Whitehouse Leads Opposition to Donahue Confirmation: “Mr. Donahue may be the most unfit nominee ever for any federal agency’s general counsel”

On the Senate floor, EPW Ranking Member calls out Trump EPA nominee’s total lack of qualifications 

Washington, D.C.— U.S. Senator Sheldon Whitehouse (D-R.I.), Ranking Member of the U.S. Senate Environment and Public Works Committee, just spoke on the Senate floor to lead the opposition to the confirmation of Sean Donahue to be an Assistant Administrator of the Environmental Protection Agency.

“I rise today in opposition to the nomination of Sean M. Donahue of Florida to serve as the General Counsel of the Environmental Protection Agency,” said Ranking Member Whitehouse.  “Mr. Donahue may be the most unfit nominee ever for any federal agency’s general counsel.  As I said in my remarks in Committee, he would have trouble getting an entry-level legal position in any of our offices.  Yet here we are.”

“The Constitution provides the Senate with advice and consent power.  This power should carry real meaning—'advice and consent’ should not be empty words.  The Senate confirmation vote on Mr. Donahue moments away shows how little we care to live up to that Constitutional responsibility.  This is a truly preposterous nominee,” Ranking Member Whitehouse continued.

Ranking Member Whitehouse’s full remarks, as prepared for delivery:

I rise today in opposition to the nomination of Sean M. Donahue of Florida to serve as the General Counsel of the Environmental Protection Agency.  Mr. Donahue may be the most unfit nominee ever for any federal agency’s general counsel.  As I said in my remarks in Committee, he would have trouble getting an entry-level legal position in any of our offices.  Yet here we are. 

The Constitution provides the Senate with advice and consent power.  This power should carry real meaning—“advice and consent” should not be empty words.  The Senate confirmation vote on Mr. Donahue moments away shows how little we care to live up to that Constitutional responsibility.

This is a truly preposterous nominee. 

The EPA General Counsel is the chief legal advisor to EPA on environmental laws including the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, the Superfund Act; on the Agency’s development and implementation of regulations under its statutes; and on litigation strategy with DOJ in court challenges to agency actions.  The General Counsel supervises nearly 200 lawyers and 300 total staff.

Mr. Donahue has no experience qualifying him to do any of these things. 

He has never tried a case to verdict, never taken a deposition, never signed a pleading, and never argued a motion.  He has never personally litigated any case—let alone federal cases implicating our nation’s most important environmental laws.  

What has he done?  Mr. Donahue practiced law for a year and a half at a small firm in Buffalo that fired him for — his version — being “overloaded with work.”  He was not a member of the New York bar, however, and failed the D.C. Bar on his first attempt.  He claims to have supervised six to eight individuals, which seems a stretch for someone not even a member of the bar. 

And there is no evidence—whatever minimal and unsuccessful legal experience Mr. Donahue had—that any work he may have done bore at all on the laws and regulations applicable to EPA.

By comparison, the previous seven Senate-confirmed EPA General Counsels, in both Republican and Democratic administrations, had:

• Counsel Prieto?  Two decades in federal service, including as General Counsel at both the Department of Agriculture and DOJ’s Energy and Natural Resources Division.
• Counsel Leopold?  Fourteen years as an environmental lawyer and General Counsel of the Florida Department of Environmental Protection.
• Counsel Garbow?  Twenty-one years practicing environmental law in the public and private sectors, including at the EPA and DOJ.
• Counsel Fulton?  22 years of leadership roles at EPA, following 8 years at DOJ-ENRD.
• Counsel Martella?  Court of Appeals law clerk, seven years with the Natural Resources Section of DOJ, and Acting EPA General Counsel.
• Counsel Klee?  Law firm for nine years, Chief Counsel to the Senate Environment and Public Works Committee for five years, and senior counselor to the Secretary of the Interior.
• Counsel Fabricant?  Two years in private practice and five years as counsel, then chief counsel to then-New Jersey Governor Christie Todd Whitman.
• Donahue?  A year and a half, fired, then in-house counsel at a solar company, tried no cases ever.  

So why him?  One, he’ll be so grateful that he’ll do whatever he’s told.  He testified that the Trump Administration’s current assault on Congressionally authorized, appropriated, and obligated funding was legal; never mind multiple federal district court orders to the contrary.  

Two, who cares if he has neither experience nor knowledge?  He’ll be told what to do by fossil fuel polluter lawyers, so all he has to do is put what they want on EPA letterhead and file it.  

Oh, and the nepo thing.  His significant other is the Deputy Director of Presidential Personnel, a role with “purview” over every political appointment.

This is a pretty bleak low point in Senate nominations history.  I urge my colleagues to vote no.