Scott Pruitt wants to keep EPA decisions out of the courts - but he'll end up there even if he does nothing at all

• EPA Administrator Scott Pruitt has told his team he wants to keep the agency's decisions out of court.
• We examined three ways the EPA will end up in court, regardless of what Pruitt does, with the help of a former EPA lawyer.

Administrator Scott Pruitt wants to keep the Environmental Protection Agency from getting sued, according to his senior adviser for air and radiation, Mandy Gunasekara.

"The administrator has been very, very clear that he wants us to do what we can to keep the decisions we should be making out of the courts," Gunasekara said at a coal conference in early May.

But no matter what Pruitt does - even if he does nothing at all - he can't keep the EPA or its decisions out of courts, former EPA regional counsel Nancy Marvel told Business Insider.

That's because of how the EPA is inherently set up.

"Any final action by EPA, whether promulgating a rule, or failing to promulgate a rule, or holding a promulgated rule in abeyance, is subject to judicial review in the courts. So the notion that EPA can reduce litigation unilaterally is fantasy," Marvel said.

We spoke to Marvel about three possible scenarios that can - and in many cases will - land Pruitt's EPA in court.

A do-nothing approach

Perhaps most importantly, the EPA is bound by law to fulfill certain duties. By sitting idly and doing nothing, Pruitt could open himself up to being sued for not doing enough.

The Clean Air Act and Clean Water Act have obligations, and deadlines for those obligations, for the EPA to act on. If the EPA doesn't act in a timely fashion, any US citizen can file a "citizen suit" to force the EPA's hand.

Under the Clean Air Act, for example, states are required to submit their plans to reach certain air quality standards set by the EPA. If states fail to submit plans in a timely fashion, the EPA is required to develop a plan for them, and if the EPA doesn't do that, the agency could be subject to lawsuits.

"Oftentimes, EPA will settle such cases by agreeing to act by a certain date," Marvel said. "Sometimes, the proper date for action will be litigated."

If the EPA fails to meet the date set by court, it could be held in contempt. Not having enough resources is not considered a defense the agency can use in court, which could be problematic if the EPA cuts staff.

Even if Pruitt instructs his staff to work tirelessly to meet all deadlines, Marvel said, litigation in these cases is usually inevitable, because "it is near to impossible even with the resources EPA has had for the agency to meet all the statutory obligations by the relevant date."

"[The] EPA has been and will continue to be sued by environmentalists, states, cities, and citizens on the actions that it is taking and failing to take," she added.

A do-something approach

If Pruitt decides to start creating new regulations, regardless of what they include, the EPA could also end up in court.

That's because of the regulatory process, Marvel explained. Once the EPA proposes a new regulation, takes public comment on it, and publishes the final text, entities like non-profit groups, environmentalists, and industry representatives have 30 to 60 days to challenge the rule in court.

Judges would then decide if the regulation was appropriate, considering both the facts and law.

"Environmentalists may say it's not stringent enough, and business may say it's not practical - it's too stringent," Marvel said. "Oftentimes what would happen is EPA would have developed a middle course and everyone's unhappy."

Regulations can be litigated for years. When he took control of the agency, Pruitt had several pending lawsuits against the EPA from when he was Oklahoma's attorney general and sued the agency for what he saw as overstepping its legal authority. He recused himself from 12 of those suits in May.

Pruitt could be held in contempt of court

If a court orders the EPA to act on a subject by a certain date, and the EPA doesn't, the agency would be failing to comply with a court order. In this case, Pruitt could be held in contempt of court.

Marvel explained that, for example, if the EPA cuts the roughly 3,000 employees it was planning to in its proposed budget earlier this year, the agency may not have enough employees to fulfill its obligations. If the agency was successfully sued for that, it still wouldn't have enough employees to do the work, so Pruitt could be held in contempt.

"Then the question becomes, 'What does that actually mean and what sanctions could be imposed by a court which holds an agency in contempt?'" Marvel said. It's a question scholars are still mulling over.

Based on a cursory review of past contempt cases, Marvel thinks Pruitt probably wouldn't be imprisoned or fined, due to protection under the doctrine of sovereign immunity. The president could fire him, but Marvel thinks that's unlikely. Either way, government agencies typically try hard to avoid a contempt citation.

"Agencies take very seriously the finding of contempt as a reprimand and are not anxious to be held in contempt," Marvel said. "We may see these concepts tested in this administration."

Pruitt already had his first lawsuit filed against him on February 25, 2017, just eight days after taking office. The lawsuit is demanding the EPA come up with a plan to protect salmon from hot streams, which are an early sign of climate change, Ecowatch reported.

Noah Oppenheim, executive director of the Pacific Coast Federation of Fisherman's Association, one of the plaintiffs on the case, told Business Insider this suit is just the beginning.

"Columbia River salmon and the fishermen who depend on them for a living are facing a deck stacked against them," he said. "If Pruitt's EPA shirks its responsibility to protect salmon from high temperatures and other climate change impacts, we will take action."

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