The Overbearing EPA

[Ryan Ruck]

My new truck comes with this.

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Scalia Death Opens New Path for Obama Climate Agenda

A vote to block the Obama administration’s ambitious climate regulation was one of Antonin Scalia’s last acts as a Supreme Court justice. His sudden death may have opened a new path to the rule’s survival.

Scalia died Saturday. Four days earlier, he voted with the other conservative members of the high court to put a hold on the administration’s plans to implement the Clean Power Plan while it is litigated.

The regulation is designed to lower carbon emissions from U.S. power plants by 2030 to 32 percent below 2005 levels. The rule is the United States’ main tool to meet the emissions reduction target pledge it made at U.N. climate talks in Paris in December.

It was challenged by 27 states, along with business and industry groups, in a case now before an appeals court in Washington, D.C. The Supreme Court could be asked to weigh in again later this year.

Scalia Dies, Clean Power Plan Lives Again

Without Scalia, the conservative members of the court no longer have a majority, at least in the short term. The sudden shift has given a boost to the supporters of the emissions rule.

“Last week, the Clean Power Plan was basically dead,” said Brian Potts, a lawyer with the Foley & Lardner law firm who represents companies on environmental regulatory issues. “But with Scalia’s death, everything has changed.”

Environmental lawyers involved in the litigation who support the regulation told Reuters Monday that even before Scalia’s death they had been hopeful the Supreme Court would ultimately uphold it upon close consideration. But they said the change in the high court bolsters the rule’s chances.

“There are still no guarantees, but the Clean Power Plan faces much better odds now than it did on Friday,” said Jack Lienke, a lawyer with the Institute for Policy Integrity at New York University School of Law, which backs the regulation.

Industry lawyers said they remained confident the regulation will be struck down.

“While Justice Scalia’s untimely passing creates more uncertainty, the Clean Power Plan is still predicated on an extraordinarily shaky legal foundation,” said Scott Segal, a lawyer with the Bracewell law firm, which represents companies that oppose the regulation.

In January, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit had unanimously rejected the same request for a stay that the Supreme Court granted last week. The appellate panel has set oral arguments on the merits of the case for June 2.

Flowers are seen in front of the Supreme Court building in Washington D.C. after the death of U.S. Supreme Court Justice Antonin Scalia, February 14, 2016. REUTERS/Carlos Barria
The randomly-drawn appeals court panel is viewed by lawyers on both sides as relatively favorable for the administration, featuring two Democratic appointees and one Republican appointee.

One of the Democratic appointees is Sri Srinivasan, a judge many legal experts see as a leading candidate for President Barack Obama to nominate to replace Scalia.

If the appeals court upholds the rule and the challengers take the case to the Supreme Court, they would face an uphill battle in getting the five votes needed for a win without Scalia. The four liberal justices are seen as likely to uphold the rule. So, the best result the challengers would be likely to get is a 4-4 split. When the court is evenly divided, the lower court ruling stands, meaning the regulation would survive.

An unknown factor is how soon a ninth member will be appointed and whether it will be a Democratic or Republican president who makes it.

Some Republican leaders have said Obama should not appoint a successor, leaving it to the next president, who would take office in January 2017. Obama has said he plans to announce a nomination but will face an uphill ban to win confirmation in the Republican-controlled Senate.

If a Democratic appointee replaces Scalia, it would tilt the balance of the court leftward for the first time in decades. A Republican appointee would extend the narrow conservative tilt the bench had until Scalia’s death.

If Srinivasan were appointed, he would have to step aside on the Clean Power Plan case because of his involvement in the case at the appellate level. That would increase the chances of a 4-4 split.

By Lawrence Hurley WASHINGTON (Reuters)

[Ryan Ruck]

Coal producer going bankrupt...

Peabody, SunEdison Warn Of Troubles

March 17, 2016

Coal producer Peabody Energy and renewable energy company SunEdison warned of financial troubles Wednesday as low energy prices contribute to stress on a wide range of companies in the power industry.

Peabody said in a U.S. Securities and Exchange Commission filing that it expects it won't be in compliance with its financial covenants on March 31 and may have to file for Chapter 11 bankruptcy protection.

The company said it has held discussions with lenders regarding potential debt-for-equity swaps or new financing."Sustained depressed" coal prices have battered financial results, along with exposure to the bankruptcy of former subsidiary Patriot Coal and retiree benefit costs, the company said in the the filing. The company has posted four consecutive yearly losses, including a $2 billion loss in 2015 as revenue fell 17% to $5.6 billion.

Zachary Bader, a distressed debt analyst with Reorg Research, said recent coal bankruptcies have treated the debtors favorably with regard to legacy costs.

“There is some incentive to file for bankruptcy just to start over new with a cleaned-up balance sheet," Bader said.

Peabody shares (BTU) slid 45% to close at $2.19. Two years ago, the stock hit a high of $299.10 in the first quarter of 2014.

Meanwhile, SunEdison, a developer, installer and operator of alternative energy plants, said it has discovered problems in its accounting processes that required it to delay its annual stockholders report.

SunEdison blamed the issue primarily on problems with newly implemented systems. A SunEdison spokesman declined to elaborate on the issue.

The disclosure comes about two weeks after the company said the audit committee of its board had launched an investigation into the accuracy of the company’s anticipated financial position.

It also came after the ailing company's proposed acquisition of rooftop solar company Vivint collapsed earlier this month when SunEdison couldn't line up the financing necessary to complete the deal. One of the company's subsidiaries, TerraForm Power Inc.

(TERP), also said its annual report would be delayed. The company said it relies heavily on SunEdison's bookkeeping to ensure timely financial reports.

TerraForm, which purchases power plants from SunEdison, also said that Nasdaq officials notified the company that the delay required it to submit a plan detailing how it will become compliant with reporting regulations.

SunEdison's shares fell (SUNE), fell as much as 17% in regular trading, but closed unchanged at $2.08. TerraForm's stock fell nearly 8% to $9.72.

[Ryan Ruck]

Overbearing EPA? Maybe not much longer...

Trump Admin Orders EPA Contract Freeze And Media Blackout


January 24, 2017

The Trump administration has instituted what it described as a temporary media blackout at the Environmental Protection Agency and barred staff from awarding any new contracts or grants.

Emails sent to EPA staff since President Donald Trump’s inauguration on Friday and reviewed by The Associated Press detailed specific prohibitions banning press releases, blog updates or posts to the agency’s social media accounts.

The Trump administration has also ordered what it called a temporary suspension of all new business activities at the department, including issuing task orders or work assignments to EPA contractors. The orders were expected to have a significant and immediate impact on EPA activities nationwide.

Similar orders barring external communications have been issued by the Trump administration at other federal agencies in recent days, including the Agriculture and Interior departments.

Staffers in EPA’s public affairs office are instructed to forward all inquiries from reporters to the Office of Administration and Resources Management.

“Incoming media requests will be carefully screened,” one directive said. “Only send out critical messages, as messages can be shared broadly and end up in the press.”

A review of EPA websites and social media accounts, which typically include numerous new posts each day, showed no new activity since Friday.

White House spokesman Sean Spicer said Tuesday he had no information on the blackout. He said aides were looking into the circumstances.

Doug Ericksen, the communications director for Trump’s transition team at EPA, said he expects the communications ban to be lifted by the end of this week.

“We’re just trying to get a handle on everything and make sure what goes out reflects the priorities of the new administration,” Ericksen said.

Beyond what was stated in the internal email, Ericksen clarified that the freeze on EPA contracts and grants won’t apply to pollution cleanup efforts or infrastructure construction activities.

The executive director for the advocacy group Public Employees for Environmental Responsibility, Jeff Ruch, said the orders go beyond what has occurred in prior presidential transitions.

“We’re watching the dark cloud of Mordor extend over federal service,” Ruch said Tuesday, referring to the evil kingdom in the epic fantasy, The Lord of the Rings.

Ruch noted that key posts at EPA have not yet been filled with Republican appointees, including Trump’s nominee for EPA administrator, Scott Pruitt. That means there are not yet the new senior personnel in place to make key decisions.

Environmentalists said the orders were having a chilling effect on EPA staff, many of whom were suffering from low morale. Trump and Pruitt have both been frequent critics of the agency and have questioned the validity of climate science showing that the Earth is warming and man-made carbon emissions are to blame.

Liz Perera, climate policy director for the Sierra Club, said Trump’s move to freeze all EPA communications and contracts should be “a major red flag for all Americans.”

“EPA was created to ensure that all Americans can enjoy clean air to breathe, clean water to drink and have their health protected from environmental and climate threats,” Perera said.

Staff at the Agriculture Department have also received orders not to release any documents to the public.

“This includes, but is not limited to, news releases, photos, fact sheets, news feeds and social media content,” read the email memo, which was obtained by The Associated Press.

Agricultural Research Service spokesman Christopher Bentley said the ban would not include scientific publications released through peer-reviewed professional journals.

“As the U.S. Department of Agriculture’s chief scientific in-house research agency, ARS values and is committed to maintaining the free flow of information between our scientists and the American public as we strive to find solutions to agricultural problems affecting America,” Bentley said, according to a statement.

The agency said that “information on our projects, people and locations” would still be available on its website.

AP reported over the weekend that staff at the Interior Department were temporarily ordered to stop making posts to its Twitter account. The prohibition came after the official account of the National Park Service, a bureau of the department, retweeted a pair of posts to its 315,000 followers that seemed to be a swipe at Trump on his initial day in office. The first was a photo that compared the crowd gathered on the National Mall for Trump to the much-larger gathering that stood in the same spot eight years earlier for President Barack Obama’s swearing-in.

Trump later falsely claimed that more than 1 million people attended his inauguration, which Spicer insisted was the most-watched in history.

[Ryan Ruck]

Are we going to be making fuel cans great again? I sure hope so...

Scott Pruitt, Longtime Adversary Of EPA, Confirmed To Lead The Agency

February 17, 2017

Scott Pruitt woke up Friday morning as Oklahoma’s attorney general, a post he had used for six years to repeatedly sue the Environmental Protection Agency for its efforts to regulate mercury, smog and other forms of pollution. By day’s end, he had been sworn in as the agency’s new leader, setting off a struggle over what the EPA will become in the Trump era.

Pruitt begins what is likely to be a controversial tenure with a clear set of goals. He has been outspoken in his view, widely shared by Republicans, that the EPA zealously overstepped its legal authority under President Barack Obama, saddling the fossil-fuel industry with unnecessary and onerous regulations.

But rolling back the environmental actions of the previous administration won’t happen quickly or easily. Even if President Trump issues executive orders aimed at undoing Obama initiatives to combat climate change, oversee waterways and wetlands and slash pollution from power plants — as he is expected to do as early as next week — existing regulations won’t disappear overnight.

To reverse or revamp existing rules around vehicle fuel standards, mercury pollution or a range of other environmental issues, Pruitt would have to repeat the lengthy bureaucratic process that generated them. Other initiatives, such as the so-called Clean Power Plan aimed at regulating emissions from power plants, remain tied up federal courts.

In addition, Pruitt will encounter an EPA workforce on edge, in which some employees are wary about the direction he plans to take the agency and fearful he might adhere more to ideology than science. Environmental groups also are likely to oppose him at every turn, eager to sue over any rollback of existing regulations.

For his part, Pruitt has said he intends to return the agency to its central mission of protecting the quality of the nation’s air and water while respecting the role of states as primary enforcers of environmental laws.

“It is our state regulators who oftentimes best understand the local needs and the uniqueness of our environmental challenges,” he said during his confirmation hearing last month.

Pruitt cleared the Senate Friday afternoon by a vote of 52-46, winning support from Democrats Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota. Only one Republican, Susan Collins of Maine, voted against him.

The vote came after Democrats held the Senate floor for hours overnight Thursday and then through the morning to criticize Pruitt and push for a last-minute delay of his confirmation. Part of their argument centered on an Oklahoma judge’s ruling late Thursday that Pruitt’s office must turn over thousands of emails related to his communication with oil, gas and coal companies. The judge set a Tuesday deadline for release of the emails, which a nonprofit group has been seeking for years.

Republicans pressed forward with the vote, saying Pruitt had been thoroughly vetted and calling on Democrats to end what Senate Majority Leader Mitch McConnell (R-Ky.) labeled “a historic level of obstruction” in holding up Trump administration nominees.

It took only minutes after Pruitt’s confirmation to catch a glimpse of the contentious fights that lie ahead.

Environmental advocacy groups, which had written letters, lobbied lawmakers, organized protests and waged a furious campaign online and in television ads calling him a friend to polluters, reacted with a mixture of anger and despair.

One group termed the confirmation a “sad day for the country.” Another described it the “stuff Big Oil’s dreams are made of.”

“Scott Pruitt as administrator of the EPA likely means a full-scale assault on the protections that Americans have enjoyed for clean air, clean water and a healthy climate,” Michael Brune, executive director of the Sierra Club, said in an interview. “For environmental groups, it means we’re in for the fight of our lives for the next four years.”

But amid such hand-wringing, there was relief among those who welcomed his nomination — a group that includes fossil-fuel firms that chafed under the regulation of the Obama era. Many have helped fund Pruitt’s campaigns over the years.

The National Association of Manufacturers proclaimed Pruitt would “restore balance to the way environmental regulations are developed.” The head of the National Mining Association said he will be “mindful of the costs that regulations can impose on the economy.”

The White House itself rejoiced at Pruitt’s confirmation, with spokeswoman Sarah Huckabee Sanders telling reporters aboard Air Force One that “the EPA will no longer spend unnecessary taxpayer dollars on an out-of-control, anti-energy agenda.”

Jeff Holmstead, who headed EPA’s air and radiation office under President George W. Bush and is now a lawyer representing energy firms, said he thinks Pruitt will be a good steward of the agency.

“Over the past eight years in particular, [the EPA] has completely micromanaged the states. I think you’ll see a real effort to reset that balance,” Holmstead said. “I think he really does believe in the rule of the law. He believes the role of executive branch is to carry out the intent of Congress.”

Pruitt sued the EPA more than a dozen times during the Obama administration, challenging the agency’s authority to regulate toxic mercury pollution, smog, carbon emissions from power plants and the quality of wetlands and other waters. In Oklahoma, he dismantled a specialized environmental protection unit that had existed under his Democratic predecessor and established a “federalism unit” to combat what he called “unwarranted regulation and systematic overreach” by Washington.

That combative approach won him praise from fellow Republicans and the oil and gas industry. But the prospect of Pruitt leading the EPA horrified environmental advocates, who accuse him of repeatedly questioning the overwhelming scientific consensus around climate change and defending the interests of fossil-fuel firms over the health of ordinary citizens.

His nomination also rattled some agency employees, who fear he will be eager to carry out the promise that Trump made on the campaign trail to “get rid of [EPA] in almost every form.We’re going to have little tidbits left, but we’re going to take a tremendous amount out.”

“Unless he has a revelation like St. Paul did on road to Damascus, I don’t anticipate anything good,” said John O’Grady, who heads a national council of EPA unions and has worked at the agency for more than 30 years.

More than 700 former EPA officials recently wrote to Congress opposing Pruitt’s confirmation, saying he “has gone to disturbing lengths to advance the views and interests of business.” Even some current employees openly protested his nomination, notably during a recent rally in downtown Chicago near the agency’s Region 5 offices.

Minutes after Friday’s confirmation, the EPA tweeted for the first time since Trump’s inauguration. “We’d like to congratulate Mr. Pruitt on his confirmation!” the tweet read.

Soon after, the agency issued its first press releases since Trump became president. One included praise for Pruitt from more than a dozen Republican lawmakers and industry executives. The EPA also posted an online biography for its new administrator, which made no mention of the many lawsuits Pruitt had filed against the agency he now leads.

[Ryan Ruck]

E.P.A. Officials, Disheartened by Agency’s Direction, Are Leaving in Droves

December 22, 2017

More than 700 people have left the Environmental Protection Agency since President Trump took office, a wave of departures that puts the administration nearly a quarter of the way toward its goal of shrinking the agency to levels last seen during the Reagan administration.

Of the employees who have quit, retired or taken a buyout package since the beginning of the year, more than 200 are scientists. An additional 96 are environmental protection specialists, a broad category that includes scientists as well as others experienced in investigating and analyzing pollution levels. Nine department directors have departed the agency as well as dozens of attorneys and program managers. Most of the employees who have left are not being replaced.

The departures reflect poor morale and a sense of grievance at the agency, which has been criticized by President Trump and top Republicans in Congress as bloated and guilty of regulatory overreach. That unease is likely to deepen following revelations that Republican campaign operatives were using the Freedom of Information Act to request copies of emails from E.P.A. officials suspected of opposing Mr. Trump and his agenda.

The cuts deepen a downward trend at the agency that began under the Obama administration in response to Republican-led budget constraints that left the agency with about 15,000 employees at the end of his term. The reductions have accelerated under President Trump, who campaigned on a promise to dramatically scale back the E.P.A., leaving only what he called “little tidbits” in place. Current and former employees say unlike during the Obama years, the agency has no plans to replace workers, and they expect deeper cuts to come.

“The reason E.P.A. went down to 15,000 employees under Obama is because of pressure from Republicans. This is the effort of the Republicans under the Obama administration on steroids,” said John J. O’Grady, president of American Federation of Government Employees Council 238, a union representing E.P.A. employees.

ProPublica and The New York Times analyzed the comings and goings from the E.P.A. through the end of September, the latest data that has been compiled, obtained under the Freedom of Information Act. The figures and interviews with current and former E.P.A. officials show the administration is well on its way to achieving its goal of cutting 3,200 positions from the E.P.A., about 20 percent of the agency’s work force.

Jahan Wilcox, a spokesman for the E.P.A., said the agency was running more efficiently. “With only 10 months on the job, Administrator Pruitt is unequivocally doing more with less to hold polluters accountable and to protect our environment,” he said.

Within the agency, science in particular is taking a hard hit. More than 27 percent of those who left this year were scientists, including 34 biologists and microbiologists; 19 chemists; 81 environmental engineers and environmental scientists; and more than a dozen toxicologists, life scientists and geologists. Employees say the exodus has left the agency depleted of decades of knowledge about protecting the nation’s air and water. Many also said they saw the departures as part of a more worrisome trend of muting government scientists, cutting research budgets and making it more difficult for academic scientists to serve on advisory boards.

“Research has been on a starvation budget for years,” said Robert Kavlock, who served as acting assistant administrator for the Office of Research and Development before retiring in November. But under earlier buyouts, Mr. Kavlock said, the agency later hired nearly 100 postdoctoral candidates to help continue critical agency work.

“There wasn’t a reinvestment this time around,” he said. “There’s a hard freeze.”

Scientists, for the most part, are also not being replaced. Of the 129 people hired this year at the E.P.A., just seven are scientists. Another 15 are student trainee scientists. Political appointees, however, are on the rise. The office of Scott Pruitt, the agency administrator, was the only unit that saw more hires than departures this year.

In addition to losing scientists themselves, the offices at the E.P.A. that deal most directly with science were drained of other workers this year. The Office of Research and Development — which has three national laboratories and four national centers with expertise on science and technology issues — lost 69 people, while hiring three. At the Office of Chemical Safety and Pollution Prevention, responsible for regulating toxic chemicals and pesticides, 54 people left and seven were hired. And in the office that ensures safe drinking water, one person was hired, while 26 departed.

By contrast, Mr. Pruitt’s office hired 73 people to replace the 53 who left.

“I think it’s important to focus on what the agency is all about, and what it means to lose expertise, particularly on the science and public health side,” said Thomas Burke, who served as the agency’s science adviser under Mr. Obama. “The mission of the agency is the protection of public health. Clearly there’s been a departure in the mission.”

Mr. Wilcox disputed that assessment and said the agency remained an attractive workplace for scientists.

“People from across E.P.A. were eligible to retire early with full benefits,” he said in an emailed statement. “We currently have over 1,600 scientists at E.P.A. and less than 200 chose to retire with full benefits.”

The impact of losing so many scientists may not be felt for months or years. But science permeates every part of the agency’s work, from assessing the health risks of chemical explosions like the one in Houston during Hurricane Harvey to determining when groundwater is safe to drink after a spill. Several employees said they feared the departures with few replacements in sight would put critical duties like responding to disasters and testing water for toxic chemicals in jeopardy.

As of Dec. 6, there were 14,188 full-time employees at the E.P.A. By comparison, there were 17,558 workers at the end of the first year of the George W. Bush administration and 17,049 by the end of the first year of President Obama’s term. The E.P.A. offered two major buyouts during the Obama administration, losing 900 employees in 2013 and an additional 465 the following year. Hundreds of other workers left through attrition and were not replaced.

Mr. Pruitt’s office has described the current buyout process as a continuation of Obama administration efforts to ensure that payroll expenses do not overtake funding for environmental programs.

Agency staff said they believed the Trump administration was purposely draining the E.P.A. of expertise and morale.

Ronnie B. Levin spent 37 years at the E.P.A. researching policies to address lead exposure from paint, gasoline and drinking water, most recently working as a lead inspector at the agency’s regional office overseeing New England. She retired in November after what she described as months of low morale at the agency. And with the lead enforcement office targeted for elimination as part of Mr. Trump’s proposed budget, she said, “It was hard to get your enthusiasm up” for the job.

“This is exactly what they wanted, which is my biggest misgiving about leaving,” Ms. Levin said. “They want the people there to be more docile and nervous and less invested in the agency.”

Lynda Deschambault, a chemist and physical scientist who left the E.P.A. at the end of August after 26 years, said her office in Region 9, based in San Francisco, had been hollowed out. The office saw 21 departures this year and no hires. “The office was a morgue,” she said.

Conservatives who helped lead the Trump administration’s transition and prepared for eliminating vast parts of the agency said scientists’ worries were misplaced.

“To me it’s not necessarily a sign of catastrophe,” said David M. Kreutzer, a senior researcher at the Heritage Foundation who advised Mr. Trump on the E.P.A. during the transition. He said the agency under President Obama was engaged in “phenomenal overreach” and that the Trump administration’s efforts were aimed at correcting that.

In proposing this year to slash the E.P.A.’s budget by 31 percent, Mick Mulvaney, director of the White House Office of Management and Budget, called the effort part of Mr. Trump’s plan to eliminate entrenched government workers.

“You can’t drain the swamp and leave all the people in it,” Mr. Mulvaney said. “So, I guess the first place that comes to mind will be the Environmental Protection Agency.”

Jan Nation, who works in E.P.A.’s Region 3, based in Philadelphia, where 46 people either retired or took a buyout this year, lamented the administration’s approach to federal workers.

“We are not the swamp. The swamp are all the people who don’t have a specific function to make our government work,” Ms. Nation said. “If you have a swamp to drain, I know people in the Army Corps of Engineers who can do it.”

Well Ms. Nation, "No single raindrop believes it's responsible for the flood."

[Ryan Ruck]