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Delay in Naming Head of EPA’s Air Office Triggers Pushback

Oct. 15, 2021, 10:00 AM

The official heading up major climate change initiatives at the EPA still hasn’t been nominated for the job, and at least one pivotal lawmaker has started to take notice.

Joe Goffman, the acting head of the Environmental Protection Agency’s Office of Air and Radiation, has been at the helm of the agency’s most consequential climate rules, including vehicle emission standards and the phasedown of hydrofluorocarbons.

He’s also teed up to oversee imminent releases of methane and mercury air toxics standards, and major rulemaking on power plant emissions further down the line.

But the air office chief is also the only EPA political job requiring Senate confirmation that doesn’t have a nominee.

Sen. Shelley Moore Capito (R-W.Va.), top Republican on the Senate Environment and Public Works Committee, told Bloomberg Law she’s not happy that no air office nominee has been sent to the committee for vetting.

In her view, the Biden administration is allowing “unaccountable bureaucrats like climate czar Gina McCarthy and unconfirmed acting assistant administrator Joe Goffman to implement policies outside of nomination and Congressional oversight channels.”

Those actions are happening “despite the administration’s barrage of policy announcements on climate and its purported commitment to transparency,” Capito said.

‘Wealth of Knowledge’

As ranking member on the committee that handles EPA nominees, Capito would take a lead role in querying the administration’s approach to air issues such as auto and power plant emissions.

Her complaint echoes similar critiques lobbed at Trump administration over delayed nominations. But in this case, the administration still has time to announce a nominee under the statute governing the process. And when asked about Capito’s remarks, an EPA spokesman expressed confidence in Goffman.

He “brings a wealth of knowledge and expertise to the agency,” thanks in part to his prior terms as the air office’s senior counsel and the agency’s associate assistant administrator for climate during the Obama administration, the spokesman said.

In his acting role, Goffman “has delivered on the Biden-Harris Administration’s commitment to tackle the climate crisis, protect communities from pollution, advance environmental justice, and ensure clean, breathable air,” the spokesman said.

The White House, when asked if Goffman would be the eventual nominee, didn’t reply.

Sen. Tom Carper (D-Del.), the panel’s chairman, didn’t respond to an interview request.

‘Tricky Balance’

The administration is still within legal deadlines for confirmation under the Federal Vacancies Reform Act, which governs how long acting officials can do jobs that require Senate confirmation.

The law gives the president 300 days for office leadership nominations during a new administration, and Biden’s deadline for the air office falls on November 16.

It also gives acting officials all necessary authority of Senate-confirmed officials, and allows acting officials to serve “long periods of time” in positions meant for Senate-confirmation, according to lawyer and Stanford law professor Anne Joseph O’Connell.

But that, she said, creates a “tricky balance.”

“The traditional appointments system is broken, with delays in nominations and delays in confirmation,” she said in an email. “We have to balance the government being able to operate and the desire to have more politically accountable officials in top positions.”

‘Humming Along’

For others, the delay in nominating an air official isn’t unusual. Other positions across the Biden administration lack a nomination, and the air office isn’t off-task, according to James Goodwin, a senior policy analyst at the Center for Progressive Reform.

“EPA’s air office seems to be humming along,” he said in an email. “They are getting big things done, and they’re doing them more or less on time according to the timelines set forth in the Biden administration’s relevant early executive orders.”

The nomination process can also take time because White House staffs “are looking for people who both will be good at the position and capable of getting through what can sometimes be a time-consuming and difficult, even if not always necessary, Senate confirmation process,” added Cary Coglianese, a regulatory law professor at the University of Pennsylvania Law School.

Capito’s complaint does echo others made by Congressional Democrats and good government groups during the Trump administration. At one point in 2019, well beyond the 300-day deadline of the Vacancies Act, Rep. Raul Grijalva (D-Ariz.) sent a letter to the White House, demanding to know why 59% of leadership positions at the Interior Department hadn’t been filled nearly two and a half years into Trump’s presidency.

The watchdog group Public Employees for Environmental Responsibility also filed a complaint in 2019, alleging that several Trump political staffers were carrying out leadership roles without going through the proper congressional procedures.

Outside Nomination

On climate issues, the White House’s approach appears to be to “appoint leaders shielded from the confirmation process, including through the administration’s creation of new czars and their own dedicated policy staffs in the White House,” Capito said.

The EPA has gotten Senate approval for the heads of its water, chemicals, and international affairs offices, as well as the agency’s deputy administrator.

Biden’s nominees to head up the general counsel, enforcement, land management, and mission support departments have all undergone confirmation hearings and are awaiting votes.

The EPA’s pick to lead its research and development office has been nominated, but hasn’t yet had his confirmation hearing.

To contact the reporters on this story: Stephen Lee in Washington at stephenlee@bloombergindustry.com; Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com

To contact the editors responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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