Senate Democrats say they are "concerned" that the U.S. Environmental Protection Agency could be running afoul of both its contingency plan and federal law during the partial government shutdown by preparing Acting Administrator Andrew Wheeler for his upcoming confirmation hearing. But the EPA's top lawyer says any activity being undertaken by agency personnel is on solid legal footing.
Wheeler — a former EPA staffer, Senate aide and coal lobbyist — stepped up from his role as EPA deputy administrator in July to lead the agency on a temporary basis after former EPA Administrator Scott Pruitt resigned amid a cloud of ethics investigations. President Donald Trump nominated Wheeler to officially lead the agency on Jan. 9 amid a protracted spending fight with congressional Democrats over the proposed U.S.-Mexico border wall. The conflict has shuttered roughly one-quarter of the federal agencies, including the EPA, but the Senate Environment and Public Works Committee nevertheless scheduled Wheeler's confirmation hearing for Jan. 16.
In a Jan. 10 letter addressed to Wheeler, four Democrats on the committee — Sen. Tom Carper of Delaware, Sen. Sheldon Whitehouse of Rhode Island, and Sens. Ben Cardin and Chris Van Hollen of Maryland — said "it is difficult to understand how preparing you for next week's confirmation hearing falls within any of the categories listed in EPA's contingency plan."
Under that plan, only about 800 out of the agency's roughly 14,000 employees are allowed to continue working during the shutdown because they have been deemed essential to protect "life and property." The plan also contemplates the continued work of six presidentially appointed/Senate-confirmed employees "necessary to perform activities expressly authorized by law" and 12 employees "necessary to the discharge of the president's constitutional duties and powers."
In their letter, the lawmakers noted that pre-confirmation "meeting requests with senators have copied five EPA employees on the emails to our offices." In addition, the letter noted that the agency's senior counsel for ethics and EPA notary certified Wheeler's ethics form on Jan. 9.
"We have also been informed that most EPA political officials as well as some EPA career staff have been supporting your hearing preparations and briefings," the senators asserted.
Using resources in this way further may violate the Antideficiency Act, an obscure federal law that prevents non-exempt government employees from working when congressional appropriations have lapsed, the senators said.
EPA General Counsel Matt Leopold on Jan. 11 said the agency is well within the bounds of the law. "Participation in and preparation for a confirmation hearing that has been scheduled by Congress is clearly excepted under Department of Justice, Office of Legal Counsel, opinions," he said in a statement. Leopold added that the U.S. Constitution's appointment power allows the EPA to take the steps necessary to ensure Wheeler is prepared for his hearing, noting that his office coordinates closely on all shutdown activities with the White House Office of Management and Budget.
Nevertheless, Democrats on the Environment and Public Works Committee requested "an official accounting" of names, titles and total hours worked by all EPA staff involved in preparing Wheeler for his confirmation hearing. The letter also asked for copies of all emails, memos, presentations, correspondence and other materials related to the nomination and hearing, including reviews of Wheeler's financial and ethics documentation.
As deputy administrator, Wheeler signed a two-year recusal agreement that bars him from participating in policy issues involving his former lobbying clients, which include Murray Energy Corp., one of the nation's largest private coal companies.
Republicans hold an 11-10 majority on the Environment and Public Works Committee and they control the upper chamber 53-47.