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The Energy 202: Trump appointee at EPA to scrutinize which pollution cases may go to court

with Paulina Firozi


A political appointee at the Environmental Protection Agency will review which pollution violations are referred to the Justice Department for possible civil enforcement, a move some former officials describe as providing President Trump's appointees the opportunity to stifle enforcement of anti-pollution laws.

Susan Bodine, the EPA's top enforcement official, issued a pair of memorandums to the agency's regional offices in recent months asking local investigators looking into civil pollution cases to brief her before sending them to Justice Department lawyers, who then decide whether to file a civil enforcement case in court against the alleged polluter.

In the past, such referrals made by the EPA’s regional offices were sent simultaneously to the Justice Department and to political appointees at EPA headquarters.

In many cases under that old system, one political appointee did have the opportunity to weigh in — the regional administrator, who signed off on some referrals before they were sent to the Justice Department. But the new directive creates another step, allowing Bodine to assess cases earlier in the process.

The EPA said the new procedures will speed up enforcement and do not set a new standard for which cases may go to court. Only lawyers at the Justice Department can sue potential polluters.

“As the memos state, early engagement among EPA regional offices and senior enforcement leadership at EPA headquarters will make it easier to elevate potential issues to DOJ management and further EPA's goal of reducing the average time from violation identification to correction,” EPA spokeswoman Kelsi Daniell said in a statement. “The memos only address procedures for providing notice for referrals and do not set a higher bar for making referrals to DOJ or change delegations of authority.”

But John O’Grady, president of the EPA employee union AFGE Council 238, says the new policy gives Trump appointees the chance to stymie the volume of civil referrals making their way to the Justice Department.

“What she is going to do then is to go through all the cases presented and find reasons why they shouldn't go to DOJ. ‘Why can't we go back to the industry and offer them less of a penalty?’ ” O’Grady said. “I don't see where that gets us where we need to be in terms of protecting human health and the environment.”

The union, which represents about 8,000 agency workers, provided the memos to The Washington Post.

Former enforcement officials worry the new procedures will have a chilling effect among career employees who are already worried about running afoul of an administration that is trying to roll back many environmental rules at the behest of companies the agency regulates.

George Czerniak, the former director of the air and radiation division at the EPA’s Chicago office, said the new policy is a sign to potential polluters that they will face less scrutiny.

“Industry will take this as a signal that the cop on the beat is relaxing a little,” Czerniak said, “and I think a little bit of the deterrence that has been built up will be lost.”

Justin Pidot, a University of Denver law professor and former deputy solicitor for land resources at the Interior Department under President Barack Obama, believes the policy will do the opposite of what the EPA intended.

“The notion that this process will speed up enforcement is laughable to me,” Pidot said. “Anytime you bring in the front office, everything slows down.”

Bodine, the agency’s assistant administrator of enforcement, previously served as the chief counsel for Republicans on the Senate Environment and Public Works Committee and as the EPA’s top solid waste and emergency response official under President George W. Bush. She also was a partner at Barnes & Thornburg representing the American Forest and Paper Association, whose members are regulated by the EPA, according to the online publication the Intercept.

Beyond its headquarters in Washington, the EPA is divided into 10 regions, each responsible for implementing the agency’s programs in a set of states.

The memo issued in April covers Superfund cases, while the other from March covered other civil enforcement cases coming from the regions.

Such civil referrals to the Justice Department have already dropped under Administrator Scott Pruitt even before these new procedures were put in place. According to the Public Employees for Environmental Responsibility, a nonprofit advocacy group, the total number of new civil cases initiated fell by nearly 20 percent between 2016 and 2017, from 2,414 to 1,938.


— The umpteenth shoe drops on Pruitt: At least three EPA staffers "were dispatched to help" Pruitt's daughter McKenna "obtain a summer internship at the White House, the current and former staff members said," according to a New York Times report Friday. The incident is another potential misuse of public employees for private gain. EPA aides were also enlisted to help get Pruitt's wife a job, The Post has reported.

— And another: According to a new letter Friday from Rep. Elijah E. Cummings (R-Md.), top Democrat on the House Oversight Committee, Pruitt "received tickets to the Rose Bowl in January from the chief executive of an Oklahoma-based public relations firm that has a large energy practice," The Post's Brady Dennis and Juliet Eilperin report.

— Here is the latest reaction to the every-minute-there's-a-new-one series of spending and managing missteps by the EPA chief. Let's start with the Senate:

  • The office of Republican Sen. John Barrasso (Wyo.), chairman of the Senate Environment and Public Works committee, reiterated this week that he plans to call on Pruitt to testify about his spending and managing decisions sometime "later this year," according to spokesman Mike Danylak. A spokesman for Sen. James M. Inhofe also told Reuters the Oklahoma Republican would like Pruitt to testify, too.
  • Sen. Joni Ernst (R-Iowa) agreed on Twitter:
  • Barrasso also sent a letter to Sen. Lisa Murkowski (R-Alaska) this week to push for better funding for the EPA’s Office of Inspector General, asking for “sufficient funding” for that internal watchdog office that has opened several investigations into Pruitt's behavior. Murkowski is the chairwoman of the Appropriations subcommittee that oversees the agency’s budget.
  • Meanwhile, here’s how House Speaker Paul Ryan responded to questions about whether he remained confident in the administrator: “Frankly I haven't paid that close attention to it ... I don't know enough about what Pruitt has or has not done to give you a good comment.” 
  • Ryan's comment left many commenters incredulous, including Chris Lu, formerly Obama's chief liaison to his Cabinet:
  • Walter Shaub, the former head of the Office of Government Ethics, called Pruitt “fundamentally unfit for public service.” “There seems to be no bottom to this ethics catastrophe with Scott Pruitt,” Shaub said in an interview with CNN’s “New Day.” “And nobody's doing anything about it.”
  • Virginia Canter, who served as the associate counsel for ethics in the Obama and Clinton administrations, and Norman Eisen, who served as chief White House ethics lawyer for Obama, write in The Post that the latest revelations about Pruitt “show that he has embraced the spirit of the swamp more fully than any other Trump Cabinet member.” They add: “As former government ethics officials, it’s clear to us that he can no longer effectively or meaningfully lead the agency he was appointed to head."

— And then there’s the White House: White House press secretary Sarah Huckabee Sanders said Thursday that the White House “certainly” takes issue with the growing number of allegations. “Certainly, we have some areas of concern about these allegations, but I don’t have any personnel announcements at this point.” Here are at least six other times Sanders has responded to questions about Pruitt:  

  • April 4: “We’re reviewing the situation. When we have had a chance to have a deeper dive on it, we’ll let you know the outcomes of that. But we’re currently reviewing that here at the White House … The president thinks that he’s done a good job, particularly on the deregulation front. But again, we take this seriously and we’re looking into it and we’ll let you know when we finish.
  • April 23: “Again, we’re reviewing some of those allegations. However, Administrator Pruitt has done a good job of implementing the president’s policies, particularly on deregulation; making the United States less energy-dependent and becoming more energy independent. Those are good things. However, the other things certainly are something that we’re monitoring and looking at, and I’ll keep you posted."
  • April 25: “Again, we’re evaluating these concerns, and we expect the EPA Administrator to answer for them, and we’ll keep you posted … We’re having ongoing conversation.”
  • May 7: “I don’t have any personnel announcements on that front. Certainly, we have confidence in the number two; otherwise, the president wouldn’t have asked him to serve at such a senior-level position within the EPA.  But I don’t have anything further on that front.”
  • June 4: “Certainly looking into the matter.  I couldn’t comment on the specifics of the furniture used in his apartment.”
  • June 5: “I haven’t spoken with the president about that since that report came out … Once again, I haven’t had a chance to speak with the president directly about The Washington Post’s new report. We continue to have concerns and look into those, and we’ll address them.”

— How the EPA’s press office has handled all the news: The Post’s Paul Farhi writes the press office has been going on offense. Insults like calling a reporter "a piece of trash," as one EPA spokesman did recently, are "unusual given that government public-affairs specialists typically try to work with, not against, the news media, even when they don’t like the reporters or the coverage,” Farhi writes. So is another recent incident when an EPA guard pushed a reporter out of the agency headquarters.

“People familiar with the department say its antagonistic approach is guided by Pruitt, who has been the subject of many negative stories and is facing more than a dozen federal investigations of his conduct,” Farhi writes. “They note, for example, that Wilcox wasn’t disciplined by Pruitt for his ‘piece-of-trash’ comment to Atlantic reporter Elaina Plott. Outside of the apology to Knickmeyer, no regrets have been issued.”

— And how Pruitt himself is responding: By trying to go about his business as usual. Pruitt plans to send "detailed legal proposal" to the White House Friday to rewrite back a major Obama-era water-pollution rule, according to the New York Times. The EPA chief confirmed that plan on Twitter:

What's going on: The rule, called Waters of the United States, has long been in the administration's crosshairs. The pending submission to the White House's Office of Management and Budget comes at a time when Pruitt needs to buttress his deregulatory bona fides with Trump, the one individual who can fire him. Pruitt also finished a tour of Kansas, South Dakota and Nebraska this week with a visit Thursday to an Omaha wastewater treatment plant.

— In EPA policy (not Pruitt) news: The agency backed off from a temporarily suspension of Obama-era rules meant to protect agricultural workers after a lawsuit by California, New York and Maryland. California Attorney General Xavier Becerra called the reversal "an important victory for some of America’s hardest workers."

— Some way to go: Former Yellowstone National Park Superintendent Dan Wenk found out that he was being replaced in the job when Interior Secretary Ryan Zinke put out a news release Wednesday about his replacement. Wenk told the Hill he still was waiting for his calls to be returned by the department or by the National Park Service about when his last day will be. “I guess the best way I can capture my feelings is they are not affording me any respect for the time my 42-plus years with the park service and my career of achievement,” he said. “And they won’t have a conversation with me about what a transition will look like.”

— USGS research must “advance the department’s priorities": Elsewhere in the Interior Department, scientists at the U.S. Geological Survey will now have to submit their presentations for an internal review before they would be approved to attend two major conferences.

The reason? Scientists will have to prove how their research links with Zinke’s priorities, The Post’s Sarah Kaplan reports. Interior Department spokeswoman Faith Vander Voort said because of budget constraints, the department “can only afford to send people who have a meaningful role at the conference. ... If taxpayer dollars are being spent to send someone to a conference, we'd like some degree of confidence that their attendance will advance the department’s priorities.”

Bruce Babbitt, interior secretary during the Clinton administration, countered: “It's a form of censorship.”

— New rules in Michigan on lead: Michigan Gov. Rick Snyder (R) said Thursday the state would strengthen standards set by federal regulations for lead and copper following the Flint water crisis. “The federal Lead and Copper Rule simply does not do enough to protect public health,” Snyder said in the statement, MLive reports. “As a state, we could no longer afford to wait on needed changes at the federal level, so Michigan has stepped up to give our residents a smarter, safer rule — one that better safeguards water systems in all communities.” The regulation changes will include reducing the lead action level from 15 to 12 parts per billion in 2025, per the report, and will require public water systems to replace lead service lines starting in 2021.

— Environmental law shop gets new chief: Earthjustice, the nation’s largest environmental law group, is promoting Abigail “Abbie” Dillen, an 18-year veteran there, to be its next president. Dillen currently serves as vice president of climate and energy, running the group's litigation on fossil fuels and renewable energy. Earthjustice has been one of the most litigious opponents of the Trump administration, filing a total of 95 lawsuits against the government while he is in office. The current president, Trip Van Noppen, will be retiring in October.

Why Scott Pruitt's effort to get his wife a job could be his most consequential scandal (Amber Phillips)


— Wolf population plan: The U.S. Fish and Wildlife Service is considering another look at dropping legal protections for gray wolves across the Lower 48 states. The agency told the Associated Press it has started a science-based review over the status of the species’ population, which is listed under the Endangered Species Act. “Any proposal will follow a robust, transparent and open public process that will provide opportunity for public comment,” the service said in a statement. This follows an announcement last week from the National Park Service that it would commit to rebuilding the gray wolf population in Isle Royale National Park in Michigan.

— Water trickles back to normal in Puerto Rico: While officials in the U.S. territory say water service has been restored for 96 percent of customers, Kaiser Health News reports that outside cities, water service has been slower to restart and water flow and quality can be intermittent. “The drops in service represent generators failing or places where electricity was reestablished and perhaps temporarily lost,” said Elí Díaz Atienza, executive president of the Puerto Rico Aqueduct and Sewer Authority (PRASA). But the publication reports that is not much comfort to rural residents “who are left coping with limited access to clean water and fear the new hurricane season, which started this month."

— How climate change is affecting the fish: As a result of rising temperatures, fishery stocks such as salmon and mackerel are migrating into other fisheries, and a new study set to publish Friday in the journal Science suggests coastal countries will need to collaborate in order to prevent misuse of resources, The Post's Kate Furby writes. As water temperatures increase, “fish are moving to stay within their comfortable range,” Angee Doerr from the Stanford Center for Ocean Solutions explained. That means fish might be leaving the traditional waters they are in, and changes to a single fish species can have a ripple effect on the entire food web, Furby writes.

— "We don’t know how to deal with a problem this big:" Some of San Francisco’s most prominent office buildings are on a list of high-rises that are potentially the most at risk in a major earthquake, according to a USGS study. The state of California is still grappling with what to do with hundreds of buildings that were built with a flawed technique, according to the New York Times. “This is an issue that structural engineers should have been dealing with continuously since the mid-1990s and we just dropped it,” Keith Porter, an earthquake engineering expert who helped with the USGS study told The Times. “We don’t know how to deal with a problem this big.” The USGS report includes about 40 steel-frame high rises in downtown San Francisco that are vulnerable, and experts believe these structures are at risk only in the case of an extreme earthquake, rare and powerful like the one that hit the city in 1906, per the report.


—  No more monkeying around: Volkswagen is set to pay Vermont $6.5 million in the lawsuit over its rigged emission tests, a settlement that will pay customers in the state up to $1,000 for qualifying VW, Audi and Porsche vehicles, the Associated Press reports. The settlement from the German automaker will also pay $3.6 million toward the state’s general fund, minus expenses and administration. The latest settlement announcement follows a previous $4.2 million over violations of the sate’s environmental regulations.

— Pipeline to proceed: Pennsylvania’s Public Utility Commission voted Thursday to allow Energy Transfer Partners LP’s Sunoco Mariner East 1 natural gas liquids pipeline to resume service following a suspension over safety questions, Reuters reports. The pipeline had been halted after sinkholes were found near the pipeline.

— Oil watch: The Energy Information Administration said this week it was “uncertain” if oil production from Saudi Arabia and Russia would be enough to offset a drop in production from Iran following sanctions from the Trump administration. The EIA report noted that a lot will depend on the upcoming meeting between the Organization of the Petroleum Exporting Countries (OPEC) and other non-OPEC countries such as Russia next week. “Depending on the outcome of the June 22 meeting, however, the magnitude of any supply response is uncertain,” it said.



  • The Center for Strategic and International Studies holds a discussion with Paul Dabbar, the Energy Department's under secretary for science.
  • The House Energy and Commerce Subcommittee on Oversight and Investigations holds a hearing on public health biopreparedness.
A tornado swept through Wilkes-Barre, Pa., damaging buildings, homes and vehicles on June 13. (Video: Allie Caren/The Washington Post)

— “Unbelievable” destruction: A tornado left a path of demolition in northeastern Pennsylvania on Wednesday night, ravaging businesses, flipping rental trucks and downing trees and power lines, as The Post’s Lindsey Bever reports. “At first I didn’t take it seriously," said one resident, "because we’re not supposed to get tornadoes here."