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Email dump could slow EPA confirmation fight

Jacob Holzman, CQ-Roll Call on

Published in News & Features

WASHINGTON -- Acting Administrator Andrew Wheeler has been formally nominated to run the Environmental Protection Agency, setting up a contentious confirmation fight just as a court order threatens the release of over 20,000 of his emails related to potential conflicts of interest.

The White House on Wednesday formally sent Wheeler's nomination to the Senate, triggering the start of the process. Wheeler, a former coal lobbyist, was confirmed to be the agency's deputy in April 2018 and became acting administrator in July after the departure of scandal-plagued Scott Pruitt, who resigned from the top post amid mounting ethics issues.

The Senate Environment and Public Works Committee will hold a confirmation hearing for Wheeler on Jan. 16.

The last time he came before the committee, for the deputy position, it sparked a partisan fight similar to other high-profile confirmation bouts, though three Democrats in difficult re-election races voted in his favor, including Sen. Joe Manchin III of West Virginia, who is now ranking member of the Senate Energy and Natural Resources panel.

The other Democratic supporters, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana, lost re-election, and it's unclear if Manchin, who now has another six years before he might face voters in West Virginia, will back Wheeler again. And while Heitkamp, for example, has been replaced by Republican Kevin Cramer, a near-sure vote for Wheeler, a larger number of Republicans face contentious 2020 re-election campaigns than there were last go-around, leaving less room for controversy mucking up the process and causing Republican defections.

Since he became acting administrator, Wheeler has fallen further and further out of favor with environmental groups as well as Senate Democrats, as the agency has continued on the deregulatory path Pruitt paved during his tenure. It has proposed rollbacks of major Obama administration policies like the Clean Power Plan and the so-called waters of the U.S. rule. Most recently, hours before the agency was to furlough most of its staff due to the government shutdown, it proposed rescinding the legal justification for regulating air pollution from power plants.

However, Wheeler has largely avoided the ethics scandals that plagued his predecessor.

On Dec. 26, the U.S. District Court for the Northern District of California ordered the release of more than 20,000 emails and meeting calendars sought by the Sierra Club as part of a lawsuit seeking records relating to any communications Wheeler and other agency officials had with representatives of regulated industries.

In the order, U.S. Magistrate Judge Elizabeth D. Laporte said the president's desire to nominate Wheeler to run the agency was one of Sierra Club's "persuasive reasons for the urgency of its requests."

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The partial government shutdown will play a role in timing. The administration was required to provide the court a document production schedule on Jan. 9, including an agreement to produce at least two tranches of documents by some point in February and all documents produced within ten months. A Jan. 2 order now requires it do so three business days after "the shutdown of the federal government has ended and relevant appropriations to the Department of Justice have been restored."

This ruling will provide fodder for Democrats to stall Wheeler's confirmation process. His nomination received plaudits from Senate Environment and Public Works chairman John Barrasso of Wyoming, whose committee will oversee his confirmation. However, the committee's ranking Democrat, Sen. Thomas R. Carper of Delaware, told reporters he wants to talk to Barrasso about moving things at a more deliberate pace.

Carper said he hopes to sit with Wheeler and review promises made during the previous confirmation, and he plans to tell Wheeler that "this can be a longer process or this can be a somewhat shorter process."

"We should hit the pause button," he said.

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