Madam President, I rise in support of Attorney General Scott Pruitt to be the next Administrator of the Environmental Protection Agency, and I think it is important, as we are continuing this debate, to make a couple of things perfectly…
Madam President, I rise in support of Attorney General Scott Pruitt to be the next Administrator of the Environmental Protection Agency, and I think it is important, as we are continuing this debate, to make a couple of things perfectly clear.
We all, like the Senator from Delaware who has been leading the debate, believe in clean water, clean air, how important that is to all Americans, certainly important to my State, which has some of the cleanest water, cleanest air, the most pristine environment in the world. I certainly don't think any of us debate that. We all agree on properly disposing of waste and cleaning up contaminated sites. And just this past year, Congress passed very dramatic legislation, very important--bipartisan, by the way; I am on the Environment and Public Works Committee--the Toxic Substances Control Act, TSCA, which does that. And I think most of us agree that the EPA has an important role in ensuring that we have clean water--within the authority granted to that Agency by Congress. So I think the vast majority of this body agrees with that.
But as I have been listening to my colleagues on the other side of the aisle and their criticism of Attorney General
Scott Pruitt, one thing that has not come up over the past 24 hours in this debate--as a matter of fact, on the EPW Committee, on which I sit, the past 2 years, I don't think I heard my colleagues on the other side of the aisle ever talk about this issue, and it is a very important issue for the country. It is the rule of law and the U.S. Constitution.
We have been debating Scott Pruitt's nomination for a while now, but not one of my colleagues has uttered that phrase--not one--even though many of my colleagues are lawyers and former law professors and former attorneys general themselves.
Why is this important? Why is it important to have a debate on the rule of law when we are looking at Scott Pruitt's nomination?
Well, I think it is incredibly important because if you looked at the EPA's actions and activities and focus over the last 8 years--the last 8 years--it has not been an Agency that has focused on the rule of law. In many ways it has been a lawless Agency, a rogue Agency. So when we are having this debate, we need to put the debate of Scott Pruitt's nomination and confirmation in the context of what has happened over the last 8 years.
We have had an Agency in the EPA that does not listen to States, even though it is required to by Federal law; that ignores the rule of law, as evidenced by numerous Federal court decisions rebuking it; and that believes it has the power to regulate every nook and cranny of American life--every economic activity of America. That is literally what we have right now with regard to our current EPA. This is not just one Senator making this claim. It has become the conventional wisdom and the common narrative with regard to this EPA in the last 8 years by a variety of Federal courts and law professors throughout the country.
Let me provide a few examples. A number of my colleagues have talked about the waters of the United States rule, WOTUS, and how this aggressive, far-reaching rule claims authority--the EPA claims authority to regulate literally puddles and irrigation ditches throughout the country, an enormous power grab.
A number of us were concerned about this. In hearings and in letters, I asked the previous EPA Administrator, Gina McCarthy, where she got the legal authority to do this. It was a pretty big deal. It took months to get an answer. States, under the law, are supposed to be consulted on this issue. States like my State, the great State of Alaska, were not consulted. They were ignored.
So what happened? What happened? Thirty-two States--bipartisan by the way, including Alaska--sued the EPA over this law, over this regulation, the waters of the United States. This is a critical point. ``Cooperative federalism,'' another term I have heard very little of in this debate, is the bedrock of environmental laws like the Clean Water Act and the Clean Air Act. The principle establishes that the States and the EPA are partners. Indeed, under these Federal laws, the States are the primary protectors and implementers of our environmental protection laws.
That is in the law. That is in the Federal law. But for the past 8 years, the EPA has consistently ignored this on major rules. The most dramatic is right here, the waters of the United States. Thirty-two States sued to stop the EPA on this regulation. What happened in the lawsuit? The Sixth Circuit Court of Appeals put a stay on the entire rule, expressing serious doubts about its legality. That is one instance and a big deal.
Let's look at another one, the so-called Clean Power Plan. I know the Presiding Officer has talked this, about how it is very concerning for her State of West Virginia. Whatever your views are on climate change and the appropriate response, there should no debate in this body that we have to address this issue in a way that is consistent with the U.S. Constitution and rule of law--no debate.
Again, I never hear anyone talk about the rule of law on the other side. So this rule is promulgated. Once again, the Environmental Protection Agency, in the promulgation of this rule, took actions that the court and commentators across the political spectrum viewed as likely another illegal rule by the EPA.
So, like the waters of the United States rule, numerous States and others sued to stop the Clean Power Plan, in which the Environmental Protection Agency claimed somehow they had the authority to regulate almost the entire U.S. energy sector. Look at the rule. That is what they are claiming, that Congress somehow gave them that power.
In a previous Supreme Court case called Utility Air Regulatory Group, which was a lawsuit against the EPA--at the time I was serving as attorney general for the State of Alaska and was one of the AGs who initiated this suit--the EPA lost that one, and the Supreme Court and Justice Scalia, in writing the majority opinion stated:
When an agency, the EPA, claims to discover in a long
extant statute an unheralded power to regulate a significant
portion of the American economy, we typically greet its
announcement with a measure of skepticism. We expect Congress
to speak clearly if it wishes to assign an agency decisions
of vast economic and political significance.
In other words: EPA, you didn't have the power to regulate a huge swath of the American economy. The Supreme Court struck that down-- Utility Air Regulatory Group v. Environmental Protection Agency--so it was not surprising that with regard to the Clean Power Plan regulation, the Supreme Court of the United States put a stay on that rule. The Supreme Court of the United States put a stay on that rule before any other court, any other lower court, a district court, a court of appeals, had heard the arguments on that rule. Think about that. Do you know how many times the U.S. history that has happened? Do you know how many times in the history of the U.S. Supreme Court that has happened? Never before. It was the first time in the history of the Supreme Court that it saw a rule that it probably felt was so egregious that it put a stay on it before any other court ruled on that rule. It was pretty dramatic, pretty remarkable.
Clearly, the U.S. Supreme Court has serious doubts about whether the EPA is acting in a lawful manner on the Clean Power Plan. If you think it is just conservative jurists and lawyers and Senators who hold that view, you would be mistaken. Here is what Laurence Tribe said about the EPA's authority with regard to the Clean Power Plan.
For those of you who don't know Laurence Tribe, he is a very well- respected constitutional law professor at Harvard but very liberal. He was President Obama's law professor, but he is well-respected. Here is what he said about the EPA's authority on this very important regulation. He wrote in challenging the Clean Power Plan:
Even more fundamentally, the EPA, like every administrative
agency is constitutionally forbidden to exercise powers
Congress never delegated to it in the first place. The brute
fact is that the Obama administration failed to get climate
legislation through Congress. Yet the EPA is acting as though
it has the legislative authority anyway to re-engineer the
nation's electrical generating system and power grid. It does
not have this power.
That is Laurence Tribe. He later testified in front of the House Energy and Commerce Committee in 2015 with regard to this regulation:
The EPA is attempting to exercise lawmaking power that
belongs to Congress and the judicial power that belongs to
the Federal courts. Burning the Constitution should not be
part of our national energy policy. EPA is attempting an
unconstitutional trifecta: usurping the prerogatives of the
States, Congress and the Federal courts all at once.
That is Laurence Tribe. That is Harvard professor Laurence Tribe, who believes EPA is clearly acting in an unconstitutional manner.
It is not just losing in court and in the realm of both conservative and liberal leagues of public opinion; it has been the way that the EPA leadership, from the top to its foot soldiers, has treated the American people over the last 8 years--the American people whom the Environmental Protection Agency is supposed to serve.
That treatment can be described in many ways as with disdain. Let me provide a few examples of that. On the eve of another Supreme Court case, which the EPA lost--this is EPA v. Michigan--EPA Administrator Gina McCarthy was asked on a TV show, Did she think she was going to win the case?
She responded as you would think most Administrators would. She said
yes, she was going to win. OK. That is fine. She probably believed it and had good lawyers telling her that. But then she went on to say this:
But even if we don't [win], it was 3 years ago. Most of
[the companies] are already in compliance, investments have
been made, and we'll catch up.
Think about that quote. This is the head of the EPA, essentially saying: Even if we lose, we win. We are the Federal Government. We don't have to abide by the law. Those companies and American citizens who are abiding by the law, who are abiding by the regulations, they have already made investments--hundreds of millions. They are stuck. We win. Heads we win, tails we win. That is a remarkable statement by the leader of a Federal Agency who shows disdain for the law.
Let me give you another example. My colleague and good friend from Colorado came down and talked about the Animas River and what happened there. Clearly it was a mistake. I don't believe that the EPA meant to do that, to spill millions of gallons of toxic waste into a river. But in a hearing in the EPW Committee, I asked the Administrator: Well, are you going to hold the EPA officials who did that to the same standard you would the private sector? In the private sector, in similar kinds of activities, the EPA has actually criminally charged people for doing something like that--negligence--criminally charged them.
She looked at me and said: Senator, not only are we going to hold ourselves to that standard, we are going to hold ourselves to a higher standard.
OK. That is a pretty good answer.
So what has happened on the Animas River, with the EPA holding themselves to a higher standard? Remember, they put people in jail for doing this. Was anyone held responsible? Was anyone criminally charged? Did anyone go to jail?
Of course not. Nothing happened.
In my State, the EPA's disdain for my constituents has manifested itself in a couple of remarkable ways. First, we had the Administrator, former Administrator Gina McCarthy, in Alaska visiting after she came into office.
There was a big Wall Street Journal article on her visit. She was given some gifts by Alaskans, my constituents, the people she serves. When she was given gifts from my constituents on her visit to my State, she was later asked by a reporter what she did with them according to the government ethics rules.
Here is a quote from that story:
[Gina McCarthy] has been surprised by the government ethics
bureaucracy and its gift guidelines. Remarking how officials
chased her down for a dinky North Pole--
That is a community in Alaska--
pin someone gave her at an event as a gift (``I threw the
f-ing thing away,'' she told them).
With regard to another gift she got, a jar of moose meat from a young girl at a hearing in Alaska, she said that gift ``could gag a maggot.''
This was the leader of an Agency serving the people, and yet she was doing it in a way that is clearly disrespectful.
Let me talk about another incident in Alaska, in a place called Chicken, AK, where we have plaster miners out mining--small mining operations, family businesses, mining for gold.
The EPA thought there was going to be some Clean Water Act violations, which they never found. So what did they do? They didn't talk to the local community. They did a raid--body armor, assault weapons--on my constituents, a raid, a military assault to find clean water violations, which they never found, and they never apologized for the raid.
Now, you might ask: What does all this have to do with the nomination of Attorney General Pruitt? My answer is: Everything; everything.
He understands that the EPA needs a serious course correction, that it must get back to listening to the States and following the rule of law and, most importantly, regaining the trust of the American people, which has been lost over the last 8 years due to some of the actions I just described.
The American people see this. They see statements like this, and they know this has been an Agency that has not been acting in their interests and has not been acting according to the law.
Not only does Attorney General Pruitt understand this, he emphasized this during his confirmation hearing--6 hours long, which I sat through the entire thing.
Let me conclude by reading a few excerpts of his opening statement. The American people need to hear this because this is what Attorney General Pruitt is going to do when he leads the EPA. He said his priorities were:
First, under our Constitution, the role the EPA plays in protecting the environment is defined by statute, just as statutes limit every Federal Agency.
Members of this body--the Senate--and the House of Representatives have worked tirelessly over decades to set the balance in environmental policies through laws that have been passed. The EPA's role is to administer those laws faithfully.
As attorney general of Oklahoma, he stated: I saw examples where the Agency became dissatisfied with the tools Congress had given it to address certain issues and bootstrapped its own powers and tools through rulemaking. This, unfortunately, has only resulted in protracted litigation, where the courts suspended most of these rules after years of delay.
In the meantime, we lost the opportunity for true environmental protection as a nation. This approach is not right. So getting back to the rule of law, that is No. 1 for Attorney General Pruitt.
Second, he said:
Cooperative federalism must be respected and applied by the
EPA with regard to our environmental laws. Congress has
wisely and appropriately directed the EPA through our
environmental statutes to utilize the expertise and resources
of the States to better protect the environment, and for the
States to remain our nation's frontline environmental
implementers and enforcers. If we truly want to advance and
achieve cleaner air and water the States must be partners and
not mere passive instruments of federal will. If confirmed, I
will utilize the relationships I have forged with my
counterparts in the States to ensure that EPA returns to its
proper role, rather than using a heavy hand to coerce the
States into effectuating EPA policies.
Cooperative federalism--that is in the law, and he wants to uphold it.
Third, and finally, he said:
It is critical to me that EPA also truly listen to the
diverse views of the American people, and learn from them. If
confirmed as Administrator, I am committed to ensuring EPA's
decisions are conducted through open processes that take into
account the full range of views of the American people,
including the economic consequences of any regulation.
Environmental regulations should not occur in an economic
vacuum. We can simultaneously pursue the mutual goals of
environmental protection and economic growth. But that can
only happen if EPA listens--listens to the views of all
interested stakeholders, including the States, so that it can
determine how to realize its mission while considering the
pragmatic impacts of its decisions on jobs, communities, and
most importantly, families.
Finally, in the closing of his opening statement, Attorney General Pruitt said this:
My time as Attorney General of Oklahoma afforded me the
opportunity to travel my state meeting farmers, ranchers,
landowners, and small business owners of all sorts. These are
good people--hardworking Americans who want to do the right
thing by the environment. They want the air that their
children breathe and the waters in which they swim to be
clean. They want to follow the law. But recently they have
felt hopeless, subject to a never ending torrent of new
regulations that only a lawyer can understand. They fear the
EPA, and that just shouldn't be the case. If confirmed, I
will work tirelessly to ensure that the EPA acts lawfully,
sensibly, and with those hardworking Americans ever in mind.
That is how he ended his testimony.
Scott Pruitt is the right person to lead the EPA. We have gotten to the point, as he noted in his testimony, where millions of Americans, including some of my constituents in Chicken, AK, certainly have come to fear their own Federal Government, especially when it acts in a lawless fashion.
He is exactly the right person, with the right qualifications and the right emphasis to fix this problem, and I encourage all of my colleagues to support the confirmation vote we are going to make on him in a few hours.
I yield the floor.