Originally published: The Atlantic
There is, as yet, no 2018 budget for the U.S. Environmental Protection Agency.
What exists instead is a “skinny budget” proposal, released on Thursday by the White House. It advances a drastic and aggressively curtailed agenda for the EPA, planning to cut the agency’s budget by 31 percent while laying off 3,200 employees. Popular programs—like EnergyStar and some Superfund cleanups—would be slowed down or eliminated.
But a skinny budget proposal is still just a proposal—and a funny one at that. While this proposal hints at President Trump’s governance priorities, and serves as an initial negotiating position, it mostly markets his ideological bonafides to other Republicans. It’s fiduciary fan fiction for conservatives, basically, with little chance of becoming law. Not only will a tiny EPA be politically difficult to enact, but there are also sticky legal limits on the extent to which the non-military side of the government can be defunded.
It can hint at other negotiations, though: how much Cabinet secretaries are able to wrangle for their agencies. And on that front, there was a curious anecdote in Coral Davenport and Glenn Thrush’s New York Times story about how the Trump skinny budget came together. As you
read it, remember that Obama left the EPA with a budget of $8.2 billion:
The E.P.A. administrator, Scott Pruitt, who has himself spoken out against some of the core missions of the agency he leads, went to the White House to request a smaller cut after the White House budget office first presented him its preferred spending level. He pressed for about $7 billion, according to the person. Instead, the White House slashed his budget down even further, to about $5.7 billion.
The Times is right: Scott Pruitt does seem to be “against some of the core missions of the agency.” He’s no environmentalist, either: He recently told CNBC that he doubted some of the most basic premises of climate science.
So if he hates the EPA so much, why is he fighting for more funding for it? In the past few weeks, I’ve heard some legal experts wondering if his goals for the EPA don’t gel with the White House’s, at least on some points.
When you listen to the president’s advisors, they indicate near total hostility for the EPA’s mission. Stephen Bannon, a senior advisor to Trump, has famously preached the “deconstruction of the administrative state.” Mick Mulvaney, the White House budget director, told reporters on Thursday that: “We’re not spending money on [climate change] anymore. We consider that to be a waste of your money.”
Trump has promised the same. In a Republican primary debate last year, he said that “we are going to get rid of [the EPA] in almost every form.”
Certainly Pruitt shares many of these goals. During his confirmation process, he could not name a single rule under the Clean Air Act or Clean Water Act that he supported. As attorney general of Oklahoma, he sued the agency 14 times, and he’s said that the EPA should cede much of its power back to states (even as he reportedly prepares to fight California’s special ability to restrict air pollution).
Pruitt is a savvy attorney who knows the EPA’s guiding statutes well. His statements and behavior suggest that he doesn’t want to temporarily injure the agency by defunding it. Instead, he wants to permanently hobble it by inscribing weak rules that will outlast his term as administrator and the Trump presidency.
But that will take a lot of employees and a lot of time.
“It’s really staff intensive to rescind a rule and then replace it,” says Ann Carlson, a professor of environmental law at the University of California Los Angeles. “To the degree that you have a vision about how the agency should operate, you need a staff and leadership.”
And Pruitt will have to rescind and replace a lot of rules. President Trump has already asked him to replace car fuel-efficiency standards and the Waters of the United States rule, which sets the legal authority of the Clean Water Act. The EPA is also expected to withdraw Obama’s Clean Power Plan soon, which limits greenhouse-gas emissions from the power sector.
Every one of these revisions or revocations will set an onerous bureaucratic process in motion that will last for years. Every time an EPA policy changes, agency employees have to draft the text of a new rule, then hire outside consultants to calculate its economic effects and public-health consequences. Other employees process the tens of thousands of public and industry comments that greet the proposal or withdrawal of any rule. Each of these comments must be read, categorized, and replied to.
Over time, for each of these changes, the employees build up an “administrative record” that supports the agency’s decision to endorse a certain rule. An administrative record is bookshelves and bookshelves of binders describing the EPA’s process, basically. And when the agency gets sued over a new rule, as it almost always does, all those binders come in handy.
“EPA gets challenged a ton [in court], but they win most of the time,” says Carlson. “And one of the reasons they win, even with conservative courts, is that they’re very careful in really examining the science and building an administrative record that demonstrates expertise, and care, and thoughtfulness.”
That record-building requires staff. It takes people to write policy, it takes people to commission studies, and it takes people to meet with industry. It takes people to coordinate all the other people. As John Cannon, who worked as general counsel to the EPA during the Clinton administration, told me: “It takes agency resources to do the revisions that the Trump administration says it wants to do.”
Without all those resources, the EPA may start to founder. Its loose, weak new rulemaking processes may run aground. And it may fail to properly address crucial issues that will become legal problems for it later. “It strikes me that you increase your legal vulnerability when you cut staff dramatically, because the way you protect yourself legally is to be really careful and thorough,” says Carlson.
Chaos may be fine for the White House’s Bannonites. And it will be good for some fossil-fuel interests, too: An understaffed and anxious EPA won’t be able to issue a new climate-change plan, pushing U.S. regulation of greenhouse gases further into the future. It will be hard for a future administration to reclaim the institutional knowledge lost in the layoffs to come.
But Pruitt won’t be able to get what he wants out of a denuded agency, either. A tiny budget will unleash internal disorder that could last for years. A smaller staff of EPA bureaucrats may struggle to process four or five major rule changes at once, like writing a replacement Waters of the United States rule while issuing a replacement Clean Power Plan (or justifying the lack of one). Other work simply can’t be avoided: Even though Trump rescinded car fuel-efficiency requirements last week, the EPA and Department of Transportation must re-issue new and final versions by 2020.
This is what ran through my head as I thought of Pruitt going back to ask for a $7-billion budget—and promptly getting rebuffed. Trump may be fine with superficially damaging the administrative state until fiscal year 2022. But if Pruitt wants to permanently hinder it, he needs money.