Pending Snowstorm; No In-Person Activities Sat, Jan. 29. Law Library will be closed. More info

State AGs: Scott Pruitt Has "Irreparably Tainted" Clean Power Plan Repeal

AGs: EPA must withdraw proposed CPP repeal, or any decision will be invalid

Pruitt has "prejudged" the outcome, both as Oklahoma AG and while leading EPA

January 9, 2018
Washington, D.C.— The Environmental Protection Agency's (EPA) "failure to disqualify" Administrator Scott Pruitt from the Clean Power Plan repeal process has "irreparably tainted" the rulemaking because he "prejudged" the outcome prior to and during his tenure leading the Agency, resulting in a "lack of due process and fairness," argued California Attorney General Xavier Becerra, along with 12 other attorneys general and six municipalities, in comments filed today. Therefore, EPA "must withdraw the proposed repeal," or "any resulting rule will be invalid." 

The comments were filed today ahead of the January 16 deadline for input on EPA's proposed repeal of the CPP. 

"Administrator Pruitt decided years ago that the CPP is unlawful and must be eliminated, " wrote the attorneys general. "As Oklahoma Attorney General, he attacked the CPP with detailed legal and factual criticisms. He ceaselessly worked through courts, legislatures, and the media to stop EPA from promulgating and implementing that rule, and he made himself into a prominent leader of the effort to overturn it.

"Even after 5:40 p.m. on February 17, 2017, the moment when he was sworn
in as Administrator and transformed from EPA’s rival to its leader, Administrator Pruitt’s legal and media campaign against the CPP continued unabated," they wrote. 

"His involvement in this rulemaking has irreparably tainted the current administrative process, and as a result, EPA must withdraw the proposed CPP repeal," wrote the attorneys general. "EPA’s failure to disqualify him means that any resulting rule will be invalid."

"Administrator Pruitt’s planned repeal of the CPP is the paradigm of the type of prejudging prohibited in the administrative rulemaking system. A private citizen (or even a state attorney general) has the luxury of making up his mind and never changing course. The decision maker in an administrative proceeding, however, does not," they wrote. 

The comments were filed by the attorneys general of: California; Delaware; Hawaii; Illinois; Maine; Maryland; Massachusetts; New Mexico; New York; Oregon; Vermont; Washington; and Washington, D.C. The following municipalities also joined in submitting the comments: the County of Broward (Florida) and the Cities of Boulder (Colorado); Chicago (Illinois); New York (New York); Philadelphia (Pennsylvania); and South Miami (Florida). 

In August, Attorney General Becerra sued EPA for not responding to a Freedom of Information Request Act, which Becerra filed in April "seeking documents on Administrator Scott Pruitt’s potential conflicts of interest." 

This week, several states are holding "People's Hearings" on the proposed repeal of the Clean Power Plan after EPA ignored requests for additional public hearings. Delaware held a hearing yesterday, while New York holds its hearing today. Maryland will hold its hearing on Thursday

State AGs, led by AG Schneiderman, have vowed to sue if the Administration proceeds with repealing the CPP. "If and when the Trump Administration finalizes this repeal, I will sue to protect New Yorkers and put a stop to the Trump Administration’s irresponsible and illegal efforts to turn back the clock on public health," said Schneiderman in October.

ABOUT THE STATE IMPACT CENTER: The State Energy & Environmental Impact Center is a non-partisan Center at the NYU School of Law that is dedicated to helping state attorneys general fight against regulatory rollbacks and advocate for clean energy, climate change, and environmental values and protections. It was launched in August 2017 with support from Bloomberg Philanthropies. For more information, visit http://www.law.nyu.edu/centers/state-impact.