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Environment & Energy Report

EPA Watchdog Has Few Tools in Clash With Agency, Scholars Say

Nov. 8, 2019, 8:54 PM

The Environmental Protection Agency is likely to prevail in a tense stalemate with its internal watchdog unless Congress decides to take up the fight, law scholars say.

Short of hoping that the House or Senate summons EPA Chief of Staff Ryan Jackson, at the center of the dispute, and forces him to testify, the Office of Inspector General has little real power, said Paul Light, a professor at New York University’s Robert F. Wagner Graduate School of Public Service who studies inspectors general.

“But whether they would do that, I just don’t know,” Light said. “It’s pretty small beer.”

The OIG is accusing Jackson of failing to fully cooperate with an audit and investigation over various matters, including claims that he told Deborah Swackhamer, former chairwoman of EPA’s Board of Scientific Counselors, to change her testimony before a May 2017 hearing of the House Science, Space, and Technology Committee.

Congress could also strike funding for Jackson’s position, according to Light.

“Making an issue public may change the dynamics as well,” said Cary Coglianese, a regulatory law professor and director of the regulatory law program at the University of Pennsylvania. “Certainly folks are now looking into this dispute more attentively, and that heightened attention could, as a practical matter, make the administrator more inclined to cooperate with the IG and reinforce his demands.”

The Inspector General Act doesn’t allow an inspector general to subpoena a federal agency, said Thomas McGarity, an administrative law professor at the University of Texas at Austin School of Law.

“When it comes down to the final bottom line, there’s not much power there when you’re talking about a federal agency,” McGarity said.

Litigation Option

Another option would be for the OIG to take the fight to the courts, said Rena Steinzor, an administrative law professor at the University of Maryland Francis King Carey School of Law.

But the outcome would be far from certain, depending on the judge assigned to the case, Steinzor said.

The clash between the EPA and its OIG is unique because, historically, federal agencies have cooperated with their inspectors general, even if begrudgingly, said McGarity.

“The agencies hate the IGs,” said Light. “They have to deal with them. They know that the IGs do important work. But they resist them as agents of Congress. This is a long-running fight.”

In notifying Congress earlier this month about the EPA’s alleged lack of cooperation by sending a memo known as a “seven day letter,” the OIG deployed a tool that was “designed to be the nuclear weapon that you would never use,” Light said.

“It’s enshrined in statute as the ultimate signal to Congress that something’s amiss.”

Jackson said he has met with the Office of the Inspector General at least 27 times and offered to respond in writing to any questions.

At one point, he was badgered by two OIG investigators who arrived at his office unannounced and argued with his assistant for nearly an hour about his whereabouts, Jackson wrote in a Nov. 5 letter to EPA Administrator Andrew Wheeler.

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Rob Tricchinelli at rtricchinelli@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com