BREAKING NEWS : Coroner: Two teens shot to death inside Cumberland Ave garage Full Story

Pruitt praised Scalia, but his actions sing a different tune

Someday, maybe soon, a new administrator will assume the reins at the US Environmental Protection Agency (EPA). The c...

Posted: May 16, 2018 9:15 AM
Updated: May 16, 2018 9:15 AM

Someday, maybe soon, a new administrator will assume the reins at the US Environmental Protection Agency (EPA). The current administrator, Scott Pruitt, remains embattled after an avalanche of ethical, fiscal, and managerial lapses, plus reported intolerance for dissent.

Amid all the noise, a crucial question must be addressed: How has Pruitt done at his job, and what should the EPA's future head -- or Pruitt himself, if he remains -- learn from his track record? Somewhat paradoxically, the late Justice Antonin Scalia's writings provide illumination. Pruitt has professed admiration for Scalia, a conservative, describing him as a stalwart defender of the law and constitutional fundamentals.

But it is exactly Scalia's emphasis on fealty to the law that highlights Pruitt's failure at his post thus far. Pruitt has demonstrated an unwavering disrespect for the requirements of statutes and judicial precedents. Any leader of the EPA, present or future, should heed Scalia's lessons about rule-of-law fundamentals.

The EPA's role is shaped by law, not partisan politics

Justice Scalia forever emphasized that courts and agencies need to respect congressional choices reflected in the laws.

Pruitt has acted as if he could write on a blank slate, seeking regulatory reversals before doing the congressionally required work to justify them. Every statute sets out goals, procedures, and criteria to guide agency actions. Wholesale regulatory reversals tend to be hard, especially where the law is protective and science is sound.

Yet Pruitt's EPA has repeatedly dodged engagement with the law's substantive and procedural requirements and ignored or sought to skew the science, erring instead on the side of polluters seeking relief.

The EPA's determination in April that it would roll back car efficiency regulations -- a move cheered by the auto industry -- is a case in point. The agency originally set these regulations in 2012 to reduce greenhouse gas emissions and improve mileage. That action followed a 2007 Supreme Court decision ordering the EPA to follow the law in assessing the regulation of greenhouse gas emissions from motor vehicles.

The EPA's recent determination under Pruitt, however, was flatly contrary to determinations published by the EPA in January 2017, just before President Donald Trump took office. Barack Obama's EPA had massively documented technology, business, and consumer trends and concluded that progress in motor vehicle efficiency and reducing emissions was exceeding earlier expectations.

Pruitt's EPA has reversed that conclusion, determining to discard these mileage and emission requirements. What the agency will require in the future is not clear and it has thus far provided scant justification for the decision. It merely paraphrased industry concerns, without the EPA stating its own conclusions about the state of technological progress. This rollback has already provoked litigation and congressional criticism.

The EPA administrator must abide by legal rules of the road

In a democracy ruled by law, agencies must do things the right way, even if clunky or slow.

Scalia called for compliance with such procedural requirements, emphasizing in a 1978 article that "one of the functions of procedure is to limit power -- not just the power to be unfair, but the power to act in a political mode, or the power to act at all."

Indeed, during times of deregulatory rollbacks, the Supreme Court has repeatedly emphasized that an agency making a policy change must surmount several hurdles: The original regulations stand until validly changed. Moreover, the agency must provide "good reasons" for a change, leave no "unexplained inconsistency," and grapple with underlying facts and the effects of the original policy.

Pruitt's EPA, however, has sought to scuttle still-governing regulations with shortcuts, such as claimed delays or postponements that would, in reality, indefinitely shelve earlier finalized regulations, but without providing the analysis and justification the Supreme Court has long required. So far, the EPA has repeatedly lost on this strategy in the courts.

In 2017, the United States Court of Appeals for the District of Columbia, the nation's pre-eminent federal appellate court, ruled that the EPA could not roll back methane regulations through a regulatory stay without new rule-making that included opportunities for public comment, plus legal and factual justification.

And, similarly, a federal district court in California in 2018 rejected the EPA's use of a delay strategy to indirectly abandon pesticide regulation.

The EPA's administrator must faithfully execute laws that protect the environment

The EPA's head is constitutionally obligated to uphold these laws, not to benefit or bail out some particular sector or region. Two of Scalia's most significant opinions involved the EPA's authority to focus on health, or costs, or perhaps both.

Scalia's instructions? Follow the law.

In one case, the law's text mandated that the agency make regulatory choices based on an assessment of a pollutant's threats to health, and Scalia's opinion for the court said just that.

In the other, Scalia -- and a strong court majority -- said the EPA and other agencies must look at both the benefits of regulation as well as regulatory costs, unless prohibited by law. Scalia castigated agencies for illegal "interpretive gerrymanders," stating that they cannot keep portions of the law they favor and discard the rest. Under Pruitt's leadership, the EPA has done exactly what Scalia condemned.

Statutes rule the day, and balanced analysis is the norm. Pruitt seems to have forgotten this, and has been focusing inordinately on polluters' concerns, while barely addressing resulting harms from increased pollution that, again and again, he wanted to allow.

Neither Pruitt nor any future EPA administrator is above the law.

The EPA administrator must acknowledge his or her own limitations

Environmental law is laden with science, technological issues, and evidence-based assessments of the best performers and cutting-edge developments. A good administrator will listen to self-interested lawyers and lobbyists, but then seek expert agency counsel and follow the law and evidence. Pruitt has met extensively with his anti-environmental allies, but few others.

It makes sense, then, that under Pruitt, the agency has proposed poorly justified rollbacks. Short-circuiting procedures designed to allow for public comment and constrain government power (as Justice Scalia noted) has left Pruitt's EPA with the appearance of being one-sided and ill-informed.

Public servants must respect the law. The EPA has gone through hard times before, but Pruitt's reign has been a uniquely lawless disaster. If a new administrator respects the law and follows the science and data, that administrator may still find room to adjust agency policy, yet emerge with reputation and the environment intact.

Indiana Coronavirus Cases

Data is updated nightly.

Cases: 1118335

Reported Deaths: 17712
CountyCasesDeaths
Marion1455892240
Lake724831254
Allen67063882
Hamilton51060487
St. Joseph49820649
Elkhart40268546
Vanderburgh34714497
Tippecanoe30808276
Johnson27696467
Hendricks26313385
Porter25657386
Madison21131455
Clark20238279
Vigo19059309
LaPorte17192261
Howard16770314
Delaware16761303
Monroe16628220
Kosciusko14293167
Hancock13113186
Bartholomew12983190
Warrick12210190
Wayne12090269
Floyd12011226
Grant11998245
Morgan10409192
Boone9869124
Noble9316122
Henry9177169
Marshall9152147
Dearborn8970100
Dubois8835140
Shelby8281130
Cass8167128
Lawrence8057185
DeKalb7817109
Jackson770793
Huntington7661115
Gibson7102118
Montgomery7101123
Harrison6954100
Knox6915116
Steuben669089
Whitley659660
Miami6595113
Putnam645085
Clinton627179
Wabash6221111
Jasper613192
Jefferson5856105
Ripley557294
Adams542281
Daviess5076117
Scott491580
Wells4836105
White478469
Greene4701101
Clay464662
Decatur4611110
Fayette452496
Jennings452067
LaGrange427491
Posey410044
Randolph3944107
Washington390956
Fountain375964
Fulton364874
Spencer362247
Starke355574
Owen353577
Sullivan348555
Orange331372
Jay331050
Rush309533
Carroll296239
Franklin292744
Perry290553
Vermillion283658
Tipton251167
Parke250130
Pike248644
Blackford222144
Pulaski210359
Newton182452
Brown177550
Crawford169129
Benton168417
Martin152120
Switzerland147612
Warren135816
Union122616
Ohio92413
Unassigned0595

Ohio Coronavirus Cases

Data is updated nightly.

Cases: 1731003

Reported Deaths: 26851
CountyCasesDeaths
Franklin1803711843
Cuyahoga1698662655
Hamilton1144371544
Montgomery810251405
Summit726231210
Lucas636141027
Butler57225814
Stark543091183
Lorain42754645
Warren36183417
Mahoning36035788
Lake32696501
Clermont31523369
Trumbull27614620
Delaware27394185
Licking26829344
Medina26290353
Fairfield24812287
Greene24540373
Clark22327390
Portage21504283
Richland21257342
Wood20300248
Allen19119326
Miami17456352
Columbiana17014335
Muskingum16873207
Wayne15873307
Tuscarawas14579362
Marion13440196
Ashtabula12927237
Erie12790199
Scioto12556188
Pickaway12308155
Ross11780226
Hancock11623175
Geauga11042179
Lawrence10698172
Belmont10509234
Huron9867159
Jefferson9687228
Union963775
Sandusky9428166
Seneca8993161
Knox8869176
Washington8714159
Darke8435181
Athens841897
Ashland8102152
Auglaize8018120
Shelby7551135
Defiance7418117
Crawford7356150
Fulton7262113
Brown7217116
Logan7061111
Guernsey700586
Mercer6959100
Highland6807120
Clinton6547106
Williams653899
Madison652590
Preble6334140
Putnam6288122
Champaign585187
Jackson584597
Perry570579
Ottawa5689102
Coshocton5688108
Morrow521765
Fayette497272
Hardin4947100
Gallia474278
Van Wert469395
Pike467678
Adams4619110
Henry439280
Hocking412493
Holmes4035141
Wyandot379275
Carroll371178
Paulding326351
Meigs307561
Monroe236861
Noble221549
Morgan219039
Harrison215253
Vinton189138
Unassigned06
Fort Wayne
Clear
22° wxIcon
Hi: 38° Lo: 22°
Feels Like: 10°
Angola
Cloudy
25° wxIcon
Hi: 38° Lo: 24°
Feels Like: 15°
Huntington
Clear
21° wxIcon
Hi: 36° Lo: 20°
Feels Like: 10°
Decatur
Clear
22° wxIcon
Hi: 39° Lo: 23°
Feels Like: 10°
Van Wert
Partly Cloudy
24° wxIcon
Hi: 40° Lo: 24°
Feels Like: 11°
Colder air continues to filter into the region, and we will experience the coldest day since February 2021.
WFFT Radar
WFFT Temperatures
WFFT National

Community Events