Carper Requests EPA IG Investigation into Irregularities at the EPA Office of General Counsel

WASHINGTON, D.C. –Today, U.S. Senator Tom Carper (D-Del.), top Democrat on the Senate Environment and Public Works Committee, requested that the Environmental Protection Agency (EPA) Inspector General (IG) commence an investigation into potential irregularities associated with the handling of several recent cases challenging some of EPA’s more controversial rules by the EPA Office of General Counsel (OGC), each of which pertain to EPA’s authority to regulate greenhouse gas emissions under the Clean Air Act or the agency’s jurisdiction to regulate pollution to the nation’s waterways under the Clean Water Act.

After examining thousands of court filings submitted by EPA throughout the Trump Administration, Senator Carper’s EPW committee staff found that EPA OGC has filed six legal briefs in federal courts of appeal and three motions in federal district courts that each failed to list an EPA career attorney as the agency attorney of record on the case, which is highly unusual—if not unprecedented.

“Based upon a review of motions, pleadings, and appellate briefs filed with the federal courts since January 2017, my office has discovered that EPA Office of General Counsel has filed six legal briefs in federal courts of appeal and three motions in federal district courts that fail to list an EPA career attorney as the agency attorney of record on the case. In each of these filings, EPA has provided either EPA General Counsel Matthew Z. Leopold and EPA Principal Deputy General Counsel David Fotouhi together, or Mr. Fotouhi alone, as the agency attorneys of record. My office has been informed by several people knowledgeable about EPA OGC typical practice that using political appointees solely as the attorneys of record in these briefs is extraordinary,” Senator Carper wrote. “Moreover, it is striking that each of these filings pertain to cases that raise legal questions that go to the heart of EPA’s authority to address some of the nation’s most pressing environmental challenges – namely, the scope of EPA’s authority to regulate greenhouse gas emissions under the Clean Air Act (CAA) and the scope of EPA’s jurisdiction to regulate pollution to the nation’s waterways under the Clean Water Act (CWA).”

“The absence of career officials listed on these filings could be regarded as a conspicuous signal that the normal process of obtaining dispassionate legal analysis on these cases, conducted by experienced career EPA attorneys, has been discarded. My office has been told by one individual familiar with one of these cases that career attorneys refused to sign the filings because they presented arguments that have no legal merit at all and perhaps represent a violation of Rule 11 of the Federal Rules of Civil Procedure,” Senator Carper continued. “Given that the three cases in question also relate to some of the most contentious rulemakings in recent years, it is also reasonable to inquire whether the irregularities in filing these briefs are associated with errors or misdeeds in handling these cases or known misstatements of law or fact.”

Senator Carper requested EPA IG Sean O’Donnell investigate the six legal briefs in federal courts of appeal and three motions in federal district courts, and release a prompt explanation for these irregularities.

A full copy of the letter can be found here and below.

September 15, 2020

The Honorable Sean O’Donnell

Inspector General

U.S. Environmental Protection Agency

1301 Constitution Ave. NW, Room 3102

Washington, DC 20460

Dear Inspector General O’Donnell:

I write to ask that the Office of the EPA Inspector General commence an investigation into potential irregularities associated with the handling of several recent cases challenging some of EPA’s more controversial rules by the EPA Office of General Counsel (OGC).

Based upon a review of motions, pleadings, and appellate briefs filed with the federal courts since January 2017, my office has discovered that EPA Office of General Counsel has filed six legal briefs in federal courts of appeal and three motions in federal district courts that fail to list an EPA career attorney as the agency attorney of record on the case. In each of these filings, EPA has provided either EPA General Counsel Matthew Z. Leopold and EPA Principal Deputy General Counsel David Fotouhi together, or Mr. Fotouhi alone, as the agency attorneys of record.  My office has been informed by several people knowledgeable about EPA OGC typical practice that using political appointees solely as the attorneys of record in these briefs is extraordinary.  Moreover, it is striking that each of these filings pertain to cases that raise legal questions that go to the heart of EPA’s authority to address some of the nation’s most pressing environmental challenges – namely, the scope of EPA’s authority to regulate greenhouse gas emissions under the Clean Air Act (CAA) and the scope of EPA’s jurisdiction to regulate pollution to the nation’s waterways under the Clean Water Act (CWA).

While it is true that there are sometimes cases to which EPA is a party that list only Department of Justice attorneys as the only attorneys of record for the federal government, it is typical practice for career attorneys from the EPA Office of General Counsel to co-sign government legal filings in cases where expertise on environmental regulation or technical matters of environmental science is required. Since the Trump administration took office, the EPA has co-signed nearly 2000 such briefs in federal courts of appeal and hundreds of filings in district courts, and in each filing the EPA attorneys of record have exclusively been career attorneys – with the only exceptions being the 9 documents I reference in this letter.

The absence of career officials listed on these filings could be regarded as a conspicuous signal that the normal process of obtaining dispassionate legal analysis on these cases, conducted by experienced career EPA attorneys, has been discarded. My office has been told by one individual familiar with one of these cases that career attorneys refused to sign at least one of the filings because they likely presented arguments that have no legal merit at all and perhaps represent a violation of Rule 11 of the Federal Rules of Civil Procedure.  Given that the three cases in question also relate to some of the most contentious rulemakings in recent years, it is also reasonable to inquire whether the irregularities in filing these briefs are associated with errors or misdeeds in handling these cases or known misstatements of law or fact. Any filings that cannot present a colorable legal argument or misrepresent the facts of the case would be a waste of taxpayer resources as would the underlying action.

What follows is a list of the filings in question:

In Truck Trailer Manufacturers Association, Inc. v. United States Environmental Protection Agency, No. 16-1430 (D.C. Circuit), the government has filed two briefs, defending against a challenge to EPA’s ability to regulate how truck trailers contribute to greenhouse gas emissions.

In American Lung Association v. United State Environmental Protection Association, No. 19-1187 (D.C. Circuit), the government has filed two briefs defending EPA’s repeal of the Clean Power Plan and the promulgation of its replacement, the Affordable Clean Energy (ACE) rule. In its legal briefs submitted to the D.C. Circuit Court of Appeals, EPA argues that the Trump Administration was forced to repeal the Clean Power Plan, because the plan was an illegal assumption of regulatory power. This argument has already been rejected by the DC Circuit Court in a separate case last year. The ACE rule is being challenged as providing no meaningful reduction of greenhouse gas emissions and violating the Clean Air Act.

EPA has submitted filings in a number of related cases defending the recently promulgated Navigable Waters Protection Rule (NWPR).  In 2018, preceding the development of NWPR, EPA filed a response to summary judgement in State of North Dakota v United States Environmental Protection Agency, No. 3:15-cv-00059 (D. N.D.) in which EPA chose not to defend against a challenge to a 2015 redefinition of the Waters of the United States. In its brief, EPA “proposed to conclude that regulatory certainty would be best achieved by permanently repealing the 2015 Rule and remodifying the scope of CWA jurisdiction currently in effect.” 

In defending the NWPR, EPA filed a motion opposing plaintiffs’ motion for preliminary injunction in State of California v United States Environmental Protection Agency, No. 3:20-cv-03005-RS, (N.D. Cal.), another motion in opposition to plaintiffs’ motion for preliminary injunction in State of Colorado v. United States Environmental Protection Agency, No. 20-cv-01461-WJM-NRN (D. Col.), and two briefs on appeal in Colorado v EPA. Nos. 20-1238, 20-1262, 20-1263 (10^th Cir.), In each of these filings EPA is defending a rulemaking that has restricted the EPA’s power to regulate pollution being released into the nation’s inland waterways under the Clean Water Act. In February of this year, EPA’s Science Advisory Board wrote to Administrator Wheeler, advising him that the proposed rule “lacks a scientific justification, while potentially introducing new risks to human and environmental health.”[1] Despite this advice, EPA finalized the rule earlier this year.

Thank you for your attention to this important matter. If you have any questions or concerns, please ask your staff to contact Michal Freedhoff (Michal_Freedhoff@epw.senate.gov) or Brian Eiler (Brian_Eiler@epw.senate.gov) of the Environment and Public Works Committee staff. I look forward to your prompt response.

                                                            Sincerely,

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