But when environmental advocates scrutinized the specifics, they discovered a problem: The evidence cited was not established scientific research. Instead, the agency was relying on a four-page document by the utility industry’s trade association, the Edison Electric Institute, which has acknowledged that its conclusions were not “part of or a summary of a larger study.”
Lisa Evans, a lawyer for the group Earthjustice, was among the advocates who seized on that omission, as well as on gaps in technical data and other evidence, to argue that the agency’s action was ill-advised and legally flimsy.
“The record does not support the proposal,” Evans said, noting that the Obama administration’s 2015 requirement on coal ash drew on years of public input and peer-reviewed scientific studies. “I’ve never seen a rule like this, in terms of the thinness of the evidence.”
The coal ash proposal is among the more than half-dozen major EPA moves that have been snagged by procedural and legal problems. The delays threaten to tarnish Pruitt’s image as an effective warrior in President Trump’s battle against federal regulations, a reputation that has so far saved the EPA administrator his job amid an array of investigations into ethical and management lapses.
Earlier this month, the White House Office of Management and Budget sent back a proposal to ease emissions restrictions for refurbished heavy-duty trucks and ordered the agency to analyze the proposal’s economic impact. That move followed a separate OMB request in April that the EPA offer “some analysis” to show that it would actually yield environmental benefits.
The EPA’s own science advisers have called for a review of the “adequacy” of research used not only to justify revoking the truck rule but to reverse fuel-efficiency standards for cars. And over the past year, courts have halted or reversed multiple Pruitt initiatives, in one case forcing the EPA to restore limits on methane leaks from oil and gas operations after a federal appeals panel concluded that their suspension was illegal.
Jeffrey Holmstead, a partner at the law firm Bracewell LLP, who headed the EPA’s air and radiation office under President George W. Bush, thinks it is “premature” to evaluate how durable Pruitt’s policy changes will be.
“Early on, before they really had their folks in place, they sent over a lot of rules that didn’t have a lot of technical support,” Holmstead said, adding that in recent months the Senate has confirmed numerous appointees who previously served at the EPA and so are more experienced in working with career staff. “A lot more work is getting done.”
EPA spokesman Jahan Wilcox said in a statement that the agency “has been vigorously carrying out President Trump’s regulatory reform agenda, consistent with applicable laws and executive orders.” He noted that last year alone, nearly 40 actions — “including 10 economically significant regulations” — completed their interagency review at the OMB.
But federal records and interviews reveal how much White House officials and staff in other agencies have questioned whether the EPA is meeting the legal requirements necessary to revise Obama-era actions.
The OMB recently posted a document with tracked changes highlighting an extensive rewrite of the agency’s proposal to revoke stricter tailpipe emissions standards for cars and light trucks. Pruitt concluded that higher mileage targets for vehicles to be produced between model years 2022 and 2025 are “not appropriate” because automakers can’t achieve them. Among the red-line changes was an added reference noting that some outside groups, including the Union for Concerned Scientists, believe that the thresholds can be met.
“The rules are coming in undercooked,” said Amit Narang, regulatory policy advocate for the watchdog group Public Citizen.
The agency, for example, is drafting a “supplemental rule” to one proposed last year that would change federal oversight over more than half of the nation’s water bodies. It already is being sued over its push to revoke the 2015 “Waters of the U.S.” rule, which affects activities that could drain wetlands and intermittent streams. According to officials, the supplemental language would address White House concerns that the EPA needs to clarify what would actually take the place of the regulation once it is abolished.
Despite such missteps, both critics and supporters of Pruitt agree he has been effective in reshaping the agency through his executive powers. He has issued directives that could ultimately change what sort of data can be used to calculate air-quality standards throughout the country and which studies can factor into public health rules. He scrapped a two-decades-old policy requiring that once a power plant was deemed a “major” polluter, it would always face the most stringent regulations, even if its emissions fell.
The administrator is not letting up, either. His agency’s recent “unified agenda” signals an aggressive deregulatory push in the months ahead.
Holmstead points out that on significant actions, such as reevaluating vehicle fuel-efficiency standards or undoing the Obama administration’s Clean Power Plan, the EPA’s final decisions matter far more than the initial ones.
“On the big rules, we still haven’t seen the final rules, and that’s where you see the record that has to justify things,” he said.
Yet critics are looking to exploit the early procedural errors as they challenge Pruitt’s efforts in court. More than 70 lawsuits have been filed against the EPA’s regulatory actions, according to an analysis by the office of Sen. Thomas R. Carper (D-Del.). Of the six cases that have had a full court review, the agency has lost four and delayed arguments in one.
With the proposal on coal ash — intended to give states and utilities more latitude when disposing of the waste — opponents have seized on the fact that there’s no study underpinning the EPA’s position. The current requirement means that most coal ash ponds that pollute nearby groundwater or lie in unsafe areas must close within six months of contamination being detected.
Although the Edison Electric Institute document cited by the EPA draws from a 32-page report on summer electricity demand by the North American Electric Reliability Corp., that analysis does not speak to the issue of coal ash disposal.
Institute official James Roewer, who runs an industry coalition on coal ash, said in an email that the document “is not part of or a summary of a larger study; there isn’t more detailed information that wasn’t provided to EPA. It is simply a high-level review.”
Last month, scores of people assembled in the ballroom of a Doubletree Hotel in Arlington, Va., to testify at a public hearing on the proposal. They represented a cross section of Americans — tribal members from Nevada and New Mexico, Girl Scouts from Illinois, a mother from Missouri, a doctor from Indiana. They described how nearby coal ash pits have affected the health of their communities and implored EPA officials not to change course.
“If anything, we should be here making the rules and regulations stronger, not weaker,” said Rachael O’Reilly, 30, of Peoria, Ill., which she said lies downstream from two coal plants. “Why are we here moving backward?”