Court Order for EPA to Ban Pesticide Spotlights Need for ‘Transparency’ Rule

How can Americans be certain that scientific studies that are the basis of costly EPA regulations are accurate, and that the benefits of the regulations outweigh the expense?

Contrary to what critics say about a proposed rule from the Environmental Protection Agency, part of the answer lies in greater openness and transparency by federal officials, according to a new report from the Competitive Enterprise Institute, a Washington-based libertarian think tank.

The rule, called “Strengthening Transparency in Regulatory Science,” would require the EPA to publish the scientific data behind regulations so that the information would be available for public scrutiny.

The value of the proposal became apparent Aug. 9, when a federal appeals court ordered the EPA to ban the pesticide chlorpyrifos within 60 days, says CEI senior fellow Angela Logomasini, who authored the study.

“The Trump administration should certainly challenge this ruling, which goes beyond the bounds of reason and conflicts with all the best science on chlorpyrifos,” Logomasini, who specializes in environmental and consumer issues, said in a press release, adding:

The EPA is currently pursuing a scheduled scientific review on chlorpyrifos, and there is no reason they should stop that because of a misguided activist petition. The Trump administration was right to reject the proposed ban because it was based on a single study that EPA’s science advisory board indicated was inappropriate for drawing any conclusions.

In addition, the researchers refuse to release the underlying data of this study, preventing anyone from doing legitimate scientific review to ensure its validity. This case offers yet another reason why EPA should finalize its pending rule to increase scientific transparency at the agency.

If Congress decided to impose a ban, it would hinder farming and raise consumer prices for food, Logomasini noted in a recent op-ed. Proponents of a ban on chlorpyrifos see a connection between the pesticide and developmental disabilities in children.

report in The New York Times about the order from the U.S. Court of Appeals for the 9th Circuit cites studies concluding that the effects of  chlorpyrifos on children “included lower birth weight and reduced I.Q., with farm workers also reporting loss of working memory and other health consequences that at times resulted in hospital admissions.”

Court watchers consider the 9th Circuit to be one of the most liberal federal courts in the nation, and President Donald Trump hopes to reshape it through his appointments.

What the Rule Would Do

The EPA’s transparency rule would help to counter unsubstantiated claims against pesticides such as chlorpyrifos that protect crops from insects, Logomasini argues.

The proposed rule would require the EPA to “use peer-reviewed information, standardized test methods, consistent data evaluation procedures, and good laboratory practices to ensure transparent, understandable, and reproducible scientific assessments.” It is modeled after legislation that would have banned the practice of “secret science.”

Several versions of the bill passed the House, but not the Senate.

The EPA’s proposed transparency rule includes language similar to the legislation. EPA officials also included provisions that are quite different from what advanced through the House.

“The rule affords the EPA administrator considerable leeway to permit regulators to use research in cases where privacy or other concerns limit public availability,” Logomasini writes, adding:

In fact, under some laws, such as the newly reformed Toxic Substances Control Act, the EPA must use such research if it constitutes the ‘best available science’ on an issue. In that case, even if data were not fully available, the agency would still be required to rely on those critical studies. However, in cases where data can be more transparent without privacy concerns, the EPA could not refuse to release the data on arbitrary grounds.

If implemented, the transparency rule would not cover all EPA regulatory activities, but it would be applicable to regulations that would be expected to cost at least $100 million a year, according to the report. The rule also includes provisions that safeguard “confidential business information” and is “sensitive to national and homeland security,” Logomasini writes.

The transparency proposal has attracted criticism from some researchers who have expressed concern that it would hinder the scientific process. Logomasini analyzes some of these arguments in the report.

For example, John Ioannidis, a Stanford University professor of medicine, warns in a recent editorial that if the rule is implemented, “science will be practically eliminated from all decision-making processes” and that any new regulations “would then depend uniquely on opinion and whim.”

Despite his expressed misgivings toward the EPA proposal, the CEI report notes that Ioannidis raises “some good points” that make a strong case for greater transparency in science.

Transparency as ‘Inherently Pro-Science’

“Many critics of EPA’s transparency rule claim it is ‘anti-science’ and represents an ideological attack on regulation,” Logomasini says in her report. “It is true that those who prefer less regulation hope that the rule would eliminate unnecessary regulations that are based on poor-quality science. And it is also true that many oppose the rule because they fear it will weaken regulation. But irrespective of these ideological views, increasing transparency in science, whether used for government regulation or not, is an inherently pro-science goal.”

Logomasini also addresses claims raised in some news stories that suggest the transparency rule is laced with a “hidden pro-industry agenda” aimed at undermining air quality regulations.

The EPA implemented those rules for the purpose of alleviating airborne particles smaller than 2.5 micrometers in diameter, known as PM2.5. The regulations were based on science produced in a taxpayer-funded study from Harvard and Brigham Young University researchers that the agency kept sealed from public scrutiny.

The 1993 study, known as the Six Cities Study, is built around a statistical analysis that found a relationship between the life span of people living in six cities and the levels of the small airborne particles. The study concluded that people living in cities with higher levels of PM2.5 had shorter life spans than those in cities with lower levels.

Researchers who were part of the Six Cities Study have said they never agreed to release the data attached to the study and cited a need for anonymity. The EPA repeatedly has resisted congressional requests to disclose the information.

>>> Related: EPA Chief Moves to End Reliance on ‘Secret Science’

If researchers have genuine privacy concerns, the transparency rule can accommodate them, Logomasini says in the report. But she also points out that if the study’s findings are accurate, release of the data would serve only to strengthen the case for the air regulations:

Privacy concerns might be a legitimate challenge for releasing some or all of the Six Cities data. If that is the case, the rule, as noted, provides exemptions for rare cases where data cannot be made anonymous and privacy must be maintained. Accordingly, regulators can still use the Six Cities data, if legitimate privacy concerns prevent full release.

In cases where the data can be made anonymous, it should be released regardless of whether it supports weakening or strengthening regulations. After all, if a study’s findings are valid, releasing the data will only strengthen claims about the benefits of these regulations. If the findings are not valid, then we know that regulatory costs may not be justified, and that society actually suffers net negative effects because of those costs.

Indeed, regulation can translate into higher prices for food, transportation, consumer products, and even medicines. The debate over the rule is not about whether it benefits industry or not, but about how it impacts public health and well-being overall.

A Matter of Trust

The EPA’s public comment period for the transparency proposal ended Aug. 16.

Daren Bakst, a senior research fellow in agricultural policy at The Heritage Foundation, submitted comments that same day and credited the agency for recognizing the importance of public participation in the regulatory process.

“A transparent rulemaking process helps to ensure that decisions are being made in a proper fashion,” Bakst wrote, adding:

The public should not be expected to just trust the EPA (or any agency) to promulgate any rule it wants and draw its own conclusions without the public knowing how those conclusions were reached. This expectation does not change simply because the agency is dealing with a scientific study. Further, the EPA is not immune to seeking preferred policy outcomes and using questionable science to achieve those outcomes. Transparency helps to minimize these problems.

But the proposed rule remains the subject of criticism from other researchers and environmental advocacy groups.

The Natural Resources Defense Council, a nonprofit based in New York, argues in a blog post that the rule would “roll back health protections” because it could be used to prohibit studies that were the basis for regulations that protect the public from pollution and other dangers.

“There are many reasons why a  study cannot be made fully public, or replicated,” the NRDC blog says, adding:

For example, the original raw data may no longer exist, the original exposure conditions may no longer exist (such as lead exposures from leaded gasoline), and patient protection and privacy rules may prevent full disclosure of the raw data and information. EPA has long-established and transparent methods for evaluating data in these situations.

Supporters of the EPA proposal view it as a commonsense measure that will bring an added element of accountability to the regulatory process.

“EPA’s proposed rule strengthening science transparency is as common sense as rules come,” Tom Pyle, president of the Institute for Energy Research, told The Daily Signal in an email.

“The public must be able to hold government institutions accountable and that can only be done if the science used to justify costly regulations is rigorous, reproducible, and holds up to independent scrutiny,” Pyle said. “Peer review and factual analysis are hallmarks of scientific research. If the EPA doesn’t have to follow these standards, how can we trust that the rules they put forward are based on sound science and not political science?”

The Institute for Energy Research is a Washington-based nonprofit that favors free-market solutions in setting energy policies.

The EPA said it has begun to review the more than 479,000 comments, a process that could last through fall. The agency then will determine a timeline for making a final decision.

Report by Kevin Mooney. Originally published at The Daily Signal.

Good and Bad Environmental Amendments to the ‘Minibus’ Bill

This week, the House of Representatives is expected to bring to the floor its second “minibus” package of the appropriations season. The bill combines the appropriations bills from the interior, environment, and related agencies subcommittee and the financial services and general government subcommittee.

The House Rules Committee has given the green light as of now for many amendments to be considered on the floor. The following are just some of the environmental-related amendments.

The Good Amendments

  • Stops unjustified restrictions on genetically engineered crops(Amendment 35, sponsored by Rep. Ralph Abraham, R-La.). 

This amendment helps to ensure that the federal government is not blocking the use of agricultural biotechnology, which plays a critical role in American agricultural production. Specifically, this important but narrow amendment “prevents the enforcement of limitations or prohibitions on the use of genetically modified crops in commercial agricultural operations conducted on National Wildlife Refuges.”

  • Ends Diesel Emissions Reduction Act grants to contribute to deficit reduction (Amendment 65, sponsored by Rep. Gary Palmer, R-Ala.).

This amendment eliminates Diesel Emissions Reduction Act grants, which, while relatively small, fund projects that are appropriately managed at the state and local levels. The government has spent hundreds of millions of taxpayer dollars over the years to develop clean diesel technology, such as retrofitted tractors, cherry pickers, and electrified parking spaces.

  • Prohibits funds for methane rule (Amendment 138, sponsored by Rep. Markwayne Mullin, R-Okla.).

In 2016, the Obama administration published a final rule to regulate methane emissions from oil and gas sources. This amendment would block funding for the enforcement of this rule that was part of the Obama administration’s efforts to address climate change. The costly methane rule will drive up energy priceswhile having negligible, if any, climate benefits. Further, government intervention is unnecessary since energy producers already have an incentive to capture and sell methane, as it has valuable economic use for the production of electricity and heat.

  • Prohibits use of the social cost of carbon (Amendment 139, sponsored by Mullin).

This amendment would prohibit funding for regulation or guidance that utilizes the social cost of carbon. The Environmental Protection Agency is using three statistical models to estimate the value of the social cost of carbon estimating the economic damage that 1 ton of carbon dioxide emitted today would cause over the next 300 years.

These models arbitrarily derive a value for the social cost of carbon and are highly sensitive to reasonable alterations in inputs. By placing a significantly high arbitrary price on carbon dioxide emissions, agencies can inflate the benefits of regulation or inflate the costs of a new project.

Congress should prohibit all federal agencies from using the social cost of carbon for any purpose, especially regulatory rule-making.

  • Blocks implementation of burdensome ozone standard (Amendment 143, sponsored by Rep. Glenn Grothman, R-Wis.).

This amendment would prevent funds from being used to implement or enforce the 2015 National Ambient Air Quality Standard for ground-level ozone.

When a third of the nation’s population lives in areas that have not met the current standard, adopting an even more stringent standard is at best premature and is becoming more expensive to meet tighter standards with smaller margins of tangible benefits. Congress should restore accountability in the face of an EPA that is increasingly setting American economic policy as it sets environmental policy through the ozone standard.

  • Blocks funding for environmental justice grants (Amendment 163, sponsored by Rep. Jody Hice, R-Ga.).

The EPA’s “environmental justice” programs were originally designed to protect low-income commu­nities from environmental harm. However, the EPA now too often goes beyond this purpose to prevent job-creating businesses from developing in low-in­come communities, thus blocking the very econom­ic opportunity that the communities need.

The Bad Amendments

  • Blocks WOTUS repeal (Amendment 25, sponsored by Rep. Don Beyer, D-Va.).

This amendment would strike existing language in the appropriations bill that would repeal the Obama administration’s infamous “waters of the United States” rule. This rule is a major federal power grab and an attack on private property rights. It would regulate almost any water imaginable, from most ditches to so-called waters that are actually dry land most of the time.

  • Blocks language that would reduce the regulatory burden on farmers and ranchers (Amendment 26, sponsored by Beyer).

This amendment would strike existing language in the appropriations bill that would allow farmers and ranchers to engage in normal farming activities and other critical work on farms (e.g. constructing irrigation ditches) without having to get a Section 404 dredge and fill permit under the Clean Water Act.

  • Prohibits the EPA from changing the coal ash rule (Amendment 29, sponsored by Rep. Gerry Connolly, D-Va.). 

In 2015, the Obama administration published a final rule imposing requirements on the disposal of coal ash from coal-fired power plants. On March 1, 2018, the EPA proposed rules to amend the Obama administration coal ash rule. These rules would provide states greater flexibility in implementing their coal ash permitting programs.

The proposed amendment would block the EPA from offering this much-needed flexibility and making any changes or modifications to the existing coal ash rule.

The House should utilize the appropriations process to push for critical environmental reforms and to block efforts to undermine those reforms. Legislators often talk about past EPA overreach. This current minibus bill is a way to go beyond words and take action.

Commentary by Daren Bakst and Katie Tubbs. Originally published at The Daily Signal.

EPA Pushes Back on Practice That Environmentalist Groups Used to Dictate Agenda

When environmental pressure groups can promote their agendas through closed-door rule-making with the Environmental Protection Agency, something has gone seriously wrong with the regulatory process.

This is precisely what has been happening at federal agencies in recent years—but not for much longer at the EPA. On Monday, EPA Administrator Scott Pruitt issued a directive to put an end to this process, which is called “sue and settle.”

On the surface, sue and settle doesn’t sound bad. An organization sues a federal agency to compel it to issue regulations, which the agency was already required to do under the law. Instead of litigating, the agency just settles the dispute.

If only that was how it worked in practice. In reality, sue and settle has many problems. Under sue and settle, environmental pressure groups have been able to file cases, meet with the agency in private, and then settle with the agency, effectively dictating the agency’s agenda.

Even when the agency is merely agreeing to meet a deadline as required by law, the agency and the environmental group will enter into agreements that create unrealistic timelines that can lead to bad policy. They can set deadlines to avoid many of the regulatory safeguards that exist, such as proper cost-benefit analysis.

In many of these cases, there is often a question of whether a federal agency is even required to issue regulations—yet the agency simply caves to the environmental group and does as the group desires.

Even worse, agencies have worked with these environmental groups to develop the substance of regulations before they are even proposed to the public.

And very often, the public is not even aware that the agency is being sued, and will find it very difficult to intervene or have any real voice in providing a different perspective on the lawsuit.

This closed process stands in stark contrast to how the federal regulatory system is supposed to work.

The Administrative Procedure Act, which governs the federal rule-making process, was designed to provide notice to the public, allow for public participation, and give the public a meaningful voice in the regulatory process. Sue and settle circumvents this entire process.

The EPA, though, is taking action. Here’s what the EPA directive says:

The U.S. Environmental Protection Agency, in partnership with the states, serves a vital role in protecting human health and the environment. When conducting agency action to achieve these objectives, the EPA must strive to promote transparency and public participation to provide the American public with due process, accountability, and a sense of fair dealing.

To stop sue and settle, the EPA explains it will do the following, among other things:

  • Inform the public that the agency is being sued.
  • Reach out to affected parties about proposed settlements.
  • Provide sufficient time for rule-makings, including to receive public comments.
  • Allow the public to comment on any proposed settlements and request public hearings.
  • Ensure that the EPA is actually required by law to issue regulations as requested by the special interests. The agency won’t take what isn’t a requirement and make it one through a settlement agreement.
  • When settling a case, seek to exclude the payment of attorney’s fees and costs to plaintiffs.

The EPA should be commended for taking this much-needed action against sue and settle. Other agencies, such as the Department of Interior, need to follow the EPA’s lead.

Congress also needs to pass legislation to do away with this sue and settle abuse so that it can’t happen in the future.

Commentary by Daren Bakst. Originally published at The Daily Signal.

Cruz: Ending ‘Sue and Settle’ Practice is a Major Victory for Landowners

U.S. Sen. Ted Cruz (R-Texas) applauded EPA administrator Scott Pruitt’s announcement that he is ending “sue and settle” practices within the agency, and urged his colleagues in Congress to pass the Sunshine for Regulatory Decrees and Settlements Act, which would enact this policy into law.

“The announcement from the EPA to end ‘sue and settle’ practices in the EPA is a major victory for millions of hardworking Texas landowners,” Sen. Cruz said. “For far too long, the EPA has colluded with special interest groups, resolving litigation through consent decrees and settlement agreements behind closed doors. I commend Administrator Pruitt for his leadership on this issue and ending the practice of regulation through litigation. I urge my colleagues in both the House and the Senate to pass the Sunshine for Regulatory Decrees and Settlements Act, to codify this policy into law, providing lasting transparency and accountability to the agency.”

In his fight to protect private property rights, Sen. Cruz has long led efforts to rein in the federal overreach of the EPA and restore accountability to the agency by ending the practice of regulation by litigation:

  • In April 2013, February 2015, and January 2017 Sen. Cruz cosponsored the Sunshine for Regulatory Decrees and Settlements Act of 2017, introduced by Sen. Chuck Grassley (R-Iowa).

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Daily Signal: Interview with EPA Administrator Scott Pruitt

Environmental Protection Agency Administrator Scott Pruitt spoke to me earlier this week at The Heritage Foundation’s annual President’s Club meeting in Washington. We discussed his leadership of the EPA, the agency’s top priorities, and what Pruitt considers true environmentalism. An edited transcript of our interview, along with the full video, is below.

Bluey: You’ve had a busy week. On Monday, you took a decisive action and ended the sue and settle process that has been plaguing the EPA and our government for a number of years. Can you explain to this audience why that is so significant and what it actually means?

Pruitt: Yes, well, it’s good to be with you. In fact, I see [former Attorney] General [Edwin] Meese here in the front and it’s always good to see General Meese. He has served as a great inspiration to me over the years.

With respect to this particular question on sue and settle, it is actually something General Meese talked about back in the 1980s. We’ve seen agencies at the federal level for many years engage in rulemaking through the litigation process, where a third party will sue an agency and, in the course of that lawsuit, an agency will agree to certain obligations. Maybe take a discretionary duty under statute and make it nondiscretionary or there will be a timeline in a statute and they’ll change the timeline.

But suffice it to say, they engage in what we would call substantive rulemaking, and then the court blesses it without much inquiry. The agency will take that consent decree and go to the states and citizens all over the country and say, ‘Thou shalt,’ and sometimes that mandate is totally untethered to the statute—the obligations that Congress has passed for that agency to engage in.

My job is to enforce the laws as passed by whom? Congress. They give me my authority. That’s the jurisdictional responsibilities that I have, and when litigation is used to regulate … that’s abusive. That’s wrong.

It is fifth-grade civics. I don’t know if they teach civics in fifth grade anymore, but at least they used to. I hang out at the executive branch; we’re an executive branch agency. My job is to enforce the laws as passed by whom? Congress. They give me my authority. That’s the jurisdictional responsibilities that I have, and when litigation is used to regulate … that’s abusive. That’s wrong. We took the first step under the Trump administration [Monday] to end the sue and settle process entirely at the EPA.

It is not just an attitude shift, not just a commitment to not engage in sue and settle and regulation for litigation. We actually put directives in the memoranda, safeguards if you will.

For instance, if there is settlement that we are engaged in, settlement discussions with a third party that sued the agency, we will post that settlement for all the world to see, for at least 30 days, for people to comment on it across the country so that there is transparency with respect to those discussions.

If a state seeks to intervene in litigation with respect to issues that impact them, we’re going to have a very generous and accommodating attitude to our states participating in those settlement discussions. But here’s one of the more important ones: in the past the sue and settle process has been affected by third parties. They would go to the EPA and they would say, ‘Let’s work out a deal,’ and, as I indicated, go to the court, put it within a consent decree without any type of transparency.

But then here’s the kicker: They would pay attorneys fees to the group that sued them. So the group is effectively engaging in rulemaking and they get attorneys fees to get paid to do it.

In my directive to the agency, I said this: We’re not going to pay attorneys fees anymore in that regard. If we have a settlement and there’s no prevailing party, there shouldn’t be attorneys fees. We’ve directed no attorneys fees as part of the end of this sue and settle practice. It’s been a busy week already but every week is that way.

Bluey: The left, over the past generation, has defined environmentalism in a way that is counter to freedom, conservation, even science. I want to ask, what do you consider true environmentalism?

Pruitt: That’s a great question, and it’s one our society needs to ask and answer. The past administration told everyone in this room at some point, told the American citizens across the country, that we have to choose between jobs and growth and environmental stewardship.

We’ve never done that as a country. To give you an example, since 1980, there are certain pollutants that we regulate under the Clean Air Act, criteria pollutants, they are called. … We’ve reduced those pollutants over 65 percent since 1980, but we’ve also grown our [gross domestic product] substantially.

We, as a country, have always used innovative technology to advance environmental stewardship, reduction of those pollutants, but also grown our economy at the same time. It was the past administration that told everyone that you had to choose between the two. That just simply is a false narrative. It’s a false choice, so we need to ask ourselves, what is true environmentalism?

True environmentalism from my perspective is using natural resources that God has blessed us with.

True environmentalism from my perspective is using natural resources that God has blessed us with to feed the world, to power the world with the sensitivity that future generations cultivate, to harvest, to be respectful good stewards, good managers of our natural resources, to bequeath those natural resources for the next generation.

It would be like having this beautiful apple orchard that can feed the world and the environmental folks of the past would say, ‘Build a fence. Don’t touch the apple orchard, though it can feed people.’ That’s not the proper approach. They would say it’s so pristine and we shouldn’t touch it. That’s not what we should do. We should harvest that apple orchard. We should use it to benefit our fellow mankind, but with environmental stewardship in mind for future generations. We can do both. That’s what we need to do with the EPA going forward and we are doing that.

Bluey: I’m glad you brought up [former President Barack] Obama and his administration because the media often portrays him as an environmental hero and you’re portrayed as the villain. What are you most frustrated about with the media’s coverage of you personally and the EPA in general under President Trump?

Pruitt: Well, I don’t like the hero-villain thing that you put me through there, but when you look at the past administration and what they actually achieved as far as environmental outcomes, they did not achieve very much.

In fact, look at those criteria for what we do regulate. One-hundred-twenty-million people in this country live in areas that don’t meet air quality standards. That’s what the previous administration left us with. They had Flint, Michigan, and Gold King, Colorado, with respect to water. With respect to those areas that we regulate that have land waste, we have more sites than when President Obama came into office.

[W]hen you look at the past administration and what they actually achieved as far as environmental outcomes, they did not achieve very much.

They tried to regulate carbon dioxide twice and struck out twice. So really when you look at that agenda, what did they actually achieve other than uncertainty and adversarial relationships with those across the country?

When you look at farmers and ranchers, for example, they are our first environmentalists. They are our first conservationists. When you look at the greatest asset that they have it is their land. They care about the water that they drink. They care about the air that they breathe. We should see them as partners, not adversaries. We should see them as states in the same vain. They have expertise and resources that we don’t have. We have resources that they don’t have. It should be a partnership and collaboration.

I’ve been on a 25-state tour over the last two to three months with respect to the Waters of the United States rule. We’re withdrawing that rule. We’re getting that right. As we’ve gone through that process, I was in Utah with Gov. [Gary] Herbert talking about issues there, the second driest state in the country. The very next day, I was in Minnesota; [there are] different issues in Minnesota with respect to waters than in Utah.

As we do our work in D.C., we should do our work in collaboration and in partnership, in cohesion with states so that we can work on environmental issues from Superfund to air quality to water quality across the full spectrum in things that we do in partnership with those folks. That’s the failure of the past administration. They saw them as adversaries and not partners.

Moreover, they acted outside the scope of their authority, which created tremendous uncertainty. President Trump, who is doing a fabulous job, is leading with great courage and conviction. He’s in the White House today because of two primary things: the American people want courage and they want action, and he embodies both of those in his leadership.

But as we look to these issues in areas that we regulate with respect to air land and water, these are issues that we ought to be working together to achieve and setting clear objectives. Where should we be in air quality in two to four years? Where should we be in investment of air and water infrastructure? How do we improve remediate those sites with respective to the Superfund?

Let me give you an example. There’s a site just outside of St. Louis, Missouri. It’s a site that has 8,000 tons of uranium from the Manhattan Project commingled with the 38,000 thousand tons of solid waste dispersed over this large geographic area outside of St. Louis.

We’re getting back to the basics and we’re operating under the rule of law.

It was discovered in 1970. In 1990, the EPA listed that site on the national priority list. Twenty-seven years later, as we’re in this auditorium together, the agency still has not made a decision on how to remediate that site, excavate, or cap the site. Twenty-seven years … to not even make a decision? That’s totally unacceptable. In fact, that’s one of the things that as I came into this position, I was so stuck by.

As I was engaged in meetings at the office, there just appeared to be a lack of urgency, a lack of focus, a lack of energy to do what’s right to serve the American people—the fundamental way to provide real, tangible environmental outcomes in water, air, and Superfund.

We’re getting back to the basics and we’re operating under the rule of law. We’re respecting process and we’re also engaging in federalism principles to ensure that we’re partnering together. It sounds like a pretty good agenda to me and I think in this country, we ought to be adopting that, not vilifying it to your question.

Bluey: I want to ask specifically about the Waters of the United States rule you raised. At Heritage, it’s an issue that we’ve done a lot of work on. It’s something we recognize that has a tremendous impact across this country. You’ve made a decision that you were going to conduct a reevaluation. What are your goals as you go through that process and coming out of it?

Pruitt: Clarity. I mean, that’s what’s so crazy about the past administration. … Let me give you a little background. The last time we defined that was 1986 as far as Waters of the United States. We provided guidance in 2008; that’s about as far as the definition of a water of the United States is. So the past administration said we need to provide clarity across the country when federal jurisdiction begins and ends. If that was their objective, they failed miserably. Because people all over the country have no idea today where federal jurisdiction begins and ends under that 2015 rule.

I mentioned Utah. I was in Salt Lake City with Gov. Herbert with an Army Corps of Engineers representative about two months ago. We were standing outside of this subdivision and this Army Corps of Engineers representative pointed to this thermal drainage ditch and said, “Scott, that is a water of the United States,” and I said, “It’s not going to be anymore.” That’s really the challenge here—that you had so much confusion and uncertainty about what waters were in [and] what waters were out.

They call this deregulation. This is regulatory reform, this is regulatory clarity. We’re getting rid of the deficient rule and then we’re going to provide a new definition that provides bright line criteria by which to define where jurisdiction begins and ends.

So what does that mean? That means land use across this country is held hostage because folks aren’t going to deploy capital. They aren’t going to allocate resources They aren’t going to put capital at risk and then face a fine five or 10 years from now saying you should’ve had a permit because this is covered under Waters of the United States.

The No. 1 objective is to get the definition right and to provide clarity across the country on when federal jurisdiction ends and we’re going to do that in 2018. We’re going to withdraw the rule that’s in place right now and that will be finished by the end of the year. Then we’ve got a substitute definition, and this is where the environmental left misses it. They call this deregulation. This is regulatory reform, this is regulatory clarity. We’re getting rid of the deficient rule and then we’re going to provide a new definition that provides bright line criteria by which to define where jurisdiction begins and ends. That’s so key and that’s what we are going to accomplish in 2018, and it’s not going to be the federal drainage ditch.

Bluey: The Clean Power Plan is another major action you’ve taken recently. In the same context, what are the implications of doing away with that? And where do you see it going next?

Pruitt: For the first time in history, the Supreme Court entered a pending litigation and issued a stay of enforcement against the Clean Power Plan. That case is being litigated in the D.C. Circuit. The Supreme Court intervened and said stop the enforcement of the rule because it’s going to impact the marketplace in ways that we don’t think meet the statutory criteria or authority of the agency.

So again, uncertainty. We had uncertainty in the utility sector, so let me say this to you: generally, from a regulatory perspective this is going to be a very profound statement, regulations should make things regular. That’s our job to take a statute and administer the statute and make things regular across the full spectrum of people subject to the statute or subject to the regulation. It’s not to pick winners and losers.

The president made a tremendously courageous decision by saying we’re going to get out of the Paris accord, put America first, and make sure that we lead with action and not words.

It’s not the job of the EPA to say to the utility company in any state of the country, you should choose renewables over natural gas or coal. We need fuel diversity in the general electricity. We need more choices, not less. No agency at the federal level should use their coerce power to force business utility companies to take those fuel sources away. They should be making it on cost, stability, and I would say resiliency of the grid.

The president talks a lot about economic growth. We’re already at 3-plus percent and this tax cut package is going to provide tremendous growth. When you grow your economy at 3 to 4 percent as opposed to 1 percent, the power grid, the resiliency of the power grid takes more significance, so when you reduce fuel sources that takes on more vulnerabilities.

We need solid hydrocarbons like coal to be stored onsite to address peak demand. We need natural gas, we need renewables, we need all that. Chancellor [Angela] Merkel, in this Paris accord situation, I know you didn’t ask about this, but I have to get this in, when we talk about this Paris accord issue, if Germany is so concerned about this reduction of CO2, why is Chancellor Merkel getting rid of all nuclear in Germany? Its hypocritical and, by the way, we’re at pre-1994 levels in this country and from 2000-2014 after we exited Kyoto, we reduced our CO2 footprint by 18 percent, almost 20 percent, and that’s in the same timeframe.

This country has alway led with action, not words and labels like Paris. The president made a tremendously courageous decision by saying we’re going to get out of the Paris accord, put America first, and make sure that we lead with action and not words.

Bluey: What is your strategy for rolling back cumbersome regulations that hurt small businesses?

Pruitt: There has been a threefold strategy that has been introduced to the agencies since Day One. In fact, as I addressed the agency on the first day, I talked about three primary things.

One, respect for rule of law. The only authority we have is the one Congress gives us in the statutes, which enhances regulatory certainty when we act congruent to statutory guidelines.

Secondly, we are going to respect process, which means that as we go through rulemaking, we’re actually going to do what Congress says. We’re going to propose a rule. We’re going to take comment and it’s our responsibility to respond to that comment. Then, we’re going to finalize that rule by being informed of how it’s going to impact folks all over the country. That’s good. That’s how consensus is built.

Thirdly, we’re going to respect federalism. Congress is prescribed into the Clean Air Act, into the Clean Water Act certain responsibilities placed upon states. They imagined and really believed that we can work together.

[Trump is] in the White House today because of two primary things: the American people want courage and they want action, and he embodies both of those in his leadership.

Those are the three primary principles by which we are doing our work. I think as we do that, it’s going to create better outcomes for air, land, and water, as far as environmental outcomes.

But as far as when you look at the disrespective process—that’s the reason the sue and settle aspect makes the remedy there is so important. I think if we get back to the basics there and focus on those three cornerstone principles, we’re going to see better outcomes as far as air attainment, water infrastructure, sites being remediated on the Superfund list, and it’s going to be very encouraging.

And for small business, we’ve also done something else. President Bush introduced something, and it actually dates back to the Clinton administration. It was called the Common Sense Initiative. President Bush built on that and called it the sector strategy, where we bring in sectors of our economy—farming and ranching, chemical companies, energy, oil and gas, and others.

We’ve updated that because it went by the wayside under the Obama administration. We’ve revived that and we’ve created something called the smart sector strategy. Those businesses are now dialoguing with us on how we can work together going into the future to achieve better outcomes in the environment.

Bluey: What’s an issue that you are engaged in that isn’t getting the attention it deserves—that you think this audience should know about?

Pruitt: Well, I think one that isn’t talked about a lot is last year Congress adopted some amendments to the Toxics Substances Control Act, TSCA, and created new responsibilities for our agency. For instance, chemicals that enter the flow of commerce, we have to approve those chemical before they enter the stream of commerce.

When I came into this position, we had a backlog of over 700 of those chemicals. We cleared those out by July of this year. We focused resources and we provided certainty to folks across the marketplace on whether those chemicals could be used in an effective way. We’re implementing those changes to TSCA that I think provides certainty to those that are regulated.

There’s great optimism across the country, except in Washington, D.C., so that means things are going really well.

The other area I want to talk about is the Superfund arena. I mentioned the one site in West Lake, Missouri. I’d love to tell you that is an isolated example—that that is just one of many of the 1,336 sites that we regulate. We have many, unfortunately, sites that have languished on that list since inception of the program in the 1980s—sites that been there for decades with respect to no decision and very little action.

The American people deserve, in my view, answers and leadership in how to remediate those sites. That’s the most tangible benefit that we can provide to folks environmentally.

Just recently, San Jacinto, a site in Houston that is off of I-10 in a harbor there, where there is a bunch of barge traffic. There was a site listed around 2009-2010, and it has dioxin on the site. When the hurricane came through there was much concern about the dioxin being released into the barge traffic and it impacting folks’ health. The remedy that has been in place for the past 10 years was literally putting rocks on top of the site to prevent release. It sounds crazy but that’s exactly the case.

When I was there after the storm, I said that is not acceptable. We’re going to make a decision for the betterment of the community to fix that site and provide permanence. Just last week I signed that record decision giving direction on how we are going to provide that relief to prevent the release of dioxin into the water supply in Houston, Texas.

We’ve got to take concrete steps to prevent those environmental issues. We’re doing such good work that no one, I really shouldn’t say no one … folks see it in the communities. There’s great optimism across the country, except in Washington, D.C., so that means things are going really well.

Bluey: Can you describe the shortcomings of the scientific evidence for climate change and the type of data that would be needed to convince you that climate change is happening?

Pruitt: Well, a couple things. Let me address something a little bit big picture and then I’ll get into the specific question.

I have advisory boards at my agency. The CASAC, the science advisory board that advises me on air quality issues. I have BOSC and I have the Science Advisory Board.

The scientists who make up these bodies, and there are dozens and dozens of these folks, over the years those individuals as they’ve served those capacities, guess what has also happened? They’ve received moneys through grants and sometimes substantial moneys through grants.

I think what’s most important at the agencies is to have scientific advisers who are objective, independent minded, providing transparent recommendations to me as the administrator and to our office on the decisions that we’re making on the efficacy of rules that we’re passing to address environmental issues.

If we have individuals that are on those boards that are receiving money from the agency, sometimes going back years and years to the tune of literally tens of millions of dollars, over time, that to me causes questions on the independence and the veracity of the transparency of the recommendations that are coming our way.

Next week, I want you to know something, and I’m not trying to get ahead of myself too much, but next week we are going to fix that. Next week, I am going to issue a directive that addresses just that, that’s much like the sue and settle, to ensure the independence, transparency, and objectivity with respect to the scientific advice that we are getting at the agency.

It’s not a question about whether climate change occurs. It does. It’s not a matter of whether man contributes to it. We do. The question is how much do we contribute to it and how do we measure that with precision?

Now, on this issue with respect to climate change, it’s not a question about whether climate change occurs. It does. It’s not a matter of whether man contributes to it. We do. The question is how much do we contribute to it and how do we measure that with precision? It’s a little bit more difficult questions like when we have individuals telling us in 2017 that they know what the ideal global average surface temperature should be in the year 2100, I think there should be a debate around that. I think there ought to be discussion around that very issue.

There are some, perhaps in this very room that believe that it poses an existential threat. If it poses an existential threat, I want to know. If it’s more important than ISIS and North Korea, I think we better know about it. So let’s have a real, meaningful discussion about it.

The American people deserve, in my view, an objective, transparent, honest discussion about what we know and what we don’t know, with respect to CO2. It’s never taken place. That’s the reason I’ve been proposing a red team, blue team exercise where we bring red team scientists in and blue team scientists in and they would engage in a multi-month process asking of each other these very difficult questions to help inform the American public on these issues to help build consensus toward this very important issue.

The American people deserve, in my view, an objective, transparent, honest discussion about what we know and what we don’t know, with respect to CO2. It’s never taken place.

Here’s the last thing I will say about it. That is a very important exercise and it’s something that Steve Koonin actually published in the Wall Street Journal about three or four months ago. I think it was a well-written piece and you ought to go read it. There’s actually another piece that Bret Stephens wrote in the New York Times about this very issue where politicians have taken information that we know and stretched it so far on this issue that it strains credibility.

We need to have a very honest and open discussion about this as a citizenry and as a country with respect to what we do. But here’s the other thing, what are the tools in the toolbox? That matters. Remember what I said earlier: the only authority I have is the one Congress gives me.

We have to ask and answer the question, What does the Clean Air Act say to this issue as far as regulation of CO2? The last time the Clean Air Act was amended—anyone want to guess when that was? I know you study this every day—1990. Twenty-seven years ago. If you go back and read post the amendments, the Clean Air Act from 1990, Congressman [John] Dingell is not the most conservative member to ever have served in Congress. Congressman Dingell said to regulate greenhouse gas emissions under the Clean Air Act of 1990 would be a glorious mess. The Clean Air Act was set up to address local and regional air pollutants, not the global phenomena of GHG and CO2.

Where is it in the Clean Air Act that the EPA has the authority to declare war on any sector of our economy? I don’t see it. And that’s what the last administration did. It ended under President Trump.

We have to ask the question, one, What do we know? And let’s inform ourselves about it. But we also have to ask ourselves, What can we do about it and what tools are in the toolbox? I can’t make that up. That’s what the last administration did. When they made it up, they got sued and they got stays of enforcement like the Clean Power Plan, which does not achieve any environmental outcomes and creates uncertainty in the marketplace. It was part of their war on coal, their war on fossil fuels.

I have to ask you a question rhetorically. Where is it in the Clean Air Act that the EPA has the authority to declare war on any sector of our economy? I don’t see it. And that’s what the last administration did. It ended under President Trump.

Bluey: I have a couple of questions about what it’s like to work at EPA headquarters. Specifically, are you running into any internal or political challenges with a staff that might not be willing to carry out the mission you articulated earlier?

Pruitt: Let me say a couple of things. One, having led a business, having been in that space and whatnot, I didn’t start from the premise that folks weren’t willing to be partners. In fact, the very first day I was there, I talked about rule of law and process and federalism, as I indicated to you. But also said to the folks there that I was going to listen and I was going to learn from them, but that we were going to lead, we were going to make decisions.

And so I’ve tried to exercise good will in working with folks. I don’t want people presuming certain things about me that are not based in fact and I shouldn’t presume certain things about others. I’ve tried to lead that way at the agency. That being said, I do think that there is a lack of urgency in some of these areas with respect to Superfund and otherwise, and we’re revitalizing those areas actually. And we’re actually getting the things done that matter and holding folks accountable.

I don’t want people presuming certain things about me that are not based in fact and I shouldn’t presume certain things about others. I’ve tried to lead that way at the agency.

There’s a gentlemen I brought into leadership. He worked for Gov. [Doug] Ducey in Arizona, and I was with Governor Ducey a couple of weeks ago and I thanked him for his contribution. But this individual came to me—he led the [Department of Environmental Quality] there in Arizona, and then he went into the Cabinet under Governor Ducey—and when he came into leadership at the DEQ in Arizona he said, Scott we had over 700 people that we employed and I started focusing on metrics and performance and everyday asking and answering what progress are we making? Are we actually remediating sites? And measuring that every single day. And there were some people in the agency, he said to me, that weren’t into that. They weren’t into accountability. And those folks just kind of left. And at the end of that process, it went from an agency of around 700 to an agency of around 350.

He said Scott, what’s amazing to me is that when that happened we were actually producing better results with the 350, measuring outcomes, than we had with 700. Now, that person is now at the EPA, and I’ve given him a charge. We have a dashboard that we’ve created, a dashboard of measuring results every single day. His name is Henry Darwin, by the way. I call this the ‘Darwin Effect,’ And I say, ‘Henry, how are we progressing today? How are we doing in air quality?’

Let me ask you something, What’s Republican and Democrat about improving air quality? Where’s the political issue around that? Where’s the political issue around avoiding Flint, Michigan, and Gold King, Colorado? Where’s the Republican/Democrat approach to remediating Superfund sites and actually making sure they’re actually reused and communities can enjoy those areas once again?

Their shouldn’t be any political margin on any of those issues. These are not controversial things. We ought to focus on the good work of the agency, respectful of law, engage in partnership. And you know what’s going to happen? Good things. We ought to celebrate that as a country. So the Darwin Effect is in full force and we are going to make sure that we achieve accountability.

Just one other thing—permitting. Permitting has been a big issue with respect to infrastructure. Permitting, sometimes, at our agency, has not been, ‘Is there an issue and how do we fix it?’ It’s been obstructionism. It’s taken a decade, or 12 years or 15 years—and I’m not making this up—where it takes that long to make a decision on a permit. That’s not a decision. That’s simply no, just cloaked in no decision, right?

When I met with Henry, I said, ‘Henry we’ve got to have an outside time where all permits are processed. Let’s establish a timeline that all permits are going to be processed within X number of years or whatever.’ This was one of our first meetings and I decided two years or something; let’s find the right time. He said, Scott, ‘I was thinking more like six months.’ I said, ‘I love you Henry.’ So by the end of 2018, every permit that we issue, up or down, you’re going to know within six months.

Bluey: What has it been like working with President Trump? What can you tell us about it?

Pruitt: It’s been wonderful. As I shared with you earlier, the president is full of courage and he’s full of action. He wants results. That’s what the American people want.

They don’t like all the blather, they don’t like all the labels, they don’t like all the bumper stickers. Let’s actually achieve things. That’s what he’s done his whole life.

[T]he president is full of courage and he’s full of action. He wants results. That’s what the American people want.

I seek every day, and I mean this sincerely, to bless him. I want to bless him and the decisions he’s making. I want to carry out my responsibilities at our agency in a way that is respectful of the things I’ve talked about today. There’s so much optimism across our country—with respect to all the various states and stakeholders that there’s a different trajectory.

You know, several years ago there was a book that I picked up called “The Culture Code.” It’s a book written by a French sociologist, and I don’t normally pick up those books, but this was an interesting book where his business, his career is that he engages in surveys and focus groups. Coca-Cola or IBM will hire him and say, ‘OK, you go out and find the code, the one word that describes my company.’ He did that, that’s his whole career.

He wrote this book and he talks about these various areas, but he spent one entire chapter on America. He surveyed all these people across the country, focus groups, asking questions. He boiled the code word for America down to one word—one word. Anybody want to guess what it is? Dream.

We have nothing to be apologetic about as a country. We’re the best in the world. We feed the world, we power the world. And oh, by the way, when it comes to environmental stewardship, we’re better than anybody else.

And I’ll tell you as a country, we’ve lost that a little bit. We’re a little bit more risk averse than we used to be. We don’t dream and aspire like we used to be. This president is reinvigorating that. This administration is reinvigorating that.

We have nothing to be apologetic about as a country. We’re the best in the world. We feed the world, we power the world. And oh, by the way, when it comes to environmental stewardship, we’re better than anybody else. And that’s the Gospel truth.

Let’s not be apologetic. Let’s lead with action. And that’s what the president is doing. I love serving with him. I love serving him. And there’s much optimism, much hope ahead.

Commentary by Rob Bluey. Originally published at The Daily Signal.

Obama’s Climate Scheme Failed on All Accounts

The Trump administration is dismantling President Barack Obama’s climate legacy piece by piece, and this week it’s taking an axe to arguably the biggest piece.

In an expected move, Environmental Protection Agency Administrator Scott Pruitt officially began the process of rolling back the incorrectly named Clean Power Plan.

If the Trump administration is intent on achieving 3 percent economic growth and rescinding costly regulations that carry negligible climate benefits—and if it is concerned about preserving our energy grid—the Clean Power Plan is a must-go.

Under section 111(d) of the Clean Air Act, the Obama EPA formalized regulations to reduce carbon dioxide from existing power plants.

Using a name that surely message-tested well, the Clean Power Plan had nothing to do with eradicating hazardous pollutants from power generation. The U.S. already has laws on the books to protect Americans’ health from emissions that have adverse environmental impacts.

Instead, the Clean Power Plan regulated carbon dioxide, a colorless, odorless, nontoxic gas, because of its alleged contribution to climate change.

From Day One, Obama’s Clean Power Plan was fraught with problems—economically, environmentally, and legally.

For starters, families and businesses would have been hit with more expensive energy bills.

How so? The plan set specific limits on greenhouse gas emissions for each state based on the states’ electricity mix and offered “flexible” options for how states could meet the targets.

But no matter how states would have developed their plans, the economic damages would have been felt through higher energy costs, fewer job opportunities, and fewer energy choices for consumers.

The EPA’s idea of flexibility would not have softened the economic blow. It merely meant that Americans would have incurred higher costs through different mechanisms.

Environmentally, the climate impact of the Clean Power Plan would have been pointless. According to climatologist Paul Knappenberger:

Even if we implement the Clean Power Plan to perfection, the amount of climate change averted over the course of this century amounts to about 0.02 C. This is so small as to be scientifically undetectable and environmentally insignificant.

Legally, the Clean Power Plan was on shaky ground, to say the least. The regulation grossly exceeded the statutory authority of the EPA, violated the principles of cooperative federalism, and double-regulated existing power plants, which the Clean Air Act prohibits.

Take it from Laurence Tribe, Harvard University professor of constitutional law and a “liberal legal icon” who served in Obama’s Justice Department.

Tribe stated in testimony before Congress that the “EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the states, Congress, and the federal courts—all at once. Burning the Constitution should not become part of our national energy policy.”

It’s no surprise that more than half the states in the country petitioned the Supreme Court to pause implementation of the regulation, and judges obliged, issuing a stay in 2016.

Pruitt, who led the charge against a rogue EPA as attorney general in Oklahoma, will respect the limits of the EPA as head of the agency. The EPA will now go through the formal rule-making and public comment period in order to repeal the Clean Power Plan.

What comes after that remains to be seen. State attorneys general in New York and Massachusetts, as well as environmental activist groups, are lining up to sue. The EPA could offer a far less stringent replacement regulation, which some industry groups are pushing for to buttress against lawsuits.

If members of Congress are fed up that policy continues to be made through the executive branch with a phone and a pen, they should step to the plate and legislate.

In this case, the solution is clear. The Clean Air Act was never intended to regulate carbon dioxide and other greenhouse gas emissions.

Congress should pass legislation prohibiting the EPA and other agencies from implementing harmful regulations that stunt economic growth and produce futile climate benefits.

Commentary by Nicolas Loris. Originally published at The Daily Signal.

Rolling Back This Obama EPA Scheme Could Save Americans $33 Billion

Reversing an Obama administration energy regulation will save energy companies $33 billion in compliance costs through 2030—costs that would have otherwise been borne by consumers, senior Trump administration officials said in providing details about scrapping the plan.

The Environmental Protection Agency on Tuesday proposed to repeal the Clean Power Plan, placing the proposed repeal in the Federal Register and giving stakeholders 60 days to submit public comment.

The Obama administration’s Clean Power Plan aimed to reduce carbon emissions by one-third by 2030. However, it ran into multiple lawsuits from more than 150 entities, including 27 states, 24 trade associations, 37 rural electric cooperatives, and three labor unions, according to the EPA. On top of that, 34 senators and 171 House members filed an amicus briefing arguing the Clean Power Plan was illegal. On Feb. 9, 2016, the Supreme Court halted the implementation of the program.

The Trump administration argues the Obama policy intruded on “cooperative federalism.” Previously, the EPA would set the process for regulating carbon emissions and states would decide on standards and implementation. Under the Obama rule, the EPA decided on state standards and implementation, the Trump EPA contends.

The EPA will review what the next step after the repeal of the rule is and if any further regulation is warranted, according to a summary from the agency. The agency states that the Clean Air Act is a source for authority but is also carefully crafted to limit what the agency does.

On March 28, President Donald Trump signed an executive order to establish a national policy on energy independence. The executive order was to promote the developing U.S. energy sources and reduce regulation. That day, EPA Administrator Scott Pruitt signed four Federal Register notices in response to the executive order that included a review of the Clean Power Plan.

On Monday, Pruitt was in coal country in Hazard, Kentucky to announce the plan to roll back the regulation, where he reportedly said, “The war on coal is over. … I’ll be signing a proposed rule to withdraw the so-called Clean Power Plan of the past administration and thus begin the effort to withdraw that rule.”

The environmental lobby reacted angrily, as Greenpeace Climate Director Kelly Mitchell called Pruitt “a dangerously corrupt fossil fuel errand boy” in a prepared statement.

“Pruitt is trying to gut the EPA’s Supreme Court-confirmed power to regulate dangerous climate pollution so these same companies can avoid accountability for fueling climate chaos,” Mitchell said. “Fortunately, utilities, cities, Fortune 500 companies, and people around the world are all moving towards renewable energy despite Scott Pruitt’s cynical attempt to delay the inevitable.”

Report by Fred Lucas. Originally published at The Daily Signal.