Environmental Protection Agency Principal Deputy General Counsel Melissa Hoffer may have violated federal law by asking the Department of Justice to put a hold on all litigation involving EPA, according to Sen. Marsha Blackburn (R-Tenn.).
In a Jan. 25 letter made public Thursday, Blackburn asked EPA Inspector-General (IG) Sean O’Donnell and Comptroller General Gene Dodaro to “open an investigation into potential violations of the Federal Vacancies Reform Act of 1998 (FVRA) and other potential violations of ethics rules.”
Dodaro heads the Government Accountability Office (GAO), the investigative arm of Congress.
Hoffer is a political appointee as one of the first 16 officials dispatched to EPA by the White House Jan. 20 to carry out President Joe Biden’s plan to make combatting global warming, or climate change, one of his administration’s top economic and national security policy priorities.
“On her first day on the job, Ms. Hoffer swiftly sent a memorandum to the U.S. Department of Justice (DOJ) requesting that the department’s Environment and Natural Resources Division attorneys ‘seek and obtain abeyances or stays of proceedings in pending litigation seeking judicial review of any EPA regulation promulgated between January 20, 2017, and January 20, 2021,’” Blackburn wrote.
“Ms. Hoffer electronically signed the letter in her purported capacity as EPA’s Acting General Counsel. In her haste to deliver her message, Ms. Hoffer neglected to acknowledge that the Acting General Counsel role is vacant, and she only serves in the inferior role of Principal Deputy General Counsel, as confirmed by EPA’s current organizational chart,” Blackburn pointed out.
“This is potentially a violation of the FVRA and the Appointments Clause of the U.S. Constitution. The FVRA grants the President — and only the President — the limited authority to appoint acting officials while preserving the Senate’s advice and consent power,” Blackburn wrote.
Hoffer would only have the authority to make the request to DOJ if she was designated by Biden as EPA’s Acting General Counsel, if she were already at EPA in a Senate-confirmed position [as first assistant to the General Counsel] and was designated by Biden, or if she were designated by another EPA official directed by Biden to appoint her, according to Blackburn.
“It does not appear she can hold the position through any of these three paths. She was not the ‘first assistant’ when the vacancy arose; she had not been serving in a Senate-confirmed office; and she had not been employed by any other EPA component in the year prior to the vacancy,” according to Blackburn.
“And, if the President has not directed Ms. Hoffer to serve as the Acting General Counsel under one of these scenarios, she may not take it upon herself to install herself into a position the Senate has not confirmed,” the Tennessee Republican senator said.
Hoffer comes to EPA from Massachusetts where, according to an EPA announcement of her appointment, she served in the Massachusetts Attorney General’s Office “as the Chief of the Energy and Environment Bureau and oversaw the work of the bureau’s attorneys on matters including prosecuting civil and criminal enforcement of environmental laws, energy policy, ratepayer advocacy, defensive cases, and affirmative advocacy, including litigation in support of EPA’s Mercury and Air Toxics Standards.”
Hoffer’s request may also involve conflicts of interest stemming from the fact she could be seen as an outside party interfering with litigation in which she was a party on behalf of the state of Massachusetts, according to Blackburn.
Hoffer’s request, if granted by DOJ, would halt government action on all litigation filed against EPA or by EPA throughout the four years President Donald Trump was in office.
Because DOJ under Trump defended EPA actions when they were challenged in federal court by environmental activist groups like the Environmental Defense Fund (EDF) and the Natural Resources Defense Council (NRDC), suspending such litigation will help Biden to reverse his predecessor’s policies.
Biden reportedly is also reviewing a DOJ policy initiated by former Attorney General Jeff Sessions in 2017 that stopped the government from entering settlements of environmental litigation that included payments to activist groups like the EDF and NRDC. Under President Barack Obama, hundreds of millions of dollars were channeled to such groups in this manner.
Justice Merrick Garland, Biden’s nominee to be the next Attorney General, is still going through the Senate confirmation process. He is expected to revise the Session policy or drop it entirely if he is confirmed as expected. Doing so would restore a significant source of tax-funded revenues to multiple environmental activist groups.
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