Tomás Elias Carbonell

Tomás Elias Carbonell – Deputy Assistant Administrator – Office of Air and Radiation at Environmental Protection Agency

Carbonell was a senior lawyer for one of the world’s largest environmental special interest groups. Now he’s charged with overseeing the Clean Air Act and advancing the Biden Climate Agenda on those very same issues. Federal ethics regulations and the Biden ethics pledge require that he not participate in matters in which his former employer was a party.

This situation looks a lot like the case of Bill Wehrum, the Trump Administration’s air pollution chief at the Environmental Protection Agency, who stepped down amid an ethics probe into his ties to former clients.

Overview

In January 2021, Tomas Elias Carbonell joined the Biden Administration’s Environmental Protection Agency (EPA) as the Deputy Assistant Administrator for Stationary Sources in the Office of Air & Radiation (DAA). With his former employer’s endorsement as “one of the nation’s leading Clean Air experts,” his experience appears clear. However, his previous role as Senior Counsel and Director of Regulatory Policy for the Environmental Defense Fund’s U.S. Clean Air Program (EDF) could seriously complicate his ability to comply with his ethics obligations.

Environmental Defense Fund

The Environmental Defense Fund (EDF) is considered one of the world’s leading environmental non-profit organizations. According to Fortune magazine, “EDF has one of the most influential non-profit boards in the country.” It has an established global presence in virtually all of the major policy disputes involving clean air and climate change happening across the domestic and international landscape. Its annual Impact Report for 2020 supports this assertion.

More specifically, the Impact Report indicates involvement in almost every major issue facing the EPA today, including on most major litigation matters and regulatory efforts under the Clean Air Act. For instance, EDF’s 2020 Impact Report claims they “laid the legal groundwork enabling the incoming administration to undo the damage that has been done and restore strong protections.” It cites EDF’s involvement in at least 100 environmental cases against the Trump Administration, asserting 82 victories.

Its partnerships and coalition memberships are also vast. For instance, the Mom’s Clean Air Force is an EDF-affiliated group that is very active in clean air and climate issues squarely within the decision space of the Office of Air and Radiation. Between litigation, advocacy, and regulatory affairs, EDF and its related entities have been directly involved in numerous particular matters such as “regulation of federal methane emissions and associated toxic air pollution from the oil and gas industry, regulation of fossil fuel-fired power plants under the Affordable Clean Energy rule, and the Paris climate agreement.”

Internationally, EDF has a robust advocacy and outreach program. For example, it states it has been very involved in the launch of the Chinese carbon market. Similarly, the multi-national organization has been quite involved in India’s policies and carbon-related industry. The extent of EDF’s financial benefit from these various partnerships is unknown but until full disclosure, we are left to consider EDF’s Impact Report, which implies a close relationship with the power sectors and government officials of each of these countries.

Given the Biden Administration’s strong interest in promoting global action on climate change, a government-wide approach to developing international agreements should be expected. As the government’s central regulatory body in these matters, the EPA, and likely its Office of Air and Radiation, is sure to be consulted. Does Carbonell intend to weigh in on international air regulatory matters with the potential to unfairly benefit his former employers’ interests in countries such as China and India? Has he requested and sought clear guidance from ethics officials on his ability to do so without contributing to an inherent appearance of bias?

Biden’s Environmental Protection Agency

According to the EPA’s website, the Office of Air and Radiation (OAR) has a broad and important portfolio. As DAA for Stationary Sources, Carbonell will primarily be responsible for administering the Clean Air Act. As EDF highlights in a recent job post for the US Clean Air program that Carbonell worked for, these responsibilities will largely overlap with his previous job. So how will he fulfill these duties without running afoul of his ethics commitments?

It is no secret that climate change is a top priority for President Biden. To achieve his goals, the Administration has zeroed in on the Clean Air Act as the primary vehicle to advance many of the specific policies and repeal President Trump’s environmental legacy. Yet there is hardly an issue mentioned that Carbonell or his former employer did not work on over the last several years. Carbonell can not participate in any decision, deliberation or action where his former employer is a party or represents a party. This would appear to be dozens of matters. Has Carbonell thoroughly discussed this tension between his assigned duties, his prior employer and his ethics restrictions with the Agency’s ethics officials? Did he do so prior to joining the EPA and meeting with outside entities? Has he secured guidance in writing? If so, the agency should provide the public with all of the documents showing what entities and particular matters he will refrain from working on for the duration of his cooling off period?  The American public is entitled to a government that is free from actors who are benefiting their former employers.

Questions

Which EDF relationships are on Carbonell’s recusal list?

Are all of the companies represented by EDF’s highly influential board properly characterized as covered relationships on Carbonell’s recusal list?

Will Carbonell participate in international air regulatory matters, and without bias?

Does Carbonell intend to weigh in on international air regulatory matters, if fellow appointees across the Administration request his office’s input on international agreements? Will he be able to participate in an impartial manner while avoiding the inherent appearance of bias?

Which matters is Carbonell prohibited from weighing in on?

Given EDF’s involvement in legal and regulatory challenges to most major actions of the Trump EPA, what particular matters is Carbonell prohibited from participating in as DAA for Stationary Sources?

When did Carbonell receive ethics guidance regarding his recusals?

When did Carbonell receive complete ethics guidance on the list of covered relationships and particular matters from which he must recuse himself?

Did Carbonell meet with outside entities or participate in matters before receiving ethics guidance?

Did he begin participating in any particular matters or meeting with outside entities prior to receiving this guidance?

When will ethics guidance be provided to the public?

If he has received written ethics guidance, when will the guidance be provided to the public?