Democracy 21 Calls on EPA Ethics Officer to Ensure EPA Director Recuses Himself from Lawsuits He Brought Against EPA

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In a letter sent today to the EPA’s designated agency ethics officer, Democracy 21 President Fred Wertheimer called on Kevin Minoli to ensure that EPA Administrator Scott Pruitt recuses himself from any decision making with regard to the multiple lawsuits that he brought against the EPA while he was the Attorney General of Oklahoma.

The letter points out the serious conflicts of interest Pruitt would have if he was involved in these lawsuits and says:

Because of these conflicts of interest, Mr. Pruitt should recuse himself from any participation or decision making in these lawsuits, or from participation in any other matter in which he was directly and substantially involved in a position adverse to EPA while he was Attorney General of Oklahoma. 

Senator Tom Carper and other members of the Senate Environmental and Public Works Committee wrote to Minoli on January 12 and said that “Mr. Pruitt has brought multiple lawsuits against EPA on behalf of the State of Oklahoma, many of which remain in active litigation. . . .” 

Minoli responded to that letter on January 16 and noted that the applicable federal ethics rules set forth at 5 U.S.C. § 2635.502(a) require Pruitt to recuse himself from participation in these matters unless he has “received authorization from the agency [ethics] designee” to participate in each such matter, as required by the regulations. 

The letter says: 

Pruitt himself has acknowledged he is subject to this recusal/authorization requirement in the pending lawsuits against EPA brought by the State of Oklahoma, because he had a “covered relationship” with Oklahoma, as its Attorney General, and because the “circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter. . . . 

The letter says that is in incumbent on Minoli to not grant Pruitt authorization to participate in any of these lawsuits on behalf of EPA. 

The letter says: 

It is a longstanding and common sense axiom of legal ethics that a lawyer cannot switch sides in a lawsuit. Yet, this is what Mr. Pruitt is seeking to do here—to switch sides from representing Oklahoma in suing EPA to acting as head of EPA in responding to the same lawsuits, a position that gives him the right to exercise final decision making authority over the agency’s positions in litigation.  

According to the letter: 

If Mr. Pruitt is allowed to participate in any decisions by EPA in lawsuits he brought against EPA as Attorney General of Oklahoma, the public has no reason to believe that Pruitt, in his capacity as EPA Administrator, is faithfully implementing EPA’s mission, as opposed to misusing his post as EPA Administrator to achieve his earlier goals in filing the lawsuits against EPA. 

The letter concluded: 

Your assigned responsibility as Designated Agency Ethics Officer is to protect EPA against conflicts of interest, as well as against the appearance of such conflicts and to safeguard public confidence in EPA’s decision making 

In fulfillment of your EPA responsibilities, and in accordance with federal ethics regulations, you are required to conclude that Mr. Pruitt’s participation in any of the lawsuits he brought as Attorney General of Oklahoma “is likely to raise a question in the mind of a reasonable person about his impartiality.” Accordingly, you must determine that Mr. Pruitt “shall not participate in” such lawsuits.  

We urge you to make clear to the public that this is your position as the Designated Ethics Officer for EPA.