Pruitt Cool under Fire at Senate Confirmation Hearing

On Wednesday, the Senate Environment and Public Works Committee held a hearing on the nomination of Oklahoma Attorney General Scott Pruitt to be Administrator of the U.S. Environmental Protection Agency. As expected, several Committee Democrats attacked Pruitt for “litigating against the EPA on behalf of the fossil fuel industry.”

President Trump nominated Pruitt precisely because of his leadership in challenging EPA’s regulatory overreach. In effect, Pruitt’s opponents say the Senate should reject him for the very reasons Trump nominated him. They believe that regardless of who is president, or which issues the winner campaigned on, the EPA administrator must always be a bona fide ‘progressive.’

The ‘EPA is our agency’ crowd implicitly argues that elections don’t—or shouldn’t—matter. Rubbish. Congress created the EPA to be run by political appointees who serve at the president’s pleasure.

Pruitt never lost his cool despite repeated attempts to discredit and fluster him. Sen. Ed Markey (D-MA) accused Pruitt of planning to act as “defendant, plaintiff, judge, and jury” because he would not commit to recuse himself from matters on which he has sued EPA as Oklahoma attorney general. But Pruitt did not decline to recuse himself. Rather, he repeatedly pledged to follow the advice of EPA’s office of ethics counsel.

Given EPA’s historic recusal policy under both Republican and Democratic administrations, Markey had no reason to assume Pruitt plans to handle the very lawsuits he filed or joined. As for playing “judge and jury,” I have no idea what that means. There are no juries in regulatory litigation. There are judges, to be sure, but the EPA administrator has no seat on the bench.

Sen. Bernie Sanders (I-VT) dinged Pruitt for doing nothing to stop wastewater disposal by hydro-fracking companies, which has caused a “record-breaking number of earthquakes in Oklahoma.” Pruitt pointed out that the Oklahoma Corporation Commission has exclusive jurisdiction to regulate oil and gas underground injection wells, “and they have actually acted on that.” Indeed, though Pruitt did not mention it, Oklahoma earthquakes are down more than 50 percent since January 2016; the problem is being handled. Nonetheless, partly because Pruitt did not act beyond his legal authority, Sanders told him, “You are not going to get my vote.”     

You can watch the full hearing on YouTube. The remainder of this post reviews Pruitt’s questioning by Sen. Cory Booker (D-NJ).

Booker accused Pruitt of shirking his responsibility to protect the welfare of Oklahoma citizens. How so? Pruitt filed or joined 14 lawsuits against the EPA “challenging clean air and clean water rules.” Booker seems to think the word “clean” in the titles of the underlying statutes suffices to ensure EPA’s rules are lawful and have large net benefits.

In fact, Pruitt was acting on behalf of Oklahomans’ welfare. The Waters of the United States (WOTUS) rule imperils the property rights of small landholders and places undue burdens on small businesses. The Mercury Air Toxics Standards (MATS) rule imposes billions in costs on ratepayers for grossly inflated and even imaginary health benefits. The Clean Power Plan imposes billions in costs for indiscernible climate benefits, and is so legally dubious the Supreme Court took the extraordinary step of staying the rule before a lower court reviewed it.

Citing the American Lung Association, “a very non-partisan group,” Booker went on to sermonize that in Oklahoma, 111,000 children have asthma, more than 10 percent, “one of the highest asthma rates in the United States of America.” He demanded to know why Pruitt had repeatedly sued EPA on behalf of “polluters” but had not filed one brief “on behalf of those kids to reduce the air pollution in your state and help them have a healthy life?”

Pruitt replied that he must have standing in order to sue, and in Oklahoma the attorney general has no parens patriae standing to bring cases on behalf of individual citizens or companies. There must be a “state interest” before he can sue, such as in cases where EPA regulations diminish state tax revenues via their adverse effects on the state’s economy. Other agencies, such as the Department of Environmental Quality and the Water Resources Board, have “front line” authority to enforce environmental protections for Oklahoma citizens.

Had time permitted, Pruitt could also have challenged Booker’s description of the American Lung Association as “very non-partisan” (see here and here). More importantly, with additional time, he could have explained why air pollution is likely no more than a minor contributor to asthma in Oklahoma.

To begin with, all Oklahoma air quality districts are currently in attainment with all National Ambient Air Quality Standard (NAAQS) for the six principal air pollutants, according to the EPA. By definition, when a state is in attainment with the NAAQS, pollution has been reduced to a level “sufficient to protect public health with an adequate margin of safety.”

Second, throughout the United States and several other countries too, asthma rates increased as air quality improved. For example, according to the Centers for Disease Control, the percentage of the U.S. population with asthma increased from 3.1 percent in 1980 to 5.5 percent in 1996, 7.3 percent in 2001, and 8.4 percent in 2010. But during roughly the same years (1980 to 2013), U.S. emissions of the six principal air pollutants declined by a whopping 62 percent, resulting in big declines in air pollution concentrations, including a 33 percent reduction in ground-level ozone.

Correlation does not prove causation, but there can be no causation without correlation. Trends in air pollution and childhood asthma are inversely correlated.

Another fact casting doubt on air pollution as a major culprit in current U.S. asthma rates is that hospital admissions for asthma are lowest in the summer—when ozone levels are highest.

Nonetheless, the narrative that air pollution and other environmental problems are always “worse than we thought” leads many people, including some senators, to assume the presence of a large ‘dirty’ energy sector in a state must be making kids sick. Oklahoma ranks third among U.S. states in natural gas production and fifth in onshore oil production, has five petroleum refineries, and generates about one-third of its electricity from coal. So Pruitt of Oklahoma is a natural whipping boy for the greener-than-thou types.

But if dirty energy causes high asthma rates, how is it that states with little-to-no fossil energy production and coal consumption can have asthma rates just as high or even higher?   

Maine and Vermont have no oil and gas production, Maine gets only 0.6 percent of its electricity from coal, and Vermont gets all its electricity from renewable sources. Yet childhood asthma rates in those states (Maine figures, below right) are comparable to Oklahoma’s (below left), and their adult asthma rates are even higher.

Sen. Booker is right, of course, to be concerned about asthmatic children. Numerous factors contribute to asthma, however, and it’s still something of a mystery why asthma rates are increasing. To suggest that kids in Oklahoma have asthma because Pruitt represents “polluters” rather than “citizens” is partisan twaddle.