Gina McCarthy, President Obama’s nominee to succeed Lisa Jackson as administrator of the Environmental Protection Agency, should be rejected for a variety of reasons, but one in particular stands out. McCarthy — who has been EPA’s assistant administrator for the office of air and radiation since 2009 — too often operates behind closed doors in an agency with such immense regulatory powers that nothing less than maximum transparency is required to assure accountability.
A recent letter to McCarthy from Sens. David Vitter, R-La., and Jeff Sessions, R-Ala., points to an important example of McCarthy’s penchant for making major decisions out of the public eye. Vitter, who is the ranking minority member of the Senate Environment and Public Works Committee, and Sessions, the ranking minority member of the subcommittee on clear air and nuclear safety, want answers on McCarthy’s role in the EPA’s “sue and settle” deal on its “Startup, Shutdown and Malfunction” exemption rule. Essentially, the 40-year old SSM exempts emissions sources such as power plants from emissions compliance immediately after startup and shutdown and during malfunction periods.
The Sierra Club unsuccessfully sought SSM repeal for years. But then in the 2011 settlement of an entirely separate litigation, the EPA unilaterally and without public comment agreed to repeal SSM. As Vitter and Sessions explain in their letter to McCarthy, “EPA went out of its way to resolve the SSM petition in a coordinated settlement with the Sierra Club … These settlement agreements are often accomplished in a closed-door fashion that contravenes the executive branch’s solemn obligation to defend the law, avoids transparency and accountability, excludes impacted parties, and often results in the federal government paying the legal bills of these special interest groups at taxpayer expense.”