Biden has no EPA air nominee as climate goals teeter

By Kevin Bogardus, Sean Reilly | 12/22/2021 01:17 PM EST

President Biden.

President Biden still has not picked a nominee for EPA’s air office. Drew Angerer/Getty Images

As President Biden closes out his first year in office, he still has not nominated EPA’s top air official, a role that takes on even greater importance with climate legislation stalling on Capitol Hill.

Seven of Biden’s EPA nominees have been approved to fill leadership and policy posts at the agency. Another four nominees await confirmation votes on the Senate floor. But the president has not yet announced his pick for EPA assistant administrator for air and radiation.

"If you look at their high-priority issues, many of them deal with the air office," Jeff Holmstead, who served as EPA’s air assistant administrator during the George W. Bush administration, told E&E News. "For those on the outside watching, it has been puzzling."

Biden is lagging behind his predecessors in filling this position. Several presidents, including Trump, Obama and George W. Bush, had their nominee for the role confirmed within their first year in office.

Miles Keogh, executive director of the National Association of Clean Air Agencies, said he wishes the nomination process were faster for the EPA position.

"The slowness to announce things deprives us of the time to come to the table to get to agreement as close as we can," Keogh told E&E News, noting that it is a vital position overseeing air pollution and public health.

"It is a really important job, which can literally save thousands of lives and improve the health of hundreds of thousands of lives," Keogh said.

He added, "FERC is not going to clean up particulates. The Department of Energy is not going to clean up air toxics. The Department of Transportation is not going to set up monitoring that helps vulnerable communities."

Holmstead, now a partner at Bracewell LLP, cited the EPA air office’s vast regulatory power.

"I always thought it was the second-most important job at EPA, just given its scope," Holmstead said. "EPA’s air office regulates everything from power plants to chemical facilities to cars, buses and trucks and even lawn mowers."

Republicans on Capitol Hill have taken notice, too. Sen. Shelley Moore Capito (R-W.Va.), ranking member on the Senate Environment and Public Works Committee, said the Biden administration has sought to run climate policy from the White House.

"The vacancy at OAR — the EPA office primarily accountable for emissions policies — underscores the fact that major environmental policy decisions are being made at the White House by unaccountable climate czar Gina McCarthy. This is by design," Capito said in a statement shared with E&E News.

The senator also said she thought the White House had "overplayed" its hand, considering that the Democrats’ reconciliation package, which has a number of climate provisions, has run into opposition from her West Virginia colleague, Sen. Joe Manchin (D). EPA, however, is expected to move forward on tough climate rules.

"They believed the Build Back Better Act would have passed by now and all the facets of implementing their aggressive climate goals in BBB would be law," Capito said, adding that EPA Administrator Michael Regan "has stated that even without new law, EPA will ‘push the envelope’ on new regulations."

Top air official on ‘delegated duties’

Biden does have a political appointee, Joe Goffman, running EPA’s Office of Air and Radiation.

Goffman spent most of the Obama administration in the air office as associate assistant administrator for climate and senior counsel — jobs that did not require a Senate signoff (Greenwire, May 10).

After stints at the Senate Environment and Public Works Committee and Harvard University, he returned to EPA to head the most influential of the agency’s program bailiwicks since Biden took office in January. Yet last month, his title on the air office’s webpage morphed from acting assistant administrator to principal deputy assistant administrator "performing delegated duties of assistant administrator."

EPA spokesperson Nick Conger told E&E News that Goffman had been the air office’s acting head because he was "the first assistant" to that job as principal deputy assistant administrator.

"Following a presidential transition, per the Federal Vacancies Reform Act, an official can act in such a fashion for a total of 300 days," Conger said. "As that time period has now passed, Joe Goffman has returned to operating in his permanent position as the principal deputy assistant administrator."

"He is only limited from doing those duties that a statute or a regulation specify must be done by the assistant administrator," Kevin Minoli, formerly EPA’s top career attorney, told E&E News regarding Goffman’s now "delegated duties."

Minoli, now a partner at Alston & Bird, added, "The administrator would be authorized to step in and do the exclusive duties of the assistant administrator."

EPA’s air office has been busy over the past year, working on clean car standards; reducing greenhouse gases like hydrofluorocarbons and methane; and targeting particulate matter air pollution.

Goffman, who served on Biden’s EPA transition team as well as helped draft memos on how the agency should reset after the Trump administration, has had direct access to Regan too. He is listed as a frequent attendee of the EPA administrator’s meetings, including on air quality, climate and vehicle emissions limits, according to records obtained by E&E News under the Freedom of Information Act.

"Joe is very capable and doing a very good job," said Alberto Ayala, executive director of the Sacramento Metropolitan Air Quality Management District. In January, Ayala had confirmed his interest in the nomination to head the air office, but now expects the nod to go to Goffman.

"They are already working on some major rules, so I think having anyone else would probably be a disruption, to be honest," Ayala said.

Conger with EPA declined to comment on pending personnel matters.

Confirmation battle ahead

Early on, Ali Mirzakhalili, air chief for the Oregon Department of Environmental Quality, was also mentioned as a possible contender (Greenwire, Jan. 8). Mirzakhalili, who previously worked for Biden’s home state of Delaware, again declined to comment in a response to a recent query through LinkedIn.

Mary Frances Repko, Chair Tom Carper’s (D-Del.) staff director for the Senate Environment and Public Works Committee, has also been mentioned as a potential contender for EPA air assistant administrator nominee, sources told E&E News. Repko didn’t respond to a request asking for comment.

Bob Perciasepe, who won Senate confirmation for several EPA posts, including leading the air office for President Clinton and later as deputy administrator during the Obama administration, told E&E News that he had no direct knowledge of the current situation.

But in general, career employees who answer to political appointees "are much more effective when the person representing them in the interagency process or [to] the public have the gravitas of being a confirmed individual," said Perciasepe, now a senior adviser at the Center for Climate and Energy Solutions.

Asked whether the lack of a confirmed air office chief could affect the Biden administration’s ability to pursue its agenda, Perciasepe replied: “I don’t know the answer to that, but I have to say that it could."

Winning Senate confirmation as EPA air chief could be a hard slog for whoever is chosen for the nomination.

"Going through confirmation, it is a bit of a gantlet," Holmstead said. The process includes a background check; filing of ethics and financial disclosure paperwork; a confirmation hearing; and votes on the nominee at the committee level and Senate floor.

Past EPA air nominees have struggled to be approved, as well.

During his second term, Obama nominated Janet McCabe twice for the post. She was never confirmed. George W. Bush, during his second term, nominated Bill Wehrum three times for the job, who also was never confirmed.

Trump nominated Wehrum for the EPA air job as well, and he wasthen confirmed on a tight 49-47 Senate vote in 2017. McCabe, too, has since been confirmed for an agency position, although a different one as deputy administrator for Biden’s EPA, earlier this year.

McCabe’s latest confirmation battle for EPA’s No. 2 spot could foreshadow the fight over the president’s air assistant administrator nominee.

In April, three Republican senators voted to confirm her, but Manchin, the Democratic senator from West Virginia, voted against the nominee. He cited McCabe’s work on the Clean Power Plan, the Obama-era EPA rule meant to curb power plants’ carbon emissions.

"The Clean Power Plan would have been devastating for places like West Virginia, and I am concerned by her continued defense of this harmful rule," Manchin said in a statement at the time.

Goffman also helped write the Clean Power Plan when he was last at EPA.

A spokesperson for Manchin declined to comment when contacted by E&E News for this story.

Capito, as ranking member on the EPW panel, will help oversee the air nominee’s confirmation process.

She has been pressing the Biden administration on many of its environmental rules, including how it came up with the new nationally determined contribution, or NDC, the United States’ goal for cutting greenhouse gas emissions. EPA has a big role to play in that effort.

"If and when the nominee for assistant administrator of air and radiation ever appears before the committee, he or she will have a lot to answer for," Capito said.