How Pruitt’s EPA Is Delaying, Weakening and Repealing Clean Air Rules

It is a seemingly pro-environment promise in an administration with almost none of them.

In speech after speech, Scott Pruitt, the administrator of the Environmental Protection Agency, has vowed to double down on a pledge to improve America’s air and water. He’s promised to do so by working with states and following the “rule of law.”

“Let’s get back to the fundamentals of what we should be about as an agency,” he declared to supporters at this year’s Conservative Political Action Conference.

Pruitt has repeated the promise even as the EPA has been leading a unprecedented unraveling of not just climate regulation, but of the agency’s basic clean air and water mandates. Under Pruitt, the EPA has ignored or denied pleas from several states to address ground-level ozone, or smog, a pollutant at the core of the agency’s work since its inception 48 years ago.

Days before Pruitt’s CPAC speech, the EPA rejected a petition from Connecticut to cut smog pollution from a coal-fired power plant in Pennsylvania that’s been one of the largest sources of East Coast smog. It was the seventh time Pruitt denied or missed a deadline to act on state petitions over smog from coal-fired plants.

“EPA should be in favor of those things we’re asking here in Connecticut, which is to protect the health of our most vulnerable populations—the sick, elderly, and children,” said Robert Klee, commissioner of the state’s Department of Energy and Environment. “We’re trying all the legal means that we have at our disposal, and we keep getting the door slammed in our face.”

Over the past 13 months, Pruitt’s EPA has taken at least 15 major actions on air pollution—all to delay, weaken or repeal protections, and all opposed by the American Lung Association and other health groups—according to an analysis by the office of Sen. Jeff Merkley (D-Ore.). The list includes the Clean Power Plan, the Obama administration’s signature initiative to address climate change, which also would dramatically reduce smog, particulate matter, mercury and other dangerous air pollutants by slashing the amount of coal the country burns.

Eliminating or diluting clean-air protections has been a target of fossil fuel companies and their allies, despite numerous analyses showing that the Clean Air Act has provided trillions of dollars in health and economic benefits that far exceeded the cost of regulation—including averting tens of thousands of premature deaths. The White House’s own draft analysis of clean air regulations enacted between 2006-2016 found that their benefits to human health have outstripped the costs by at least 4-to-1.

“They are in such a mad rush to suspend regulations that are in effect, or to delay implementation of regulations that were duly promulgated that they don’t like—which I would characterize as anything protective of environment and public health—that they just go ahead and do it,” said Mitch Bernard, chief counsel for the Natural Resources Defense Council. “They suspend, rescind and delay, even though the law doesn’t permit it.”

Even if the courts were to halt Pruitt’s actions—as some already have—new limits to the agency’s regulatory powers are likely to outlast this administration: Some 700 employees have left the agency, part of budget cuts that go hand-in-hand with its deregulatory push. Another 2,000 positions may be eliminated. That would shrink staffing levels to those of the Reagan administration, before Congress expanded EPA’s responsibilities under the 1990 Clean Air Act and other laws.

The EPA’s retreat is being facilitated by lawyers, lobbyists and others with deep connections to oil, gas and coal companies who’ve won appointments to key agency posts. An AP analysis found that one-third of the 59 new EPA hires it tracked had been registered lobbyists or lawyers for fossil fuel producers, chemical manufacturers or other corporate clients.

Furthermore, Pruitt has managed to stay on the winning side in an administration riven into factions and roiled by intrigue. Trump’s firing of Secretary of State Rex Tillerson—and the departure of National Economic Council Director Gary Cohn, as well as one of his staffers who was a climate negotiator in the George W. Bush administration—amounts to a purge of high-level administration staffers who believe the U.S. will benefit from international cooperation on climate issues.

In interviews, environmental and health advocates were hard-pressed to name any other president who has advanced such a one-sided pollution agenda since the EPA’s establishment under President Richard Nixon. Even those presidents who embraced deregulation left some positive legacy, they said. Lead was removed from gasoline and the Montreal Protocol to phase out ozone-depleting substances was reached under Ronald Reagan, for example. George W. Bush advanced rules to cut diesel pollution.

The weakening of environmental regulation was expected from Trump and from Pruitt, a former Oklahoma attorney general who sued the EPA 14 times and forged deep ties to the fossil fuel industry. Of the 67 deregulatory actions the Trump administration completed last year, 20 lifted requirements on the energy industry—including scrapping protections of streams and wetlands to ease fossil fuel development and halting restrictions on toxic wastewater discharges from coal plants.

What’s surprised environmentalists is the degree to which the EPA is skirting the Administrative Procedures Act, which governs federal rulemaking. The act requires a new rulemaking process to be in place before a final rule can be undone.

Pruitt, along with Interior Secretary Ryan Zinke and Energy Secretary Rick Perry, have been chided by the courts for suspending regulations finalized under the Obama administration, in violation of this law. Federal judges have overturned efforts to undo rules on methane and energy efficiency standards. They have ruled that Pruitt improperly delayed implementation of more stringent smog rules, and failed to act on the timetable Congress required on Connecticut’s Clean Air Act petition over smog.

NRDC’s Mitch Bernard said his group has prevailed in eight of nine cases it has brought against the Trump administration that have reached adjudication. (The group has sued the Trump administration 54 times.) When Pruitt says he is upholding “rule of law,” Bernard said, “that is about as hollow a statement as you can make. In order to regulate, you base it on a factual record and scientific evidence and public involvement. Some of these rules were years in the making.”

Neither the EPA nor the White House responded to repeated requests for comment about how the administration’s deregulatory drive contradicts its rhetoric on clean air and water. But in interviews and speeches and Congressional testimony, Pruitt has described his mission at EPA as one that is at least as concerned with protecting industry as it is with protecting the environment.

“When you think about the EPA in the last few years before the president arrived, it was an agency that was weaponized,” Pruitt told the CPAC audience. “It was weaponized against certain sectors of our economy. … What we spent time doing the past year is de-weaponizing.”

To Pruitt’s supporters in the coal power industry, the EPA chief is restoring balance after the regulatory onslaught of Obama years. “We’re just going back to the rules of the road as we knew them,” said Vince Brisini, director of environmental affairs for Olympus Power, a fossil fuel and renewable energy projects investor and manager.

A Tale of Two Types of Petitions

Shifting priorities of the EPA can be seen in the contrast between Pruitt’s speedy response to petitions from coal polluters seeking regulatory relief and his more deliberate pace in handling state petitions for action against the coal pollution.

Pruitt took just 19 days to grant a utility industry petition to suspend Obama administration rules limiting toxic metals released in power plant wastewater. Within a few months, he agreed to the utility industry’s petitions that he reconsider Obama regulations on coal ash and on regional haze.

A clear articulation of the EPA’s new mission came last year in a meeting of coal-industry leaders with Mandy Gunasekara, deputy assistant administrator for air pollution. “What we’re doing in D.C. is beneficial for you,” she said, according to a report in S&P Global Market Intelligence. Gunasekara, a former aide to Sen. James Inhofe (R-Okla.), the Senate’s most vociferous climate denier, invited complaints about inconvenient regulations. “If it’s not working, I want to hear about it so that we can work it out.”

Pruitt has also missed at least six legally mandated deadlines to respond to petitions for action to curb smog-forming coal power plant pollution called nitrogen oxides (NOx) that drifts across state borders and travels hundreds of miles. The petitions invoking the Clean Air Act’s Good Neighbor provisions—four from Delaware, one from Connecticut and one from Maryland—were filed during the final year of the Obama administration. (The Obama EPA took the six-month extension the law allows as it worked to tighten smog regulations).

And Pruitt has asked the courts not to hold him to the strict timelines set out in the Clean Air Act to respond to Connecticut and other states, pleading for “due consideration of EPA’s budgetary commitments and personnel constraints, and appreciation for the complexity of the required action.”

U.S. District Judge Warren Eginton said Pruitt’s delay was “clearly at odds with period of time that Congress deemed appropriate for EPA review.”

David Bookbinder, chief counsel for the Niskanen Center, a libertarian think tank, spent years suing the EPA to enforce air quality as chief climate counsel for the Sierra Club. He was involved in the work that led to the landmark Massachusetts v. EPA Supreme Court ruling establishing the EPA’s authority to regulate greenhouse gases under the Clean Air Act. Bookbinder said Pruitt’s delays are different than the EPA’s under previous administrations.

“They are no better or worse than any other EPA in meeting deadlines,” Bookbinder said. “But it’s an affirmative attempt to not implement things that are the law—that’s a new tactic.”

Pressure on Pennsylvania’s Brunner Island

This backslide by the EPA is on clear display along a corridor of pollution that connects Connecticut to power plants in other states to the west. Connecticut has the worst smog in New England. By the EPA’s own modeling, as much as 95 percent of the pollution contributing to high ozone readings at Connecticut air monitors is coming from out of state.

“We’re unfortunately downwind from everyone,” Klee said. “And on those hot summer days, ozone alert-type days, the air that hits Connecticut borders violates our standards. So we could turn off everything we have in Connecticut, and the air that comes in would still be unsafe for our people to breathe.”

Smog has been linked to asthma attacks, and Connecticut incurs $135 million a year in health care charges related to the disease.

Connecticut and other downwind states were encouraged by the success New Jersey had during the Obama administration. Officials in Trenton used the Clean Air Act’s Good Neighbor provision to petition for action on pollution from a Pennsylvania plant. The Portland Generating Station was shut down in 2014—the first EPA action to override state regulators on a single pollution source—in that case, sulfur dioxide. A study published in December showed a striking improvement in health downwind from the shuttered coal plant. Since its closure, the likelihood of having a low-birthweight baby is down 15 percent; for having a preterm baby, it’s down 28 percent.

Connecticut asked the EPA to take action on another Pennsylvania power plant, Talen Energy’s Brunner Island, because it stands out as a rare large East Coast coal-fired power plant without post-combustion controls for NOx. Built in 1961, it was grandfathered under the Clean Air Act and has not made the kind of expansions that would have triggered pollution-control upgrades. In 2014, the most recent data available when Connecticut filed its petition, NOx emissions from Brunner Island alone were nearly double those of Connecticut’s entire electric power industry. And modeling showed that NOx from the tall stacks at Brunner Island wafted east and north, becoming a major contributor to Connecticut smog.

Pruitt declined to intervene on a variety of grounds, including the difficulty in tracing ozone to any one source. Pruitt also noted that Brunner Island has since invested in a $100 million upgrade to make it a dual-fuel facility, able to run on natural gas instead of coal—cutting its NOx emissions significantly. He did not mention that Talen announced it was making the upgrade two days after the Obama administration finalized the Clean Power Plan. (Just before Pruitt’s decision, Talen reached an agreement with Sierra Club to end coal generation at Brunner Island within 10 years. Connecticut has vowed to fight for federal action to limit emissions sooner. “The only way to ensure the protection of Connecticut’s air is an order from the EPA to do so,” Klee said.)

Connecticut is also one of eight states that have sued EPA to force it to impose more stringent controls on pollution that flows east from a group of mostly Midwestern states. In November, Pruitt denied their petition to expand the so-called Ozone Transport Region.

Maryland has sued Pruitt for missing a July deadline to respond to its petition for action on smog pollution from 36 power plants in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia. Pruitt told the court he needed until the end of the year to respond to Maryland’s request.

Coal power companies note that NOx emissions from power plants in upwind states are down 23 percent from 2015 to 2017. That reflects power plants switching from coal to natural gas, sagging electricity demand, and the tightening of some state rules and the federal cross-state pollution regulation—which is still in place under the Trump administration.

In October, EPA circulated guidance to states and its regional offices detailing the results of its updated modeling showing that it expects the entire nation to have air quality that meets the old pre-Obama ozone standard by 2023, except for California, which has the nation’s highest ozone levels. The Midwest Ozone Group, an association of power companies, came up with similar results in its own modeling. The group’s modeling also indicates that the entire nation would be able to attain the more stringent Obama administration ozone standard, if it were not for international emissions, especially from Canada and Mexico, and for exceptional events like wildfires that add smog-forming chemicals to the air. They argue that forcing more stringent controls on power plants in upwind states wouldn’t be fair—or legal—when so much of the problem is out of their hands.

Brisini of Olympus Power, which has investments in five Pennsylvania plants that have been targeted in the state “Good Neighbor” petitions and is a member of the Midwest Ozone Group, said the downwind states are not taking into account improvements in air quality that are occurring with what he called “remarkable rapidity.” In Pennsylvania, where more stringent state rules went into place in 2017, NOx emissions were down 53 percent from 2016, for a total of 83 percent since 2002.

Brisini also noted that states can already seek regulatory relief under the Clean Air Act to account for emissions from international sources. Instead, the downwind states are seeking to force new controls on upwind states that already have significantly reduced their pollution, he said. Brisini questioned whether some of them have a political reason for doing so. “When their petitions get denied—and I think the EPA will have no option but to deny them—it can be used to represent the current administration as undermining environmental goals, which I don’t think is the case,” he said.

While the causes and solution to East Coast ozone are in dispute, the smog is real. Ozone monitor readings showed worsening smog levels in many locations on the East Coast in 2017, surpassing levels predicted by models, according to data compiled for the northeastern states’ Ozone Transport Commission, the multi-state organization created under the Clean Air Act to come up with a regional solution.

Pruitt Repeats a Murray Energy Argument

It remains to be seen how the fight over smog in places like Connecticut will play out at Pruitt’s EPA. He has repeatedly said ozone needs to be regulated. But he has said that achieving the more stringent ozone standard set by the Obama administration will be costly.

After he was sued by health groups and 16 states, Pruitt set a timetable to designate which areas of the country failed to meet the new Obama-era ozone standard. He will do so by April 30. Pruitt told Congress that he is looking at implementing the new standard in a way that takes into account “background levels”—meaning, ozone that is already in the air (either naturally or due to international sources)—that can’t be controlled. It’s the same argument used in a lawsuit by coal company Murray Energy when it challenged the Obama ozone standard—a case Pruitt joined as a co-litigant when he was Oklahoma’s attorney general. (A federal court has granted a stay of that litigation at EPA’s request for time to review the rule “to determine whether the standards should be maintained, modified, or otherwise reconsidered.”)

Murray Energy’s CEO, Robert Murray, has praised Pruitt for what he sees as dialing the federal government’s role “back to what should have been.”

“Low-cost electricity is the staple of life in this country,” he told PBS Newshour in an interview. “We must have it for jobs, for manufacturers, for people on fixed incomes, that single mom. Obama and [his EPA Administrator, Gina] McCarthy destroyed it. We’re putting it back.”

Top photo: EPA Administrator Scott Pruitt meets with coal miners in Pennsylvania. Credit: Justin Merriman/Getty Images