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Update on Pruitt Recusal Kerfuffle

During the January 18 Senate Environment and Public Works (EPW) Committee hearing on Oklahoma Attorney General Scott Pruitt’s nomination to be Environmental Protection Agency (EPA) administrator, Sen. Ed Markey (D-Mass.) asked Pruitt to commit to recuse himself from all matters on which he previously filed or joined lawsuits against the EPA. Since those matters include the Clean Power Plan, Ozone NAAQS, Waters of the United States Rule, and other big-ticket items, Markey in effect asked Pruitt to commit to spend the next four years playing golf. 

On Wednesday, Pruitt sent a 248-page response to hundreds of questions from Senate EPW Committee Democrats. Many questions were about recusals. In general, Pruitt repeated his commitment at the hearing to follow the advice of the EPA’s Office of Ethics Counsel. However, he also provided additional detail.

On whether he should recuse himself not only from litigation involving Oklahoma but also from rulemaking activities related to lawsuits he filed or joined as Oklahoma AG, Pruitt writes:

Immediately upon my nomination, I was walled off from all involvement in any litigation or other matters the State of Oklahoma is pursuing involving the EPA. I have disclosed relevant matters to the Office of Government Ethics and EPA ethics officials. As EPA Administrator I will recuse from participation in litigation in matters in which I represented the State of Oklahoma, unless I receive informed consent from the State of Oklahoma and the permission of relevant federal ethics officials. It is my understanding that recusal obligations do not extend to regulatory rulemaking of general applicability, which does not create a conflict under applicable rules. (p. 83)

On whether he cannot represent the EPA in a rulemaking he previously challenged without acting as both defendant and plaintiff, creating a conflict of interest, Pruitt writes:

With respect to my professional obligations as a member of the bar, I am not permitted to “switch sides” as counsel in any matter in which I participated as a lawyer. The standards that would apply to me as EPA Administrator are different, however, as I will not be representing the EPA as a lawyer if I am confirmed. (p. 116)

Both Sen. Markey in his written questions to Pruitt and Sen. Sheldon Whitehouse (D-R.I.), in a letter to the EPA’s Office of General Counsel (OGC), ask why Pruitt’s ethics agreement is more lenient than that of former EPA Administrator Carol Browner. Browner committed to recuse herself permanently from participation in any EPA matter in which the State of Florida was involved as a party or in which she was personally and substantially involved as Secretary of Florida’s Department of Environmental Regulation. Why is Pruitt’s ethics agreement different, and is it strong enough? The OGC responds:

In assisting Mr. Pruitt with his ethics agreement, the EPA followed federal ethics requirements and the most recent Ethics Agreement Guide published by the Office of Government Ethics (OGE) in 2014. Both the EPA and OGE certified Mr. Pruitt’s ethics agreement as complying with all federal ethics requirements and conforming to the template set forth in OGE’s Guide. Each ethics agreement is specific to the individual who is signing the agreement, and so consistency with the agreement of a former EPA Administrator is not a requirement for the agreement to be in compliance with federal ethics rules. While the question indicated Mr. Pruitt’s ethics agreement differs from the ethics agreement entered into by former Administrator Carol Browner in 1997, Mr. Pruitt’s ethics agreement is very similar to the agreement entered into by former Administrator Lisa Jackson in 2009. Those comparisons do not demonstrate compliance or non-compliance with the federal ethics requirements.