Environmentalists’ fact-free case against Scott Pruitt

Pruitt’s record is one of defending the environment and attempting to get the EPA to operate within the law.

By David B. Rivkin Jr. and Andrew M. Grossman, in the National Review

January 18, 2017

Environmentalists know that they don’t like Scott Pruitt, the Oklahoma attorney general whom President-elect Donald Trump has tapped to lead the Environmental Protection Agency. But they don’t seem to know exactly why, based on the fact-free attacks being lobbed in his direction. Could it be that they’re simply mistaken?

Sure, Pruitt’s led the movement of states resisting the Obama-era EPA’s overreaches and challenging them in court. (In full disclosure, he brought us in to represent Oklahoma in its challenge to EPA carbon-emission rules.) But his point in those cases has always been that the EPA has to live within the limits of the law, including the constitutional prohibition on the federal government directing the states to do its bidding. So when EPA overstepped the line, Pruitt took it to court. A desire to see the agency follow the law isn’t exactly disqualifying for an EPA administrator.

It also doesn’t say much about how Pruitt regards the environment. He’s on record as arguing that conservatives should recognize the important role of the EPA in addressing pollution that flows across state lines, which is a uniquely federal problem. But that, he’s said, should be the EPA’s focus. Echoing the Clean Air Act itself, Pruitt’s view is that most pollution is the primary responsibility of states and local governments. Only they can understand and act on the trade-offs involved in environmental protection and have the flexibility to take into account local needs, rather than impose one-size-fits-all nationwide rules.

On that score, Pruitt has practiced what he preached. When Pruitt entered office in 2011, one of the most serious environmental problems facing Oklahoma was poultry runoff, mostly from Arkansas farms, fouling the waters of the Illinois River and Lake Tenkiller in the eastern part of the state. Oklahoma had brought a federal lawsuit against 14 poultry producers in 2005, and it took nearly five years for the case to be teed up for a decision, in 2010. Read more »

UT–Austin’s Race-Conscious Policies

The Supreme Court may soon end racial discrimination disguised as ‘diversity.’

by DAVID B. RIVKIN JR. & ANDREW GROSSMAN, December 8, 2015, in the National Review

The don’t-ask-don’t-tell era of racial preferences in college admissions may soon be at an end, as Abigail Fisher’s challenge to the University of Texas’s affirmative-action program makes its second appearance before the Supreme Court, which will hear the case this Wednesday. 

Significantly, Ms. Fisher isn’t asking the Court to ban affirmative action. Instead, her case seeks to hold schools to the general rule that the government may employ race-based measures only as a last resort. And even then, such measures must be almost perfectly calibrated to serve a compelling interest — in this instance, achieving the educational benefits of diversity.

In the admissions context, those principles have too often been honored in the breach. And for that, blame the Court. Its 2003 decision upholding the University of Michigan Law School’s affirmative-action program combined the tough language typical of decisions reviewing race-conscious government policies with a loose and open-ended analysis of the way the program actually worked and the way it was justified.

University administrators took the decision as license to do what they pleased, never mind necessity or tailoring, so long as they stayed vague about the way their programs worked. Admissions at UT–Austin offer a case in point. In 2008, the year Ms. Fisher applied, the bulk of students (81 percent) were admitted under Texas’s Top Ten Percent law, which grants automatic admission to top students at Texas high schools. That alone made UT–Austin one of the most racially diverse campuses among elite public universities. Read more »