David Schnare’s career with the Environmental Protection Agency began in the agency’s infancy in 1978 with the critical mission of implementing the new Safe Drinking Water Act. Over the next 33 years, he would call the EPA home as an enforcement lawyer and policy analyst, while also working in his outside time to try to undermine some of the agency’s pressing priorities.
During his tenure at the EPA, Schnare simultaneously directed a conservative think tank’s environmental program that opposed regulation as a pollution remedy. He testified to Congress that carbon regulations do greater harm to the environment than carbon dioxide. He also co-founded a legal organization funded partly by fossil fuel interests, and through that group launched an effort to make public climate scientists’ private emails to call their work into question.
Now in his late 60s, Schnare returns to the EPA in a far more powerful role: reshaping it under another foe of regulation, President Donald Trump. He is one of 11 appointees to the agency’s beachhead team that is beginning to implement the administration’s agenda, which Trump has promised will include a rollback of environmental regulations. Schnare said he’s been asked to stay on full-time beyond the transition. That’s a chilling prospect for environmental and climate activists, who worry his history of aggressive campaigns against scientists and fossil fuel regulation mean he will work against the agency’s mission.
“The bottom line is he has been a virulent EPA critic who has worked to block health protections saving many tens of thousands of lives a year,” said John Walke, director of the clean air program at the Natural Resources Defense Council.
The EPA, created by President Richard Nixon, is charged with protecting the nation’s air and water from pollution. The agency has calculated the health and economic benefits of the Clean Air Act would amount to $2 trillion a year by 2020. Schnare believes the EPA has overstepped its authority, with little public benefit, especially in its efforts to regulate greenhouse gases. He filed a lawsuit to stay EPA regulations on fine particle air pollution from coal plants and vehicles, which could have affected nearly 60 rules.
In an emailed response to questions, Schnare, who retired from the EPA in 2011, said, “I believe in the institution and the extraordinary collection of scientists, engineers, economists and other staff who have been my colleagues in the past and whom I’m proud to rejoin today.”
Schnare would not give specifics about his new job and would not speak by phone; such communications would need to be cleared through the EPA’s office of public affairs. He also did not directly address questions about his work countering the agency’s regulatory mission.
But in a lawsuit he filed against the EPA in 2012, he said, referring to himself in the third person: “In the last years with the agency, he realized that the EPA had abandoned much of the even-handed, science-based approach to protection of human health and environment that had marked its early years.” Schnare said he left the agency in 2012, “in part, because senior appointees and employees had rejected the core values held by honest scientists and civil servants.”
Michael Thompson, a friend and fellow conservative activist, said there’s no contradiction in Schnare’s work history. They worked together to block highway construction and water pollution in their Virginia community as well as to fight government regulation. “I consider him a real environmentalist,” Thompson said. “He’s not a ‘don’t use our resources’ kind of guy.’ He believes in using resources in the best way possible, and we shouldn’t be shutting out various forms of energy that our economy relies on.”
A Dual Career
Schnare said he developed a devotion to public service while studying for his environmental management Ph.D. in the 1970s at the University of North Carolina. He got his law degree in 1999 from George Mason University’s School of Law, which has a reputation for advocating conservative and libertarian values.
That year, while at the EPA, Schnare became director of the Center for Environmental Stewardship at the Thomas Jefferson Institute for Public Policy, a conservative think tank. Schnare organized conferences and produced papers promoting market solutions to pollution. As a witness for the institute in 2007, he testified to Congress that regulating global warming gases, not global warming itself, was the threat to the Chesapeake Bay. A year later, he became general counsel and chairman of the board of Energy & Environment Legal Institute (E&E Legal), then known as American Tradition Institute. (Schnare said he did this work off hours, with agency permission.)
Through E&E Legal, Schnare became an aggressive antagonist of the EPA and environmental policy and research—especially by challenging the work of prominent climate scientists.
He took particular interest in Michael Mann, known for his “hockey stick” graph that showed how Earth’s recent warming is unprecedented in the past millennium.
While at the EPA in 2011, Schnare filed a Freedom of Information Act request seeking access to more than 10,000 of Mann’s emails over 12 years in an attempt to find wrongdoing. He sued Mann’s former employer, the University of Virginia, for the documents. (Schnare left the EPA the year the suit was filed.) Although Mann won the case, it took three years and thousands of dollars in lawyer fees, and sent chills throughout the climate science community.
Schnare went on to pursue emails and other records of at least a half-dozen other prominent climate scientists: former NASA scientist James Hansen, Katharine Hayhoe of Texas Tech, Andrew Dessler of Texas A&M, Donald Wuebbles of the University of Illinois, and Malcolm Hughes and Jonathan Overpeck of Arizona State. The last case is ongoing. Schnare said he has received permission from the EPA to complete the suit.
In 2012, Schnare sued to stop the EPA’s research into effects of fine particulate pollution on human health, an area of study that underpins much of its clean air regulation, on unusual grounds that the program’s methods were unethical. The move could have blocked as many as 57 clean air regulations. (Long-term exposure to particulate pollution can cause serious health problems, including lung cancer.) A federal judge threw the case out.
E&E Legal also specializes in using the Freedom of Information Act (FOIA). It has sent about a dozen document requests to the EPA. About half ended up in court over fee disputes, according to Schnare. The group obtained EPA emails in one case in which it sought to uncover what it called the agency’s “uncomfortably close ties” to the American Lung Association and the Sierra Club.
E&E Legal has also filed FOIA requests at eight other federal agencies, from the Tennessee Valley Authority to the State Department, seeking government officials’ records and correspondence in more than 20 matters involving the fossil fuel industry. The group recently released emails obtained through the use of FOIA that show attorneys general considering investigating Exxon over climate change were briefed by environmentalists, which it described as secretive collusion.
Climate Scientists a Target
Schnare founded E&E Legal with Christopher Horner, a senior fellow at the industry-funded Competitive Enterprise Institute who has disputed the science of global warming in public statements and legal filings. E&E Legal is not required to disclose its donors. But tax records obtained by the Institute for Southern Studies show its contributors have included the Atlas Economic Research Foundation, an anti-regulation grantmaking organization that has received funding from ExxonMobil and the Koch brothers network. E&E Legal also obtained funding from Arch Coal and was part of a network of organizations that took in funding from Peabody Coal.
Schnare said his interest in establishing the group was in constitutional issues, such as states’ rights, but he hasn’t made headway in the courts with his novel claims.
He launched a bold challenge, for instance, to Colorado’s renewable energy standard—among the most progressive in the nation—arguing it creates an unconstitutional impediment to interstate commerce by putting coal power at a disadvantage. U.S. District Judge Neil Gorsuch, now Trump’s pick for the Supreme Court vacancy, ruled against him. Gorsuch said Schnare was asking for an expansion of the meaning of the Commerce Clause, “an audacious invitation we think the [Supreme] Court unlikely to take up.”
Schnare’s litigation to obtain emails of climate scientists, however, has had impact, even without succeeding. Schnare maintains that the purpose of his FOIA litigation has been transparency—the right of the public to know what employees of government agencies and public universities are doing, especially climate scientists whose research can have far-reaching policy consequences.
Public records laws have exceptions, however, and Mann won his case because the Virginia Supreme Court ruled that the researchers’ emails were proprietary information. If all faculty emails were subject to FOIA disclosure, it would cause “harm to university-wide research efforts, damage to faculty recruitment and retention, undermining of faculty expectations of privacy and confidentiality, and impairment of free thought and expression,” the court said.
Mann’s lawyer, Peter Fontaine, argues that although his client won the right to keep his past emails private, science lost. “These requests are really meant to chill academic, freedom of inquiry and expression, putting a pall over what are meant to be private correspondence between researchers,” Fontaine said. “I can tell you it’s incredibly burdensome to the professors who are subject to these failed attacks. It’s incredibly stressful, and incredibly corrosive, and that’s all by design.”
In the University of Arizona case, which is ongoing, Schnare is seeking more than 20,000 emails, seven years of correspondence of two researchers, Hughes and Overpeck, who had collaborated with Mann. The two scientists, Schnare’s opening brief said, were part of “the small coterie of academic climate alarmists, and one engaged in activism with and for environmental pressure groups.”
“Responding to the E&E Legal records request was and is a burdensome and dispiriting task and continues to be, diverting my energies and attention from productive work to a notable degree,” Hughes wrote in a declaration filed with the court.
Lauren Kurtz, executive director of the New York-based Climate Science Legal Defense Fund, said her group was established three years ago largely in response to the litigation by Schnare and E&E Legal. “He couches his work in a very noble goal of transparency, but he doesn’t ask for their research or methodology or the studies themselves. He goes for the emails.”
Michael Halpern, deputy director of the Center for Science and Democracy at the Union of Concerned Scientists, said, “He works with organizations that have very cloudy and oblique funding to waste the time of scientists all over the country, and the ultimate impact of a lot of the work of the organizations that he’s been involved with is to manufacture uncertainty about what we know.”
Schnare said that he “severed all ties” with the E&E Legal, the Thomas Jefferson Institute, and other groups he has worked with (though his work on the Arizona case continues). “That was a bittersweet decision, but when your president asks you to come back to government and serve the nation, it is a call one can’t ignore,” he said.
Coming Home Again
The EPA still awaits a permanent administrator, with Scott Pruitt, the Oklahoma attorney general whom Trump nominated, awaiting a confirmation vote. (Coincidentally, Pruitt’s confirmation has been delayed while a legal advocacy group seeks release of his email communications with fossil fuel companies.) Pruitt shares Schnare’s views that federal regulation has gone too far and has become a burden on the economy.
In his email to InsideClimate News, Schnare expounded on those views. “The unregulated risks in water and air (not to leave out the other programs) are…very small” compared to the EPA’s early days, he said. “In contrast, the cost of addressing these unregulated risks is very large.”
But the agency is confronted with similar challenges as the 1970s, he said: “How safe is safe enough? What is an acceptable risk? And are we imposing costs that result in so much economic harm that the net effect on human health is negative? These are tractable questions, policy driven, but often shrouded in emotional overtones that have the potential to sway the agency away from its core function of a balanced, science- and economics-based rational decision.”
When asked how it feels to be back at the agency he left behind, Schnare said he’s honored.
“EPA was my work home for so many years, it is impossible to feel like an outsider,” Schnare said. “I see many old colleagues (yes, some of us are getting old) and many folks with whom I’ve worked in the past…I have always respected their talent and their commitment to our core mission and coming back simply reinforces that.”