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Carper requests EPA IG investigation into EPA Office of General Counsel irregularities

Delaware News Desk
Sen. Tom Carper, D-Delaware, top Democrat on the Senate Environment and Public Works Committee, requested on Sept. 15 that the Environmental Protection Agency inspector general commence an investigation into potential irregularities associated with the handling of several recent cases challenging some of EPA’s more controversial rules by the EPA Office of General Counsel, each of which pertain to EPA’s authority to regulate greenhouse gas emissions under the Clean Air Act or the agency’s jurisdiction to regulate pollution to the nation’s waterways under the Clean Water Act.

Sen. Tom Carper, D-Delaware, top Democrat on the Senate Environment and Public Works Committee, requested on Sept. 15 that the Environmental Protection Agency inspector general commence an investigation into potential irregularities associated with the handling of several recent cases challenging some of EPA’s more controversial rules by the EPA Office of General Counsel, each of which pertain to EPA’s authority to regulate greenhouse gas emissions under the Clean Air Act or the agency’s jurisdiction to regulate pollution to the nation’s waterways under the Clean Water Act.

“Based upon a review of motions, pleadings and appellate briefs filed with the federal courts since January 2017, my office has discovered that EPA Office of General Counsel has filed six legal briefs in federal courts of appeal and three motions in federal district courts that fail to list an EPA career attorney as the agency attorney of record on the case,” wrote Carper. “In each of these filings, EPA has provided either EPA General Counsel Matthew Z. Leopold and EPA Principal Deputy General Counsel David Fotouhi together, or Mr. Fotouhi alone, as the agency attorneys of record. My office has been informed by several people knowledgeable about EPA OGC typical practice that using political appointees solely as the attorneys of record in these briefs is extraordinary.”

“Moreover, it is striking that each of these filings pertain to cases that raise legal questions that go to the heart of EPA’s authority to address some of the nation’s most pressing environmental challenges — namely, the scope of EPA’s authority to regulate greenhouse gas emissions under the Clean Air Act and the scope of EPA’s jurisdiction to regulate pollution to the nation’s waterways under the Clean Water Act,” continued Carper. 

“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,” continued Carper. “My office has been told by one individual familiar with one of these cases that career attorneys refused to sign the filings because they 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 three 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,” concluded Carper. 

Carper requested EPA IG Sean O’Donnell investigate the six legal briefs in federal courts of appeal and three motions in federal district courts, and release a prompt explanation for these irregularities.

A full copy of the letter can be found at bit.ly/3hvrh9k.