What Happens When Agency Administrators Don't Support the Agency's Statutory Mission?

Foley Hoag LLP - Environmental Law
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Foley Hoag LLP - Environmental Law

 

I suspect that lots of people have said it, but President Obama is often credited with saying that elections have consequences. One of those consequences is that the President, generally speaking, gets to select who works for him.

I’ve always taken the position that, no matter how much I disagree with the President, the Senate should confirm his executive branch nominees (nominations to the Judicial Branch are different, since judges don’t work for the President), absent some kind of malfeasance.

The current administration has caused me to modify that view; I’ve been forced to add a qualifier – the Senate should confirm the President’s executive branch nominations, absent some malfeasance – but only if the nominee actually supports the mission of the agency or department to which they have been nominated. 

Which brings us to the article from Inside EPA (subscription required) on Thursday, reporting that EPA Administrator Lee Zeldin and President Trump are planning to slash EPA’s budget by 65% (not as originally stated, 65% of EPA personnel). I have worked in the private sector for my entire career and I have complained about EPA actions often and sometimes at length. However, I have always agreed – for real – with EPA’s mission.

I’ll keep this simple. No one can honestly believe that EPA can implement the statutes that are the law of the land and that EPA has been charged with implementing, with a budget that has been reduced by 65%. I don’t think that Administrator Zeldin testified at his confirmation hearings that he was planning to cut EPA’s budget by 65%; that would have been newsworthy then, as it is now. However, the question arises – would the Senate have confirmed him if he had so testified?  Would not the Senators have been offended at the idea that an executive branch leader would make it impossible to faithfully execute laws that the Senate itself had passed?

If Administrator Zeldin thinks that EPA can operate on a budget 65% smaller than currently, then he cannot be said to support the mission of EPA and he should not be the EPA administrator.

I still support regulatory reform and there are lots of ways that EPA can operate more efficiently than it does. However, we live in a complicated world and EPA is necessary to help address market failures that lead to pollution in the absence of government regulation. Regulatory reform is – as I’ve noted before – not the same as deregulation, which is what will be the necessary result of a 65% budget cut.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.

© Foley Hoag LLP - Environmental Law

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