Retirements, confirmation fights create high-level vacancies

If U.S. EPA air chief Gina McCarthy is eventually confirmed as agency administrator, the Office of Air and Radiation will join four other agency offices that have no permanent, Senate-confirmed leaders.

There are no confirmed administrators for the offices of water, chemical safety and pollution prevention, the chief financial officer, and the general counsel. Nancy Stoner, the acting assistant administrator for water, has served in that capacity for more than two years since the nomination of Ken Kopocis was halted by Senate Republicans opposed to the agency's handling of the Clean Water Act.

McCarthy is a veteran of the confirmation wars. She was confirmed for the air post in 2009 after Sen. John Barrasso (R-Wyo.) released his administrative hold over EPA's plans to regulate greenhouse gases and is now blocked by Sen. Roy Blunt (R-Mo.) over a missed deadline to an environmental impact statement for a federal water project in his home state. Meanwhile, Republicans on the Environment and Public Works Committee are boycotting a committee vote on her confirmation.

The proliferation of EPA officials with "acting" in their titles takes a toll on agency's operations, according to former EPA officials and others who work closely with the agency.

"When people are in an acting position, they do what needs to be done, but there's also a certain sense in which you're keeping the seat warm so when the person whose job it is comes in that nothing's gone wrong while they were waiting to be confirmed," said Dina Kruger, who retired in 2011 as head of the Office of Air and Radiation's climate division.


While acting administrators have little problem getting attention and respect in-house, Kruger and others said, carrying the full title helps in interagency meetings or in dealings with lawmakers.

"It does create uncertainty with the outside stakeholders," said Margo Oge, who retired last year as EPA's director of transportation and air quality. "I don't know if the stakeholders have as good a handle on the skills of the individual at the acting level."

The slow confirmation process can lead the White House to tap the same person to be acting and nominee, said John Coequyt of the Sierra Club.

"I think the strategy they'll almost have to employ is promoting the people who are already basically in the positions so that they can be acting at the same time," he said.

The White House didn't follow this strategy after EPA Administrator Lisa Jackson departed, instead opting to nominate McCarthy over Deputy Administrator Bob Perciasepe, who became acting administrator. But being nominee for administrator is a full-time job, he said. The agency is more likely to nominate acting assistant administrators so they can go to work right away.

In the case of McCarthy's replacement, he said, "I would assume whoever they decided to make acting would also be the person that they would nominate."

That person is likely to be Deputy Assistant Administrator Janet McCabe. EPA has been tight-lipped about its plans for air chief, but those familiar with the office say McCabe enjoys a close working relationship with McCarthy, who recruited her for her current position. Like McCarthy, McCabe was a former state regulator serving as air director for the Indiana Department of Environmental Management.

Associate Administrator for Policy Michael Goo and the air office's senior counsel, Joseph Goffman, have also been floated as possible replacements for McCarthy if she is confirmed.

Observers with industry ties have called McCabe and Goffman pragmatists.

"Janet's got administrative experience, and I think she would be very good. As would Joe," said William Bumpers, who heads the climate practice at the law firm Baker Botts, in a recent interview.

Goo has aligned himself more strongly with environmentalists. He left the Natural Resources Defense Council to serve as staff director and chief counsel in the 111th Congress for the now-defunct House Select Committee on Energy Independence and Global Warming, where he helped craft an economywide cap-and-trade bill sponsored in 2009 by Reps. Ed Markey (D-Mass.) and Henry Waxman (D-Calif.).

EPA has said it will not use a cap-and-trade model in its upcoming greenhouse gas emissions rules, but Republicans would be likely to thoroughly explore Goo's involvement in the Waxman-Markey effort during any Senate confirmation process.

"There's a guy who has depth and breadth of knowledge that makes him very ready to go in," said Frank O'Donnell, president of Clean Air Watch.

Bumpers called Goo "very smart" but "pretty aggressive."

'Incredible brain drain'

But political positions are not the only ones that have been subject to significant turnover at EPA in recent years.

The agency has seen 67 members of its senior executive service retire since the beginning of fiscal 2011. Most staffers from EPA's first decade, the 1970s, have retired or are retiring, taking institutional knowledge with them.

"There has been an incredible brain drain at EPA," said Paul Billings of the American Lung Association in a recent interview.

The agency is losing experts in strategy as well as policy, he said. While the Clean Air Act, the Clean Water Act and other laws provide a timeline for EPA to review and revise regulations, the agency frequently falls behind due to a lack of resources or because it conflicts with other priorities.

This was the case with the Tier 3 rule, a sulfur dioxide limit for gasoline that was proposed in March after numerous delays. The White House also jettisoned a long-sought toughening of ozone limits in 2011 after EPA completed work on it.

EPA veterans are adept at overcoming these obstacles and shepherding rules "across the finish line," Billings said.

"It is an impact that is hard to quantify, but certainly if I were sitting in the air office, those are people whose knowledge I would rely on and would sorely miss when I get to challenges either dealing with the [EPA] or external pressures," he said.

Different people offer different reasons for the senior executive staff exodus.

John Walke, clean air and climate change director for the Natural Resources Defense Council, said senior staff already nearing retirement might have decided it was time to leave after the administration began to slow-walk rulemakings ahead of last year's election.

"The White House did not want EPA creating waves by issuing regulations that critics would attack as costly job-killing regulations," he said.

Tier 3, which was effectively completed in early 2012, and the ozone rule both fell victim to election year politics, he said.

"The White House capitulated shamelessly on ozone, and they didn't want to create another political controversy," he said. "So they just squelched EPA from even sending the proposal over to them to begin the review period."

Kruger, who is now president of the consulting firm Kruger Environmental Strategies LLC after 22 years at EPA, said senior agency staffers are leaving now because the first Obama term was so ambitious.

"When the new team came in, it was sort of a dramatic transformation of how much work the agency was doing and how many regulations were being put out," she said. "I think people were happy and excited to be doing that work."

Now much of that work has been done. Kruger, for one, oversaw EPA's finding that carbon dioxide endangers human health, which forms the basis for EPA's greenhouse gas regulations. The agency also completed a new hazardous emissions rule for power plants that had been in the pipeline for decades.

"I think that dynamic was at work for a number of people," she said.

'Big challenge'

But in the last few years the political winds have changed again, and EPA is under attack on Capitol Hill and from industry. Staff who stayed on to help complete rules that had been in the works for decades are deciding it's time to leave. Kruger was among leaders of three of the four divisions in the Office of Air and Radiation who have vacated their posts in the last two years.

But she said departing veterans are usually replaced by lower-level managers with ample experience.

"It's a loss for the agency from the standpoint of the long history some of them have with their programs and the institution," she said. "But I think there's also a benefit to the agency from having new people take over.

"Change can be good, too," she said.

It is a view shared by Oge, who says she retired from the agency after 33 years only after she was confident her replacements were ready.

"I was expecting to leave EPA," said Oge, who spearheaded EPA's tailpipe emissions rules for greenhouse gases. "For me, having strong senior managers under me was probably my No. 1 priority."

Oge was replaced by Chris Grundler, who has also worked in EPA's water quality and Superfund programs and has held several senior management positions.

"For my office, I feel pretty confident that the great work is going to continue," she said.

Of concern for Oge is the fact that budget cuts have slashed the rate at which departing economists, lawyers, engineers and other experts within EPA can be replaced.

"If senior people are leaving and they have trained people behind them to take over, that should not create any cares," she said. "But if you cannot replace your technical experts, that becomes a big challenge. And that is happening."

Like what you see?

We thought you might.

Start a free trial now.

Get access to our comprehensive, daily coverage of energy and environmental politics and policy.