Letter to the Honorable Scott Pruitt, Environmental Protection Agency Administrator - EPA Agenda and Invitation to Nebraska


Dear Administrator Pruitt:

Congratulations on your confirmation to serve as the Administrator of the U.S. Environmental Protection Agency (EPA).

Please accept my invitation to visit the state of Nebraska. Our farmers and ranchers would welcome the opportunity to meet with you and share their unified work to protect their land and the environment.

In your testimony before the Senate Environment and Public Works committee, you referenced three principles that you believed would help the EPA promote a healthier environment, a stability in managing our natural resources, and a stronger economy: the rule of law, cooperative federalism, and public participation. I agree with your assessment. Sadly, the EPA has not been marked by these principles, but has instead acted in a manner that has left many Americans, especially Nebraskans, concerned that their voice is not heard at the EPA. Furthermore, the EPA's overreaching regulatory hand has shaken the confidence of state governments and citizens in cooperative federalism and the rule of law.

I am hopeful that as you begin your service at the EPA, you can again make the EPA an institution that respects the Constitution by recognizing that the legislative branch -- not the executive branch -- writes the laws. As you prioritize the workload of the EPA, I would like to bring to your attention several items that are important to Nebraskans and humbly request that you prioritize these areas in your first 100-days as Administrator.

Withdraw the Waters of the United States Rule and Restore State and Local Control Over Non-Federal Environmental Protection: Nebraska is a rural state where one-in-four jobs is tied to agriculture.I have heard from many Nebraskans who believe that the EPA has been on a single-minded quest to extend federal power and expand federal jurisdiction through the Clean Water Act so that joint EPA and Army Corps of Engineers regulatory authority would cover all waters where Congress left the authority to the States.

Understanding that litigation on this issue is ongoing, I request that the EPA enforce the law and seek Congressional input if the agency encounters an ambiguity in the law instead of unilaterally rewriting the law.

Please withdraw the Waters of the United States (WOTUS) rule forthwith and consider revisions, with input from the states, that would protect the cooperative federalism envisioned in the Clean Water Act as well as define the term "navigable waters" in a manner that does not go beyond the statute. I am deeply skeptical of approaches that assume that textual ambiguity in a statute confers broad discretionary power to any federal agency.

Please also strike any memoranda of understanding that may hinder the withdrawal of the WOTUS rule.

Put a Stop to EPA Freelancing in Implementing the Renewable Fuels Standard:The passage of the Renewable Fuels Standard (RFS) in 2007 specified the annual volume targets of biofuels to be blended with gasoline. Unfortunately, the EPA has previously proposed rules that unilaterally rewrote the annual volume limits set by Congress. Please review the text of federal law as written by Congress, release annual volume limits in a timely manner, and judiciously consider the general waiver authority provided in statute.

Regulatory impediments, such as constraints on sales and the lack of a Reid Vapor Pressure (RVP) waiver for blends above E-10 should not interfere with consumer-based marketplace decisions. The EPA has previously argued that the Clean Air Act precludes the granting of a RVP waiver to blends over E-10 because it would cause vehicles and engines to exceed their emission standards in use.

Please review the federal law related to any applicable RVP waiver and determine if you agree that statutory changes are necessary to authorize the EPA to provide a waiver for blends above E-10.

Please specify the necessary changes that Congress should examine.
In 2010, EPA established a process for companies to petition EPA to allow new fuels to qualify as a renewable fuel under the RFS program. These petitions are known as "pathway petitions." Cellulosic biofuel companies have waited on average more than 30-months and advanced biofuel companies have waited on average more than two-years for the EPA to approve their pathway petitions.

Please review the regulatory approval process and make appropriate changes so that pathway petitions are approved in an expedited manner consistent with the statute.

If there are changes to federal law that would expedite the approval of these applications, please advise me of those changes.

Improve Coordination with Federal Agencies: Interagency memoranda of understanding (MOUs) are often created to encourage effective coordination and cooperative working relationships.

Please identify all existing MOUs, especially those that involve the United States Department of Agriculture, the Food and Drug Administration, the Army Corps of Engineers, the Department of Interior, and the Fish and Wildlife Service to determine effective interagency coordination.

Please immediately suspend all MOUs designed to expand EPA authority.

Please review any MOUs or other practices, guidance, or other documents that create duplicative reporting and enforcement authorities.

Please freeze or reevaluate any attempts to further federalize state implementation plans or delegation agreements.

End Abusive "Sue and Settle" Practices: Nebraskan farmers and ranchers have consistently and overwhelmingly expressed concern about the use of settlement agreements or consent decrees whereby the EPA has invited lawsuits from third parties, then committed itself to perform what would otherwise be discretionary acts in agreements convened pursuant to the lawsuits. This practice, known as "sue and settle," perverts the legal structure under which the agency operates and ignores federal law that otherwise requires the use of notice and comment rulemaking.

Please identify any litigation where consent decrees or settlement agreements are pending and withdraw them for further review.

Eliminate the "Clean Power Plan": The EPA has proposed new rules on carbon-dioxide emissions, commonly referred to as the Clean Power Plan. These transformative rules place enormous economic burdens on electric generating utilities, especially for a 100-percent public power state like Nebraska.

Please rescind these extra-legal Clean Power Plan rules.

Reduce Needlessly Costly Regulations: Industry has often made attempts to comply with a regulation through comprehensive planning and significant investments in obtaining the technology available for compliance only to have those investments stranded with regulations and aggressive deadlines that do not allow for reasonable compliance.

Please undertake a comprehensive review of the many regulations EPA has promulgated that overlap and have compounding effects on industries where significant investments have been made to reach compliance on existing regulations.

Protect the Privacy of Farmers and Ranchers:In 2013, EPA responded to a Freedom of Information Act (FOIA) request by releasing sensitive, private and personal information relating to more than 100,000 farmers and ranchers, including individuals from Nebraska. In a unanimous ruling, the Eighth Circuit Court of Appeals noted that EPA "abused its discretion in deciding that the information at issue was not exempt from mandatory disclosure under Exemption 6 of FOIA." Exemption 6 relates to "information involving matters of personal privacy (protected under the Privacy Act or contains sensitive personally identifiable information)."

Please conduct a comprehensive and immediate review of all EPA FOIA practices so that the agency does not release or otherwise distribute the private information of my constituents in violations of FOIA exemptions.

Collect Additional Information on Mining Rules: In January 2015, EPA issued a proposed rule to revise 40 C.F.R. Part 192 - Health and Environmental Protection Standards for Uranium and Thorium Mill Tailings and Uranium In-Situ Leaching Processing Facilities. This rule would require uranium recovery operators to conduct up to 30-years of groundwater monitoring following uranium production. In January 2017 EPA released a re-proposed rule for a 180-day comment period.

As you evaluate the necessity for this rule, please consider collecting additional data on the costs and benefits before moving forward with a final rule.

Review Rule for the Nebraska Regional Haze Federal Implementation Plan: On January 18, 2017 EPA issued a proposed rule to revise portions of the Nebraska Regional Haze Federal Implementation Plan (FIP) applicable to the Gerald Gentlemen Station, owned and operated by the Nebraska Public Power District.

Given that this proposed rule was issued two-days before Inauguration Day, please review the rationale for revising the FIP.

Decentralize EPA Enforcement Actions: The Clean Water Act is landmark legislation from which EPA derives substantial authority. When Congress passed the Clean Water Act in 1972, it affirmed that it is Congressional policy to "recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use…of land and water resources, and to consult with the Administrator in the exercise of his authority under this Act." This policy, known as cooperative federalism, is a key principle that is essential to the protection of our environment and enforcement of federal environmental law and affirms that states have the primary responsibility to protect their respective environments. Unfortunately, the EPA's Office of Enforcement and Compliance Assurance (OECA) has often engaged in aggressive criminal and civil investigation and enforcement without consultation or cooperation with the states.

Please evaluate how EPA enforcement and inspection efforts are structured and review ways to decentralize any overly aggressive efforts from headquarters and develop a more collaborative effort with states and regional offices.
I look forward to working with you to increase transparency and accountability in the EPA's regulatory process. Thank you again for your willingness to serve as Administrator of the EPA and congratulations on your confirmation.