Donald Trump’s pick to lead the Environmental Protection Agency will be in a tricky spot on Day One. In the five years since he became Oklahoma’s attorney general, Scott Pruitt has used his legal authority to file or join at least 13 lawsuits against the agency, fighting back on regulations of emissions and air and water quality.
If approved as head of the EPA, Pruitt will be in the conflicted position of defending — or not defending — the agency against the eight lawsuits that are still pending, including one that seeks to strike down President Obama’s Clean Power Plan rules.
Although no laws bar Pruitt’s appointment, the naming of a person in active litigation against a federal agency to lead that agency is unusual and possibly unprecedented. “I’ve been racking my brain to come up with something,” said Seth Davis, chair of the American Bar Association Section of Environment, Energy and Resources. “I’m not saying there aren’t any cases, but I have not thought of one.”
While the American Bar Association code of conduct advises attorneys against representing clients when a conflict of interest arises, as soon as Pruitt takes over as head of the EPA, the new Oklahoma attorney general will continue representing the state in the pending cases.
Jack Lienke, senior attorney at the Institute for Policy Integrity at New York University, also struggled to recall a situation quite like this one. “I cannot think of a precedent, but I would be surprised if this were the first time,” he said. “It’s not that uncommon in our nation’s history for someone from the industry that an agency regulates to be appointed to head that agency. I find it hard to believe that this has never happened, but maybe not to this extent.”
If Pruitt is confirmed, it could mean the EPA stops fighting the suits, including a challenge to the Clean Power Plan, which sets pollution standards for power plants and statewide goals for cutting carbon pollution.
Right now, that case is headed to a 10-judge D.C. Circuit panel that will decide the legality of the Clean Power Plan regulations. If the panel sides with Oklahoma and the 27 other states that oppose the EPA rule, the agency could decline to appeal the case to the U.S. Supreme Court. That’s similar to what happened when the Obama administration declined to appeal the decision against the Defense of Marriage Act in 2015, which Bill Clinton signed into law despite his criticism that it was unnecessary and divisive.
To avoid scrutiny about Pruitt’s former role on the other side of the lawsuit, according to Davis, the EPA could remove him from the decision-making process when they choose to appeal or not. As for the other pending cases, the EPA could request that the courts send those rules back to the agency for revision.
But the Clean Power Plan case — and others like them — don’t necessarily need the EPA’s approval to move forward to the Supreme Court. “Even if the new administration decided they didn’t want to pursue, there are other parties that could continue the courtroom fight on behalf of the rule,” said Lienke.
Groups that could keep fighting to defend the plan include 18 states, the American Lung Association, industry groups like National Grid, and dozens of cities and counties across the country.
If the judges in the D.C. Circuit rule in favor of the EPA and uphold the Clean Power Plan rule, then the opposing states, including Oklahoma under a new attorney general, could also still appeal to the Supreme Court.
But Trump’s and the Republican-controlled Congress’ opposition to the Clean Power Plan makes Pruitt’s lawsuit less meaningful. The new administration could try to reserve the rule using the same process the EPA used to create it.
If Trump succeeds, that would mean all of the states, industry groups, and organizations currently defending the Clean Power Plan could open up a new lawsuit similar to the one the current rule faces. It would be a similar legal attack opponents are currently engaged in — only from supporters of Obama’s rule against the new administration.
“The thing to be looking for is a new rulemaking,” Davis said. “The government doesn’t want this new Clean Power Plan. They are going to want a change in direction.”