Key player in EPA climate push takes charge at law institute

By Robin Bravender | 12/08/2015 01:26 PM EST

Scott Fulton took a bus trip through China five years ago with his U.S. EPA colleagues.

Scott Fulton took a bus trip through China five years ago with his U.S. EPA colleagues.

Then EPA’s general counsel, Fulton had asked to be dropped off to attend a meeting at a university, which greeted the bus with a life-sized poster of Fulton.

"He was just so embarrassed," recalled Michelle DePass, who was on the trip as a senior EPA official. It was funny both because Fulton is "a very modest person" and also because he was on the bus with then-EPA Administrator Lisa Jackson, "the person that can open and close all the doors."


"It was a great moment of levity to have this life-sized Scott Fulton," DePass said. "Then you have something great to tease him about for a long time."

Fulton may be bashful about seeing life-sized posters of himself, but the low-key environmental lawyer is no stranger to the limelight. He was EPA’s top lawyer during President Obama’s first term, when the agency was under constant siege on Capitol Hill and in the courts. Now he’s taken on his next big challenge: leading the Environmental Law Institute, a high-profile nonprofit.

Scott Fulton
Scott Fulton, a former “go-to guy” at the Obama EPA, is getting settled in his new gig as president of the Environmental Law Institute. | Photo by Robin Bravender.

Fulton, 61, started as ELI’s president in September. On a recent afternoon, he was preparing to leave the institute’s offices in downtown Washington, D.C., for a trip that would take him back to China and then to Kenya. He asked the receptionist at ELI’s front desk to help him find toy gavels with ELI’s logo on them so he could give them away during his travels. He had a cold, so he was sipping soup.

"You wouldn’t choose to arrange travel this way," joked Fulton, who has short white hair and sports a signature white mustache. But both trips "seemed like potentially important engagements for ELI, so I thought I should do it." Several packed suitcases sat beside him. Behind his desk is a large window that looks out onto the Cathedral of St. Matthew the Apostle, and he had a prime view of Pope Francis waving to the crowds when he stopped there in September.

Before landing at ELI, Fulton spent more than three decades in federal environmental jobs that included work at EPA and the Justice Department, time as an environmental appeals judge, and a stint working as an adviser to the U.S. ambassador to the United Nations in Rome.

The Missouri native has lived for stretches in Chicago and Boston. He received a bachelor’s degree from the University of Massachusetts, Amherst, and a law degree from the University of South Carolina. He spent much of his childhood in the D.C. area "because my dad was a fed," Fulton said. His father, Robert Fulton, was administrator of social and rehabilitation services under President Nixon in the 1970s.

On occasion, Fulton can be found at a cafe near his home in Baltimore playing his guitar and singing folk songs while his audience can dine on sandwiches and sip coffee. Fulton’s friend and ELI’s former president, John Cruden, has made the trip to Baltimore with his wife to see Fulton perform.

Some of his music is flavored by jazz, rock and blues, but it’s folk at its core, Fulton said. He’s been known to pack a guitar on work trips.

He once even serenaded his EPA colleagues with a silly song about gum stuck to his shoe.

Wearing his agency ID badge, strumming a guitar and with lyrics attached to his head to hang in front of his face, he crooned, "All nasty and sticky and yucky and icky, I had gum on the sole of my shoe."

He links to the video on his website, where he has also posted some of his music and information about performances.

‘Way too many hats’

For a time early in the Obama administration, Fulton was holding three top EPA jobs at once.

He was the chief attorney while also acting as the deputy administrator and head of the international affairs office.

It was "a strange period," he said.

There were, he added, "way too many hats to wear."

Fulton had been a career civil servant for decades and was working in EPA’s international affairs shop when Obama moved into the White House.

"I thought the Obama presidency was an important moment in the life of our country, and I still feel that way. And I was keenly interested in doing whatever I could do to be helpful to them," Fulton said. "I didn’t understand that that would mean becoming a part of the political team. Initially, I was asked to come help Lisa Jackson set up the EPA as the acting deputy administrator."

The administration had picked Jon Cannon — who had been Fulton’s boss when Cannon was EPA general counsel during the Clinton administration — to be EPA’s deputy administrator. Fulton, who called his time working for Cannon one of his "best professional periods," thought maybe he’d end up working for Cannon in some capacity. But Cannon withdrew his nomination after a nonprofit whose board Cannon served on came under fire from Senate Republicans.

So Fulton stayed on as EPA’s acting No. 2 for about a year until Bob Perciasepe was confirmed for the spot.

As agency leaders were trying to identify candidates for the general counsel’s job, "at some point in the process [Jackson] said, ‘Why don’t you do it? Would you be open to doing it?’" Fulton recalled. "I had already made the calculation that I would serve in whatever way could be helpful." And he knew the job because he’d worked in the general counsel’s office and had briefly acted as general counsel during the Clinton administration.

Bob Sussman, who advised Jackson at EPA, said Fulton has "always been perceived as one of the truly solid and effective career people at EPA." Sussman added that Fulton was "well-liked, clearly competent, able to both operate within the bureaucracy and at the political level. He was a kind of a go-to guy."

Unlike other general counsels who "very much tried to get outside their lane and get into the mix on policy," Fulton "viewed his job as being the administrator’s lawyer," Sussman said. "I think that [Jackson] perceived Scott as highly professional, highly competent, very able as a lawyer and looked to him for legal support."

Fulton said he "never really identified strongly" as a political appointee, and in some ways that helped.

"There’s a certain amount of dispassion that people want you to have because what they really need is kind of cold, hard, legal risk assessment, legal risk calculation, creative thought that isn’t sort of clouded by your own sense of desired outcome, but really takes the policy objective and tries to marry that up with the law in some way."

Legal maneuvers

There were many legal risk calculations to be done in the first Obama term.

Among other ambitious regulatory initiatives, EPA was setting up a framework to begin regulating greenhouse gases for the first time, which required fitting greenhouse gas emissions into a law that hadn’t yet been used for that purpose. The task provided a challenge for agency lawyers whose work was certain to be challenged in court.

"On the environment agenda, it was clear that there would be forward movement, and there were some very important issues that were already teed up, and it promised to be a vibrant time," Fulton said.

In 2007, toward the end of the George W. Bush administration, the Supreme Court issued its landmark Massachusetts v. EPA opinion, giving the agency the green light to use the Clean Air Act to crack down on greenhouse gas emissions.

"So that was just sitting there, begging for action," when the Obama administration arrived at EPA, Fulton said. And that wasn’t the only big legal issue on EPA’s plate. The agency was also grappling with how to clarify which waters are subject to Clean Water Act regulations and other issues that had cropped up in implementing EPA’s programs, he said.

"There was a willingness and interest in doing something about those problems," Fulton said. "For lawyers in the mix, it’s always more fun to be involved with a ship that’s moving out of harbor, so it looked like it was going to be an interesting period, and it surely was."

Early in the administration, at the helm of EPA’s general counsel shop, Fulton oversaw a team of lawyers that was "deeply involved" in the agency’s first foray into regulating greenhouse gas emissions under the 1972 Clean Air Act. The suite of climate rules issued by the agency during that time has largely withstood scrutiny from the courts, despite a Supreme Court opinion that reined in its attempts to curb stationary source emissions.

In a 2014 majority opinion, the Supreme Court flatly stated that one part of EPA’s attempts to regulate greenhouse gases from industrial facilities "is not permissible."

Conservative Justice Antonin Scalia wrote that since "the statute does not compel EPA’s interpretation, it would be patently unreasonable — not to say outrageous — for EPA to insist on seizing expansive power that it admits the statute is not designed to grant." He added, "We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery."

Despite that reprimand from the high court, Fulton called the overall opinion a "workable outcome."

"I think that the remainder of what was allowed by that decision really is the core of what the agency would want to be concerned about, and it makes for a functional and workable program, which was the fear of the air program all along," Fulton said.

Fulton left the EPA post after Obama’s first term, which he said he planned to do all along.

He made it clear when he took the job that "they should not expect me to be a two-term general counsel," he said. "They said basically, ‘Don’t worry, if you make it that long, you will have out-survived every general counsel who’s ever had the job.’"

Strategic thinking

Fulton spent more than two years as an attorney at Beveridge & Diamond in D.C. before he took on the ELI job in September.

He said he’s always admired the institute’s mission, which he defines as "building environmental governance and rule of law in the environmental space."

Fulton sees his job as having about a 50 percent domestic and 50 percent international focus. He’s hoping ELI can help project environmental strategies developed in the United States to other countries, particularly given what’s going on with international climate change negotiations.

"If we look at what’s happening with Paris, with the climate accord, and you consider what’s happened just internationally generally with multilateral environmental agreements, we seem to be devolving to the place where national-level choices and implementation at the national level is going to determine success or failure in the international agreements," Fulton said.

Rather than a "grand international regime," it’s "going to be this knitting together of national plans and approaches, so what happens at the national level will make all the difference in the world."

Cruden — the former ELI chief who’s now the Justice Department’s top environmental attorney and who has known Fulton for decades as they’ve both worked in government legal jobs — called Fulton an ideal pick for the institute.

In environmental law, there are specialists who know certain areas of the law "just absolutely right down to all the parentheses," Cruden said. And while that’s useful, he said, he’s come to value people who can draw from a broad range of knowledge.

"That’s what Scott can do," Cruden said. "He’s one of these big thinkers who can think across the horizon of environmental law and pick and choose from those things that are the best."