The Daily - Friday, Feb. 2, 2018

Episode Date: February 2, 2018

Almost from the moment that he was appointed to head the Environmental Protection Agency, Scott Pruitt has been cast by environmentalists as an ideologue on a mission to destroy the very agency he runs. But Mr. Pruitt, who built a career suing to block environmental rules, sees it differently. Guests: Scott Pruitt, administrator of the Environmental Protection Agency; Coral Davenport, who covers energy and environmental policy for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, from the moment he was appointed, Donald Trump's EPA administrator has been cast by environmentalists as an ideologue on a mission to destroy the very agency he runs. He sees it differently. A conversation with Scott Pruitt.

It's Friday, February 2nd. Administrator Pruitt, I think for most of us, our introduction to you came when you were Attorney General of Oklahoma. So take us up to that point in your career. What was the story of Scott Pruitt before you became attorney general? Where does it start? Well, you know, I don't want to go back too far, but so I grew up in Kentucky and spent most of my teenage years and through high school and into college aspiring to be a major league baseball

player. Found out that junior and senior year after some surgeries and whatnot, that that wasn't going to happen and started thinking about other things. And law school took me to Oklahoma. So, you know, the journey to attorney general was something that I didn't anticipate either. And once you become attorney general, you make a series of decisions about where you're going to use your resources and you end up suing the Environmental Protection Agency 14 times. and I wonder why. Well, fundamentally, as we look at the environmental statutes, Michael, that have been passed by Congress and administered by the EPA for a number of years, really they're the heart of cooperative federalism. And what is cooperative federalism?

Well, it's the partnership of the states where states are vested with responsibilities along with the federal government to ensure that certain outcomes are achieved to protect the environment. with the federal government to ensure that certain outcomes are achieved to protect the environment. And so Congress recognized at the inception of these environmental statutes that we adopted in the 1970s that you couldn't have a one-size-fits-all strategy because the issues facing Utah, the second most dry state in the country, are much different than the issues facing Minnesota. This truly is a partnership that has existed since the inception of the EPA. And sometimes that partnership gets out of balance. And there's an emphasis where perhaps decisions made at the federal level are paternalistic and dictatorial and don't recognize how issues impact states in a different way. But the

timeframe that you're talking about, the 14 lawsuits, from my perspective, that was driven largely by this imbalance, this use of the statutes in ways that had not been done historically, where attorneys general looked at a statute, Clean Water Act, Clean Air Act, and said, authority given to a state has been taken away. We need to ensure that we protect that right or that responsibility. And that's what prompted the lawsuits. And you believed, from what I can tell, that under the last administration, President Obama, the EPA was overreaching or overstepping in its policies. So help me understand— In its rulemaking. Help me understand what that means.

Was that the Environmental Protection Agency doing what in your mind was not just objectionable but illegal? Yeah, think about it this way. We have an act called the Clean Water Act. And what gives the federal government jurisdiction is a definition of something called the waters of the United States. So jurisdiction of our agency is actually put into play by whether a water is a water of the United States or not. So the agency in 2015 engaged in rulemaking to define a water of the United States and define it so broadly, it included dry creek beds in Southwest Oklahoma. It included ephemeral drainage ditches in Salt Lake City, Utah. And so people that were seeking to build subdivisions in Salt Lake

or use their land in other parts of the country, the first place they had to stop was Washington, D.C., to say, give me authority to use my land, farmers, ranchers, building subdivisions across the spectrum, because the agency stretched the definition so broadly, it created uncertainty. That's what I mean, is that when you have an agency taking rulemaking that takes authority to the point of where it's not recognizable in the statute, guess what happens as a result? Uncertainty. It sounds like you believe agencies like the EPA should stick to the letter of things, should be – someone described you as an EPA originalist. I think that's a fair term, and I think it's a good description of what we're seeking to do. There is a very important role for the EPA.

What's happened over the last 10 years or so is the agency evolved and morphed into something that was almost like super agency, where it was using its authority in ways to displace that partnership that I talked about at the very beginning. Why, when you were attorney general of Oklahoma, was the EPA such a target of yours? Why this agency? Well, when you look at the state of Oklahoma and the responsibilities given to the state of Oklahoma to regulate, for instance, in the natural gas space, that was a part of the Clean Air Act that the agency, the EPA, before I arrived, was using in a weaponized fashion to force a federal plan upon the state that cost billions of dollars. Utility companies had to convert power generation

to natural gas renewables under coercion. I represent the state's interest, the state's sovereignty issue with respect to our responsibility to govern that statute and exercise our responsibilities under the Clean Air Act were being displaced. But certainly there were lots of targets that you could choose as Attorney General, as the chief law enforcement official in that state. And I know this may sound repetitive, but why the EPA? Did you see it as particularly egregious in overstepping, in your mind, against the interest of states? To me, and this goes to, I think, one of the greatest challenges we have presently with respect to environmental issues in this country today, what is true environmentalism?

And I think, you know, the agency took a perspective for a number of years that it's prohibition, that though we've been blessed with natural resources that help us literally feed the world and power the world, that we should not, what, develop those natural resources, we should put fences up and we should prohibit that. And so in some respects, Michael, the rulemaking that was being deployed by the agency was weaponized in the sense of picking winners and losers, weaponized in the sense of saying we're going to favor certain types of outcomes in the market with respect to energy and environment. That's not the role of a regulator. The role of a regulator is to make things regular, to take a statute, to use its authority, to fairly enforce it against all those

that are regulated by those regulations, but not to pick winners and losers. The agency for a number of years, in my view, was picking winners and losers and using authority to displace states' involvement and partnership, and that's why the lawsuits occurred. Keeping in mind all that we've just discussed and those lawsuits, the logical question is, why did you want to become the head of the Environmental Protection Agency? To fix this. And to get back to the fundamentals, the basics of operating pursuant to rule of law, re-establishing process, recognizing the partnership of federalism, recognizing we can achieve better things together. But you can't do business in a way that is disrespectful, disdainful of rule of law, speaks to partners that you've worked with for years as, what, adversaries like the states. All those things are, in my estimation, damaging to good environmental outcomes and what we ought to be doing together as a country to advance environmental protection.

When you were nominated for the position, I'm sure you know this, the heads of environmental groups were anxious, and they said so. And they said things like having Scott Pruitt in charge of the EPA is like putting an arsonist in charge of fighting fires. And that may offend you very deeply. It may have amused you. But I wonder what it represents to you to oversee the EPA and be so at odds with so many of the groups that see it as their job to protect. They just don't know me. They don't know you. They just don't know me. The thing is, what these kinds of comments represent is all that's wrong in the environmental space today.

Tell me what you mean. Well, people put on jerseys. Jerseys, like sides. Yeah. You're pro-business. I'm pro-environment. You're pro-environment. It's a political thing.

It's not about results. When we've talked about Superfund cleanup and accountability, we have 1,340 sites across the country. These are sites considered polluted almost beyond repair. Some of the most polluted sites we have anywhere in the country from uranium to lead. And these sites have languished for years. Not languished because, you know, we don't have the technology to clean it up. We just haven't made decisions. We just haven't brought the agency

to the point of saying, let's figure out what's going on. Let's figure out what the options are. Let's make a decision. Let's get accountability to get cleanup. Today, I'm going to announce Westlake. It's taken 27 years to get a decision. This is Missouri. Missouri. Uranium buried in the soil. That's a 40-year-plus deal. Now, imagine that. Agency puts Westlake on the list in 1990. When I came into this position 27 years later, the agency still has not made a decision on how to clean it up. Not clean it up, but make a decision. Nothing can be done. Now, why aren't they offended by that?

Are you saying that the expectation of the EPA is that it will blindly side with environmentalists or has been in the past, and that you see the role of the agency as to follow the law. And sometimes that will mean making decisions that environmentalists agree with. Sometimes that will mean making decisions that the energy industry. EPA originalism, the term that you used earlier, we are housed in the executive branch. And fifth grade civics tells us what? If you hang out in the executive branch, your job is to enforce the law. Okay? So the only authority I have is the authority given to me by the legislative branch in Congress. And if Congress doesn't give me that authority, I can't make it up.

Largely what's happened with the past administration is they did the latter. They made it up. And look, I don't necessarily blame them. I mean, that's a different kind of leadership style, a different kind of approach. But the fact that Congress is dysfunctional and is not updating the Clean Air Act or the Clean Water Act or all these very statutes that we administer, the fact that Congress is not doing that doesn't give the EPA to say, we're going to do it in your place. We're going to pinch it because then what happens? We're doing things we shouldn't do. year of the Trump presidency, a lot of the work of the agencies has been in deregulating,

undoing many of the regulations and the policies put in effect under the Obama administration. Would you agree with that assessment that when it comes to the EPA, much of the work has been undoing rather than doing? Look, we've had a lot of work addressing these deficient rules. So a good part of our work is cleaning up that mess. The next step is something that's often missed, is getting it right going forward. You know, like on the Waters United States rule, we have a proposed rule that withdraws it, and we have a proposed rule that's coming out in April that provides a substitute definition. So is that deregulation? Is that regulatory clarity or regulatory certainty? It's probably all those things, right? So from my perspective, it is what it is. We have deficient rules in the books. We're addressing those and we're providing, we're doing the work,

frankly, we're doing the work of the agency. Well, to that point, in the simplest terms, what do you believe the role of the EPA should be? What should it be focused on in this moment? I mean, technically, our role is to administer the statutes that congress has given us a responsibility to administer the toxic substance control act the clean air act i mean that all those acts that that enforcing them and administering them but beyond that it is to truly you know obviously as we do that protect the health and environment of this country it's that and i will tell you there are some in that environmental space that believe you know what,

you should use your power to be punitive and weaponize it to do what? Eradicate certain forms of energy at the expense of others. That's just simply wrongheaded. It's definitely not in the statute, Michael. It's definitely not in the statute. I want to engage you on this.

For people who aren't paying close attention to you and to the EPA, I think the last thing that they might know is that back in October, you repealed the Clean Power Plan, a signature climate change policy put in place by the Obama administration with the goal of reducing greenhouse gas emissions by pushing states to move away from coal in particular. Is there a place in this approach that you're describing, this EPA originalism, for the EPA to fight climate change? Perhaps. Does the law, in your mind, allow for the EPA to severely curtail or even eliminate, in some cases, an industry that the scientific community and the government community agrees contributes to climate change?

Perhaps, though. Perhaps, though, what we ought to be thinking about is, again, what does the statute say? So you're saying Congress has to change the law in order for you then to regulate climate change in this way? Without question. I mean, the past administration, again, pinch hit. They filled in the blank. They said, we're going to adopt a rule.

We're going to use power, fill in the space to say we're going to do what? We're going to try to force power generation shifting from fossil fuels to renewables. What we've done, you mentioned October, us issuing the proposed rule to withdraw CPP. Clean power plant. What I also did in December is I issued something called an advanced notice of proposed rulemaking. You know what I said in that? I want comment from everybody across the country. an advance notice of proposed rulemaking. You know what I said in that? I want comment from everybody across the country. Provide input and information on the authority of this agency

to do exactly what you just described. So we've already begun what I think our obligation is, which is to make a decision on really what is the scope? What is the authority? What is the jurisdiction under Section 111 of the Clean Air Act with respect to power generation? But we should not forget that we can't engage in a results-oriented approach. We have to ask the question, is the authority there? When you say results, meaning like there are people

who see an urgency to something like climate change and they may want to override some of the kind of regulatory language concerns that you're describing. And your answer seems to be, then give me the legal power

or create the legal power, but I'm not going to do it on my own. And this administration is not going to do it like the last one. Just because the view exists in the scientific community that this is an issue that must be dealt with doesn't mean that I as EPA administrator are going to deal with it. Just help me understand. Deal with it. I think you said it largely well, you know, in the sense that it's the responsibility of those that pass these statutes to give us the authority to engage whatever it is that they want to achieve, from solid waste to

hazardous waste to whatever issue it might be. And I will tell you, the jury is out literally and figuratively on what authority exists under the Clean Air Act with respect to these issues. You know, Lord Acton talked about political atheism at times, and I think that's what you really described, is that, you know, we really don't care how you get there. The process stuff and the rule of law stuff, that's not that big a deal with us. Just do something. You're withdrawing the Clean Power Plan. That's terrible. Well, what does the Clean Power Plan achieve for the country? What part of that had any impact on environmental outcomes?

Zero. How do we know that? It never went into effect. Why didn't it go into effect? The Supreme Court, for the first time in history, issued a stay during the pendency of litigation because of its concern about the unlawfulness of the Clean Power Plan adopted in 2015 by the EPA. So if you really care about these issues, you need to make each branch do their job. And our branch is a branch that exists to enforce the law. So on these issues around—

And do you care about these issues? That issue. I mean, I think, frankly, as I look at these issues, I think the debate about the impact of CO2 is important for us to wrestle with as a country. There are some that believe that it causes an existential threat, and it's tomorrow. I mean, the previous administration thought it was more important than ISIS.

You know what? I can tell you this. If that issue is more important than ISIS, I want to know about it. But here's my view on it. There are things we know, and there are things we don't know. I think it's pretty arrogant for people in 2018 to say, you know, we know what the ideal

surface temperature should be in the year 2100. Now, is that different than whether climate change is happening? Yes, climate change is happening. So as we look through these issues, we need to ask, you know, be much more, I think, inquisitive. And I think the American people deserve an open, honest, transparent, objective debate about these issues. Because if you're going to form policy around it, that needs to occur. Let's just ask the tough questions. Let's help it form public policy. But after we do all that, Michael, I still have a little issue over here. The issue is what? What authority do I have? If the last thing people remember is the repeal of the Clean Power Plan about your

time in this first year, is that okay by you? Well, look, I mean, I think that that is a very necessary thing. I think withdrawing the deficient 2015 rule, the Clean Power Plan, is absolutely an important thing. And I think it was reflective of an attitude of a weaponization, as I told you, with respect to how we did business historically. That's changing. So I think what would be something that would be more lasting is recognizing by removing that and moving to a different way of doing business, we restored the way we've done business historically, and that means good outcomes for the environment going forward. The Minister of Pruitt, thank you for your time. Thanks, Michael.

Appreciate it. Likewise. When we come back, we talk to The Times environmental reporter about our conversation with Scott Pruitt. Hey, it's Michael. Hi, Michael. How are you? It's been so long. It's been too long. It's been a long time. I'm excited to be back. Coral Davenport covers the EPA for The Times. I just had this kind of philosophical conversation with Administrator Pruitt about his role at the EPA.

The sort of central point he made was whatever the perception of him, he's really just doing his job and interpreting the law, that this has nothing to do with ideology. And actually, by just following the letter of the law, he's not ideological, whereas the EPA under previous administrations, in his mind, has been. What do you make of that? Well, certainly at first blush, there's absolutely a case to be made for that. The EPA was created in 1970 by President Richard Nixon. The sort of foundational laws that it's charged with executing were aimed at cleaning up the stuff that dumps out of smokestacks and tailpipes and into your local community. Smog and chemical pollution that comes out of factories. That was

sort of the original idea of what the EPA was supposed to do. And it is absolutely accurate that under the Obama administration, the mission of the EPA expanded and morphed and the sort of center of it became climate change. Now, climate change and global warming are the major environmental concerns of our time. We don't have new laws that are designed to deal with them. new laws that are designed to deal with them. The only tool that the U.S. government really has right now to deal with global warming is the EPA and these laws passed in the 1970s. And what Scott Pruitt is saying is none of this was the intent of the EPA. Let's go. And this is his term. He loves to use it. Let's go back to basics. Let's go back to those hazardous waste sites and those pipes dumping into our rivers. That's what we're here to do.

And the point of all this was never intended to be global warming. So let's get back to this original mission for the agency. So then how should we think about his repeal of the Clean Power Plan, which I think for some people felt like the nightmare of what might happen with Pruitt as the head of the EPA? people felt like the nightmare of what might happen with Pruitt as the head of the EPA. But the way he's talking about it, it was just a clear example of overreach by the Obama administration. And so he's returning the EPA, in his words, to what he deems as legally responsible when it comes to something like the Clean Power Plan. What do you make of that? So here things get a little more tricky and nuanced, because the something like the Clean Power Plan. What do you make of that? So here things get a little more tricky and nuanced because the fact is the Clean Power Plan is absolutely an example of the Obama administration taking an old law, the 1970

Clean Air Act, that never anticipated global warming and saying, all right, we've got this tool. How can we use it in the most creative way possible to get a regulation that can help us solve global warming? So Scott Pruitt and conservatives in general argued that they stretched the law, they stretched the intent, we've got to roll this back. But there's one other piece of this, and Scott Pruitt knows this, which is there was a 2007 Supreme Court decision that weighed in on whether or not those old laws and the EPA can and should regulate fossil fuel emissions that cause global warming. And the Supreme Court ordered the EPA to do a study and make a determination. make a determination, fossil fuel, greenhouse gas pollution emissions, are they harmful to public health in the same way that those old smog and chemical pollutions are? And the EPA under the

Obama administration determined, yes, fossil fuel emissions that warm the planet do endanger public health, just like those old-fashioned pollutions. And as a result, under the Clean Air Act, the EPA is now required, required by law to regulate those greenhouse gas global warming emissions. And that finding has been upheld by the courts. It's a done deal. So Scott Pruitt might say, well, it's an overreach. It's not what we're supposed to do. It's not what the law intended. But nonetheless, doesn't matter who's in charge. The federal government is still legally obligated to do something about global warming. So when Pruitt says that the Obama administration was acting outside the boundaries of the law with the Clean Power Plan, he might be right, but he might be wrong. We don't know yet. This is still tied up in court, it sounds like.

What quarrel do you make of Pruitt's argument that one of the flaws of the Clean Power Plan was that it picks winners and losers in the energy industry? It gives the federal government the power to essentially burning coal from coal-fired power plants. The coal pollution goes up in the atmosphere and it traps heat. So the Clean Power Plan is, in the long run, designed to put old-fashioned coal-fired power plants out of business because that's how you solve the problem. According to Pruitt, the Clean Power Plant didn't achieve anything because it never went into effect. And the reason it never went into effect was that it was held up by lawsuits claiming that it was federal overreach.

Is that true, first of all? And is he right that overreach can be actually counterproductive and that it leads to legal challenges like this, which make the law hang out in legal limbo? It's true. It was never implemented. The reason it was never implemented is there were so many lawsuits. The Supreme Court said, hey, this is such a big legal question. We're going to put a halt on implementation of this regulation until all the lawsuits are resolved. There's no question at all that the Obama administration, when creating the Clean Power Plan, they really did some legally interesting stuff in creating this. But there's also no question that a lot of the rollbacks and legal changes that Scott Pruitt has made in his less than one year in

office have also been slapped with lawsuits. Whenever you have big environmental regulations from either side, you get hit with lawsuits. That's kind of par for the course. So Pruitt knows better than almost anyone what it means for environmental regulations to be held up in court because before he was EPA administrator as attorney general in Oklahoma, he filed these 14 lawsuits against the EPA. And we were trying to get to the heart of why, of all things, as attorney general of Oklahoma, he chose to spend so much of his energies specifically targeting the EPA. What do you think the answer is?

Important. He's the attorney general of Oklahoma. A major part of Oklahoma's economy is the oil and gas industry. It's fair to say that his home state industry really was getting hit with a lot of these regulations. It's also fair and very important to note that Scott Pruitt had a really close relationship with a lot of those oil and gas companies. When Scott Pruitt, as attorney general of Oklahoma, pushed for regulations to be rolled back,

he would make the case to the EPA that the regulations were harmful to his state. But as the New York Times reported a couple of years ago, it turns out that the regulations were harmful to his state. But as The New York Times reported a couple of years ago, it turns out that the letters that he was sending on Attorney General Letterhead were basically copied and pasted directly from arguments and emails written by Devon Energy, which is a major oil and gas company headquartered in Oklahoma. There's another piece of that relationship as well, which is if you're the attorney general of Oklahoma, it makes sense that you are going to argue cases that would directly benefit Oklahoma, heavily dependent on these fossil fuel companies. That makes sense for a state attorney general who's also arguing for states' rights. The difference is that we're still seeing Scott Pruitt advocate for the same kind of policies now as head of the federal agency that is primarily charged with protecting public health. So you're saying as attorney general, it made a fair amount of sense to advocate for companies in his state.

But in his role as the head of the EPA, it's more surprising. Yes, that's what's really surprising. So, Coral, how Pruitt talks about climate change has become one of the most controversial elements of his time as the head of the EPA. So I asked him about climate change. And what he said was that while he believes in climate change and recognizes that the climate is changing, he thinks that there's still an open debate about how dangerous that is and suggests that we need to have that debate. What is he saying here and how

does that fit in to his actions at the EPA? He's kind of top dancing around basic facts. Scott Pruitt has said on television and in congressional testimony, things that stand against decades and decades and decades of international scientific research. He has said that if carbon dioxide does contribute to climate change, it's not clear how much. I did an interview with the president of the National Academies of Science a couple years ago who said to me that the consensus that human activities are contributing to climate change and that the planet is warming is stronger than the consensus that smoking tobacco is linked to lung cancer. So are there questions about exactly what climate change is going to do

when? Are there questions about the precision of the models as we look at what's going to happen over the next century? Sure. But I would say this denial of the established scientific research on this topic is really surprising to see from the head of an agency that sits on a lot of the peer-reviewed research that has been done. And this has been something that's been very difficult for Republicans in general as they try to grapple with the established science of climate change. The science shows that the major contributor to climate change is burning fossil fuels. That's coal, oil, and gas. And if you have a good relationship with those industries, if they are the basis of your home state economy or a big contributor to your political campaign, you're in a really tough position politically.

So finally, Coral, for environmentalists, Pruitt is everything that they fear in an EPA administrator, with the number one offense being, as we've discussed, canceling the Clean Power Plan. But do you think that he makes a good case for environmentalists seeing him differently? Should they simply view him as someone who's adhering to the letter of the law? And if they want things to change, they should take it up with Congress, not with the EPA. So Pruitt makes a good point there. There is no law on the books designed specifically to deal with climate change. President Obama tried to get Congress to do that.

Congress rejected it. And so we're sort of left with there's this problem of climate change. There's no law to do anything with it. It's not necessarily the obligation of the EPA administrator to take old laws and try to adapt them creatively to this new problem. But that said, you know, Pruitt's adherence to this originalist approach, I think, frightens a lot of environmentalists as well. The reason the EPA was created in 1970 is that during the 50s and 60s, we saw an increase in pollution as states kind of competed against each other to have the most lax and loose environmental regulations. And the problem is, you know, pollution doesn't obey state boundaries. And the idea was a Republican president created this agency because letting the states work it out for themselves wasn't working for the country. And potentially letting states work out

climate change might not work either. That is the idea, especially since it is a global problem. Coral, thank you very much. Thank you so much, Michael. It's always great to be with you. Here's what else you need to know today. The classified memo that was drafted by House Republicans and is reported to be highly critical of the FBI's conduct in the Russia investigation is moving closer to public release. Security Grounds, will inform Congress today that he wants it made public over the objections of both the FBI and his own Justice Department, which argue it could jeopardize sensitive government information.

Those who have read the memo say it accuses the FBI of misleading a federal judge when it sought a warrant to spy on a Trump campaign advisor suspected of working with the Russians. The Daily is produced by Theo Balcombe, Lindsay Garrison, Rachel Quester, Annie Brown, Andy Mills, Ike Sreeskandarajah, Claire Tennesketter, Paige Cowett, and Michael Simon-Johnson, with editing help from Larissa Anderson. Lisa Tobin is our executive producer. Samantha Hennig is our editorial director. Our technical manager is Brad Fisher, and our sound engineer is Peter Sale.

Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. Special thanks to Sam Dolnick and Michaela Bouchard. That's it for The Daily. I'm Michael Barbaro. See you Monday.