The Challenges of Federalism in Environmental Regulations: Scott Pruitt and the EPA

By Allyson Beasley*

On February 17, 2017 Congress confirmed former Oklahoma Attorney General Scott Pruitt, an outspoken critic of “federal overreach”[1] as the new Administrator of the U.S. Environmental Protection Agency.[2] The subsequent release of his close ties to major agricultural and oil and gas industry stakeholders[3], put the influence of extractive industries on environmental decision-making in the national spotlight. Does Pruitt’s problematic history in Oklahoma and determination to fight “federal overreach” indicate a grim future for the EPA?

Pruitt’s legacy in Oklahoma and statements about his future plans do not bode well for an EPA whose mission is to “protect human health and the environment.”[4]  First, his demonstrated collusion with the oil and gas industry as Oklahoma Attorney General is not likely to subside when he is acting as Administrator of the EPA.  At the time of this writing, additional information is still emerging regarding the full nature and extent of these industry ties.[5] Second, and relatedly, Pruitt’s dedication to a concept of federalism that prioritizes the interests of extractive industries in the name of “state sovereignty”[6] is not compatible with leading a federal agency in combating environmental problems such as climate change and pollution that transcend geopolitical boundaries.

Pruitt’s biography page on the EPA website emphasizes his zeal for minimizing federal regulations.[7] The bio states, “he is recognized as a national leader in the cause to restore the proper balance between the states and federal government, and he established Oklahoma’s first federalism unit to combat unwarranted regulation and overreach by the federal government.”[8] The Oklahoma Attorney General’s Office describes the “federalism unit” as “dedicated to representing the interests of the state and challenging the federal government when it has overreached its authority and encroached on the state’s ability to craft its own solutions…”[9]

One need only look to environmental and public health disasters such as Love Canal[10] and Valley of the Drums[11], which prompted the enactment of CERCLA (aka the Superfund act) in 1980, for reminders of the potentially dire consequences of leaving environmental regulation to the states. Then again, Pruitt has espoused skepticism about anthropogenic climate change,  including during his confirmation hearing, in which he acknowledged that “human activity contributes to [climate change] in “some manner” but questioned the conclusiveness of the science on the need to implement mitigation and adaptation measures and curtail greenhouse gas emissions.[12] Most recently, he has expressed doubt that Carbon Dioxide is a major contributor to climate change.[13] Accordingly, some states might actually be better equipped to combat these pressing environmental issues than the federal government under the current administration.  Overall, however, the highly variable and uneven nature of states’ willingness to prioritize protection of public health and the environment both illustrates and exacerbates the problem with Pruitt at the helm of the EPA.

Oklahoma provides a case study for these problems. The oil and gas industries have long been an integral and controversial segment of Oklahoma’s economy.  A short drive through downtown Oklahoma City reveals several buildings, office parks, and sports arenas bearing the names of prominent energy companies such as Devon and Chesapeake.[14] As of 2016, Oklahoma ranked 5th in the nation in crude oil and total energy production,[15] and 3rd in the nation for natural gas production,[16] producing about 1/10th of the nation’s natural gas.[17] It also ranked 17th in CO2 emissions as of 2014,[18] despite ranking 28th in population and 35th in population density.[19]

However, jobs and environmental protection are not and do not need to be diametrically opposed. For one, renewable energy can be a promising option for energy-producing states like Oklahoma, which already contributes considerably to wind-energy production and has the potential to supply wind power to about 10% of the nation.[20]  That said, certain existing industry practices with detrimental effects on the environment and public health can and should be curtailed. For example, several Oklahoma citizens, academics, and environmental groups have expressed concern over the effects of hydraulic fracturing (fracking) on drinking water and seismic activity in the state.[21] In a November 2016 letter, EPA Region 6 leaders expressed concern that Oklahoma was not doing enough to address these issue.[22] Despite Pruitt’s assurance that fracking is “nothing new” and Oklahoma has had a “robust regulatory scheme” since the 1940s,[23] the number of earthquakes registering over a 3.0 has increased over tenfold since 2010, with a dramatic jump from a range of 35-67 in 2010-2012 to 110 in 2013 and a range of 579 to a high of 903 in 2014-2016.[24]  The Oklahoma Geological Survey consensus is that these quakes cannot be attributed entirely to “natural causes”[25] and the quakes have already caused considerable damage in parts of the state, particularly in tribal communities.  The Pawnee Nation recently sued several oil companies for wastewater injection activity near the epicenter of a damaging 5.8 earthquake last fall.[26] Additionally, despite the skepticism and outright denial of anthropogenic climate change by Pruitt and by Oklahoma senators such as Jim Inhofe[27], Oklahoma is already seeing detrimental effects of climate change[28]. Increased drought, heat, and extreme weather events such as the tornadoes and severe storms for which Oklahoma is already infamous will continue to threaten public health and agricultural production.[29]

Despite these scientifically valid concerns, Pruitt has continued to place industry interests above public health and environmental protection in Oklahoma. He has sued the Environmental Protection Agency of which he is now in charge of 14 times, and in 13 of those suits, stakeholders from regulated industries (primarily agriculture/factory farms and energy) were parties.[30]  In these suits, Pruitt and his industry allies and fellow state Attorney Generals tied to extractive industries challenged the EPA’s cross-state pollution rule,[31] limits on mercury that would save tens of thousands of lives,[32] the Clean Power Plan (multiple times)[33] and even the Clean Water Rule (aka the Waters of the United States Rule, expanding federal jurisdiction over certain surface waters to combat pollution),[34] despite his espoused commitment to preserving clean water. The legal hook for Pruitt in most of these cases rested on assertions that the EPA was overstepping its authority and unduly intruding on state sovereignty, although in many instances, he also mentioned what he saw as unnecessarily burdensome costs to industry imposed by EPA regulations.[35] In many of these cases, such as the 2013 opposition to the Clean Air Rule, the Courts didn’t buy appellants’ arguments about federal overreach.[36]

While some states may indeed be well-equipped to tackle challenges such as climate change and pollution, and states are already charged with several aspects of environmental protection under the current EPA structure, Oklahoma illustrates that leaving environmental protection solely to the states could leave states with heavy ties to extractive industries unprotected or even encourage a “race to the bottom” to attract ostensibly lucrative polluting industries to states with lax environmental standards.[37]

Pruitt’s plans for the EPA are not yet set in stone, and not all of them may come to fruition.  However, his industry ties and recent statements he has made about climate change are cause for concern. In statements to CNBC just last week[38] Pruitt expressed that he does not believe that Carbon Dioxide is a primary contributor to global warming, despite scientific consensus to the contrary.[39] If his attitudes towards the role of the federal government in regulating polluting industries and his statements about climate change are indicative of the EPA’s future under his auspices, he may attempt to delay the development of new rules and standards (including elements of the Clean Power Plan, which, as mentioned previously, he repeatedly challenged while Oklahoma Attorney General), scale back enforcement of environmental regulations, place more industry-friendly voices on his scientific advisory boards, and attempt to shrink the EPA’s budget. Recent news reports indicate that the EPA’s budget could be cut by as much as 25%, severely diminishing not only capacity at federal headquarters, but also in the regional offices that play a more direct role in assisting states with their own environmental regulatory efforts.[40] In a recent speech to EPA employees, Pruitt emphasized the importance of states and his concept of federalism, and, in a telling omission, listed the “stakeholders” with whom he was committed to working: “industry, farmers, ranchers, and business owners” but not community groups (particularly those in overburdened or under-resourced communities), concerned citizens, scientists, health organizations, or environmental groups.[41] Given the lengthy process by which EPA promulgates new rules and re-writes old ones,[42] and the opportunity for groups to sue the EPA when it fails to enforce its own statutes,[43] it seems likely that Pruitt’s EPA will scale back environmental regulation through inaction, deference to industry and “state sovereignty,” and budget cuts rather than overt re-writing of the law.  With issues such as climate change, however, the nation and the planet cannot afford stagnation. Global average CO2 levels already appear to have permanently surpassed the symbolic threshold of 400 parts per million (ppm), significantly reducing the chances of curtailing global temperature rise beyond the 2° Celsius goal reached in the Paris Agreement,[44] an critical international climate agreement that Pruitt has called “a bad deal.”[45] An issue so urgent, with causes and effects that do not obey state or national borders, cannot be left solely to the states.

It thus seems that Pruitt’s ideals about state sovereignty are at best a poor fit for a federal agency aimed at environmental protection, particularly one facing the mounting threats of anthropogenic climate change. At worst, they are a false pretense under which he can appease dogged states-rights and unchecked-free-market advocates while continuing to profit from his close relationships with the oil and gas industry at the expense of public health and environmental justice. Regardless of whether these lawsuits and related statements reflect Pruitt’s industry relationships, his deeply held beliefs about separation of powers between state and federal governments, or some combination of these elements, his appointment to lead the EPA under the auspices of the Trump administration, itself one that does not seem particularly dedicated or friendly to federal environmental protection, poses challenging questions about the roles and tensions of federalism in promoting protection of public health and the environment.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

*Allyson Beasley is a Junior Editor on MJEAL. She can be reached at allybeas@umich.edu.         

[1] About EPA: EPA’s Administrator, U.S. Envtl. Prot. Agency (2017), https://www.epa.gov/aboutepa/epas-administrator (last visited Mar. 6, 2017) [hereinafter EPA’s Administrator].

[2] EPA: Emails show Pruitt’s Ties to Fossil Fuel Industry, Greenwire, (Feb. 22, 2017), http://www.eenews.net/greenwire/2017/02/22/stories/1060050420.

[3] Id; Coral Davenport & Eric Lipton, The Pruitt Emails: E.P.A. Chief was Arm-in-Arm with Industry. N.Y. Times(Feb. 22, 2017), https://www.nytimes.com/2017/02/22/us/politics/scott-pruitt-environmental-protection-agency.html. [hereinafter Davenport & Lipton].

[4] Our Mission and What We Do, U.S. Envtl. Prot. Agency, https://www.epa.gov/aboutepa/our-mission-and-what-we-do (last visited Mar. 6, 2017).

[5] Davenport & Lipton, supra note 3.

[6] Joe Wertz, Trump’s Nomination of Pruitt to EPA Casts Spotlight on States’ Crusade Against Federal ‘Overreach’, NPR State Impact (Dec. 15, 2016), https://stateimpact.npr.org/oklahoma/2016/12/15/trumps-nomination-of-pruitt-to-epa-casts-spotlight-on-states-crusade-against-federal-overreach/.

[7] About the Administrator, supra note 1.

[8] Id.

[9] About the Office, Okla. Office of Att’y Gen.,

https://www.ok.gov/oag/About_the_Office/index.html (last visited Mar. 6, 2017).

[10]The Love Canal Tragedy, U.S. Envtl. Prot. Agency,  https://archive.epa.gov/epa/aboutepa/love-canal-tragedy.html (last visited Mar. 12, 2017).

[11]John Filiatreau and Margot Hornblower, Kentucky Hunts Cleanup Funds for Valley of the Drums. Wash. Post (Feb. 4, 1979), https://www.washingtonpost.com/archive/politics/1979/02/04/kentucky-hunts-cleanup-funds-for-valley-of-the-drums/ea2fabcc-ccbf-4d1c-8c85-b9d3b58fe7d4/?utm_term=.7aba7c0dbc18.

[12] EPA Administrator Confirmation Hearing Pt.1, CSPAN (Jan. 18, 2017), https://www.c-span.org/video/?421719-1/epa-nominee-scott-pruitt-testifies-confirmation-hearing&start=9094.

[13] Eugene Scott, EPA chief: Carbon Dioxide not ‘Primary Contributor’ to Climate Change (Mar. 10, 2017), http://www.cnn.com/2017/03/09/politics/scott-pruitt-global-warming-human/ [Hereinafter Scott].

[14] Kristi Eaton & Simon Hurst, Look Back, Look Forward: Taking Stock in Central Oklahoma  http://www.405magazine.com/January-2015/Look-Back-Look-Forward-Taking-Stock-in-Central-Oklahoma/ (last visited Mar. 12, 2017).

[15] Rankings: Crude Oil Production, November 2016, U.S. Energy Info. Admin. (Nov. 2016), https://www.eia.gov/state/rankings/#/series/46.

[16] Rankings: Natural Gas Marketed Production, 2015 (million cu ft), U.S. Energy Info. Admin. (2015), https://www.eia.gov/state/rankings/#/series/47.

[17] Oklahoma Economic Indicators, Okla. Emp. Sec. Comm. (Jan. 2017), https://www.ok.gov/oesc_web/documents/lmiEconIndPub.pdf.

[18] Rankings: Total Carbon Dioxide Emissions, 2014 (million metric tons), U.S. Energy Info. Admin. (2014), https://www.eia.gov/state/rankings/#/series/226.

[19] U.S. Census, https://www.census.gov/search-results.html?q=population+density&search.x=0&search.y=0&search=submit&page=1&stateGeo=none&searchtype=web&cssp=SERP (last visited Mar. 6, 2017) (search “by table” and sort by population in descending order).

[20] Wind Generation Share Exceeded 10% in 11 States in 2015, U.S. Energy Info. Admin. (Oct. 26, 2016), http://www.eia.gov/todayinenergy/detail.php?id=28512.

[21]Marianne Rafferty, Rally at State Capitol Protests Oklahoma Lawmakers Favoring Corporate Interests Over Citizens (Apr. 12, 2016), http://kfor.com/2016/04/12/rally-at-state-capitol-protests-oklahoma-lamakers-favoring-corporate-interests-over-citizens/.

[22] Joe Wertz, Epa Tells Oklahoma State Isn’t Doing Enough to Protect Citizens, NPR State Impact (Feb. 3, 2017), https://stateimpact.npr.org/oklahoma/2017/02/03/epa-tells-oklahoma-state-isnt-doing-enough-to-protect-citizens/.

[23] Envtl. Law Inst., Focus on EPA’s Proposed Clean Power Plan and CAA §111(d): Dialogue: The Oklahoma Attorney Generals’ Plan: The Clean Air Act §111(D) Framework That Preserves States’ Rights, 44 Envtl. L. Rep. News & Analysis 11045, (2014).

[24] Earthquakes in Oklahoma: What We Know, Okla. Sec. of Energy and Env’t., http://earthquakes.ok.gov/what-we-know/ (last visited Mar. 6, 2017).

[25] Id.

[26] Pawnee Nation Sues Oklahoma Oil Companies in Tribal Court Over Earthquake Damage, N.Y. Times (Mar. 04, 2017), https://www.nytimes.com/2017/03/04/us/pawnee-nation-oklahoma-oil-earthquake-lawsuit.html.

[27] Ted Barrett, Inhofe Brings Snowball on Senate as Evidence Globe is not Warming, (Feb. 27, 2015), http://www.cnn.com/2015/02/26/politics/james-inhofe-snowball-climate-change/.

[28] U.S. Glob. Change Research Grp. National Climate Assessment: Great Plains (2014), http://nca2014.globalchange.gov/report/regions/great-plains.

[29] What Climate Change Means for Oklahoma, U.S. Envtl. Protection Agency (Aug. 2016), https://www.epa.gov/sites/production/files/2016-09/documents/climate-change-ok.pdf.

[30] Pruitt v. EPA: 14 Challenges of the EPA Rules by the Oklahoma Attorney General, N.Y. Times (Jan 14, 2017), https://www.nytimes.com/interactive/2017/01/14/us/politics/document-Pruitt-v-EPA-a-Compilation-of-Oklahoma-14.html.

[31] Id.

[32] Id. at 53.

[33] Id. at 794.

[34] Id. at 1258.

[35] Id.

[36] Mica Rosenberg, EPA Prevails in Battle with Oklahoma Over Clean-Air Rule, 3 Westlaw J. Envtl. 2. (2013).

[37] Arik Levinson, Environmental Regulatory Competition: A Status Report and Some New Evidence. 56 Nat’l Tax J. 91-106 (2003); Neal D. Woods, Interstate Competition and Environmental Regulation: A Test of the Race to the Bottom Thesis. 86 Soc. Sci. Q. 792-811 (2006).

[38] Scott, supra note 13.

[39] Scientific Consensus: Earth’s Climate is Warming, Nat’l Aeronautics and Space Admin.  https://climate.nasa.gov/scientific-consensus/ (last visited Mar. 12, 2017).

[40] Rene Marsh & Dan Merica. EPA Braces for Possible ‘Devastating’ 25% Budget Cut, (Feb. 27, 2017),  http://www.cnn.com/2017/02/27/politics/epa-cuts-25-percent/.

[41]Watch: Scott Pruitt Makes First Speech as EPA Director, PBS News Hour (Feb. 21, 2017), http://www.pbs.org/newshour/rundown/watch-live-scott-pruitt-makes-first-speech-epa-director/.

[42] The Basics of the Regulatory Process, U.S. Envtl. Prot. Agency, https://www.epa.gov/laws-regulations/basics-regulatory-process (last visited Mar. 12, 2017).

[43] Richard Andrews, Managing the Environment, Managing Ourselves: A History of American Environmental Policy (2nd ed. 2006).

[44] Press Release, World Meteorological Org., Globally Averaged Co2 Levels Reach 400 Parts per Million in 2015 (Oct. 24, 2016), http://public.wmo.int/en/media/press-release/globally-averaged-co2-levels-reach-400-parts-million-2015).

[45] Tom DiChristopher, EPA Chief Scott Pruitt Says Carbon Dioxide is not a Primary Contributor to Global Warming, (Mar. 9, 2017), http://www.cnbc.com/2017/03/09/epa-chief-scott-pruitt.html.

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