If the EPA head won’t defend EPA regulations, there are people who will

Six states filed a motion Thursday to protect the EPA’s smog rule.

EPA administrator-designate, Oklahoma Attorney General Scott Pruitt, testifies on Capitol Hill in Washington, Jan. 18, 2017. CREDIT: AP Photo/J. Scott Applewhite)
EPA administrator-designate, Oklahoma Attorney General Scott Pruitt, testifies on Capitol Hill in Washington, Jan. 18, 2017. CREDIT: AP Photo/J. Scott Applewhite)

In advance of Oklahoma Attorney General Scott Pruitt (R) taking the reins at the Environmental Protection Agency, six states filed a motion Thursday to support a rule that reduces pollution.

Attorneys general from Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont intervened to support the EPA’s Agency’s Cross-State Air Pollution Update Rule, which requires power plants in 22 states to reduce smog blowing into other states.

In a statement, New York Attorney General Eric Schneiderman was clear that the move was intended to prospectively protect regulation the Trump administration has promised to undo.

“The Trump administration has signaled its desire to roll back federal environmental protections, including those that protect states from out-of-state polluters,” Schneiderman said. “New York has already put in place some of the most effective air quality protections in the country, but we have no control over dirty air that pours in from other states.”

The rule is currently being challenged by five states, who sued late last year, after the rule was updated. Pruitt is not party to the new suit, but he was one of 14 attorneys general — and a coalition of fossil fuel and energy companies — that challenged the initial rule. That challenge lost at the Supreme Court in 2014.

At his confirmation hearing earlier this week, Pruitt declined to say he would recuse himself from lawsuits against the EPA that he was involved in as Oklahoma’s attorney general.

But there might be little he can do as EPA head to stop rules that are already in place.

“This rule will remain in effect in 2017 under almost any conceivable scenario,” John Walke, director of the Natural Resources Defense Council’s clean air project, told ThinkProgress.

There are only a few ways to stop EPA regulation: A court can overturn the rule as unconstitutional; a court can issue a stay, stopping implementation of the rule until further legal proceedings; or the EPA can redo the rule-making process.

“EPA’s scientific and technical findings and conclusions cannot be swept aside by fiat,” Walke said. “The agency relies on vast bodies of peer-reviewed science from across the globe and any ideologically motivated EPA administrator who wants to sweep that aside runs smack into legal requirements.”

The EPA rule-making process is lengthy. First, the agency has to make a finding that a pollutant is dangerous to human health and well-being. From there, the agency undergoes an extensive cost-benefit analysis. Walke said that to undo a rule, the agency would have to contradict all the scientific findings that justified it. “That’s not something [Pruitt] can do with a magic marker or Voldemort’s wand.”

He might try, though. Pruitt has shown himself time and time again to be fundamentally opposed to the stated purpose of the EPA. He has said that states are the best positioned to regulate pollution and other environmental issues. In some way, the cross-border rule states filed Thursday to protect is the exact opposite of what Pruitt stands for — it is an effort by the EPA to stop pollution in one state from crossing borders and affecting another state. This is the kind of regulation that is only done at the federal level.

While Pruitt can’t simply erase regulations, one way Pruitt can effectively undo them is to direct the EPA’s lawyers not to defend Obama-era rules. But even that doesn’t guarantee the rule’s demise. Intervenors, such as New York and the other states who filed Thursday, can defend the rule themselves.

“That course of action has a mixed record. Sometimes the court will say, ‘Hey, it’s the agency’s rule and they don’t want to defend it, so who are we to stand in the way?’” Walke said. “Other courts are not so indifferent to the legal rights of the intervenors or indifferent to the obvious political reversal.”

While no one is expecting the agency to start any new rule-making processes under Pruitt, there might not be much he can do about the rules in place already.

“I believe he thinks he will have a lot of leeway, and I believe he is wrong,” Walke said.