Temporary EPA Chief Could Keep Gig for Years Without Senate Vote

(Bloomberg) -- President Donald Trump’s temporary replacement for embattled former EPA chief Scott Pruitt may not be so temporary after all.

Senate Republicans are eager to avoid a politically charged fight to confirm Andrew Wheeler as EPA administrator, the role he’s filling on an acting basis, before midterm elections in November and amid a separate battle over Trump’s Supreme Court nominee.

Temporary EPA Chief Could Keep Gig for Years Without Senate Vote

Trump hasn’t said whether he’ll nominate Wheeler for the EPA’s top job. But the former energy industry lobbyist may be able to remain in charge of rolling back regulations on climate change and auto emissions for the rest of Trump’s four-year term without Senate confirmation, thanks to exceptions in a law originally designed to prevent abuse.

Trump is the latest president to test the boundaries of that 20-year-old federal vacancies law, which puts limits on who can serve as an acting official and for how long, in order to skirt a time-consuming and politically charged confirmation process.

“Congress seemed to be balancing the need for Senate confirmation against the reality that confirmations take time, and the wanted the executive branch to continue functioning in the meantime,” Nina Mendelson, a University of Michigan law professor, said of the law.

Mulvaney Rule

Trump earlier named Mick Mulvaney, director of the Office of Management and Budget, as acting director of the Consumer Financial Protection Bureau. Mulvaney can keep that position for longer now that the president has tapped a mid-level government staffer to lead the agency. The nominee, Kathy Kraninger, faces a confirmation process that could last several months.

Although there’s little data available on the number of long-term acting officials across the federal government, experts say more of them are filling government gigs temporarily amid delays in nominating and confirming people for the permanent roles.

During the Obama administration, the EPA’s water office was headed by an acting assistant administrator, Nancy Stoner, for about 1,150 days -- more than three years -- while the permanent nominee, Ken Kopocis, was held up in the Senate. Stoner left the EPA in 2014 after reaching the time limit on her acting status.

The duration of Wheeler’s time at EPA’s helm depends on whether Trump nominates someone else as EPA chief in his stead. But Wheeler could serve as acting administrator for years under the 1998 federal vacancies law, with virtually no legal limitations on his power to lead the EPA, said Anne Joseph O’Connell, a professor of law at Stanford University.

“Formally, these acting officials have the full authority of the position,” she said. “Functionally, there is a debate, because they don’t have the stature” of fully confirmed leaders, and may lack the authority, guaranteed tenure and gravitas to effect big change.

Acting officials often feel constrained, especially if they’re essentially auditioning for the full job, said Max Stier, president of the Partnership for Public Service, a not-for-profit group that promotes government efficiency.

“A lot of times, they either don’t feel empowered or they feel worried they might be jeopardizing their ability to become the ultimate confirmed individual,” Stier said. And everyone around them, he added, “is thinking the same.”

In Wheeler’s case, every action he takes now to enact Trump’s environmental agenda potentially hands fodder to critics in the Senate for any future confirmation fight.

Wheeler was narrowly confirmed by the Senate to be deputy administrator, the agency’s No. 2 official, in April. Two days after Pruitt resigned on July 5 amid a crush of ethics scandals, Wheeler, a former aide to Senator James Inhofe of Oklahoma, became the EPA’s acting administrator.

Wheeler’s 85 days as deputy administrator is just shy of the 90 days required under law for him to simultaneously serve as the EPA’s acting chief and as a nominee for the top job, O’Connell said. If Trump later nominates him for the gig permanently, Wheeler would need to yield his acting administrator status, even if some of the administrator duties were still delegated to him.

Help Wanted

At the EPA, the vacancy at the top could be compounded by other key unfilled posts, including assistant administrator jobs leading offices in charge of research and development, chemical safety, and environmental information. The resulting uncertainty and reduced agency effectiveness should spur the Trump administration to move swiftly to install a permanent administrator, Stier said.

“The faster they can move, the better off they are,” he said. “All of that uncertainty creates a problem.”

Wheeler has drawn praise for trying to rebuild trust with career employees of the EPA rattled by Pruitt’s short, scandal-marred tenure. But a shadow could remain over Wheeler as long as he holds temporary status, without any guarantee he’ll be nominated or confirmed for the full administrator job -- much less when.

Democratic Resistance

Confirmation to the top post wouldn’t be assured given fierce resistance toward Wheeler from Democrats who battled his earlier nomination. In that case, the lawmakers argued that Wheeler stood in the way of efforts to counter climate change and would regulate industries he used to represent as a fossil fuel lobbyist. Those opponents are ready to intensify their fight if Trump taps Wheeler for the EPA’s top job.

Wheeler was confirmed as deputy EPA administrator by a 53-45 vote, including support from three Democratic senators -- Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia -- up for re-election in November in states handily won by Trump in 2016. To win confirmation as administrator, Wheeler would probably have to retain the backing of all Senate Republicans, given the GOP’s slim one-vote majority amid the indefinite absence of John McCain of Arizona, who’s battling brain cancer.

And that margin could disappear with the November midterm elections if Democrats retake the Senate -- creating a political risk for Trump in waiting to fill the administrator job with a permanent replacement for Pruitt.

If that happens, Trump’s ace in the hand would be the Federal Vacancies Reform Act of 1998, which gives him leeway to keep Wheeler in his short-timer status.

Under the law, Wheeler’s time as acting administrator is initially on a 210-day clock, set to run out Feb. 2, 2019. But the clock gets paused if Trump nominates someone for the administrator job -- and it can stay that way for essentially two years that an administrator nomination is pending before the Senate, O’Connell said. A final 210 days on top of that could take Wheeler all the way to July 2021 as an acting administrator, without a Senate confirmation vote to lead the EPA.

©2018 Bloomberg L.P.