Acting EPA chief Andrew Wheeler uses agency staff to prep for rushed confirmation hearing

EPA staff turn attention to Senate hearing despite disarray in environmental protection from shutdown.

Acting EPA Administrator Andrew Wheeler waits to testify before the Senate Environment and Public Works Committee on August 1, 2018. CREDIT: Win McNamee/Getty Images
Acting EPA Administrator Andrew Wheeler waits to testify before the Senate Environment and Public Works Committee on August 1, 2018. CREDIT: Win McNamee/Getty Images

Senate Republicans are rushing to get acting Environmental Protection Agency (EPA) Administrator Andrew Wheeler confirmed as Scott Pruitt’s replacement, despite a partial government shutdown that has kept the EPA closed since December 29 and employees unpaid.

Wheeler’s confirmation hearing is scheduled for Wednesday, only one week after President Donald Trump nominated him to assume the top position at the EPA on a permanent basis. After the hearing, the Senate committee will then vote on Wheeler’s nomination. If his nomination is approved by the committee — which is a good bet, with the Republicans in the majority — the final step would be for the full Senate to vote on the nomination.

“It looks like they are trying to rush him through,” Virginia Canter, chief ethics counsel for government watchdog group Citizens for Responsibility and Ethics in Washington (CREW), told ThinkProgress. “Anytime you have a candidate who you are trying to rush through, it means that you don’t want people to look too closely at his record or his industry ties.”

From the perspective of implementing Trump’s anti-environment agenda, Wheeler has worked as efficiently as Pruitt to roll back environmental regulations. And Wheeler appears to be pushing Trump’s agenda more effectively because — so far, at least — he hasn’t gotten himself embroiled in a similar multitude of scandals that sidetracked Pruitt from his mission to effectively dismantle the EPA.


Along with concern over EPA employees being used to prep Wheeler for the hearing instead of focusing on public health matters, environmental groups fear the confirmation process is getting expedited to avoid disclosures about Wheeler’s meetings with industry officials during his time as acting EPA administrator.

In late December, a federal court ordered the EPA to release more than 20,000 emails and meeting calendars as part of a lawsuit brought by the Sierra Club seeking records relating to any communications Wheeler and other agency officials have had with companies regulated by the agency. Putting together a schedule for the release of those records has been delayed by the government shutdown.

The Trump administration was required to provide the court a schedule for releasing Wheeler’s emails and calendar last Wednesday, including an agreement to produce at least two groups of documents by some point in February and all documents within 10 months. Because of the shutdown, the court ordered the administration on January 2 to provide it with a schedule for releasing the emails and calendar items within three business days after the federal shutdown has ended.

Wheeler was originally nominated by Trump to be EPA’s deputy administrator in October 2017. He was finally confirmed by the Senate six months later, in a contentious vote, in April 2018. Early last July, Wheeler took over as acting EPA administrator upon Pruitt’s resignation.

Under the Federal Vacancies Act, employees that require Senate confirmation can perform their duties in an acting role for a total of 210 days. When Trump formally nominated Wheeler to become the permanent EPA administrator, he had worked as acting administrator for a total of 184 days.


But Trump’s nomination of Wheeler on January 9 reset the clock. Under the law, Wheeler now has 205 days — a new 180 days added to the 25 days remaining in the 210-day limit prior to the formal nomination — to serve as both the president’s nominee for permanent administrator and as acting administrator.

Given the nearly seven months that Wheeler can serve as acting administrator, “it’s particularly egregious that the committee is rushing this nomination process amid a government shutdown,” a spokesperson for the Democrats on the Senate Environment and Public Works Committee said in an email to ThinkProgress.

The rushed confirmation also has implications for EPA staff and operations. Upon learning that Wheeler’s confirmation hearing would be held only one week after his nomination, top Democrats on the Senate Environment and Public Works Committee wrote a letter to Wheeler asking why political appointees and career staff have been assisting him with his confirmation hearing preparations.

Despite the government shutdown, EPA employees who fall under the “excepted staff” category in the agency’s contingency plan have been helping Wheeler prepare for the hearing. During shutdown furloughs, “excepted” employees — what the government views as “essential” jobs — are required to work without pay.

“It is difficult to understand how preparing you for next week’s confirmation hearing credibly falls within any of the categories listed in EPA’s Contingency Plan, particularly the category of employee that is ‘necessary to protect life and property,’” the senators wrote.


If the EPA is diverting resources that are intended to “protect life and property” to prepare Wheeler for his confirmation hearing, “the already-dire consequences of the shutdown on public health and the environment could be even greater,” the senators argued.

In a statement emailed to ThinkProgress, Sen. Tom Carper (D-DE), the ranking Democrat on the Senate Environment and Public Works Committee, said “it’s outrageous that, while the agency’s doors are shuttered, EPA seems to be directing the few employees who are working without being paid to prepare its acting administrator for a Senate confirmation hearing instead of monitoring Superfund sites, cleaning up environmental spills, evaluating chemical safety and protecting air and water.”

Using excepted staff to prep Wheeler “is an odd interpretation of what is ‘essential,’” Jeff Ruch, executive director of Public Employees for Environmental Responsibility (PEER), a nonprofit group that assists environmental agency workers, said in an email to ThinkProgress. “The EPA has had to halt some monitoring of drinking water and Superfund sites. Those strike us as far more essential,” Ruch said.

Nonetheless, the White House Office of Management and Budget (OMB) gave a legal seal of approval to the EPA to allow these excepted staff to help Wheeler prepare for the hearing during the shutdown.

OMB General Counsel Mark Paoletta told Matt Leopold, EPA’s general counsel, in a January 12 email, that preparing for the hearing was an “excepted activity” consistent with helping the president discharge his constitutional duties, and it contributed to helping the Senate discharge its own duties in considering nominees. The EPA provided a copy of the email to ThinkProgress.

“Acting Administrator Wheeler’s participation in the scheduled hearing is necessary for the Congress’s funded function to be effective,” Paoletta wrote. Wheeler’s “absence from his own confirmation hearing would significantly damage the Committee’s confirmation hearing,” he added.

On January 11 — two days after Sen. John Barrasso (R-WY), chairman of the Senate Environment and Public Works, announced Wheeler’s confirmation hearing would be the following week — environmental leaders, including Sierra Club Executive Director Michael Brune, sent a letter to Barrasso and Senate Majority Leader Mitch McConnell (R-KY). The letter urged them to postpone the confirmation hearing until the government shutdown has ended and the agency’s scientists and public health experts have been allowed to return to work.

“It is profoundly unfair for Mr. Wheeler to audition for a promotion to lead an agency while the entire agency workforce is locked out and denied their paychecks, making it difficult to pay their bills and mortgages and provide for their families,” the environmental leaders wrote in their letter.

Environmental groups also want more time to research Wheeler’s dealings with industry after he took over as acting EPA administrator six months ago upon Pruitt’s resignation.

According to environmental groups, the Trump administration may fear that a delay in Wheeler’s confirmation could lead to the disclosure of more information about the former coal industry lobbyist’s meeting with officials with polluting industries during his time as deputy administrator and acting administrator.

Wheeler already oversees the agency at which he’s been nominated to serve, Carper emphasized. “Rushing this nomination while the agency is shut down is unnecessary,” the senator said in his statement to ThinkProgress.

In response to Trump’s formal nomination of him to be EPA administrator, Wheeler submitted his financial disclosure form last Friday to the U.S. Office of Government Ethics. The purpose of the financial disclosure system is to prevent conflicts of interest and to identify potential conflicts by providing for a systematic review of a nominee’s financial interests.

CREW’s Canter believes Senate Republicans should have given fellow senators and the public more than five days to review Wheeler’s disclosure report before his confirmation hearing. “Why are they trying to push this guy through without giving adequate time to vet his financial disclosure report and other issues relating to what he’s done in his deputy position and his acting position?” she said.

When Canter worked as a senior ethics official for the Obama administration, she and her colleagues tried to have all the paperwork ready for review at least seven to 10 days before a nominee was to appear for a confirmation hearing.

“By rushing these hearings,” she said, “it sends a message that there are problems and you don’t want people to look at them too closely.”