Carper and Whitehouse: EPA Is Redefining “Ambient Air” to Fit Industry’s Definition

WASHINGTON, D.C. – Today, U.S. Senators Tom Carper (D-Del.), top Democrat on the Senate Environment and Public Works Committee and Sheldon Whitehouse (D-R.I.),  top Democrat on the EPW Clean Air and Nuclear Safety Subcommittee, slammed the Environmental Protection Agency (EPA)’s final guidance that redefines “ambient air” under the Clean Air Act and EPA’s regulations, a policy change that will exempt more outdoor air from pollution protections – and was specifically sought out by a secretive industry group formerly represented by EPA officials.

“This seemingly small and esoteric policy change will have serious implications for public health and the environment. By narrowing the definition of ‘ambient air’ under the Clean Air Act, EPA risks exposing more people across the country to harmful pollution,” the senators said. “What we’re really seeing here is that EPA is redefining ‘air’ to suit the specific needs of industry. What was part of former Air Administrator Wehrum’s wish list is now his legacy.”

In July, following a months-long investigation, Senators Carper and Whitehouse unveiled their report, “Redefining Air: Industry’s Pipeline to Power at EPA’s Office of Air and Radiation.” The report detailed efforts by former EPA Assistant Administrator Bill Wehrum and his senior counsel, David Harlow, to achieve policy outcomes to the benefit of several industry organizations represented by Hunton Andrews Kurth LLP, the law firm at which Wehrum and Harlow worked prior to their tenures at EPA.

This newly issued EPA policy appears to have been first recommended to the EPA in March 2018 by one of those Hunton-represented organizations, the NAAQs Implementation Coalition, which is comprised of at least nine industry groups. The Coalition asked EPA to redefine and narrow the meaning of “ambient air,” which would reduce the amount of outdoor air protected by the Clean Air Act in the first instance – precisely what EPA is doing here.

At the time this policy change was proposed, Mr. Wehrum was recused from meeting with his former clients—at least four of whom were members of the NAAQS Implementation Coalition, including Coalition member the Utility Air Regulatory Group (UARG). One of those meetings, held shortly after Mr. Wehrum assumed control of the EPA air office, was at Hunton’s offices with only Hunton lawyers and UARG members present. That meeting included a question-and-answer component, and it is still unknown what topics were discussed in private between Mr. Wehrum, his former work colleagues, and his polluting former clients.

Senators Carper and Whitehouse reiterated their call for the EPA Inspector General to investigate Mr. Wehrum’s potential ethical lapses before his departure from the agency. 

“It seems that the EPA Inspector General has been reluctant to investigate even the most flagrant and well-documented violations of public trust. Those responsible for ethical violations should be held accountable to their actions, even when they leave the agency. Failure to hold those people responsible sends the wrong message to other public servants that one can avoid investigation simply by resigning when an investigation is opened or completed,” the senators continued. “Although he is no longer at EPA, Mr. Wehrum’s policy agenda has endured at the agency. The EPA Inspector General should investigate Mr. Wehrum’s apparent efforts to achieve the policy objectives of his former clients.”