I recommend a break from the past. Since at least the Clinton administration, two types of people—industry lawyers and environmental lawyers—have dominated the lower ranks of political appointees (i.e., regional administrators, assistant administrators, and subordinate positions). To be sure, these are very smart and capable people. But they come with their preconceptions. Industry counsel tends to be sympathetic to industry; green lawyers tend to be suspicious of industry.
As readers of the blog know well, I’m also sympathetic to industry, and I’m unsympathetic to professional greens. Indeed, I know many industry lawyers who have been fantastic civil servants, or who would make for fantastic civil servants. Nonetheless, the public also has preconceptions. The sad fact of the matter is that “industry lawyer” is a pejorative in the context of environmental policymaking. This misconception is fanned by green groups with big advertising budgets.
In light of these unfortunate optics, it makes a lot of sense to seek expertise elsewhere, especially if there exists a talent pool of equal or even greater depth. And it so happens that such a deep talent pool exists: state environmental officials. As I’ve before explained, the Clean Air Act and other environmental statutes are based on cooperative federalism. In fact, states spend 90 percent of the resources to implement federal environmental statutes, according to the Environmental Council of States. As such, there are thousands of environmental experts employed by the states.
I recommend that the incoming Trump administration make a priority of choosing state officials, from both state environmental programs and also from state attorneys general or solicitors general offices. These officials know how federal statutes work because they’re the ones actually performing the nuts and bolts of environmental policymaking. That is, there would be no drop off in quality from industry counsel, and none of the associated baggage.
In addition to public perceptions, there are other reasons for the EPA to give priority to hiring state officials. First, it would help repair cooperative federalism. Congress intended for states and the EPA to work together to improve the environment, but the relationship has broken down during the Obama administration. To wit, Obama’s EPA has staged 56 takeovers of state Clean Air Act programs; the previous three presidents' staged only 5 such takeovers. By staffing the EPA with state officials, the incoming administration would send a strong message that Obama’s era of coercive federalism will give way to cooperation, as intended by the law.
But there is a second, more subtle reason for EPA to focus on staffing state officials. In so doing, the agency might also repair the break among states over environmental policymaking. In 2013, seventeen states broke off from the National Association of Clean Air Agencies in order to form their own group called the Association of Air Pollution Control Agencies. In a nutshell, the splinter group objected to the original group’s lobbying on behalf of Obama-era environmental policies despite there being no consensus among members. There is also disagreement over environmental policy among state attorneys general. For example, 28 states are challenging the EPA over the Clean Power Plan, while 14 states are defending the rule.
I believe that this discord among the states is sub-optimal. I also believe that the EPA could mend the relationship by filling the ranks of political appointees with officials from both types of states. It’s the same principle behind student exchanges between France and Germany after the Second World War. People tend to get along when they work together, even if they do not agree.
You might ask yourself: If the disagreement among states is so sharp, then why would any state official who disagrees with Trump accept an appointment in a Trump administration? My answer is that I believe EPA administrator nominee Scott Pruitt has made a cause of federalism, and I suspect that state officials of all political stripes will be amenable to working at an agency focused on respecting state decision-making.
In sum, I recommend a break from the past in personnel matters. Historically, it is common for a Republican president to fill lower ranking political appointees at the EPA with industry counsel. Instead, I would make it a priority to fill these positions with officials across a broad spectrum of state environmental programs and legal officers. In so doing, the agency would avoid unfair criticism, improve cooperative federalism, and perhaps improve relations among states on environmental policymaking.