In Oklahoma, Critics Say Pruitt Stalled Pollution Case After Taking Industry Funds | KBIA

In Oklahoma, Critics Say Pruitt Stalled Pollution Case After Taking Industry Funds

May 2, 2018
Originally published on May 3, 2018 4:23 pm

Scott Pruitt, the current head of the Environmental Protection Agency, first came to national prominence back when he was Oklahoma's attorney general. In that role, he sued the agency he now runs 14 times, in a series of court cases alleging overreach by the federal government.

Environmentalists in Pruitt's home state say Pruitt was much less aggressive when it came to enforcing Oklahoma's environmental laws and going after polluters. An examination of Pruitt's record on environmental issues in Oklahoma shows that Pruitt's positions were often more in line with business and industry than with environmentalists.

As EPA administrator, Pruitt has aggressively pursued an agenda to roll back Obama-era regulations on vehicle emissions standards, water quality and the climate. Pruitt has also said that he believes the science behind climate change should be up for debate.

The agenda to rein in regulation has endeared Pruitt to conservatives. But Pruitt is also facing at least 10 investigations involving allegations of ethics violations, misuse of taxpayer money and improper contacts with industry lobbyists.

Pruitt and the EPA did not respond to several requests for comment over nearly two months, including a four-page list of questions from NPR.

Environmentalists in Oklahoma say Pruitt's current push for deregulation is a clear continuation of a pattern established when he was the state's attorney general. And they say a prime example of that pattern was a big fight over cleaning up the Illinois River.

Eastern Oklahoma, where water is like oil

In Eastern Oklahoma, the culture and the economy run on the environment. This part of the state doesn't look like the stereotype many people have of Oklahoma. Instead of sun-baked prairies and industry tractors, think forests and rivers — kayaks and trout fishing.

It's a poor region, where people talk about water like it's oil — a resource that brings in major tourism dollars.

Much of that water comes from one source: the Illinois River.

The river is so critical to the life and the economy of this part of the state that Oklahoma designated it one of six "scenic rivers" worthy of special protections.

Decades ago, Oklahoma's stretch of Illinois River and the lakes the river feeds were known for their pristine beauty.

"I know enough people that have told stories about [how] they could stand in the water up to their stomach and look and see they can see their feet clearly," says Denise Deason-Toyne of the environmental nonprofit Save The Illinois River. "And just imagine how beautiful that would be."

That is no longer the case, and it has not been for decades. Now, the river is often green and murky, and it has been plagued by algae blooms, which harm fish and other aquatic life and can even be dangerous to humans.

The slimy algae can also just look ugly and impair a landscape that trades on its beauty. Deason-Toyne refers to it as "horse snot algae."

The sources of pollution

Environmentalists attribute the degradation of the water to pollution from two main sources: wastewater treatment plants up the river in nearby Arkansas; and the large number of commercial poultry-growing operations throughout the Oklahoma-Arkansas border region.

"The amount of chicken houses in some locations is just overwhelming," says Deason-Toyne. "And each one of those holds several hundred if not thousands of birds. So you imagine you've got someone with 2,000 chickens and the amount of chicken litter they've got."

Poultry litter includes bedding, feed and feathers from the bottom of chicken houses, but the main problem that the litter presents for the river is chicken manure, which contains phosphorus and E. coli. Phosphorus, in particular, helps fuel the harmful algae blooms. (Human waste also contains phosphorus.)

Farmers in the region spread thousands of tons of the chicken manure on their fields, and it's known as an effective and valuable fertilizer. "I'm told that it could grow grass on a rock," says Deason-Toyne.

But the overapplication of the manure contributes to phosphorus running off into nearby streams and rivers, where it ultimately pollutes Oklahoma's once-pristine waters.

Attempting to restore Oklahoma's water

Oklahoma and Arkansas have fought for decades over pollution in the Illinois River watershed, and the fight even reached the U.S. Supreme Court. In a 1992 decision, the court held that upstream states like Arkansas have to adhere to the water quality standards of downstream states like Oklahoma.

That case helped form the basis of a 2003 agreement signed by both Oklahoma and Arkansas outlining water quality standards, which Arkansas wastewater treatment plants were supposed to meet by 2012.

But that agreement did not address the issue of the chicken manure runoff.

Oklahoma's then-attorney general, Democrat Drew Edmondson, was known for prioritizing environmental cases, and he set up an Environmental Protection Unit at the office to pursue polluters. The unit included four attorneys as well as a criminal investigator with a background in engineering.

In 2005, Edmondson, on behalf of the state of Oklahoma, sued several major poultry producers over the waste, including Tyson Foods, Cargill and Simmons Foods.

The companies argued that they were being unfairly targeted for the broader pollution problem and pointed to the amount of business they brought to the region.

"We spent five years of our life preparing this case, doing the science," says attorney David Page, who was brought on Oklahoma's legal team for the case. "I mean that's pretty much all I did for five years."

The case finally went to trial in federal court in 2009. The trial lasted 52 days and included 60 witnesses and complex legal and scientific testimony.

"We fought for every inch," says Page. "It was like a famous Civil War battle, where every square foot of property was fought with blood, tears and sweat."

When both sides finally rested, the case was left in the hands of federal Judge Gregory Frizzell.

And soon after the trial ended, in early 2010, Scott Pruitt announced his run for attorney general.

Poultry industry donations to Pruitt's campaign

During the campaign, Pruitt received at least $40,000 in campaign donations from people associated with the poultry industry. It included donations from company top executives at the time, including the vice president of Tyson Foods, the company's CEO and general counsel, as well as attorneys associated with the defendants in the poultry case. In all, approximately 4 percent of Pruitt's campaign funds came from sources linked to the chicken industry, according to the New York Times.

At the time, Pruitt's opponent raised questions about whether Pruitt could remain impartial because of the donations. Pruitt's campaign spokesman dismissed the criticism as "a desperate attempt by a losing campaign."

In an emailed statement to NPR, Tyson Foods spokesman Gary Mickelson wrote, "Our employees are encouraged to participate in the election process of public officials at all levels, and are at liberty to make personal contributions to any campaign as they see fit."

In November 2010, riding a wave of anti-Washington Tea Party sentiment, Pruitt won the election for Oklahoma attorney general.

That left attorneys in the poultry case and members of the office's Environmental Protection Unit wondering: What now?

How Pruitt handled the poultry case

Soon after the 2010 election, Page, who worked on Oklahoma's case against the poultry companies, saw Pruitt at a restaurant in Tulsa. Page had known Pruitt because they had previously worked on a legal case in the 1990s.

"I'll never forget this," says Page.

"We shook hands, and I said, 'You know, I can't wait to talk to you about this poultry case we have,' " Page remembers. "And he said, 'Well, you know, Dave, I don't believe in using lawsuits to change public policy.' "

Page says he believes Pruitt was sending the message that "he didn't believe in the poultry case."

In fact, Pruitt later told The Oklahoman, "Regulation through litigation is wrong in my view. ... That was not a decision my office made. It was a case we inherited."

Critics, including Page, say this demonstrates a double standard, given the fact that Pruitt repeatedly sued the federal government over matters of public policy like immigration, health care and the environment.

"I guess I learned that he does believe in lawsuits for changing public policy if it's a policy that he subscribes to," says Page.

By the time Pruitt took office in 2011, the judge, Frizzell, still had not issued a ruling. And as of May 2018, eight years after the trial ended, that is still the case.

Frizzell told NPR and StateImpact Oklahoma that a decision is "forthcoming" and has been delayed only by the case's complexity.

Environmentalists and former officials with the Oklahoma attorney general's office blame Pruitt for the lack of action.

"I would have thought of something [to push for a ruling]," says former Attorney General Edmondson, "a motion to wake up or something of that nature."

And Page says he believes the donations to Pruitt's campaign played a role in the lack of action.

"Of course," Page says. "I can see that he pretty much works with people who help his political career. So yeah, you give them money, you pay to play. That's all there is to it."

Pruitt ends the Environmental Protection Unit and modifies a water agreement

When Pruitt took over as Oklahoma attorney general, he also ended his predecessor's Environmental Protection Unit in favor of a Federalism Unit, intended to challenge the federal government over alleged "overreach."

Kelly Hunter Foster, who ran the Environmental Protection Unit until 2010, says she worries that Pruitt failed to prosecute polluters during his tenure as attorney general.

"The work can't be done in the same way in the absence of the Environmental Protection Unit," Hunter Foster says.

In response to a written question from U.S. Sen. Cory Booker, D-N.J., about the decision to end the unit, Pruitt wrote, "I determined that a standalone unit was operationally inefficient. I opted to combine the Environmental Protection Unit and the Consumer Protection Unit into a single unit."

But Hunter Foster, who now works for the environmental group Waterkeeper Alliance, compares the dismantling of the unit to removing a leg from a stool.

"There's an important thing that makes the whole system function that's disappeared," she says.

Hunter Foster also points to a key decision Pruitt made in 2013. That year, Pruitt extended the agreement with the state of Arkansas over water quality standards, and the stringent standard set in 2003 was suspended in favor of three years of additional study.

Pruitt called the agreement a victory for Oklahoma.

"This agreement ensures that the progress we've made will continue," Pruitt said at the time.

Ed Fite, who ran the Oklahoma Scenic Rivers Commission for more than three decades and still oversees the waterways for a state agency, said the agreement avoided possible litigation by industry or the state of Arkansas.

In a column for the Tulsa World, Fite called the agreement "a practical and economical approach that will yield enormous environmental benefits."

But environmentalists say the agreement was bad for the Illinois River.

They say the three-year study allowed for additional pollution to damage the watershed, and they contrast Pruitt's uncompromising approach to the federal government with his willingness to negotiate over water quality.

"So many great people worked together for so many years to just try to protect this one unique special watershed in Oklahoma," says Hunter Foster, who also helped negotiate the original agreement. "And for reasons that I cannot really fathom, the person who was Oklahoma's attorney general undid that, and then tells the public that ... it's a victory. I don't have a word for how that makes me feel."

Warning signs for the Illinois River

Pruitt and his defenders point out that water quality in the Illinois River has, in fact, improved in recent years.

The poultry industry says it has voluntarily removed more than 1 million tons of poultry litter from the watershed, even though the Oklahoma poultry lawsuit remains unresolved.

Environmentalists, however, worry the water pollution improvements could be tenuous.

New data from the Oklahoma Department of Agriculture, Food and Forestry show the amount of poultry litter applied in the Illinois River Watershed has doubled in the past three years.

Joe Wertz is a reporter with StateImpact Oklahoma; Tom Dreisbach is a producer with NPR's Embedded.

Copyright 2018 NPR. To see more, visit http://www.npr.org/.

MARY LOUISE KELLY, HOST:

Scott Pruitt, the head of the Environmental Protection Agency, first came to national prominence by suing the federal government. In fact, he sued the EPA 14 times when he was the attorney general of Oklahoma. Critics in Oklahoma say Pruitt was much less aggressive when it came to going after polluters and environmental crimes. Reporter Joe Wertz from StateImpact Oklahoma teamed up with the NPR podcast Embedded for this story on a major pollution case and how Pruitt handled it.

JOE WERTZ, BYLINE: In eastern Oklahoma, the culture and the economy run on the environment. The eastern part of the state doesn't look like how a lot of people imagine Oklahoma. So instead of sunbaked prairies and dusty tractors, think forests and rivers, kayaks and trout fishing. It's a poor part of the state, and people talk about water like it is oil, a resource that brings fishing and camping, rafting and big tourism bucks.

DENISE DEASON-TOYNE: Good morning.

WERTZ: Denise?

DEASON-TOYNE: Yes.

WERTZ: Joe Wertz.

DEASON-TOYNE: Hi, Joe. Nice to meet you.

WERTZ: How are you? Nice to meet you.

Denise Deason-Toyne is with a group called Save the Illinois River. I meet her at a city called Tahlequah at a place that rents out rafts and cabins.

DEASON-TOYNE: There's a place around here where we can walk down to the river. It's not too far.

WERTZ: We walk out to the banks of the river, and we can see the water is pretty green and murky. Denise says the river was a lot cleaner decades ago.

DEASON-TOYNE: I know enough people that have told stories about, you know, they could stand in the water up to their stomach and look and see their feet clearly. And just imagine how beautiful that would be.

WERTZ: The river is murky because of pollution. One source is wastewater treatment plants up the river in Arkansas. But there's another major source of pollution, too.

DEASON-TOYNE: If you drive up the river and you go cross over into Arkansas and go into some of the back roads, the amount of chicken houses in some locations is just overwhelming. It's like, wow. And each one of those holds, you know, several hundred, if not thousands of birds. So you imagine you've got someone with 2,000 chickens and the amount of chicken litter that they've got.

WERTZ: And when she says chicken litter, she means...

DEASON-TOYNE: Chicken poop, chicken poop, yeah.

WERTZ: There are a lot of chicken farms in the Oklahoma-Arkansas border area. And those farms produce a lot of poultry litter. That's feathers and feed and other junk from the bottom of a chicken house. But the real problem for the river is the poop, which is often disposed of by applying it out onto the land.

DEASON-TOYNE: They just spread it out there on their fields. And I'm told that it could grow grass on a rock. I mean, it is that good as far as a fertilizer.

WERTZ: But applying poultry litter over and over increases the concentration of nutrients like phosphorus, which build up and wash into rivers and lakes. That hurts aquatic life and fuels big algae blooms. That makes the water ugly and slimy and it can be dangerous for people to swim in. It's a really big problem for the river. In 2005, Oklahoma Attorney General Drew Edmondson filed a federal lawsuit to try to come up with a solution. He sued poultry companies to get them to stop putting waste in places where it could get into the river.

David Page was the first outside lawyer hired to work on the case, and he threw himself into it.

DAVID PAGE: We spent five years of our life preparing this case, doing the science. I mean, that's pretty much all I did for five years.

WERTZ: The trial didn't start until 2009 - 60 witnesses, 52 days of trial that was start, stop, interjections, objections on a complicated case that hinged on the intersection of law and science. The poultry companies brought out a huge team of their best attorneys, and they said the industry was being unfairly targeted, that they bring a lot of business to the area and that they were doing their best to deal with the chicken waste problem.

PAGE: We fought for every inch. It was like a famous Civil War battle where every square foot of property was fought with blood, tears and sweat.

WERTZ: The trial finally ended in February of 2010. And everyone started to wait for a ruling. A few months later, Scott Pruitt decides he's going to run for the attorney general seat.

(SOUNDBITE OF ARCHIVED RECORDING)

SCOTT PRUITT: My campaign for attorney general is about first principles. And it's about first principles because I believe that we have forgotten to live according to and under the Constitution. The government is not our master, it's our servant.

WERTZ: And during Pruitt's campaign, he gets donations from the poultry industry, at least $40,000 worth. His opponent took aim at him for this. Pruitt responded and said the criticism was ridiculous. A spokesperson for Tyson Foods at the time said their employees are free to support whoever they like. Pruitt rides the big Tea Party wave and wins the attorney general seat.

(SOUNDBITE OF ARCHIVED RECORDING)

PRUITT: Then we're going to use the courts to push back against Washington, D.C. And I look forward to being your advocate in that regard to make sure we stand for freedom in this great state.

WERTZ: At this point, David Page and the other attorneys are still waiting on a ruling in the poultry case. Page runs into Pruitt at a restaurant in Tulsa shortly after the election.

PAGE: I said, hi, Scott. He says, Dave, hello. And we shook hands. And I said, you know, I can't wait to talk to you about this poultry case we have. And he said, well, you know, Dave, I don't believe in using lawsuits to change public policy.

WERTZ: Within a few years, that's exactly what Scott Pruitt is known for, using lawsuits to force the federal government into a courtroom to change regulation and public policy. But he didn't seem interested in doing it here.

PAGE: So he was saying he didn't really believe, I guess, he was sending the message that he didn't believe in the poultry case. But I guess I learned that he does believe in lawsuits for changing public policy if it's a policy that he subscribes to.

WERTZ: Pruitt later said the poultry case wasn't his case and that he inherited it. Page and other attorneys say Pruitt did not work to move the case forward. They say there are legal techniques and tools that lawyers can use to prod a judge along. Former Attorney General Edmondson said he would have found a way.

DREW EDMONDSON: I would have thought of something, something creative, a motion to wake up or, you know, something of that nature. But I wasn't the attorney general after January 2011.

WERTZ: In fact, even today, eight years after the trial, the judge still has not issued a ruling. I called the judge. He said a decision is coming. Pruitt and the EPA did not respond to multiple interview requests or an emailed list of questions. When Pruitt became Oklahoma's attorney general, he also disbanded the office's environmental protection unit, which was created to bring cases against big polluters. In its place, Pruitt installed a new federalism unit to use the courts to beat back what he called federal overreach.

Kelly Hunter Foster ran the Environmental Protection Unit.

KELLY HUNTER FOSTER: The work can't be done in the same way in the absence of the Environmental Protection Unit. It just can't.

WERTZ: She's now an attorney for the Waterkeeper Alliance, an environmental group.

HUNTER FOSTER: It's like taking a leg off a stool kind of. There's an important thing that makes the whole system function that has disappeared.

WERTZ: Over the years, the water in the Illinois River watershed has actually improved. The poultry companies say they have voluntarily removed more than 1 million tons of waste from the watershed. Pruitt and his defenders say this is evidence that Oklahoma and Arkansas and industry can make the environment better without lawsuits and federal regulation. Environmentalists are worried the improvements might not last. New data from Oklahoma's Department of Agriculture show the amount of poultry litter applied in the watershed has more than doubled in the last three years.

For NPR News, I'm Joe Wertz in Oklahoma City. Transcript provided by NPR, Copyright NPR.