The Energy 202: Senate Democrats warn EPA may be ‘afoul’ of law by prepping Wheeler for confirmation during shutdown

THE LIGHTBULB

A group of Senate Democrats says the Environmental Protection Agency may be violating spending laws by preparing the agency’s acting chief, Andrew Wheeler, for his confirmation hearing during a partial government shutdown.

Four members of the Senate Environment and Public Works Committee — Thomas R. Carper of Delaware; Sheldon Whitehouse of Rhode Island; and Benjamin L. Cardin and Chris Van Hollen, both of Maryland — sent a letter to the agency questioning whether it is improperly using resources to help Wheeler get ready for his confirmation hearing before them next Wednesday.

The move underscores the extent to which Senate Democrats are ready to fight President Trump’s second pick to run the EPA after the former chief, Scott Pruitt, and now Wheeler have sought the reversal of many environmental regulations implemented under President Obama.

In response to the letter, the EPA told The Post it is well within its rights under Justice Department guidelines to work toward getting the agency a Senate-confirmed leader.

The EPA is one of the agencies that isn’t receiving funding as the partial government shutdown drags into its 21st day over the standoff surrounding President Trump’s border wall. Only about 800 of the EPA’s 14,000 employees have been deemed essential to work through the shutdown. The vast majority of those remaining at work are “necessary to protect life and property.”

Only a handful of other employees — six top-level political appointees and a dozen others “necessary to the discharge of the President’s constitutional duties and powers” — are still allowed to work during a shutdown, according to the agency’s Dec. 31 contingency plan.

But according to the Democratic senators, five EPA employees have been involved in coordinating meetings with senators, who will have to approve Wheeler to serve as the agency’s permanent chief after President Trump this week formally tapped him for the position.

An EPA notary also worked to certify an ethics form for Wheeler, who worked for years as a lobbyist.

“It is difficult to understand how preparing you for next week’s confirmation hearing credibly falls within any of the categories listed in EPA’s Contingency Plan, particularly the category of employee that is ‘necessary to protect life and property,’ ” the senators wrote in their letter to Wheeler, sent Thursday.  

“Using EPA resources in this manner may also run afoul of the Antideficiency Act,” they added, referring to the law requiring a federal agency’s expenditures not exceed the amount appropriated by Congress.

Matt Leopold, the EPA’s top lawyer, told The Post by e-mail that the Justice Department’s Office of Legal Counsel has “clearly” already deemed participating in a confirmation hearing as essential work.

Leopold added: “Additionally, the Constitutional appointment power allows for EPA to take the steps necessary to ensure the Acting Administrator is prepared for his hearing.”

Jeffrey Lubbers, an administrative law professor at American University, wondered whether helping Wheeler get ready for his Senate confirmation falls under that category.

“It’s unclear what those are, but one of them might be the nomination of an agency head,” he said.

The EPA has been without a Senate-confirmed chief since the White House forced Pruitt to resign in July amid investigations into his ethical and managerial decisions.

While happy to see Pruitt gone, many environmentalists are fiercely oppose to Wheeler’s nomination after he spent years representing coal mining and nuclear energy firms in Washington.

They have long been critical of the EPA under both Pruitt and Wheeler for pursuing the rollback of Obama-era rules. During the shutdown, however, much of that work rewriting regulations has been put on pause.

But activists still take issue with Trump and Senate Republicans working to advance Wheeler’s nomination while other EPA employees are furloughed, such as those working to inspect factories for pollution or prepare cleanup plans for toxic waste sites.

“It’s a shocking waste of precious resources to spend any staff time preparing Andrew Wheeler’s nomination,” Collin O’Mara, president and chief executive of the National Wildlife Federation, said while calling for a delay in the hearing.

POWER PLAYS

SHUTDOWN WATCH

— All along the clock tower: Sen. Gary Peters (D-Mich.) sent a letter to the Interior Department and General Services Administration asking about government staffing at the Old Post Office Tower, which currently houses a Trump International Hotel.

The National Park Service clock tower has remain opened during the government shutdown while nearby attractions managed by the parks agency have been shuttered. “While GSA has authority to transfer funds to NPS under certain conditions, the lengths to which to your agencies have gone to open the tower facility within a Trump business enterprise have raised public concerns that the tower may be receiving special treatment,” wrote Peters, the top Democrat on Homeland Security and Governmental Affairs Committee.

A symbolic vote on opening agencies: The House is set to vote Friday on a spending bill to reopen the EPA and Interior Department, S&P Global Platts reports. The effort will mostly be “symbolic as a stalemate persists over President Donald Trump’s demand for a border wall.” But House Speaker Nancy Pelosi (D-Calif.) noted the votes would be on the very appropriations language the Republican-led Senate approved last month. “This is what you have proposed,” Pelosi said. “Why are you rejecting it at the expense of the health, safety and well-being of the American people?”

EPA’s pollution inspectors: The agency’s inspections of chemical factories, power plants, oil refineries, water treatment plants and other industrial sites have been suspended during the shutdown.

Most of the 600 or so inspectors have been furloughed, as have others who oversee compliance with environmental regulations, the New York Times reports. In 2017, these inspectors performed about 11,700 inspections, or about 225 a week, which suggests maybe hundreds of these inspections could have been canceled because of the shutdown, with the potential for hundreds more to be suspended as well, per the report. That pause makes it more likely that “companies might emit illegal levels of contaminants into the air or water without detection, for weeks on end.”

Some park work resumes in D.C.: The Park Service said it would today restart trash collection, sanitation services and urgent roadwork at parks and certain areas around the District. The resumed services will be funded with revenue collected under the Federal Lands Recreation Enhancement Act, The Post’s Michael E. Ruane reports. “D.C.-area national parks remain as accessible as possible during the shutdown, but some services and sites are unavailable, including visitor centers, ranger talks and programs and emergency services,” per the report.

Ongoing 60-year-old wolf study could be snarled: On Monday, John Vucetich, a Michigan Technical University ecologist, is scheduled to start the 61st annual survey of moose and wolves on Isle Royale in Lake Superior. But if the shutdown continues, that might not happen, hampering what is the world’s longest continuous study of predators and prey. “That’s because Isle Royale is a national park that is now inaccessible to Vucetich and his colleagues due to the shutdown, which has also hobbled other scientific work,” The Post’s Karin Brulliard reports. “The study — which mainly consists of counting moose and the wolves that prey on them, and observing their interactions — depends on winter conditions, and on a contracted helicopter that cannot easily be extended after the planned end date, he said.”

Joshua Tree remains open after all: Hours before a temporarily closure of the national park was set to begin, NPS released a statement saying it would keep the park open by “immediately utilizing revenue generated by recreation fees.” Officials had originally planned to close the park Thursday “amid reports of plundered Native American artifacts and chain-sawed Joshua trees,” the Los Angeles Times reports.

FEMA contractors ordered to halt work: Government contractors working on disaster preparedness projects for the Federal Emergency Management Agency were told two weeks ago to stop their work, The Post’s Aaron Gregg reports.

While current disaster response efforts places like Puerto Rico, Florida and Texas are meant to continue during the shutdown, Gregg writes the agency told “hundreds of contractors to halt work on outstanding government contracts, withholding payments for disaster planning work such as flood mapping, government administrative functions like contract management support, and facilities maintenance work.”

Wildfire prep affected: Training for thousands of firefighters has halted because the U.S. Forest Service can’t provide contracts for equipment, the Sacramento Bee reports. A Tennessee-Kentucky fire academy canceled a January training course and if the shutdown drags on, “it could affect firefighter training academies in Washington, Oregon, Colorado and other states,” per the report. “If the shutdown drags out for several more weeks, federal fire crews won’t be ready for the months ahead, following a 2018 fire season that killed scores of people and destroyed thousands of homes in California and other states.”

— New Congress, new climate focus: Rep. Frank Pallone Jr. (D-N.J.), the new chairman of the House Energy and Commerce Committee, announced the panel’s six subcommittees for the new Congress, which notably included one name change. The “subcommittee on environment” will now be the “subcommittee on environment and climate change.”

But: In recent days Pallone has been become a target of scorn for some climate activists over his refusal to disavow donations from fossil fuel companies and executives. “Pallone’s statements are out of touch,” the Sunrise Movement’s Stephen O’Hanlon told E&E News.

OIL CHECK

— Fiat Chrysler’s $800 million settlement over emissions cheating charges: The Justice Department announced Fiat Chrysler Automobiles agreed to settle with U.S. regulators over allegations it cheated on emissions tests. The agreement could cost the automaker nearly $800 million, The Post’s Brady Dennis and Juliet Eilperin report.

The details: Under the deal, Fiat Chrysler will also establish a recall program to fix more than 100,000 vehicles that are not compliant. The company will also extend warranties for those vehicles, pay a civil penalty of $305 million to settle claims of “cheating on emission tests and failing to disclose unlawful defeat devices,” and also separately pay some vehicle owners up to $3,075 to settle class-action claims, the Justice Department said. 

But: “Thursday’s settlement, while substantial, pales in comparison with the more than $15 billion in penalties levied against German automaker Volkswagen in 2016 to resolve its own emissions-cheating scandal.”

— How Russia hacked the U.S. electric grid: In an investigation into Russia’s 2017 intrusion of the U.S. electric grid, the Wall Street Journal found that hackers made their way through the chain by first attacking contractors and subcontractors of utilities and worked their way up.

One terrifying tidbit: Mike Vitello, who worked at Oregon construction company All-Ways Excavating, “has no idea how the hackers got into his email account,” per the report. “On March 2, 2017, the attackers used Mr. Vitello’s account to send the mass email to customers, which was intended to herd recipients to a website secretly taken over by the hackers… Once Mr. Vitello realized his email had been hijacked, he tried to warn his contacts not to open any email attachments from him. The hackers blocked the message.”

— More electric grid news, California edition: The state’s newly sworn-in Gov. Gavin Newsom (D) said he plans to prioritize tackling issues with the state’s largest electric utility, saying he had meetings about the issue on his first full day as governor.

Newsom said he is talking to state energy regulators and incoming staff, as well as members of his predecessor’s administration “to address the solvency” of PG&E, Bloomberg reports

Meanwhile, a U.S. judge proposed that the utility “re-inspect its entire electric grid and cut off power during certain wind conditions regardless of the inconvenience to customers or loss of profit,” the Associated Press reports. The utility has until Jan. 23 to respond.

— Electric future: ExxonMobil is considering investing in charging stations for electric vehicles, according to a report from the Atlantic Council. “Most other international oil and gas companies have at least token investments in electric-charging infrastructure, but Exxon has been an outlier among its peers in this space,” Axios reports, noting such a move signals how major oil companies may be responding to an industry shift in response to the changing climate.

THERMOMETER

— “Potentially catastrophic” drop in butterfly count: The population of monarch butterflies dropped 86 percent in 2018 compared with the previous year, a historic low for a species that has seen a 97 percent decline in overall population since the 1980s, the New York Times reports. “The society has preliminary counts from 97 sites, most of them along California’s coast, representing an area that traditionally accounts for nearly 77 percent of the state’s winter monarch population,” per the report. “In 2017, the sites hosted about 148,000 monarchs. But in 2018, that dropped to an estimated 20,456 monarchs, with large numbers of them counted in Pismo Beach, Big Sur and Pacific Grove.”

— The world’s oceans are warming rapidly: And the warming is happening at a faster rate than was previously thought, the New York Times reports. A new analysis published in the journal Science found oceans are warming on average 40 percent faster than what a United Nations panel estimated five years ago — yet another finding with troubling implications for Earth’s climate. Oceans, which store the heat trapped by greenhouse gases and are a critical area of research for climate scientists, have broken records several years in a row, per the report.

DAYBOOK

Today

  • The Environmental and Energy Study Institute holds an event on “Reframing Energy for the 21st Century.”

EXTRA MILEAGE

— Seal invasion: The Canadian town of Roddickton-Bide Arm has been overrun by several dozen harp seals. Some residents say they started arriving around Christmas, while others say they were spotted earlier, The Post’s Isaac Stanley-Becker writes. Scientists with the country’s Department of Fisheries and Oceans say the seals, which migrate south from the Arctic during the winter, stay close to the coastline when there’s little ice near the shore, and move toward land when the ice freezes behind them. Thinning ocean ice, a result of climate change, could also be compounding the issue.

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