Democrat asks for probe of EPA’s use of politically appointed lawyers

Sen. Tom Carper (D-Del.) on Tuesday called for an investigation into the Environmental Protection Agency’s (EPA) use of political officials instead of career employees to defend some of its rules in court. 

Carper, the top Democrat on the Senate’s Environment and Public Works Committee, called for an inspector general probe into why nine agency legal filings list only political appointees as those representing the agency. 

“My office has been informed by several people knowledgeable about EPA OGC [Office of General Counsel] typical practice that using political appointees solely as the attorneys of record in these briefs is extraordinary,” the Delaware senator wrote. 

“The absence of career officials listed on these filings could be regarded as a conspicuous signal that the normal process of obtaining dispassionate legal analysis on these cases, conducted by experienced career EPA attorneys, has been discarded,” he added. 

Carper said that the nine filings in question, a small fraction of the almost 2,000 federal briefs and hundreds of district court briefs filed by the Trump EPA, contain only the signatures of either General Counsel Matthew Leopold and Principal Deputy General Counsel David Fotouhi together, or Fotouhi alone. 

They also pertain to some of the most high-profile and controversial environmental rules promulgated by the Trump administration. 

Two of the briefs were in defense of the administration’s repeal of the Obama administration’s Clean Power Plan, which regulated coal-fired power plant pollution, replacing it with a less burdensome rule. 

Other briefs in question pertained to the Navigable Waters Protection Rule, which limited the scope of the government’s power to regulate water pollution. 

Carper’s letter also relayed allegations from an unnamed source who claimed that career lawyers refused to sign at least one of the filings “because they likely presented arguments that have no legal merit at all and perhaps represent a violation of Rule 11 of the Federal Rules of Civil Procedure.”

“Given that the…cases in question also relate to some of the most contentious rulemakings in recent years, it is also reasonable to inquire whether the irregularities in filing these briefs are associated with errors or misdeeds in handling these cases or known misstatements of law or fact,” Carper wrote.