December 6, 2018

Time To Wake Up: The (Not So) Great Deregulator

As-prepared for delivery

Mr. President, as I rise for my 209th “Time To Wake Up” climate change speech, I return to a familiar subject: disgraced Environmental Protection Agency Administrator Scott Pruitt.  Not that long ago, I was here discussing the baker’s dozen of ethical scandals swirling around Pruitt.  From his $43,000 “cone of silence” phone booth, to the millions he’s spent on a 20-person security detail, to his lights-and-sirens escapades to fancy D.C. restaurant Le Diplomate, Pruitt has come to personify the swamp that President Trump promised to drain.

And he keeps on getting swampier.

In just the few weeks since my last speech on Pruitt, we’ve learned that he used one of his closest aides to plan his vacations, hunt for a Washington apartment, and, most bizarrely, solicit a used mattress from the Trump Hotel.  The aide did many of these tasks on government time, when she was supposed to be working for taxpayers, in clear violation of federal employment rules.  Federal rules also bar officials such as Pruitt from accepting gift from their subordinates, including these kinds of personal services, even on personal time.  We also learned, in a scene worthy of the finest banana republic, that Pruitt had his staffer approach the founder of the fast food chain Chick-fil-A about securing a franchise for his wife. 

As the New York Times recently wrote, “grifters gonna grift.”  But with all deference to the editorial writers at the Times, I would add that Pruitt’s actions aren’t just matters of grift – they also reveal his allegiance to the interests of his fossil fuel backers over the interests of the American public. My Republican colleague Senator Ernst of Iowa recently said that Pruitt’s efforts to undermine the Renewable Fuel Standard, including the abundance of waivers for refiners, amount to broken promises to American farmers.  “He is about as swampy as you get here in Washington, D.C.,” she said.

You would think that someone so corrupt would not be long for a president’s cabinet.  You would be wrong.  Just last week, in the face of all of Pruitt’s latest scandals, President Trump reaffirmed his support for his beleaguered EPA administrator, saying that the agency is “doing really, really well” under Pruitt.

The president doesn’t see anything wrong with someone as scandal-plagued as Pruitt in his cabinet.

What he can see is that the fossil fuel industry is solidly lined up behind Pruitt.  He’s got oil company interests and the front groups they fund telling him to keep Pruitt on the job because Pruitt is rolling back regulations polluters don’t like.

So let’s look at how well Pruitt is really doing for the polluters.

Case in point: Pruitt’s record in the courts.  A number of EPA’s regulatory actions—or its failures to regulate—have been challenged in the courts.  Republicans continue to rubber stamp Trump’s activist and extreme right-wing judicial nominees, but American courts remain a forum in which outright lies are not tolerated, and in which regulatory agencies such as EPA have to demonstrate the scientific, technical, economic, and legal basis of their regulatory decisions.  An agency whose political leadership dissembles or doesn’t do its homework won’t do well in court.

So how has Scott Pruitt’s EPA fared in the courts?

In two words: not well.  Our Environment and Public Works Committee Ranking Member Tom Carper recently released a report analyzing Pruitt’s record in court.  As you can see from this chart, 66 cases have been filed against Pruitt’s EPA in relation to ethics and transparency.  This will come as little shock, given Pruitt’s numerous ethical shortcomings.  Of the 14 of these cases that have already been decided by a judge, EPA lost 13 of them.  That’s a 7 percent “success” rate for Pruitt.   

The other 79 cases challenge EPA’s regulatory actions or inactions.  Now this is what he’s supposed to be there for—rolling back rules protecting public health and the environment to help his fossil fuel patrons.  This is why he still has industry support and is still running EPA, despite all the scandals. 

Of the six of these cases that have been fully reviewed by the courts, Pruitt’s EPA lost four of them, succeeded in delaying arguments on one, and got another dismissed on mootness grounds after withdrawing the challenged rule.  In other words, Pruitt is 0 for 6 before the courts when it comes to his regulatory rollbacks. As a former baseball player, Pruitt will understand it when I say he’s batting way below the Mendoza line.

The courts have blocked Pruitt’s attempt to delay the implementation of a rule curbing methane emissions from new oil and gas wells.  Methane is a powerful greenhouse gas that contributes to climate change.  The courts also blocked Pruitt’s effort to slow-walk EPA’s revision of lead paint standards.  Pruitt wanted another six years to revise them; the courts gave him 90 days.

Many of Pruitt’s biggest deregulatory actions, after a splashy announcement, have yet to be finalized, so they aren’t yet ripe for judicial review.  But even on these rollbacks, Pruitt is making mistakes which will provide ample ammunition in court for those suing to protect environmental standards.

Take Pruitt’s rulemaking to rescind the Clean Power Plan, President Obama’s blueprint to reduce carbon emissions from the power sector.  As Oklahoma Attorney General, Pruitt sued three times to block the Clean Power Plan.  He has a long record against the Clean Power Plan in the press, at industry conferences, and on social media.  Many of the same fossil fuel industry donors who have bankrolled Pruitt’s political career are suing to block the Clean Power Plan.

America’s rule of law provides that those interested in an agency rulemaking “have a right to a fair and open proceeding; that right includes access to an impartial decision maker.”  Here, given Pruitt’s strident opposition to the Clean Power Plan as Oklahoma Attorney General, combined with his close financial and political ties with the industry opposing it, can there be any doubt that Pruitt possesses an unalterably closed mind when it comes to the Clean Power Plan?  Courts should take notice. 

Then there’s Pruitt’s effort to exclude certain scientific studies from consideration in rulemaking.  Pruitt claims it’s to boost transparency.  It’s really an effort to boost two industries that are big donors to his political operations: fossil fuels and tobacco.  For decades, these industries have pushed to prevent regulatory agencies from considering scientific studies that rely on confidential medical records.  Blocking that evidence is a way to screen out damning evidence of the effects of tobacco smoke and air pollution on human health.

Even Pruitt’s own Scientific Advisory Board isn’t buying it.  He rebuffed the Board’s request for information about this proposed rule and issued it without the Board’s input.  When he claimed that his proposed rule was consistent with the positions of various scientific journals and groups, those journals and groups were quick to correct the record.  And EPA’s Scientific Advisory Board just voted unanimously to review the policy anyway. 

You might think such a rule may also exclude some industry-funded studies, but never fear!  Internal emails obtained by the Union of Concern Scientists show that Pruitt’s lackeys, themselves former industry lobbyists, knew they had to make sure industry studies could still be considered by EPA, and . . . sure enough!  The proposed rule lets the administrator include any study he likes regardless of what the rule may require, opening a safe harbor for industry influence.

All this sounds pretty “arbitrary and capricious” to me.  And that, by the way, is the legal standard courts will use to evaluate any challenge to this rule. 

Pruitt’s drive to weaken fuel economy standards also looks to be on shaky legal ground.  The 38-page document he filed in April announcing his intention to roll back 2012 auto fuel efficiency standards is devoid of the type of serious, detailed analysis typically necessary for such a rulemaking.  Half of the document is quotes from car companies objecting to the rule.  Compare that to the 1,217-page document the Obama administration issued to justify the standards.  It was chock full of scientific, technical, and economic analyses.  Once again, Pruitt’s “work” looks pretty arbitrary and capricious to me.  Short on facts, long on giveaways to favored industries.

It’s entirely understandable, Mr./Madam President, that the interests to which Pruitt is beholden would be fighting for him to keep his job.  For them, running the agency into the ground is a feature, not a bug, of the Pruitt tenture.  They’re just in it for the rollbacks.

But do they recognize that a lot of Pruitt’s work is sloppy and may not ultimately stand up in court?  Does President Trump understand that the guy he thinks of as his Great Deregulator isn’t actually very good at deregulating? 

Only time will tell how long how long Scott Pruitt can survive the mounting ethical ordeals of his own making.  And we will see how his industry-friendly regulatory record fares in the courts.  But something tells me that I’ll be back here in the not-too-distant future, with more to say about the troubled tenure of Scott Pruitt. 

I yield the floor.