Senior EPA lawyer gets waiver to defend carbon rule

By Kevin Bogardus | 09/03/2020 01:45 PM EDT

Litigation has challenged the Trump EPA's efforts to regulate carbon dioxide emissions from power plants.

Litigation has challenged the Trump EPA's efforts to regulate carbon dioxide emissions from power plants. CSIRO/Wikipedia (coal); PxHere (coal plant)

The White House has granted a waiver to a top EPA attorney so he can take part in litigation involving the agency’s rule on carbon emissions from power plants.

Adam Gustafson, a deputy general counsel at EPA, has a waiver from President Trump’s ethics pledge to help in the defense of the Affordable Clean Energy rule, according to documents obtained by E&E News under the Freedom of Information Act.

Adam Gustafson. Photo credit: Adam Gustafson/LinkedIn
Adam Gustafson.
| Adam Gustafson/LinkedIn

Gustafson joined the agency earlier this year. A former client, the Competitive Enterprise Institute, is challenging a lawsuit against the rule. Under Trump’s pledge, that would mean Gustafson would be precluded from taking part in that litigation. With the waiver, however, that’s no longer the case.


"I have determined that it is in the public interest to grant this limited waiver because of Mr. Gustafson’s extensive experience in Clean Air Act regulation and litigation, the fact that he did not previously participate in the American Lung Association litigation, and the importance of his involvement in this specific party matter to assist with the Administration’s defense of the Affordable Clean Energy (ACE) Rule," White House Deputy Counsel Scott Gast said in a June 17 memo granting the waiver.

The lawsuit Gast is referring to is the American Lung Association and American Public Health Association’s challenge to the ACE rule, filed in July last year in the U.S. Court of Appeals for the District of Columbia Circuit. The groups took issue with the rule, saying it could lead to increased emissions of carbon dioxide and other dangerous air pollution (Greenwire, July 8, 2019).

The Competitive Enterprise Institute is part of a group of petitioners pushing back on that challenge from the public health groups, according to a later court filing.

The litigation is part of a growing legal battle over the Trump administration’s replacement of the Obama-era Clean Power Plan. The appeals court has scheduled oral arguments for the case on Oct. 8.

Gustafson provided "legal representation" to the Competitive Enterprise Institute, according to his financial disclosure report. The conservative-leaning think tank is listed among his sources of compensation of more than $5,000 a year on the form.

EPA requested the waiver for Gustafson. The agency noted that he provided legal services to CEI and represented it in litigation related to the Clean Power Plan but added that Gustafson didn’t assist the think tank regarding the ACE rule.

"Mr. Gustafson’s expertise is needed to counsel and advise the Administrator and senior leadership on behalf of the Agency, including for this case which is particularly important to the priorities of the Administration," said James Payne, EPA’s designated agency ethics official, in the June 8 memo. Payne also noted that Gustafson would abide by the rest of the Trump ethics pledge’s obligations.

Other EPA officials in the past have received limited waivers from Trump’s ethics pledge. Erik Baptist and Jeff Sands were granted such approvals. Both have since left the agency.

On the day Gustafson was granted an ethics pledge waiver, he also received an impartiality determination from EPA, authorizing him to participate in "specific party matters" regarding CEI.

The senior EPA lawyer later drafted a recusal statement, updating it from the original document. In his recusal, Gustafson said he understood that he was prohibited from taking part in issues involving his former employer, Boyden Gray & Associates PLLC, as well as a dozen former clients.

Earlier this year, Gustafson also was registered to lobby, which triggers other limits under Trump’s ethics pledge. That bars him up to two years after joining EPA from working on issues he lobbied on during the preceding two years before coming to the agency. He listed a number of them on his recusal statement, including the renewable fuel standard program and the Trump administration’s clean car standards.

Gustafson joined EPA’s Office of General Counsel in March. His portfolio was expected to include air issues, which were once handled by Justin Schwab, another deputy general counsel who left EPA at the end of last year to found his own law firm (Greenwire, April 6).

Click here to read Gustafson’s ethics documents.