01/10/2019 - Legal Analysis

How Congress Can Curb the Dismantling of the Environmental Protection Agency: An Oversight Agenda

by EELP Staff, Joe Goffman

Congress can provide critical oversight to the Trump Administration’s attempts to dismantle the EPA by conducting hearings and requesting information from EPA.

By enacting legislation like the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act, the Resources Conservation and Recovery Act, and more, Congress tasked the Environmental Protection Agency with the job of protecting public health and the environment from pollution and waste. To do its job, the EPA needs unbiased scientific and technical expertise, public accountability and transparency, all of which Congress provided for directly and indirectly. Since January 2017, the Trump EPA has been methodically sabotaging its own capacities.

These changes make it less likely that EPA will be able to develop pollution standards based on sound science, ensure that needed pollution reductions are being achieved, and give people up-to-date information about public health and the environment.

Some of these changes have been released for public comment, which EPA is required to consider and meaningfully respond to. Courts are likely to review those changes after the agency takes final action, and public comments will be part of the review. Many other changes have been made with no public notice or recourse. That’s why it’s up to Congress to oversee and address these issues with hearings and requests for information. This will do three critical things. It will increase the public scrutiny on Pruitt and Wheeler’s attacks on the EPA’s capacity to function, it will reinforce the importance of the role EPA plays in protecting public health and the environment, and it will bolster the EPA as an institution, as well as its mission, now and in the years to come.

From the beginning, the Trump Administration has been undercutting the public interest mission of federal agencies. The results of this campaign are especially stark at EPA, where leadership works directly counter to EPA’s statutory responsibilities to follow advances in science and technology to maintain and extend public health and environmental protection.

For the past two years we have documented EPA’s (and other agencies’) rollbacks of rules and standards. These regulatory rollbacks tell only part of the story, however. The Trump EPA is also dismantling its own capacity to develop, implement, and enforce effective pollution reduction rules and programs and to carry out other vital public service functions like advancing scientific research, sponsoring projects that promote community environmental health, providing accessible information about public health and environmental issues, and allowing the public to hold the agency accountable to its mission.

Congress can use each of its oversight tools – hearings, requests for information, investigations, and reports – to examine and address EPA’s dismantling efforts. While several of the EPA’s destructive actions can be investigated independently, they fall into categories that could facilitate both oversight efforts and public understanding. Specifically, via hearings and requests for information Congress could focus on three main areas:

  1. EPA’s attacks on science and health-benefits analysis and efforts to blind the agency to scientific truths in order to justify a deregulatory agenda;
  2. EPA’s rollback of transparency, which prevents the public from knowing about or participating in the EPA’s actions; and
  3. EPA’s politicization of previously non-political functions.

Hearing Subjects and Questions

Anti-science actions

This hearing and investigation would focus on EPA’s attacks on science and health-benefits analysis and efforts to blind the agency to scientific truths in order to justify a deregulatory agenda. These attacks include removing scientists from outside advisory panels, changing what scientific studies the EPA uses when rulemaking, hamstringing the process for setting health-based standards, and reducing what benefits will be included in are cost-benefit analyses. Lines of inquiry could include:

  1. Looking at the scientists the Trump EPA put on advisory panels and contrasting expertise with that of the scientists they removed from those same panels;
  2. Probing the decision to remove academic scientists from panels but invite industry-employed scientists in the name of reducing conflicts of interest;
  3. Inviting scientists to discuss how the policy that would exclude scientific studies based on private health data would hinder the Agency’s decision-making; and
  4. Hearing from public health experts about the importance of considering all the health protections provided by a rule.

Transparency rollbacks

This hearing and investigation would focus on EPA’s rollback of transparency, preventing the public from knowing about or participating in the EPA’s actions. This includes hiding scientific information such as climate science, providing misleading scientific information, making it harder for the public to hold the EPA accountable for doing its job, and taking authority away from staff to gather information about pollution. Lines of inquiry could include:

  1. Asking EPA officials to explain their views on climate science and asking why they have removed information from the EPA’s website;
  2. Confronting EPA officials on misleading statements they have made regarding climate science;
  3. Hearing from environmental advocates how process changes make it harder to use litigation to force the EPA to fulfill its legal obligations; and
  4. Gathering information on changes in EPA staff’s ability to learn about potential pollution violations, including using document requests to quantify emissions.

Politicization

This hearing and investigation would focus on EPA’s politicization of previously non-political functions. This includes allowing a political appointee to determine who received federal grant dollars and curtailing enforcement actions (also see our podcast with Cynthia Giles). Lines of inquiry could include:

  1. Probing why EPA chose to hand over the control of grant-making to an unqualified political appointee;
  2. Requesting documentation to determine how much this political grant-making changed who received grants;
  3. Investigating changes in enforcement, including in the quantity and distribution of enforcement actions; and
  4. Hearing from leading companies about the importance of enforcement to ensure a level playing field.

Oversight on the undoing of EPA’s competence and capacity to function is as important as oversight of the EPA’s rule rollbacks. When it rolls back a rule, the EPA is required to follow a process that gives the public an opportunity to share its views on EPA proposals, requires EPA to respond, and provides for judicial review. As a result citizens can point out directly to the agency illegal or illogical actions and object to them via the courts if and when the agency takes final action. In contrast, the public has no recourse, other than through Congressional oversight, for addressing changes that make EPA less capable of doing its job. For the public, and therefore for Congress, the stakes are high.

Without a congressional check, the current EPA-dismantling project will leave behind not just a pollution-control regime that delivers fewer reductions in health-threatening pollutants. It will also leave behind an agency that – even beyond a shriveled budget and losses in experienced professional staff – will lack the tools necessary for carrying out the agency’s mission.

While many of these changes can be reversed by a successor administration, the task will present that administration with a much greater challenge at the very beginning of its tenure, diverting resources and attention to institutional repair and away from pressing programmatic work to address substantive health and environmental protection. Congressional oversight of EPA’s self-destruction might stop or even reverse EPA’s efforts.

Shining a light on the need to follow proper legal procedures and to include higher levels of public participation can bring political pressure to follow proper practices. Ensuring that these changes and their significance are closely examined in public is essential in and of itself. Helping to preserve the EPA’s capacity will make for an agency that is better prepared to do its job if and when new political leadership takes office.