Well, it’s 5th grade civics. I mean, it really is 5th grade civics. The executive branch exists to enforce the laws as passed by whatever legislative body, whether it’s at the state level or the federal level. And we don’t have the authority to fill in the gap. We don’t have the authority to pinch hit for Congress. We don’t have the authority to reimagine our authority under the Clean Air Act or Clean Water Act. So getting back to the core mission of the agency, providing very tangible relief to those across the country, 1,300 Superfund sites across the country that need cleanup, some of which have been on a national priority list for 30-40 years, it doesn’t sound like much of a priority list to me. So you know, the port of Portland and Butte, Montana, and Columbia Falls, Montana, I mean, some of the most pristine areas of our country, let’s get back to the business of providing real tangible environmental benefits at the same time respecting rule of law.

HH: Scott Pruitt, great to talk to you. Come back early and often, Administrator Scott Pruitt of the EPA.

End of interview.


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