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Environment & Energy Report

Trump’s Environment Team Learns to Embrace the ‘Deep State’

April 30, 2019, 10:01 AM

The Trump administration hasn’t changed its environmental goals, but it has changed how it is going about achieving them, with more attention paid to crafting legally defensible policies and less time seeking out enemies in the so-called deep state.

That is the conclusion of attorneys, lawmakers, and even executive branch staffers who spoke with Bloomberg Environment. They said that Andrew Wheeler and David Bernhardt, the nascent leaders of the Environmental Protection Agency and the Department of the Interior, respectively, are much more comfortable with the intricacies of crafting policy than their headline-grabbing predecessors were.

“It was not a modest swing,” said DJ Gribbin, the former top infrastructure official in the Trump administration. “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.

This lack of attention to detail dismayed many who shared the president’s desire to eliminate the environmental policies enacted during the Obama administration, including some lawmakers on Capitol Hill.

Wheeler and Bernhardt “are workhorses,” Sen. Lisa Murkowski (R-Alaska) told Bloomberg Environment. “Both of the other secretaries were more essentially big picture. These guys are down in the weeds.”

Struck Down in Court

Many of the losses were due to skipping steps that administrative law requires.

For example, the Interior Department under Zinke twice attempted to delay implementing an Obama-era rule cracking down on natural gas leaks. Courts struck down these delays both times on the grounds the department didn’t give the public enough opportunity to comment or didn’t properly justify the moves.

And the EPA and the Army Corps of Engineers were unable to stop the enforcement of a rule enacted during the Obama administration that broadened the types of water bodies protected by anti-pollution regulations. Multiple courts ruled that the EPA and the Corps short-circuited the legally required agency process for formulating new policies.

“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,” is worth the investment, said Jane C. Luxton, an environmental attorney with the firm Lewis Brisbois Bisgaard & Smith LLP who worked in the George W. Bush administration.

Neither Pruitt nor Zinke responded to emailed requests for comment in time for this story.

More Dangerous?

The attention to legal detail presents a quandary for environmentalists, who want the Trump administration to follow the law but oppose its deregulatory goals. 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.”

Jo-Ellen Darcy is intimately familiar with WOTUS from her time as the top civilian official in charge of the Army Corps throughout the Obama era.

Before she was appointed to lead the Army Corps, Darcy and Wheeler worked side-by-side as staffers on the Senate Environment and Public Works Committee. Darcy praised Wheeler’s intelligence and predicted he would hew closely to the law.

“That doesn’t mean I agree with what they’re trying to do. They’re trying to undo a lot of environmental protections,” she said. But “now they’re taking a more measured approach that’s more likely to stand up in court.”

‘Bull in the China Shop’

The more detail-oriented approach could yield benefits in the courtroom, but does have its drawbacks.

Crafting a policy that’s legally bulletproof takes time, meaning policies the Trump administration wants to roll back remain in place in the interim.

For example, President Donald Trump signed an executive order just weeks after taking office in 2017 that directed the EPA and the Corps to rewrite the WOTUS policy. More than two years later, that still hasn’t happened. The initial attempt to pause enforcement of the policy failed in court, while the broader effort to repeal it is still in the works.

“The fact that it has taken more than two years doesn’t surprise me,” Darcy said. “Along the way, they listened to counsel. You can’t be the bull in the china shop.”

Bernhardt also told the Senate last month that the Interior Department was likely far away from finalizing a plan that could open up waters across the Atlantic and Pacific Coasts to new offshore oil and gas drilling, despite the release of a draft version of this plan early last year.

The EPA declined to comment for this story, while the Interior Department didn’t respond to questions in time.

Staff More Involved

This inclination to seek the advice of career staffers—aka “the deep state"—is another big change, especially at the EPA, according to Thomas Cmar, a litigator who has sued the Trump administration over its attempts to repeal the WOTUS rule.

“Pruitt seemed inclined to go around his own staff,” said Cmar, who works for 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.”

Different Skills

Susan Dudley, another veteran of the Bush administration, said Wheeler, Bernhardt, and other recent Trump appointees bring different skills than initial picks chosen for their ability to aggressively fulfill the president’s vision of environmental deregulation.

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,” said Dudley, a former senior official in the Office of Management and Budget and now a public policy professor at the George Washington University.

“They were announcing big policies without doing the hard work of ensuring they had a public record.”

—With assistance from Dean Scott.

To contact the reporter on this story: David Schultz in Washington at dschultz@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Bernie Kohn at bkohn@bloomberglaw.com; Jean Fogarty at jfogarty@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com