President Trump’s nominee to head EPA's air program is an industry lawyer who was largely responsible for the Bush EPA’s record of violating the Clean Air Act more often, and allowing more illegal emissions of harmful air pollution, than any EPA administration before or since.
Bill Wehrum is a corporate attorney who represents a wide variety of coal, oil, gas and chemical companies and trade associations that oppose EPA clean air rules. Wehrum served for six years in the Bush administration as the acting head of EPA’s air office for two years and chief counselor to Jeff Holmstead, the head of that office, for four years. In these EPA capacities, Wehrum was substantially involved in decisions that broke the law repeatedly and egregiously.
This is Wehrum’s second try to head the air program. President Bush nominated him to that post in 2006. But the White House withdrew the nomination more than a year later after it became clear the Senate would not confirm Wehrum, due to the harmful and controversial role he had played in the preceding years in breaking the law and increasing dangerous air pollution.
Senator Jim Jeffords (I-VT) summarized Senate critics’ opposition to Wehrum’s nomination, saying “[h]is disdain for the Clean Air Act is alarming.” The New York Times editorialized against Wehrum’s nomination at the time, calling him a “doctrinal hit man” for Bush EPA attacks on clean air protections.
Unlawful, harmful deregulation was a defining theme of the Bush EPA air program during Wehrum’s tenure. The Bush EPA air program’s harmful rollback initiatives fared very poorly in the courts. In response to congressional concern with EPA’s repeated violations of the Clean Air Act during Wehrum’s tenure, the agency’s chief lawyer submitted to Congress a spreadsheet cataloguing EPA’s clean air win-loss record in the courts. The spreadsheet covered all Clean Air Act lawsuits brought against EPA between 2002 and April 2008, when Wehrum was acting head—or chief counselor to the head—of EPA’s air program.
The results show that EPA’s air program lost an astonishing number of Clean Air Act cases during Wehrum’s tenure. Public health and environmental groups prevailed in court against Bush EPA air pollution rules 27 times in those 7 years. All of these cases involved attempts by the Bush administration to weaken clean air and public health protections by skirting Clean Air Act requirements.
By contrast, the Bush EPA prevailed entirely against environmental group lawsuits only 11 times. Tellingly, industry litigants prevailed against Bush EPA air pollution rules only 3 times in 7 years.
Industry parties brought far fewer lawsuits against the Bush EPA because it issued overwhelmingly industry-tilted rules. Many of these were overturned following environmental group lawsuits.
Under Wehrum’s leadership, the Bush air program did not just lose clean air lawsuits frequently; it lost them badly, by violating the plain language of the law egregiously, again and again.
Indeed, exasperated federal judges took to quoting Lewis Carroll absurdities to describe EPA’s losing legal arguments. In one case, DC Circuit federal appellate judges wrote that EPA’s explanation “deploy[ed] the logic of the Queen of Hearts, substituting EPA’s desires for the plain text of” the law.
In another decision, judges rejected EPA’s arguments and cited Carroll’s “Through the Looking Glass,” writing “[o]nly in a Humpty Dumpty world would Congress be required to use superfluous words while an agency could ignore an expansive word that Congress did use. We decline to adopt such a world-view.”
The D.C. Circuit Court of Appeals struck down Bush EPA Clean Air Act rulemakings three times for defying the plain meaning of the statutory word, “any.”
At a 2006 oral argument before this same court, about a health and environmental group lawsuit challenging a deregulatory Bush EPA air toxins rulemaking, one judge turned to his fellow jurist and asked, ‘Isn’t this the third time we have heard this identical Clean Air Act legal issue, after ruling against EPA both times previously?’ It was; the court had, twice before; and the court did so a third time, vacating the 2006 rule. When the court issued its ruling, the last paragraph included a judicial rebuke of EPA that one rarely sees in court opinions; it reads like a middle school civic teacher’s exasperated reproach:
If the Environmental Protection Agency disagrees with the Clean Air Act’s requirements for setting emissions standards, it should take its concerns to Congress. If EPA disagrees with this court’s interpretation of the Clean Air Act, it should seek rehearing en banc or file a petition for a writ of certiorari. In the meantime, it must obey the Clean Air Act as written by Congress and interpreted by this court.
Wehrum was a leading architect of EPA’s positions in the humiliating court losses just discussed. And the deregulatory air pollution rules that courts overturned were not just badly illegal. The clean air rollbacks that Wehrum helped engineer harmed public health severely and for many years after he and the Bush administration left office.
In the “Queen of Hearts” case, for example, EPA illegally evaded the protective Clean Air Act safeguards requiring deep and timely reductions in toxic air pollution, including mercury, from the nation’s coal-burning power plants. The law required EPA to adopt rigorous safeguards no later than 2004 and ensure compliance no later than 2007. Due to the Bush EPA’s lawbreaking, however, and following the Obama EPA’s adoption of the legally required standards, coal- and oil-burning power plants did not end up being required to comply until 2015.
So Wehrum’s efforts helped deliver an illegal, 8-year amnesty period to dirty power plants for their mercury and air toxics emissions. In 2012, EPA projected that by 2016 the Obama-issued standards would avoid up to 11,000 premature deaths and 130,000 asthma attacks every year. The net health benefits to Americans are over $80 billion annually. And each year, the Obama EPA standards are reducing coal-burning power plants mercury emissions by 90%, acid gas emissions by 88% and sulfur dioxide emissions by 41% beyond what other regulations would have required.
Wehrum’s illegal “Queen of Hearts” rollback denied Americans the totality of these health, environmental and economic benefits for eight years.
Wehrum also played a key role in defending the Bush EPA’s refusal to act on the carbon pollution that drives dangerous climate change. The Supreme Court decisively rejected that position in Massachusetts v. EPA, ruling that carbon dioxide and other greenhouse gases are air pollutants, just like carbon monoxide or sulfur dioxide, and that the Clean Air Act gives EPA the authority and responsibility to regulate them all.
The Bush EPA air program fought the plain language of the Clean Air Act for two terms, disputing that the law characterizes carbon pollution as an “air pollutant.” After the Supreme Court rejected EPA’s position in early 2007, Wehrum departed the agency one month later. By the end of the Bush administration, EPA had wasted eight years and done nothing to regulate the carbon pollution that drives dangerous climate change.
Wehrum and his boss during the first five Bush years, Jeff Holmstead, did achieve important air pollution reductions. The Bush EPA continued the Clinton administration’s successful diesel emissions work, and launched their own efforts to control previously unregulated diesel engines. Building on interstate pollution reductions for smog-forming nitrogen oxides in the Clinton administration, the Bush EPA’s Clean Air Interstate Rule accomplished significant reductions in deadly sulfur dioxide and nitrogen oxides emissions from coal-fired power plants in the eastern U.S., although the D.C. Circuit ruled that the Clean Air Act requires more reductions. Wehrum, Holmstead and the Bush EPA deserve credit for these substantial public health and air quality achievements, even though the law required, and the Obama administration delivered, deeper pollution reductions.
There is no doubt that Mr. Wehrum is a very knowledgeable Clean Air Act attorney and an experienced EPA policymaker, already. The grave concern is over his industry priorities and his dismal track record during the time he led or helped lead the Bush EPA air program: EPA regularly failed to follow the law. EPA failed to enforce the Clean Air Act to protect Americans’ health, natural environment and air quality—repeatedly and egregiously. EPA erred, always, to the benefit of America’s largest polluters. These failures marked and outlasted Mr. Wehrum’s 6-year tenure at EPA, delaying legally required protections for years. That delay allowed millions of tons more of dangerous air pollution and cost tens of thousands of lives.
Americans and U.S. Senators deserve to know whether Mr. Wehrum intends to repeat this grim history, updated for President Trump’s and EPA Administrator Scott Pruitt’s style of health protection rollbacks and lawbreaking. This other 2006 statement by Senator Jeffords sounds all too familiar to observers of Scott Pruitt’s first eight months in his job as EPA Administrator: “Mr. Wehrum has repeatedly chosen to ignore career EPA professionals and fight for polluters, rather than public health.”
Americans deserve to know if this is why Mr. Wehrum is being nominated to lead EPA’s air program.
Mr. Wehrum fully deserves the chance, however, to make the case that he has learned from this history of lawbreaking and irresponsible air pollution policy, and to vow not to repeat it. He deserves the opportunity to commit to upholding the Clean Air Act to deliver healthy air to all Americans, and reduce the harmful air pollutants that create smog and drive dangerous climate change.
But if Mr. Wehrum harbors an agenda to roll back safeguards once more at EPA today, on behalf of his current industry clients and in defiance of the law and in dereliction of the duty to uphold the Clean Air Act and protect Americans’ health and welfare, then he is unsuited for the job heading EPA’s air office. Senators should not confirm him.