January 16, 2004

New EPA Administrator Sworn Into Office

Holland & Knight Newsletter
Michael Galano

On October 28, 2003, the Senate confirmed Utah Governor Michael Leavitt to be the next Administrator of the U.S. Environmental Protection Agency (EPA). The Senate voted 88-8 to confirm Leavitt after six Democrats withdrew their holds on the nomination. Governor Leavitt replaced former New Jersey Governor Christine Todd Whitman who resigned as EPA Administrator effective June 27, 2003. Governor Leavitt was sworn in on November 6, 2003 by President Bush.

Background and Environmental Record

As Governor, Leavitt was known as a strong supporter of state and individual property rights. During his term, environmental groups criticized Leavitt for allegedly favoring the oil and gas industry and for encouraging commercial development in his state at the expense of public lands. He was critical of President Clinton’s decision to declare the 1.7 million acre Grand Staircase Escalante area of Utah as a national monument in 1996. Leavitt upset environmental groups by permitting a highway extension through wetlands not far from Great Salt Lake. The 10th Circuit Court of Appeals halted the project, saying it was potentially harmful to the environment. Leavitt also fought plans by Private Fuel Storage, a consortium of utilities, to locate a nuclear waste storage facility on an Indian reservation in western Utah.

Levitt graduated with a bachelor’s degree in economics and business from Southern Utah University. Prior to entering public service, Leavitt was president and chief executive officer of a regional insurance firm. He is also a former co-chairman of the Western Regional Air Partnership, where he worked with other states to deal with a “brown haze” over the Grand Canyon. Governor Leavitt was in his third term when nominated by President Bush to become the Administrator of the U.S. Environmental Protection Agency.

The Confirmation Process

The Democratic members of the Senate Environment and Public Works Committee boycotted the first scheduled meeting on the nomination on October 1, 2003. Committee Democrats said they were not satisfied with Governor Leavitt’s answers to the 400 questions they submitted. Following submission of new answers, Committee Democrats agreed to a vote on October 15, 2003, and the nomination was approved by the Committee by a vote of 16-2.

Following Committee approval, the nomination was forwarded to the full Senate. Immediately, six Democratic senators placed “holds” on the nomination. (A hold is a parliamentary procedure preventing consideration of a matter.) Democrats indicated they generally did not oppose Leavitt but held up his nomination as a means of protesting a number of Bush Administration environmental policies. Eventually, after gaining some concessions from the White House, the holds were lifted and the full Senate confirmed Governor Leavitt on October 28, 2003.

The Road Ahead

At his swearing-in ceremony, Leavitt explained that his approach to environmental management could be captured in one word, “balance,” stating that “[w]e need to balance the needs of the environment and the needs of humanity ... and balance the needs of this generation and the next.”

In the near term, Leavitt will need to address a lawsuit over the Administration’s “New Source Review” rules, which were finalized on October 27, 2003. A dozen states and several advocacy groups have filed suit in the U.S. Court of Appeals for the D.C. Circuit to challenge the new rule, which reinterprets a provision of the Clean Air Act (P.L. 101-549) that requires power plants or factories to install anti-pollution equipment if they undertake anything other than “routine maintenance.” On December 24, 2003, the federal appeals court temporarily blocked the Administration from enforcing the new air pollution rules.

In a somewhat related development, three top enforcement officials at EPA have recently resigned or retired, including two lawyers who were architects of the Agency’s litigation strategy against coal-burning power plants. The head of the Agency’s enforcement division, J. P. Suarez, announced his resignation on January 5, 2004, to take a job as general counsel at a division of Wal-Mart, Sam’s Club, in Arkansas. Two weeks earlier, Bruce Buckheit, the head of the air enforcement division, and Richard Biondi, his deputy, retired by agreeing to a buyout offered to senior agency employees. n

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