Oklahoma Attorney General Scott Pruitt (R) may have to recuse himself from participating in key EPA issues if his nomination to run the agency under the Trump administration is approved by the Senate, sources say, because executive branch ethics requirements could limit his involvement due to his record of bringing multiple lawsuits challenging agency climate and other rules.
Pruitt is not expected to be subject to stringent ethical requirements imposed by a President Barack Obama executive order that President-elect Donald Trump is likely to revoke, but he nonetheless will have to craft an ethics — or recusal — agreement with EPA’s Office of General Counsel and the Office of Government Ethics (OGE), sources say.
One former knowledgeable EPA official says Pruitt will have to comply with two sets of rules. One is a standard of conduct for executive branch employees that generally requires recusal from issues that a person worked on one year prior to beginning federal service, though there are waivers available to avoid this requirement.
The second set of rules are American Bar Association (ABA) model rules that prohibit “side switching” and could prohibit Pruitt from litigating against EPA for Oklahoma and subsequently representing EPA in suits over the same regulations.
The executive branch requirements have been waived in the past for top EPA positions. For Pruitt to win such a waiver, the source says, “The determination that will need to be made by the agency’s ethics official is that a reasonable person with the relevant facts would not question the impartiality of the appointee in addressing the matter before him or her.”
The executive branch rules come from a statute that is administered by OGE. The source notes that office has its “own views, at times, on what those rules mean. But my sense is that it has not been approached in an iron-clad fashion when it comes to the top-most positions at agencies, because a lot of times the folks who are appointed into these positions have prior experience that is relevant, and that is part of the reason they’re picked for the job.”
So Pruitt may able to win a waiver that would allow him to continue to participate in agency regulations over which he was litigating as a state official, including EPA power plant greenhouse gas rules, the Clean Water Act jurisdictional rule and others. But he would unlikely directly participate in the lawsuit, as agency administrator, and a waiver could allow his general input, the source says.
More tricky could be the ABA rules that apply to the work Pruitt has been doing as Oklahoma’s top attorney. They prohibit side switching, which is when a lawyer represents the interest of a client in a matter and then moves to represent the interests of another party in that same matter. “That would seem to apply here,” the source says.
One environmentalist attorney, however, suggests that the rules may not apply because Pruitt is not switching positions on the regulation. As Oklahoma’s attorney general, he opposed the EPA regulations and he is expected to continue to do so at the helm of the agency under Trump, who is expected to switch the agency’s position to opposing these regulations.
But the former agency official says that the side switching prohibition applies to clients, not the particular issues in a case. “I think the way the bar rule is structured, that would still be an issue, because it is more focused on party identity than what the position of the party is.”
The source adds that the ABA model rules are slightly amended by each state bar, and the specific requirements are determined by the state in which a person practices.
For example, the ABA model rules allow for an exemption from side switching if a former client — in this case the state of Oklahoma — consents, an important consideration due to attorney-client privilege and work-product privilege intended to protect the interests of the former client, the source explains. “So if they consent to the change, then it’s considered that their interests are unaffected.”
However, the D.C. Bar does not include the consent mechanism in its side-switching prohibition, so there is no option to allow Pruitt to do so.
The source says the controlling ABA rules apply in the jurisdiction in which the matter is pending. So here, suits pending in the U.S. Court of Appeals for the District of Columbia Circuit — including the challenge to the power plant GHG rules — means the D.C. Bar rules control and would prohibit Pruitt from representing EPA in those cases.
“I think there’s a question that is present under the D.C. Bar rules” that could impact Pruitt’s ability to fully represent EPA issues. “I’m sure the folks advising [him] and the analysts within the federal government are sizing all that up now,” the former agency official says. “To figure out what kind of judgment to make about where he can engage, they will want to have that figured out before his confirmation hearing.”
Trump and EPA transition team spokespeople did not respond to numerous requests for comment, but a source familiar with the transition team who is helping get nominees confirmed says the only ethics requirement actively under consideration is asking nominees to agree to a five-year, post-employment ban on lobbying anyone in the executive branch. The source says restrictions on activities based on past work have not been discussed.
Another former top EPA official warns that the Trump transition team might not have fully vetted this issue before nominating Pruitt. “I think he has some serious conflict-of-interest issues that so far there is no sign he is addressing. I don’t see how a guy acting as a lawyer in litigation against EPA can ethically be involved in that litigation as an EPA decisionmaker.”
The source says there appears to have been little, if any, contact so far between EPA’s ethics office, housed in the general counsel’s office, and the transition team or Pruitt, and there are “also signs that Trump does not think he needs to seriously vet nominees.”
For example, Trump surrogate Newt Gingrich told Politico Dec. 19 that Trump could simply pardon any adviser who violated ethics rules. “Technically, under the Constitution, he has that level of authority,” Gingrich said.
As a sign of such concern, Sen. Tom Carper (D-DE), who will be the ranking Democrat on the Senate environment committee in the new Congress, sent Dec. 22 letters to the designated ethics officials at 17 agencies including EPA, urging them to uphold the Ethics in Government Act and address potential conflicts of interests for their agency nominees prior to their hearings.
Even though Trump “has indicated he plans to depart from the practices of past presidents and will not conduct himself in a manner consistent with federal conflict of interest laws,” Carper writes that his nominees “will be subject to criminal and civil penalties for violations of these laws.”
Carper adds that reports have indicated that some of Trump’s most important nominees have been slow to complete the process to address any conflicts.
Despite these concerns, the environmentalist attorney and industry sources believe that Pruitt will be able to overcome most ethical hurdles and that his nomination will survive any questions of the appearance of a conflict. But the second former EPA official says some GOP senators may pose hurdles to his confirmation if he cannot properly address the conflicts, as well as clarify his position on climate science.
One current EPA official involved in crafting ethics agreements with political appointees says, “Any ethics agreement is necessarily tied to the specific facts of any individual’s situation.”
OGE’s website warns that “unresolved conflicts of interests can derail a nomination or ultimately expose Presidential appointees to potential criminal, civil or administrative penalties for inadvertent violations of law.”
OGE has issued a nominee ethics guide that says, “You will be subject to a variety of ethics laws and regulations, which come with the potential of criminal, civil and administrative penalties.” It also notes that the complex ethics requirements are “not necessarily intuitive,” and it encourages nominees “to make ethics a priority.”
The OGE process includes financial disclosure and tax return requirements, an FBI background check and an analysis of the nominee’s report of potential conflicts of interest that results in OGE preparing an ethics agreement outlining steps to avoid conflicts of interest. This must be completed before Senate confirmation hearings occur.
Most of the guidance focuses on financial conflicts, but it also includes an impartiality provision that says, “The ethics rules prohibit you from participating as a government official in any particular matter involving specific parties if you have a ‘covered relationship’ with a party to the matter (or with the representative of a party) whenever a reasonable person would question your impartiality.”
This includes any organizations to which the nominee provided services in the past year and would appear to apply to Pruitt’s work for Oklahoma as “representing others before the government.”
The guide does not detail the waiver process.
The first former government official says Pruitt’s recusal statement could be complicated. For example, it could allow him to proceed with policy work on an issue he has challenged but not the litigation. The source notes it is unusual for an agency head to be actively involved in a case anyway, but a total recusal would be difficult because it could prohibit an administrator from “being able to engage or inquire” about a topic at all.
“Pruitt was nominated for this position [to allow him to] engage on important policy questions that rise to the top for the Trump administration, so I am sure there’s going to be a strong desire to have him not [be] separate[d] from the issues that are embedded in the litigation,” the source says.
The environmentalist attorney expects Trump to immediately revoke an expansive Obama executive order signed on Jan. 21, 2009, that prohibits cash gifts from lobbyists and imposes various “revolving door” bans.
A George H.W. Bush-era exectutive order, from 1989 appears to still be in effect, the source says, though its requirements are more general and not binding.
EPA also issued a Guidance on Ethics & Conflicts of Interest in 1983 that includes Clean Air Act restrictions that say, “Certain high-level officials may not be employed by, serve as attorney for, act as consultant to, or hold any other contractual relationship to: any organization . . . which is a party to litigation or engaged in political, educational or informational activities relating to air quality.”
The environmentalist notes that the general OGE requirement for appointees to avoid the appearance of a conflict may apply to Pruitt, but it is unclear how that appearance will be resolved.
Lisa Jackson, Obama’s first EPA administrator, had a recusal agreement barring her from participating in certain New Jersey-related issues she had worked on as head of state’s environment department and as chief of staff to then-Gov. Jon Corzine (D) prior to coming to the agency, sources explain. But unlike Pruitt, Jackson had not personally participated in litigation with EPA.
The second former top EPA official says Pruitt could face some difficulty in crafting his recusal statement. “If my experience is any guide, I could not get into a specific party matter that was handled by my old law firm even if I personally didn’t participate in it.”
This source says Pruitt may be able to work on policy revisions to the power plant climate rules, “but he would have to be very, very careful. In other words, I don’t think he would be able to say, ‘I’m directing my legal staff to take a position in the case.’ Now, if EPA does a separate rule to amend the Clean Power Plan, I think that would probably be OK because that is not a specific party matter.”
But another former senior EPA official says Pruitt should not face many hurdles and that “very few people have [law practices] that are so expansive” that it would prevent them from working at EPA. Recusal requirements protect the federal official and the clients, the source adds, and at least during the George W. Bush era those recusals were generally limited to one or two years.
This source would “be shocked” if Pruitt appeared in court to represent EPA but said he would not be barred from participating in policy decisions related to the rules he challenged in Oklahoma. The general conflict of interest restrictions are not often applied broadly because “it would be impossible to find people” to serve. — Dawn Reeves (firstname.lastname@example.org)