Trump’s Pruitt Pick for EPA Signals Greater Predictability in Environmental Rulemaking, Enforcement

President-elect Donald Trump’s team announced yesterday his selection of Oklahoma Attorney General Scott Pruitt to head the U.S. Environmental Protection Agency. The Pruitt pick is nearly as polarizing as the election itself. Pruitt describes himself as a “leading advocate against the EPA’s activist agenda.” The Wall Street Journal applauded Pruitt calling him “A Lawyer for a Lawless EPA.” Democrats are attacking Trump’s pick calling him a “climate denier” and otherwise unfit to head the agency tasked with enforcing the nation’s environmental laws. Incoming Senate Minority Leader Chuck Schumer (D-NY) blasted Pruitt on Twitter saying he “stands with big oil & climate deniers, not American families.”

Regardless of one’s political leanings, one good thing that should come out of the Pruitt pick, assuming he is confirmed by the Senate, is a more predictable application of federal environmental laws and regulations. Recent environmental rulemaking under President Obama’s Administration has been met with mixed success before the courts. The EPA’s 2015 Clean Power Plan was promptly challenged by 27 states, including Pruitt’s Oklahoma. On February 9, 2016, the U.S. Supreme Court took the unprecedented step of staying enforcement of the regulation pending an appeal before the D.C. Circuit. The appeal is still pending. The EPA and Army Corps of Engineers’ new and more expansive “Waters of the U.S.” rule is subject to a similar appeal and has been stayed by the Sixth Circuit. Both rules face an uncertain fate, although their life expectancy is undoubtedly reduced in the wake of the election.

What is sometimes missed is the cost, economic and otherwise, of on-again, off-again regulation. Ultimately, taxpayers and consumers shoulder the expense of the rush to comply with new rules. The uncertainty of whether the rules will survive increases the cost. Put simply, predictability and durability are underappreciated qualities in environmental regulation. Pruitt, it would seem, is less likely to send the EPA on new rulemaking efforts that are later undone by the courts. Call that a silver lining for those not otherwise supporting the Pruitt nomination.

About David McCay

Dave is a partner in the firm’s litigation and land use groups where he assists clients in the resolution of complex real estate, environmental and business disputes. He also represents property owners, developers and municipalities in local land use permitting matters. Dave is active in the Boroughs+ region serving recently as the Chair of the Southborough Economic Development Committee and of the Marlborough Regional Chamber of Commerce. He is also a member of the Board of Directors of the 495/MetroWest Partnership and the Marlborough Economic Development Corporation. Outside of the office, Dave is an avid cyclist competing in road races and criteriums across New England. He lives in Southborough with his wife and two sons.
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