Part 1

Peer Reviews

The EPA Under Siege: Trump's Assault in History and Testimony

Dr. Richard Andrews, Dr. Nancy Langston, Dr. Jay Turner

EDGI’s 100 Days and Counting Report on the early days of the Trump Administration is being peer reviewed by academics with expertise in the relevant content area. The reviewers have agreed to share their reviews.

Peer review is a vital aspect of academic work, however the process of journal publication can be slow and create barriers to accessing academic work. In order to provide our academic analysis in a timely and freely accessible fashion EDGI is publishing open peer reviews along with each part of the report. Where possible, we have already revised the report based on the reviewers feedback.

I.Reviewers for Part I: “EPA Under Siege”

Dr. Richard (“Pete”) Andrews:

Professor Emeritus of Environmental Policy in the Departments of Public Policy, City and Regional Planning, and Environmental Sciences and Engineering at the University of North Carolina at Chapel Hill.

Dr. Nancy Langston:

Professor of Environmental History at Michigan Technological University.

Dr. Jay Turner:

Associate Professor of Environmental Studies at Wellesley College

II. Reviews For Part I: “EPA Under Siege”

Review 1: Comments and suggestion provided by Dr. Richard (“Pete”) Andrews

Professor Emeritus of Environmental Policy in the Departments of Public Policy, City and Regional Planning, and Environmental Sciences and Engineering at the University of North Carolina at Chapel Hill.

Overall reflections:

This seems to me really excellent, thorough, and important reporting: there’s not much I would question. Well done. See below for more detailed suggestions.

You asked me also to think more broadly about the overarching issues involved. Here are a few further thoughts of that sort as I’ve ruminated further.

First, your main source of new information and perspectives has been your team’s interviews with a considerable number of current EPA employees, who are very understandably demoralized and fearful about the agency’s future as well as their own. Their perspectives are indeed important, as is what they know about current activities from inside the agency. But that perspective by itself may also have some limitations to see the bigger picture and prospect. Slightly different perspectives might well come from environmental lawyers outside the EPA who are experienced in fighting these battles with Congress and in the courts.

For instance: would Trump and Pruitt et al. really try to go all the way to dismantling the agency? How would they then assign statutory responsibilities for continued implementation of the Clean Air Act (CAA), the Clean Water Act (CWA), the Safe Drinking Water Act (SDWA), hazardous waste laws, etc.? I agree with your argument that reorganization of the agency could be a vehicle for seriously weakening it, but wouldn’t actually doing away with it potentially require statutory changes to these basic laws? And would they really be likely to have the votes to do that, or risk energizing the backlash in the 2018 elections by attempting it? I’m skeptical.

In addition, any attempt to seriously roll back existing regulations (as opposed to new or relatively recent ones) will face a barrage of legal challenges which will at least hold them up for years and quite likely scuttle many of them. It’s been much easier for Trump and Pruitt to go after recent ones not yet fully implemented, such as the Clean Power Plan (CPP) and the Waters of the United States rule (WOTUS), also the second phase (2022-2025) of the motor vehicle standards. It will be harder to fundamentally change others that have already been implemented and upheld by the courts (who knows, they might not even succeed with WOTUS and CP?!). To actually weaken existing rules they will have to convince courts that the changes are justified by new science and economics superior to those that justified the original rules. That may be a heavy lift – especially as they are also trying to radically reduce the staff and the science necessary to do it.

My sense of business and industry attitudes is that while a lot of small businesses would just like regulations to go away—and they are a non-trivial political force—many big industries (other than perhaps coal) are much more interested in stable regulatory expectations, and reliant on them. They therefore tend to fight against new regulations, but having complied with many existing ones, they are not interested in throwing all those regulations out, along with the investment decisions they have already made to comply with them, and subject themselves to another round of risky uncertainty (and to competition from those that have not complied). Many of them also have decision horizons well beyond what may be a very disorganized, vulnerable and one-term presidency.

The chemical industry cheered for Reagan’s deregulation and defunding agenda initially, but then realized that between the public backlash and the loss of competent personnel at EPA, they themselves were being hurt by the changes as well.

It seems to me that the most influential business interests right now are not even the coal folks—pretty much everyone right now seems to realize that coal is not likely to be brought back, due to the cheap price of natural gas—but the oil and gas industry and the whole Oklahoma mafia of appointees. They start with Pruitt but also include buddies of his from Oklahoma and staffers from Inhofe’s office and from the O industry directly. They have appointments not just at the EPA but also in key roles in the White House, Interior, Energy, and elsewhere. The most likely attempts at regulatory changes, I suspect, will be those that most clearly serve that industry’s interests.

There also is likely to be pushback from many states against the proposed budget cuts. I think Pruitt is trying to keep the states on board by advocating for no cuts in drinking water, wastewater and Superfund grants, but OMB is trying to do away with these funds anyway. Meanwhile, the state clean air administrators are already up on the Hill lobbying hard against EPA cutting its own enforcement budget while simultaneously slashing the grants that support state implementation and enforcement—basically turning everything into unfunded or drastically underfunded mandates.

So the bottom line for me, my guess—though it’s only an educated guess—is that the most likely scenario is not a serious attempt (and probably not a successful one) at actually abolishing the EPA. Instead, more probably they are aiming at a very severe hollowing out of both its science and its enforcement functions, and possibly a reorganization proposal that would render it more dysfunctional. This is arguably almost as dangerous a scenario as abolishing the agency (and perhaps even more dangerous, as it seems a more possible outcome), and seriously damaging to its mission. But it suggests somewhat different targets for the battles that need to be fought to protect it.

More detailed points and suggestions:

A technicality, but to be fair and accurate, I believe David Stockman at OMB started these reductions well before Gorsuch was even confirmed.

Don’t neglect to mention the EO mandating 2 regs rescinded for every 1 new one, and mandating decision-making based solely on compliance costs rather than full cost-benefit analysis.

Not only those, but also simultaneous targeting both of EPA enforcement AND of the state grants that support state implementation and enforcement, belying Pruitt’s claim that they were simply once again empowering the states.

Also the Safe Drinking Water Act (1974) and the Toxic Substances Control Act (1976).

I don’t think this is quite accurate. Long before Gorsuch was confirmed, David Stockman, Reagan’s nominee as OMB director, had issued an incendiary public jeremiad against a “Republican economic Dunkirk” including a “ticking regulatory time bomb” that was about to “sweep through the industrial economy with near gale force” and overwhelm in advance Reagan’s commitment to shrink the size and influence of the federal government. He acted on this with immediate draconian cuts to EPA’s budget, even before Gorsuch was confirmed. As early as February 1981, as you note later on, Reagan also signed EO 12291 which for the first time subjected all major environmental regulatory proposals to OMB review and implicitly, potential veto. (cf. )

James Watt was also important to EPA, not as Secretary of the Interior but because Reagan also designated him the lead Cabinet official on environmental policy (the EPA administrator did not at that time hold Cabinet status, so had to go through Watt to have a voice at Cabinet meetings and to the president).

You don’t quite focus on Reagan’s overall strategy of deliberately appointing people becausethey were not experts in the agencies’ subject matter and therefore would be solely loyal to the White House, implementing the Reagan agenda “on automatic pilot,” and would have neither interest nor aptitude for “going native” and learning to sympathize with their employees’ knowledge and perspectives. Gorsuch was widely viewed as simply walling herself off on the top floor of Waterside Mall with minimal contact with the agency’s permanent staff. This strategy was arguably one of his greatest mistakes – you need skilled and knowledgeable operatives to sabotage an agency, not simply people hostile to the agency who don’t understand how government works. One of the most serious concerns of the present situation is whether Trump’s appointees reflect having learned that lesson and are thus even more dangerous to the agency (e.g. Pruitt, former Congressional aides, etc.).

Perhaps even more important, Reilly also had by far the closest personal relationship with the president of any EPA administrator in its history.

Actually some of the most important of those new laws were passed in the late 1980s, during Reagan’s second term, as Dems recaptured Congress and passed “deadline and hammer” amendments to laws such as the Safe Drinking Water Act, which imposed severe automatic statutory penalties if EPA failed to regulate x number of additional contaminants per year – laws aimed at blocking any future use of administrative fiat such as under Gorsuch to sabotage regulatory mandates, but which also imposed new burdens on small businesses and local governments.

There actually were not many new environmental laws passed during the 1990s, due to the Gingrich Congressional takeover in 1994: the main ones were two bipartisan laws in 1996 ahead of that year’s elections (Food Quality Act and SDWA amendments).

I agree that the Gingrich Congress takeover in 1994 was a major inflection point, probably presaged by Clinton-Gore’s defeat of GHW Bush in 1992: I think Republican conservatives then concluded that pro-govt Dems would always beat even a generally pro-environmental Republican president like GHWB, and confirmed their inclination to go all-in with the anti-regulatory, anti-big-govt message and constituencies (which also of course provided them with bigger financial resources).

But the seeds for this also were already developing during the late 1980s with the emergence of a conservative propaganda campaign and an organized network of attackers accusing EPA of relying on “junk science” (e.g. the Alar controversy around 1989), as well as a parallel campaign to defund EPA’s grants to states by converting them merely to low-interest loans, taking away EPA’s goodies and leaving it to be relabeled as a source of “unfunded mandates” burdening small businesses and local governments (local govts had previously been one of EPA’s supportive constituencies when they were giving out grants for wastewater treatment rather than just low-interest loans. Note the small legacy of this that still exists: the only things Pruitt wants not to cut, though OMB does, are grants to local governments for drinking water, wastewater treatment, and Superfund and brownfield cleanups.

But one important and worrisome difference is that Trump has appointed people far more politically and legally experienced in fighting EPA, rather than inexperienced and non-expert people like Gorsuch, Lavelle et al.

Extended Biography for Dr. Richard (“Pete”) Andrews:

Professor Emeritus of Environmental Policy in the Departments of Public Policy, City and Regional Planning, and Environmental Sciences and Engineering at the University of North Carolina at Chapel Hill.

Among other publications, Andrews’ authored Managing the Environment, Managing Ourselves: A History of American Environmental Policy (Yale, 1999, 2006), and “The EPA at 40: An Historical Perspective” ( Duke Environmental Law and Policy Forum, 2011). He has chaired and served on study committees for the Science Advisory Board of the Environmental Protection Agency, the National Academy of Public Administration, and the Office of Technology Assessment of the U.S. Congress, and the National Research Council, including two terms as a member of the NRC’s Committee on Human Dimensions of Global Change and its Panel on Addressing the Challenges of Climate Change Through the Behavioral and Social Sciences.

Review 2: Notes and Suggestions from Dr. Nancy Langston.

Overall reflections:

In the executive summary, it’s not clear who the audience is, what the goal of this document is, or what your desired action for your audience is. Executive summaries of policy briefs typically contain a statement of purpose, a problem statement, possible alternatives and a clear recommended action.

One of the things I think is most valuable about this document is the historical evidence it provides of past bipartisanship. As you show, the EPA had strong Republican support at times in the past. Currently, several GOP appointees and former EPA administrators under Republican presidents are speaking up about the need to protect the EPA under Pruitt’s regime. I believe that many GOP senators and representatives are willing to be persuaded—but language that doesn’t attack them as Republicans or conservatives will be much more likely to persuade them.

If you want this document to persuade Democrats, the current language is fine. If you want it to persuade moderates and Republicans, there are several places where the language will need to be adjusted to be more effective. Since Republicans control all branches of the US government, the more we can draw them in, the better. I’d imagine Susan Collins or Ben Sasse reading this document: where can you draw them in? I worry that the current language in places might make them feel that it’s impossible for them to support the recommended actions?

One place I thought you could perhaps enhance this report’s appeal for Republicans is in discussing the actual ways EPA relies on states to do the regulating. Around page 9, it’s worth reminding readers that the EPA actually already did place most responsibility on the states, especially after 1974.

It’s a myth that the EPA represents federal regulatory action. It’s federal oversight and funding, but the $$ goes to the states and they need to do the regulating (and meet federal standards—but the EPA has deferred to the states since the 1974 Safe Drinking Water Act.) It’s also worth discussing this in light of the larger federalism debates in both the US and Canada. We’re never going to escape this tension between what the feds vs the states should be responsible for.

What might be new is the way that the Pruitt folks have pretended to be states’ rights when actually they’re taking power away from the states. It’s rhetorically useful for them to argue that the feds have too much power and we have to shrink the federal government. That’s always been a powerful argument in the US. It’s factually inaccurate, however—the EPA has not seized state power for the feds.

More detailed points and suggestions:

Extracted Annotations:

(note on p.2) by how much? the more specific the details, the more persuasive.

(note on p.2) Who is the audience? If you’re trying to persuade conservatives who favor environmental protection, I’d suggest toning down the language a bit. So rather than “force out”, “resigned following X Y and Z.”

(note on p.3) X% less— the more specific the numbers, the more persuasive

(note on p.4) Many GOP appointees and former EPA administrators under Republican presidents are speaking up about the need to protect the EPA. Many GOP senators and representatives are willing to be persuaded—but they need to be persuaded by bipartisan approaches and language that doesn’t attack them as Republicans or conservatives. Examining how bipartisan and Republican efforts in the past protected the EPA can offer useful strategies for generating this bipartisan protection again.

(note on p.4) Depending on the goals and intended audience, I’d suggest putting your findings here, not just your questions. Policymakers want to see specific findings and recommendations in the executive summary, not just questions. So: “In order to support the EPA’s programs, X, Y, and Z must happen. In order to create a bipartisan Congressional coalition to support the EPA’s work, X, Y, and Z must happen.”

(note on p.6) Good—details about the key differences will come later I assume, but a brief overview would be helpful here

(note on p.7) It still amazes me that Reagan was able to argue overreach after just a decade of the EPA. What larger cultural and political changes made Reagan able to argue this?

(note on p.8) very useful material

(note on p.8) It would be useful to show how much the EPA staff and budget grew in the first decade

(note on p.9) It’s worth reminding readers that the EPA actually already did place most responsibility on the states, especially after 1974. It’s a myth that the EPA represents federal regulatory action. It’s federal oversight and funding, but the $$ goes to the states and they need to do the regulating (and meet federal standards— but the EPA has deferred to the states since the 1974 Safe Drinking Water Act.)

(note on p.11) remind readers what party Waxman belonged to and what party controlled which branch of Congress. And perhaps point out that this was a key difference: Rep’s controlled Senate but Dem’s controlled House in 1981-1983, unlike now when R’s control it all

(note on p.11) good specifics on enforcement declines

(note on p.15) It’s worth repeating that Ruckelshaus was a Republican appointee under Nixon. He was a lifelong member of the R party, ran for R positions, and came from a famous R family. And he had been counsel to the Stream Commission in Indiana, in charge of legal envtl enforcement against polluting industries. So another key difference now is that most Rs have abandoned envtl protection, but that certainly wasn’t the case earlier. We need more Ruckelshaus’s!

(note on p.16) good-refer to this earlier or move it earlier when you first discuss declines in EPA staff and $$

(note on p.17) it’s useful to state that the first Pres. Bush supported envtl protection, but his son ushered in a radical deregulation in the Reagan/Pruitt model

(note on p.18) I hope there will be more detail on how the ELA was saved—this floored me and limnology colleagues when Harper first announced it would be destroyed

(note on p.18) I was at a Binational Forum meeting up in Marathon ON when those results came out. The Canadian members were just as shocked and depressed as we were yesterday

(note on p.19) And the Lake Superior Binational Forum! We got our Canadian funds eliminated, since who needs the Great Lakes Water Quality Agreements?

(note on p.41) mention the many votes in the R House to eliminate the EPA. Under Obama, they couldn’t do that. Now they can

(note on p.42) give a few examples

(note on p.42) And on the state level, all this happened in the era before the EPA—which is why we needed federal action

Extended Biography for Dr. Nancy Langston:

Nancy Langston is Professor of Environmental History at Michigan Technological University in Houghton MI. She is in the Department of Social Sciences, the College of Forest Resources and Ecosystem Sciences, and the Great Lakes Research Center. Her research examines climate change, contaminants, and regulatory histories. During 2012-2013, she was the King Carl XVI Gustaf Professor of Environmental Science, in residence in the Department of Historical, Philosophical and Religious studies at Umeå University. For 17 years, she was a faculty member at the University of Wisconsin-Madison in the Department of Forest and Wildlife Ecology and the Nelson Institute for Environmental Studies. Past-president of the American Society for Environmental History, from 2010-2013 she served as editor of the flagship journal in the field, Environmental History. Sustaining Lake Superior (Yale, 2017) is her most recent book.

Review 3: Notes and suggestions from Dr. Jay Turner

Associate Professor of Environmental Studies at Wellesley College

Thanks so much for the opportunity to review this draft of “EPA under Siege.” It is an invaluable contribution to our understanding of how the Trump administration’s agenda recapitulates earlier efforts to challenge the nation’s environmental and public health laws and how it goes yet further. Some general comments and suggestions follow.

1. The choice of Reagan and Harper is interesting and insightful. It could be useful to gesture at George W. Bush’s administration at least briefly, considering that attacking the science became a key tactic for the Bush administration, especially after 2003 or so, with similar consequences for climate, endangered species, and public health laws. In some cases, the connections are more specific. For instance, Myron Ebell, at the Competitive Enterprise Institute, played an important role during both G. W. Bush’ administration and in the Trump transition.

2. One of the strengths of this analysis is the careful attention to what is happening inside the EPA — the testimonials of the employees, the historic data on funding requests and funding levels, staffing, enforcement, etc. The narrative that stitches all of this together is excellent and enlightening. You highlight the important role of a Democrat-led House of Representatives in slowing Gorsuch’s agenda at the EPA, which is pivotal in answering the question posed re: how the Gorsuch era came to such a rapid end. But it does mean less attention is given to other avenues of activity. For instance, the courts and environmental legal expertise, played a pivotal role in blocking the Reagan administration’s agenda too, especially with respect to administrative rules that loosened implementation of the Clean Water Act (CWA) and Clean Air Act (CAA) (even as early as 1983-1984). That could be addressed in a short paragraph. Key rules that were reversed included one loosening requirements for pre-treatment for industrial waste before disposal under the CWA and a rule loosening regulations of tall stacks under the CAA. There are others, but those are two high profile rules. Some analysis along these lines might be useful at pages 14-15. (The mention of the courts on page 42 seems brief considering just how important the courts were in blocking many Republican administrative initiatives.)

3. Who are the interviewees? On page 5 you provide a brief description, but considering that much of the analysis integrates observations and evidence drawn from these oral histories, it’d be helpful to have a sense for who these employees are…How senior? What types of roles in the EPA? Where headquartered? Giving the reader some generic sense for who these employees are, without revealing their identities, would be helpful. Looking forward, the oral histories that have been gathered as a part of this research project are going to be an invaluable resource for future scholars.

4. I think you could play up the differences between Pruitt and Gorsuch a bit more. Gorsuch’s leadership at the EPA was undermined by her lack of experience — she was young, had relatively little administrative experience, and knew less about the full scope of issues at the EPA. We learn about her level of experience on page 8, but a bit more to explain what she was lacking might be useful (administrative experience and knowledge of environmental law commensurate with the EPA’s scope). By contrast, Pruitt has a much better grounding in the issues, the particulars of the legal issues at stake, and a better sense for how government works. Yet, unless I missed it, there no profile here of who Pruitt is, what experience he has, and how his work as Attorney General in Oklahoma figures into his approach to the EPA. His comparative level of experience makes Pruitt a potentially more effective administrator with respect to being able to advance the Trump administration’s EPA agenda — when you introduce Pruitt, drawing the comparative points with Gorsuch more clearly might be useful. Seems like this might come in around pages 27-28.

5. As you shift from Reagan to Harper, some reference to the Reagan administration’s concerted efforts to block legislative action on acid rain could be helpful, especially because a key strategy for the administration was challenging/undermining the science. In some respects what is most important from the Reagan era is not what they accomplished (in terms of rolling back rules and laws), but what they blocked — for example, meaningful action on acid rain throughout the 1980s and meaningful expansion of the Clean Water Act (1987 Clean Water Act amendments were largely toothless) to address non-point source pollutants. Something like that could fit into a quick paragraph on page 16 or 17 and give you a chance to signal Reagan’s ongoing antipathy toward environmental regulations past Gorsuch (Ruckelshaus, Gorsuch’s successor, got rolled on acid rain regulations by Stockman).

6. At nearly every key moment in the history of environmental politics, moderate Republicans have played a key role in blocking the most egregious efforts to roll-back environmental laws and regulations — true during the Reagan era, the 104th Congress, G. W. Bush’s administration, etc. As the analysis here suggests, that makes the moderate Republicans especially important as a swing vote of sorts. I think that is a point that is worth highlighting. Also worth noting are how many fewer such moderate Republicans there are today than in the 1980s and 1990s…which is reflective of how the Republican party has changed.

Those are just a few comments and suggestions. Overall, I learned a great deal from this analysis. The detailed analysis of the inner workings of the EPA is especially helpful. I don’t know as much about Harper, so having that synthesized together into a comparative analysis is illuminating. The analysis is also especially strong on the particulars of what Trump/Pruitt are proposing at the EPA. I hope this project draws much attention — it is a really important contribution to the current policy discussions.

Extended Biography Dr. Jay Turner

Associate Professor of Environmental Studies at Wellesley College.

Dr. Turnerhas taught in the Environmental Studies Program at Wellesley College since the fall of 2006. He received a B.S. from Washington and Lee University in 1995, an A.M. in American Civilization from Brown University in 1996, a Ph.D. in History (History of Science) from Princeton University in 2004, and a certificate in Science, Technology, and Environmental Policy from the Woodrow Wilson School at Princeton in 2005. He is the author of The Promise of Wilderness: American Environmental Politics since 1964 (available from the University of Washington Press (2012)).