When Scott Pruitt took over the Environmental Protection Agency (EPA) last year, he promised to stem the tide of what he described as “federal overreach.” Pruitt’s “back to basics” agenda did not mean a renewed focus on the agency’s core mission, however, but rather shifting more power to states.
The effects are already apparent. States now have more leeway regarding how they regulate toxic pollutants like coal ash, for instance, and more authority over which areas are targeted for failing to clean up pollution like ozone.
With this increase in authority, it’s therefore important to pay attention to those in positions of power at the local level. As a ThinkProgress analysis reveals, nearly a third of all states’ top environmental officials have direct conflicts of interest with industries they’re supposed to oversee.
Unlike the federal EPA, state-level environmental policy in the United States remains incredibly variable. This means that as Pruitt’s EPA looks to cede power to the states, Americans across the country are increasingly dependent on state regulators with wide-ranging agendas and budgets.
State funding for environmental enforcement has declined across the country — even in traditionally liberal states like New York or Massachusetts. In some states, particularly those with economies built on extraction, powerful industry interests pour money into the local government, eroding public funding for environmental regulations and state-level enforcement.
Despite differences in budget and approach, every state, however, has a person appointed by the governor as the chief environmental regulator. The path that person takes can be as varied as the states themselves — some come to the position with years of experience in environmental health and science, and others with little relevant experience at all.
From agriculture to utilities and fossil fuels, ThinkProgress’ analysis shows that 14 of the top environmental regulators all have one thing in common: they used to work, in some form or another, in an industry they are now tasked with regulating.
‘Betrayal of public trust’
“It’s a betrayal of the public trust that so often — especially in states run by Republican administrations — governors turn the state environmental agencies over to lobbyists and agents of the polluting industries that the agencies are supposed to be policing and regulating,” Tom Pelton, spokesman for the Environmental Integrity Project, told ThinkProgress. “When EPA Administrator Scott Pruitt, for example, says he wants to return power to ‘the states,’ what he really means is that he wants to return power over industries to the industries themselves, which means eliminating the police officer from the environmental beat.”
The presence of a top environmental regulator with ties to industry does not in and of itself mean a particular state agency is held captive by industry. State environmental agencies are, like the federal EPA, a product of government bureaucracy — they employ career officials who enforce regulations regardless of political party.
But like the federal EPA administrator, state level environmental regulators appointed by the governor are political appointees, charged with carrying out an administration’s agenda. They are also responsible for shaping the direction that an agency takes with respect to things like environmental enforcement.
Often, the appointment of a regulator with industry ties reflects an administration’s own approach towards regulated industry. In West Virginia, for instance, Gov. Jim Justice (R), who used to own dozens of coal mining operations throughout Appalachia, has emphasized a deregulatory agenda towards the coal industry. It is perhaps no coincidence, then, that Justice’s chief environmental regulator, West Virginia Department of Environmental Protection (DEP) Secretary Austin Caperton, once worked as a consultant for the coal industry.
In most states, conflict of interest issues are only considered illegal if a politician or regulator is regulating or drafting policy that influences a business or industry in which they have an active financial stake. But the number of state environmental regulators with industry backgrounds is indicative of a larger struggle within environmental protection that is now playing out at the highest levels of government: is the role of an environmental regulator to serve the public, or to ease burden on industry?
The late Supreme Court Justice Louis Brandeis famously referred to states as the “laboratories of democracy.” But, in many ways, they are much more than a testing ground; in states across the country, the impact of years of budget cuts combined with industry-friendly regulators may serve as a taste of what’s to come on the federal level with Pruitt at the helm.
“Scott Pruitt has proven he has no interest in safeguarding the health and safety of American families, and every interest in promoting the dangerous priorities of corporate polluters and himself,” Michael Brune, executive director of the Sierra Club, told ThinkProgress via email. “That’s why he’s shirking EPA’s duties on the federal level and handing off his responsibilities to state agencies, many of which are stocked with industry allies and ex-lobbyists.”
Below, we’ve chosen four states where the top environmental regulator has close ties to a major industry to highlight. In some cases, there’s a clear and present conflict of interest — in others, the regulator has chosen to recuse themselves from matters specific to their former employer. But all the examples show just how complicated environmental enforcement can get when the line between regulator and industry is blurred.
The Illinois Environmental Protection Agency is run by Alec Messina, who has held the position of the state’s top environmental regulator for more than two years following his appointment by Gov. Bruce Rauner (R) in 2016.
Before taking over the agency, Messina served as executive director and a registered lobbyist for the Illinois Environmental Regulatory Group, a consortium representing companies from the coal industry, oil and gas industry, and agribusiness. In this role, Messina often advocated on behalf of clients for delaying compliance and streamlining permitting processes to be friendlier to business.
Because of his history lobbying for companies he now regulates — including Peabody Coal and ExxonMobil — Messina is required to recuse himself from any issues involving permit decisions under the Clean Water Act. But that doesn’t mean he has completely walled himself off from decisions involving former clients; in 2017, Messina, on behalf of the Rauner administration, pushed for an amendment to state rules that would potentially loosen pollution limits on eight coal-fired power plants owned by Dynegy Inc., one of his former clients.
The amendment creates a subtle distinction in pollution limits that environmental groups worry would allow the power plants to emit significantly higher levels of toxic pollutants like sulfur dioxide and nitrogen oxide. The amendment is currently under review by the Illinois Pollution Control Board.
Messina’s involvement with the Dynegy plants prompted environmental groups to push for the state to adopt federal ethics rules that prevent regulators from being involved in air pollution decisions if they previously were employed by a regulated industry. Technically, under the Clean Air Act, the federal EPA is supposed to ensure states have a plan for dealing with conflicts of interests between agency leaders and the industries they regulate. In January, the Sierra Club filed a lawsuit against the federal EPA in an attempt to force the EPA to enforce these rules in Illinois.
Since 2015, John Tippets has overseen the Idaho Department of Environmental Quality. Tippets is a former spokesman for the Canadian fertilizer company Agrium, which has phosphorus mining and fertilizer manufacturing operations in Idaho. Tippets worked for the company for 40 years, between short stints in the state house (from 1988 to 2000) and senate (from 2011 to 2015).
While Tippets was working for Agrium, the company was responsible for a number of spills at an Idaho operation that produced 300,000 tons of phosphoric acid annually. One spill in 2006 released more than 3 million gallons of acidic wastewater into low-lying areas near the facility, inundating at least one farm. Another spill, in March of 2007, released 285,000 gallons of wastewater containing phosphoric acid.
In 2018, Agrium merged with another Canadian fertilizer company, PotashCorp. But Agrium still operates mines in Idaho, including a new mine for which it obtained approval from federal agencies in 2017.
As head of the Idaho DEQ, Tippets pledged to recuse himself from any issues involving Agrium, and told Idaho Reports that he would need to be “sensitive” to issues involving mining and agri-business more generally. But he also spun his industry experience as a benefit, saying he would “know the questions to ask” as a regulator.
Still, the Idaho DEQ acts as the primary agency for a number of regulatory issues related to Agrium’s mining operations. It is responsible, for instance, for monitoring pollution from the site and for issuing notices of violation if the operation exceeds limits on water or air pollution. And, since southeastern Idaho is home to one of the richest phosphorus deposits in the western United States, the Idaho DEQ is responsible for monitoring both operations and the cleanup of 10 phosphorus mines.
In Kentucky, Gov. Matt Bevin (R) did not shy away from selecting someone to head the state environmental agency with strong ties to a polluting industry. In fact, Bevin appointed the head of his state’s Energy and Environment Cabinet, Charles G. Snavely, specifically for his coal experience.
In a December 2015 statement announcing the appointment, Bevin cited Snavely’s 35-year career in the coal industry as a main qualification to be the state’s top environmental official.
Snavely worked at mining companies in West Virginia and Kentucky, including several Massey Energy subsidiaries in the early 1990s. From 2005 to 2011, he worked for International Coal Group, rising to executive vice president of mining. When ICG was acquired by Arch Coal in 2014, Snavely became the president of eastern operations.
As he climbed the corporate ranks, Snavely became an evangelist for reducing the regulatory burden on coal companies. Later in his career, he served as chairman of the board of the Kentucky Coal Association, an industry group that lobbies against environmental regulations.
Ron White, director of regulatory policy for the Center for Effective Government, told the Kentucky Center for Investigative Reporting (KyCIR), he found it troubling that Snavely could go directly from an official role in an industry advocacy group to a job regulating that industry. “It’s not unusual, frankly,” White said. “But it’s often not quite this blatant.”
In one of his most controversial moves, Snavely oversaw the adoption of a controversial plan in 2017 to let the state’s electric utilities self-regulate the storing of hazardous coal ash near power plants. Utilities would not be required to apply for permits to construct a landfill to store coal ash, moving to a “permit-by-rule” system that would allow construction to begin without review.
In February, though, a Kentucky circuit court judge overturned the new regulation. The judge found that Snavely failed to offer any justification for his agency’s actions, and that the sole basis was “arguably” to help electric utilities cut their costs. If not managed properly, the judge wrote, coal ash “can pose a great threat to public health and the environment.”
According to an investigation by WFPL News, the new rule was adopted in “backroom meetings” between Kentucky officials and representatives of the utility industry. It’s “unconscionable and “does not reflect well on how little value” the Energy and Environment Cabinet place on public involvement in the development of regulations that are intended to protect the public, Tom Fitzgerald, a lawyer and director at the Kentucky Resources Council, told WKMS.com.
West Virginia also has a former coal industry official leading its environmental regulatory office. Gov. Jim Justice (R), however, opted not to promote West Virginia Department of Environmental Protection (DEP) Secretary Austin Caperton’s extensive industry background, perhaps due to Caperton’s ties to Don Blankenship.
West Virginians have strong opinions about Blankenship — the convicted former coal baron who lost his bid last month for the Republican nomination in the Senate primary — based on his leadership role at Massey Energy when an explosion ripped through the company’s Upper Big Branch mine in 2010, killing 29 workers. Justice, a coal industry baron himself, likely wanted to distance his administration from Blankenship.
The January 2017 news release about Caperton focused instead on his work as president of Caperton Inc., a consulting company that works with the coal and mining industry. While it was not mentioned in the release, Caperton’s experience as a coal industry official began in 1976 as assistant vice president of operations with Slab Fork Coal Company. He became corporate counsel for Massey Coal Services, starting in 1983, and remained with various branches of Massey, including serving as vice president of development until 1989.
Blankenship, who eventually became CEO of the company, is quoted in a 2013 book, The Price of Justice: A True Story of Greed and Corruption, as saying, “I knew Austin Caperton pretty well because he worked for quite a while at Massey and, at one time, was a candidate, I believe, to be president of Massey, back in the eighties.”
A West Virginia state government with ties to the coal industry is nothing new. In his first State of the State address in early 2017, however, Justice went out of his way to say West Virginia, particularly the DEP, needs to support industry and work with it to ensure compliance with rules and laws.
“Justice has been very overt about being pro-industry and not wanting environmental regulations and overreach to get in the way,” Angie Rosser, executive director of the West Virginia Rivers Coalition, said in an interview with ThinkProgress.
Unlike previous DEP heads, Caperton did not have any experience in state government prior to his appointment. Caperton replaced Randy Huffman, who rose up through the ranks at the DEP before he was appointed to serve as secretary in 2008.
The role of the DEP is probably more important today than it’s ever been. Not only are there coal mining operations and abandoned mines that need monitoring, the natural gas industry has grown significantly over the past decade. Several major natural gas pipelines are being constructed to transport the gas out of the state.
Caperton has stated he will make regulating these pipelines a top priority. But, according to Rosser, he has not allocated enough resources and staffing to the state’s burgeoning natural gas industry.
Sam Page contributed research and reporting to this story.
CORRECTION: This article previously stated that Pennsylvania Department of Environmental Protection’s Secretary Patrick McDonnell had a conflict of interest related to a utilities company. Secretary Patrick McDonnell previously held a position at the Pennsylvania Public Utility Commission. This article has been updated to reflect this, including updating the total number of states identified from 15 to 14.