Will There Be Guerrilla War at EPA?
Scott Pruitt’s invasion of EPA probably won’t be met with flowers.
Scott Pruitt has spent his career at war with EPA, and he has now invaded the homeland. What he encounters may look more like a guerrilla war than a bureaucratic surrender. To be blunt, it’s generally a mistake to expect an invading force to be greeted with flowers and hugs from the grateful inhabitants.
Agencies like EPA will pose special difficulties for the Trump Administration, because the staff is massively alienated and hostile from the beginning. The depth of agency hostility to Pruitt, the new EPA Administrator, is hard to overstate. In unprecedented actions, 700 former employees signed a letter opposing the nomination, and the union representing 90% of EPA employees came out against the appointment on social media. Pruitt gave a conciliatory speech his first day on the job, but it was short on substance. It’s hard to see how he can really win over people who may have spent years working on the policies that he’s trying to reverse. He also works for a President who once threatened to shutter the agency completely and seems have little respect for science on subjects as diverse and climate change and vaccine safety. Trump’s proposed budget is said to call for laying off 20% of the EPA’s staff– not likely to endear him to the agency. In short, any detente seems likely to be short-lived.
Trying to govern an agency like EPA is challenging even without these tensions. Let’s begin by considering the numbers. The President appoints seventy-nine of EPA’s staff, including 14 that require Senate confirmation. One position has been filled so far: the Administrator, Scott Pruitt. EPA has approximately 17,000 employees across the country–at its D.C. headquarters, ten regional offices, and more than a dozen labs. So about one employee in 200 is a political appointee. That’s assuming all the positions are filled, though this will take time. And since many political appointees rotate out in less than four years, it’s unlikely that all the positions will be full at any given time. This makes top-down management more than a little tricky. Moreover, Pruitt’s prior management experience is with the Oklahoma Attorney General’s office, which has around 180 employees, making it around 1% the size of EPA.
Staff members are bureaucrats whose basic training is to obey rules, a definite advantage for the leadership. Under normal circumstances, many of them would dutifully help implement Administration policies despite their personal views. Quite a few will probably do so even under the Trump Administration. But many of the staff also feel a strong allegiance to the agency’s statutory mission of environmental protection, and many define themselves in terms of professional norms like scientific integrity. For many of them, the Trump Administration may seem uniquely unqualified for their allegiance.
Meanwhile, although the agency can be downsized, punishing individual employees for failure to tow the party line is much harder. Most are civil servants and can’t be fired except for serious misconduct and after a burdensome process. So the leadership can’t just clean house and hire its own people.
If the agency staff is sufficiently implacable, Pruitt’s situation may start to look like the Afghan war. He may control the capital, the top echelons where the leadership operates, but much of the “country” – the agency as a whole — may remain ungovernable. This is not to mention the hostility of parts of the public – Pruitt has already requested round-the-clock bodyguards.
Disaffected employees have some powerful allies. Staff can leak to the press, which seems eager for such information (and has even set up special websites to receive it). They can also communicate with sympathetic members of Congress, and their right to do so is protected by statute. Other allies may include members of their professions outside the federal government, in state governments like California’s, staff in other agencies, and environmental groups. And of course, these days there is also social media.
Short of flatly disobeying an order from a superior, staff members have other ways of undermining the process. Passing new regulations is a laborious process, and a major regulation takes a long time even under the best of circumstance if they doubt its legitimacy. It would not be difficult for staff to delay the process in ways that are very difficult to counter. Staff can also make slip-ups in writing up the agency’s justification, failing to mention important evidence or glossing over an argument made by environmental groups, thereby strengthening the court case against the regulation. All the normal mishaps of a large bureaucracy can become amplified by staff resistance: reports lost or delayed, orders that don’t get forwarded or go to the wrong people, policies that are interpreted in ways different than the leadership’s intention.
Thus, the forces of agency inertia may be amplified by hostility toward the agency’s leadership. In addition, there are the budget cuts that Trump and Pruitt are planning budget cuts. Budget cuts under the best of circumstances disrupt normal routines and processes, because the informal networks that expedite work are disrupted. Moreover, the increased workload on remaining employees will also mean delays in implementing leadership policies.
And the staff aren’t Pruitt’s only problem. There are also his superiors. The Trump White House has been characterized by competing power centers, which is likely to cause confusion at the cabinet level. Bannon, Priebus and Kushner favor deregulation, but they may differ on specifics. There are no permanent appointees– so far, not even nominations – in key positions such as the head of the Office of Legal Counsel and the head of the environmental division at DOJ or the head of the Office of Information and Regulatory Affairs at OMB. The White House has issued a new regulatory policy that is far from self-explanatory. On top of this, Pruitt’s expertise is limited to the legal dimensions of the Obama Administration’s most controversial regulations, with little background in other parts of the legal scheme, let alone in environmental science and economics.
Given all these difficulties, Pruitt is most likely to succeed in his area of strength: changing the agency’s legal stance on some high profile issues. Even here he may have difficulties. One of the problems that George W. Bush encountered in his early executive orders on military trials was that the military’s lawyers resisted them strongly. Still, he can probably win some key battles there.
Overall, Pruitt is going to be facing a far harder task than he may expect. If he fails to placate at least some of the concerns of staff members–-and little in his record suggests that he would –he may find himself immersed in a guerrilla war with no obvious ending.
In terms of career advancement, it might be a smart strategy for Pruitt to stay a year or so, try to score a couple of high visibility victories in reversing Obama’s policies, and return ASAP to Oklahoma to pursue what is said to be his next goal – the Oklahoma governor’s mansion.
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