Pruitt recuses himself from Clean Power Plan, WOTUS suits

By Kevin Bogardus, Amanda Reilly | 05/05/2017 04:12 PM EDT

U.S. EPA Administrator Scott Pruitt has recused himself from several cases that he pursued against the agency as Oklahoma attorney general.

U.S. EPA Administrator Scott Pruitt said he would recuse himself from several cases on which he pursued against the agency as Oklahoma attorney general.

U.S. EPA Administrator Scott Pruitt said he would recuse himself from several cases on which he pursued against the agency as Oklahoma attorney general. Photo by Susan Walsh, courtesy of AP Images.

U.S. EPA Administrator Scott Pruitt has recused himself from several cases that he pursued against the agency as Oklahoma attorney general.

Pruitt has signed a recusal statement, dated yesterday, which was obtained by E&E News under the Freedom of Information Act. The four-page document lays out several lawsuits pending before the agency that Pruitt has agreed to step away from during his tenure as EPA chief.

"This recusal statement addresses all of my ethics obligations," Pruitt said in the statement.


Pruitt said he would not participate for one year after his Senate confirmation in matters involving certain parties, including the state of Oklahoma and the Rule of Law Defense Fund, a public policy group involving Republican attorneys general that targeted environmental rules.

In addition, Pruitt has recused himself from a dozen pending cases involving EPA, including high-profile litigation over the Clean Power Plan and cases in both federal appeals and district courts over the controversial Clean Water Rule.

Among the recusals are also several cases involving Obama-era air rules. Those include EPA’s methane regulations for new oil and gas sources, the 2015 ozone standard, the agency’s cost analysis of mercury standards for power plants, and standards governing emissions released during industrial equipment breakdowns.

Pruitt also agreed not to participate in the legal proceedings over the Volkswagen AG diesel emissions scandal.

In all the cases, Oklahoma was either a party, petitioner or intervenor, with Pruitt often leading the charge. Most of the litigation over the Obama rules, however, has been stayed by the courts while EPA reviews whether to eliminate or revise the regulations.

Pruitt’s recusal statement suggests certain cases in which Oklahoma joined other states as an amicus shouldn’t pose an ethics concern because the state wasn’t a direct party and didn’t author briefs.

Among that category of litigation is the pending Supreme Court case over which is the correct legal venue to hear challenges to the Clean Water Rule, otherwise known as the Waters of the U.S. rule, or WOTUS. The court is expected to hear arguments on that case in the fall.

In addition, Pruitt said he has not participated in any of the cases listed in his recusal statement "officially at all," and he "will continue to recuse for now."

Further, if the EPA administrator does plan to participate in any of the listed cases, he will seek an ethics determination from the agency’s top ethics official, who will apply federal impartiality standards.

Pruitt’s situation is similar to one of his predecessor’s at the agency. President Obama’s first EPA chief, Lisa Jackson, was given several "impartiality determinations" during her tenure (Greenwire, Feb. 14).

Pruitt has also set up a "screening arrangement" where EPA officials will ensure that he doesn’t participate in matters involving any of the listed entities in his recusal statement.

EPA Chief of Staff Ryan Jackson will screen all matters, including existing litigation, to make sure they don’t conflict with Pruitt’s statement. Jackson along with Sarah Greenwalt, a senior adviser to the EPA chief, will receive a copy of his recusal statement and are directed to consult with ethics officials "if they are ever uncertain whether or not I may participate in a matter."

Pruitt’s top subordinates also will receive a copy of his recusal statement, and in consultation with ethics officials, he will "revise and update my ethics agreement and/or this memorandum" if circumstances change. Jackson, ethics officials and other lower-level staff will receive a copy of that revised statement as well.

"This memo demonstrates Administrator Pruitt is following the rules. By taking these steps, we’re keeping the focus on EPA’s mission to protect human health and the environment," said J.P. Freire, an EPA spokesman.

Longtime critic

Before Pruitt was confirmed as EPA administrator, he was one of the agency’s most vocal critics — "a leading advocate against the EPA’s activist agenda," according to his official Oklahoma attorney general biography. As a state attorney general, Pruitt sued the agency over several of its regulations, including the Clean Power Plan and the Clean Water Rule.

Pruitt’s opposition to the agency that he now leads has resulted in pressure from Democrats on Capitol Hill. They have been questioning whether Pruitt has sought ethics advice and then heeded that advice as head of EPA, requesting documents — like the administrator’s recusal statement — for weeks.

Senate Democrats sent a letter earlier this week questioning Pruitt over his alleged conflict of interest regarding litigation over EPA’s ground-level ozone standard (E&E News PM, May 2).

In a letter sent last month to the EPA chief, they pushed Pruitt to recuse himself from working on the Clean Power Plan, given he had previously litigated against the regulation.

As EPA administrator, Pruitt has taken several actions to begin rolling back that rule, including initiating the regulation’s review; filing a court motion to hold in abeyance litigation against the rule; and telling governors that they didn’t have to comply with the rule, considering it was subject to a Supreme Court stay.

In March, Democrats sent a similar letter to the EPA administrator regarding the Clean Water Rule. Pruitt also has already taken official action to review that rule.

Pruitt’s ethics came under scrutiny during his Senate confirmation process.

Pruitt signed an ethics agreement where he said that during his first year at EPA, he would seek authorization to participate in matters that involved the state of Oklahoma.

In addition, Pruitt said repeatedly during his Senate confirmation hearing that he would consult ethics officials at EPA, including over litigation he was part of against the agency. He also committed to recuse himself from those cases if told to do so by those officials.

"I have every willingness and desire to recuse, as directed by EPA ethics counsel," Pruitt said at the hearing in January. "And if directed to do so, I will in fact do so, to recuse from those cases."