Lisa Jackson Steps Down From EPA
The Washington Post announces that Lisa Jackson is resigning as Administrator of EPA. Summarizing her four years at EPA, the Post says:
The slew of rules EPA enacted over the past four years — including the first-ever greenhouse gas standards for vehicles, cuts in mercury and other toxic pollution from power plants and a tighter limit on soot, the nation’s most widespread deadly pollutant — prompted many congressional Republicans and business groups to suggest Jackson was waging a “war on coal.” But it also made Jackson a hero to the environmental community, who viewed her as their most high-profile advocate within the Obama administration.
It will be interesting to see what happens about her replacement. Unlike the consumer protection bureau under Dodd-Frank, EPA can function without a permanent appointee. A 2007 NY Times article reported that many federal agencies were run by acting heads toward the end of the Bush Administration. These acting appointments are authorized by the Vacancy Reform Act. (Note that here is a time limit on how long an acting head can serve unless the same person is nominated to the position, and there are some limitations on who can be appointed acting head.) For this reason, Republicans don’t have quite as much of an incentive to block appointments. On the other hand, unlike (say) DOJ or DOD, EPA is not an agency that they actively support, either, so they probably wouldn’t mind having an acting administrator who might have less clout than a permanent one.
There seem to be a number of possible scenarios:
1. Republicans agree not to filibuster a nominee and use the nomination as an occasion to lambast the agency. Given today’s level of partisanship, an agreement not to filibuster doesn’t seem terribly likely. But maybe an agreement to allow floor votes on cabinet-level appointments is possible as part of the larger dispute over filibuster reform.
2. Obama finds a nominee who can get support from enough Republicans to overcome a filibuster. (But what concessions would Obama need to make in return? And is there any possible EPA nominee who would be acceptable to Democrats and also able to attract votes from Republican Senators these days?)
3. Obama decides not to bother trying to find a permanent replacement immediately, leaving an acting administrator in charge. Later, he either finesses the time limits in the Vacancy Reform Act and sticks with an acting head, or he moves to one of the other options. Picking a really aggressive acting administrator might give Republicans an incentive to confirm some more moderate nominee.
4. Obama makes a recess appointment, perhaps after Republicans refuse to allow a vote on sa nominee.
Given the dysfunctional state of Congress, it’s hard to know how anything at all gets done in D.C. It will be interesting to see how this one plays out.
Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…READ more