GOP playbook to complicate a Mary Nichols nomination

By Emma Dumain, Kevin Bogardus | 12/08/2020 06:51 AM EST

Mary Nichols is a favorite to win the nomination to lead President-elect Joe Biden’s EPA. But of the current top contenders for the post, she also could face the toughest path to Senate confirmation.

Mary Nichols, head of the California Air Resources Board, has been in the running for President-elect Joe Biden's EPA administrator.

Mary Nichols, head of the California Air Resources Board, has been in the running for President-elect Joe Biden's EPA administrator. Uli Deck/dpa/picture-alliance/Newscom

Mary Nichols is a favorite to win the nomination to lead President-elect Joe Biden’s EPA. Of the current top contenders for the post, she also could face the toughest path to Senate confirmation.

While any nominee to lead EPA would be controversial among conservatives on Capitol Hill, Nichols’ record of favoring an aggressive regulatory approach to curbing emissions is expected to especially rankle Senate Republicans.

Further, Nichols’ ties to California, which has some of the most stringent and politically polarizing environmental standards in the country, could provide a road map for Republicans to undercut her standing during the confirmation process (Climatewire, Oct. 15).


"California’s command and control culture is not the answer for our country," Sen. John Barrasso (R-Wyo.) — the outgoing chairman of the Senate Environment and Public Works Committee that will convene confirmation hearings for Biden’s EPA administrator nominee — said in a statement to E&E News.

"The EPA needs leaders dedicated to protecting America’s air, water, and communities," Barrasso, who is expected to remain a member of the committee, continued, "not runaway regulations, mandates, and more federal dictates."

As chair of the California Air Resources Board (CARB) — the state’s main air pollution regulator — Nichols was directly involved in developing tougher tailpipe pollution rules for passenger cars and implementing an aggressive, first-in-the-nation policy to phase out diesel trucks by 2045.

Currently, she is overseeing the early stages of drafting regulations to achieve 100% electric car sales in the state by 2035 following a directive from California Gov. Gavin Newsom (D).

Nichols declined to comment for this story when reached by E&E News, but she has told the Associated Press and The New York Times she would accept the EPA administrator job if offered by Biden.

If Nichols is ultimately nominated to lead EPA, it’s likely she would face scrutiny — and not only for her role in crafting a few specific environmental policies.

She’d also undoubtedly be challenged on whether she believes that every other major environmental regulation in the state should be applied at the national level (Climatewire, Aug. 27).

Critics point to California as an over-regulated, top-down bastion that is making it impossible for people to live and work. All the while, they say, California’s Democratic-controlled government can’t even manage wildfires or prevent mass rolling blackouts.

Just as the Golden State has become a stand-in for the kind of environmental approach conservatives revile, Nichols could become a proxy for that revulsion.

"There is a regulatory environment in California across the board, not just environmental, that has pushed up the cost of living and of doing business and is driving population to red states," said Robert Dillon, a spokesman for ConservAmerica and a former longtime aide to Sen. Lisa Murkowski (R-Alaska). "Why would we want to do that to the rest of the country?"

For Republicans looking to undermine Nichols during the confirmation process, Dillon explained, "That’s your argument."

If Nichols is nominated, Dillon continued, "the signal this sends is, we’re going to [set environmental policy] through the executive branch, we’re going to do it through the agencies and we’re not going to include the people of America in these decisions. And that is just going to automatically raise the defensiveness of a lot of members."

Nichols and Republicans

Nichols, of course, isn’t beloved by all Democrats just because she hails from a state with an environmental record progressives tend to envy.

Though Senate Minority Leader Chuck Schumer (D-N.Y.) tipped his hand last week to say he supports Nichols for the EPA job, green activists don’t unanimously share his view that she’d be the best person for the job (Greenwire, Dec. 2).

Last week, more than 70 organizations sent a letter to the Biden transition team alleging she didn’t do enough as CARB chairwoman to protect at-risk communities from the harmful effects of pollution (Greenwire, Dec. 3).

"Given President-Elect Biden’s stated commitment to environmental justice, we would like to call to your attention Ms. Nichols’ bleak track record in addressing environmental racism," the groups wrote. "We encourage you to instead seek other candidates with demonstrated commitment to climate and environmental justice."

But assuming Republicans win two runoff Senate elections in January and maintain their razor-thin majority in the chamber, they will be in a position to largely define the tone and tenor of Nichols’ confirmation proceedings.

In one scenario, Nichols could actually benefit from a long track record of working with Republicans, some of whom might be willing to vouch for her.

One such Republican is former California Gov. Arnold Schwarzenegger, who chose her for the CARB job in 2007.

Schwarzenegger remains a fan. In remarks last week, he called her "a big, big star" and said he hoped she would be picked for EPA administrator. He also said that she was "brilliant" and predicted she would be able to work with car and fossil fuel companies in "a sensible way" at the agency (Greenwire, Dec. 4).

Felicia Marcus, who served as regional administrator of EPA’s Pacific Southwest branch during the Clinton administration — when Nichols was also leading EPA’s air office — recently recounted how well Nichols worked with the GOP during her tenure.

Marcus specifically remembered working closely with Nichols and Republican governors out West on agreements for air visibility that led to the creation of the Western Regional Air Partnership.

"We insisted on tribes’ engagement along with the states in addition to the environmental advances," Marcus told E&E News. "I remember it well, because when Mary and I went to the [Western Governors’ Association] meeting for the vote, some of the Democratic governors double-checked with us to make sure it was really true that we had reached agreement and said they’d vote for it if we were for it."

She added, "Heck, when we were doing air plans for Los Angeles, Ventura and Sacramento air quality districts, we organized and worked with the chambers of commerce and the environmental communities and had all of them at the table at the same time."

Marcus, who also has been chair of the California State Water Resources Control Board, called Nichols both progressive and pragmatic — someone who focuses on results, not rhetoric, and is "arguably the most important and respected environmental regulator in the world."

"My sense is that Republicans that remember when the environment and conservation movements were bipartisan would be squarely in her court," Marcus said. "If they don’t want someone who will be strong on climate and other environmental issues, then it won’t matter."

William Reilly, who served as EPA administrator under President George H.W. Bush, said Nichols’ career has made her familiar with environmental statutes and their underpinning science and economic impact.

"There will be charges that she may set out to do in Washington what she achieved in California. We should hope!" Reilly told E&E News. "But her very congenial personality, her experience amicably and successfully negotiating with people she regulated, bodes well for her making her mark on Washington. If she is selected for EPA, the agency will once again advance the nation’s environmental aspirations."

‘Confirmed unanimously’

As California’s top air regulator, Nichols has been at the forefront of fighting climate change. Her agency, CARB, is the lead agency in implementing A.B. 32, California’s climate change law. It set up a cap-and-trade market designed to reduce the state’s greenhouse gas emissions.

Nichols also emerged as one of the Trump EPA’s fiercest opponents. She clashed with the administration after it weakened clean car standards and pushed back against its revocation of California’s Clean Air Act waiver on greenhouse gases that allowed the state to craft tougher emission limits.

After talks broke down between CARB and EPA last year, Nichols helped broker a separate deal with four automakers to improve their cars’ and trucks’ fuel economy.

In a sign of her regard for her would-be predecessor, Nichols joked in an email she didn’t want to "intimidate" EPA Administrator Andrew Wheeler before a meeting between the two.

Mike Stoker, who led EPA’s Region 9 earlier in the Trump administration, said California has had a green agenda of cap and trade and reducing carbon emissions, of which Nichols has been a leader.

He told E&E News that although there may certainly be Republicans who don’t like those policies, he didn’t know of any who would have anything negative to say about how Nichols conducted herself as chair of CARB.

"Republicans I know dealing with her in that capacity found her very professional," Stoker said. "I found her the same way working with her as the Region 9 administrator."

Stoker was fired by EPA earlier this year as the Pacific Southwest regional administrator under disputed circumstances. He suspects it was for developing good relationships with Democrats. The agency has said it was for his frequent travel and neglect of duties.

Stoker has since been appointed by President Trump to the Western Interstate Nuclear Board and returned to his private law practice.

Stoker rated Nichols "exceptionally well-qualified" and said he would support her for EPA administrator if picked by Biden. He said he has reached out to House Democratic members he knows and is willing to provide written or oral testimony on Nichols’ behalf.

"If Republicans apply the rules they say the Democrats should have applied to Trump nominees, she would be confirmed unanimously or maybe with a few ‘no’ votes in a short amount of time," Stoker said. "This country is not better off if we keep escalating this game."

Stoker said his comments on Nichols were premised on the scenario that the electors declare Biden president-elect on Dec. 14 and he becomes the next president on Jan. 20.

Past Democratic nominees for EPA administrator have been approved by voice vote or unanimous consent in short order until Gina McCarthy in 2013.

Her confirmation process took more than four months, and she was advanced on a 59-40 roll call vote. Only six Republicans voted for McCarthy. Sen. Susan Collins (R-Maine) will be the only one remaining of those GOP "yes" votes next year.

Nichols has been confirmed by the Senate once before — in 1993 on a voice vote to lead EPA’s air office.

‘Just take a look at California’

It remains to be seen whether goodwill for Nichols off Capitol Hill is any match for the political polarization that exists inside the Senate.

Although Barrasso was the only current Senate Republican on the Environment and Public Works Committee who provided a comment for this story, other Republicans have offered glimpses into how Nichols would be received by the GOP.

Kimberly Guilfoyle, the finance chairwoman for President Trump’s 2020 reelection campaign who was once married to Newsom, warned at the Republican National Convention this summer that "if you want to see the socialist Biden-Harris future for our country, just take a look at California."

"It is a place of immense wealth, immeasurable innovation and immaculate environment — and the Democrats turned it into a land of discarded heroin needles in parks, riots in streets and blackouts in homes."

Vice President-elect Kamala Harris will step down as a senator from California when she is sworn into her new office in January. She was formerly the state’s attorney general.

The same week of the RNC, Energy Secretary Dan Brouillette said in an interview with Fox Business that California is a "case study in how not to approach our electricity grid and how not to approach the energy needs of this country."

And after Newsom announced the goal of zero car emissions by 2035, Sen. Ted Cruz (R-Texas) tweeted: "So, when California has rolling blackouts, now you’ll have no lights, no a/c, and … your govt-mandated electric car won’t recharge."

When it comes to Nichols specifically, Rep. Dan Newhouse (R-Wash.), the incoming House chairman of the Congressional Western Caucus that advocates for states’ rights in setting most environmental policies, said recently he was "wary of any EPA candidate that comes in believing that big government is the answer to solving all of our environmental problems."

In a statement to E&E News, he added, "Ms. Nichols’ history with the agency and the state of California may not instill a sense of trust within the communities that have been negatively impacted by the EPA in the past."

Conservatives who are trying to recruit more Republicans to engage in legislative debates on the environment — to actually come to the table to negotiate climate change solutions with Democrats — agree that Nichols’ nomination could have a chilling effect on those efforts.

Dillon, of ConservAmerica, suggested Biden could instead nominate "somebody who is certainly on the left and pro-environment and pro-climate action but somebody who is also known as working across the aisle."

He suggested other EPA short-list contenders, like National Wildlife Federation President and CEO Collin O’Mara and Moms Clean Air Force Senior Director Heather McTeer Toney, could better fit that model.

Quill Robinson, vice president of government affairs for the American Conservation Coalition, echoed those sentiments.

"Over the last year, a lot of folks on the right stepped up to become a lot more comfortable on issues like carbon capture. Particularly in Congress, there is some common ground being established in terms of climate policy and starting to identify the areas where Republicans and Democrats can work together," said Robinson.

He argued that the Biden team should be looking to install an EPA administrator who has "a clear path to confirmation" and takes a moderate consensus-builder’s approach to environmental policy.

"California," said Robinson, "is not that approach. You look at the wildfires to the blackouts, it doesn’t look like a very effective climate approach to us, either."

Reporters Maxine Joselow and Timothy Cama contributed.

***Read more about power players and policy changes after the elections in the E&E News special report POWER SHIFT.***