In an effort to accomplish President Trump’s environmental goals, his appointees at the Environmental Protection Agency (EPA) and the Department of the Interior – Andrew Wheeler and David Bernhardt – have been focusing on avoiding conflict with enemies in the so-called “deep state,” as Bloomberg Environment puts it. Of note, Bernhardt is a former lobbyists who represented oil and gas companies, fossil fuel trade groups and mining companies, while Wheeler was a coal lobbyist.
According to “attorneys, lawmakers, and even executive branch staffers” who spoke with Bloomberg, Wheeler and Bernhardt “are much more comfortable with the intricacies of crafting policy than their headline-grabbing predecessors were.”
“It was not a modest swing,” said Trump’s former top infrastructure official, DJ Gribbin. “These are quite different leaders.”
One of the main differences between these two and their predecessors—Scott Pruitt and Ryan Zinke—is that both have long backgrounds as attorneys, said Gribbin, who now runs his own consulting firm.
These legal skills could help the administration improve its abysmal record in court defenses of its deregulatory environmental policies.
During the tenures of Pruitt and Zinke, procedural errors with their agencies’ regulatory rollbacks caused them to lose no fewer than 13 lawsuits in federal court, according to data compiled by the New York University School of Law. –Bloomberg
In short – lawyers are now crafting bulletproofed policies instead of sabre rattling. Put another way; swampy guys are good at navigating the swamp.
According to Sen. Lisa Murkowski (R-AK), Wheeler and Bernhardt “are workhorses,” adding “Both of the other secretaries were more essentially big picture. These guys are down in the weeds.”
Attempts were made
Many of the Trump admin’s stumbling blocks were due to simple steps required in administrative law – for example, not giving the public enough time to comment on delaying the implementation of an Obama-era rule cracking down on natural gas leaks – which courts struck down twice due to the oversight.
In another example, the EPA and Army Corps of Engineers were unable to halt the enforcement of an Obama-era rule which broadened the types of water bodies protected by anti-pollution regulation because the process by which new policies are formulated were “short-circuited.”
“A new realization may have set in that spending more time, building strong records, focusing on the kinds of evidence that needs to be in there,” said former George W. Bush administration environmental attorney Jane Luxton with firm Lewis Brisbois.
Environmentalists are worried at the Trump administration’s new, meticulous approach to crafting new policies with greater attention to administrative detail.
That is especially the case for the rewrite of the Obama administration’s waters policy, also known as Waters of the United States, or WOTUS.
The latest Wheeler-helmed proposal to rewrite the WOTUS rule is much more fleshed out than anything Pruitt produced, according to Blan Holman, an attorney with the Southern Environmental Law Center.
But, he told Bloomberg Environment, “even though it’s lengthy and there’s a lot of words in there, I still think it comes up looking very strange.” –Bloomberg
Jo-Ellen Darcy, who worked side-by-side with Wheeler on the Senate Environment and Public Works Committee, praised Wheeler’s intelligence and said he would likely adhere closely to the law. Darcy is intimately familiar with WOTUS, as she was the top civilian official in charge of the Army Corps throughout the Obama era.
“That doesn’t mean I agree with what they’re trying to do. They’re trying to undo a lot of environmental protections,” said Darcy, who added that “now they’re taking a more measured approach that’s more likely to stand up in court.”
Doing it right takes time
One drawback for the Trump administration’s new detail-oriented approach is that doing it right simply takes more time.
As an example, an executive order signed by President Trump just weeks after he took office which directed the EPA and the Corps to rewrite the WOTUS policy is still stuck in limbo, after an initial attempt to pause its enforcement failed to hold up in court. A broader effort to appeal it, meanwhile, is still in the works.
“The fact that it has taken more than two years doesn’t surprise me,” said Darcy. “Along the way, they listened to counsel. You can’t be the bull in the china shop.”
Last month, meanwhile, Bernhardt told the Senate that the Interior Department was probably far away from finalizing a plan which could open up waters in the Pacific and Atlantic coasts to new offshore oil and gas drilling. A draft of the plan was released early this year.
Working with the “deep state”
According to Bloomberg, even working with career staffers within the agencies is another big change – particularly at the EPA, according to litigator Thomas Cmar, who has sued the Trump administration over its attempts to roll back the WOTUS rule.
“Pruitt seemed inclined to go around his own staff,” Cmar, who is with the nonprofit Earthjustice. “Wheeler seems like he wants to consult with his staff.”
This impulse seems to have improved morale at the EPA. Several career staffers at the agency who spoke to Bloomberg Environment declined to criticize Wheeler, even when granted anonymity to speak freely.
Gribbin defended the administration’s secrecy during its chaotic early months, describing it as a natural part of the evolution of any new presidency.
“The new leadership tends to keep information very close to the vest,” he said. “This dynamic changes once relationships are developed.” –Bloomberg
Bush administration veteran, Susan Dudley – a former senior official in the Office of Management and Budget, also noted that Wheeler, Bernhardt and other recent Trump appointees have been vastly different than their predecessors.
Trump “makes big promises as to how he’s going to get rid of regulations without realizing that the steps to do that take time,” according to Dudley.
“They were announcing big policies without doing the hard work of ensuring they had a public record.”
via ZeroHedge News http://bit.ly/2J5x0oP Tyler Durden