EPA Keeps Everyone in the Dark

Want to see what EPA stonewalling looks like? Below's article by Sheryll Poe shows that for years the agency has shown little regard for government openness. The latest example is EPA dodging requests from state Attorneys General for information on “sue and settle” practices that impose new federal regulations with little public input. She also addresses a new database on “sue and settle” cases created by the U.S. Chamber.

by Sheryll Poe, Free Enterprise: From recent news reports, it’s becoming clear that the EPA will do just about anything to avoid any sense  of transparency.

The latest example of EPA foot-dragging and creative dodging comes at the expense of attorneys general in 12 energy-producing states. The AG’s have raised questions over the EPA’s use of “sue and settle” lawsuits as a short-cut to put in place expensive and burdensome regulations favored by activists and environmental groups.

For those who don’t know, sue and settle works like this: Environmental and consumer advocacy groups file a lawsuit claiming that the federal government has failed to meet a deadline or has not satisfied some regulatory requirement. The agency can then either choose to defend itself against the lawsuit or settle it. Often times, it settles by putting in place a “court-ordered” regulation or deadline to regulate, as desired by the advocacy group. Consequently,  the proper rulemaking channels and basic transparency and accountability standards are circumvented. The results are economically damaging rules.

Not surprisingly, the state attorneys general want some answers. However, they aren’t getting any from the EPA. As the Daily Caller reports:In February, twelve states — Oklahoma, Alabama, Arizona, Georgia, Kansas, Michigan, Nebraska, North Dakota, South Carolina, Texas, Utah, Wyoming — requested records pertaining to settlements the EPA entered into with environmental groups over state Regional Haze implementation plans.

The agency denied their request, arguing that the states did not express specific intent to disseminate the information to the public. However, the states did mention in their FOIA request that the information would be disseminated to the public. The states appealed, and the EPA has twice asked for more time to review the appeal.The Chamber recently compiled a database of sue and settle cases and their subsequent rulemaking outcomes. The results were eye-opening. The Chamber investigation shows that from 2009 to 2012, the EPA chose at some point not to defend itself in lawsuits brought by special interest advocacy groups at least 60 times.

These cases include EPA settlements under the Clean Air Act and the Clean Water Act, along with key Fish and Wildlife Service settlements under the Endangered Species Act. Significantly, settlement of these cases directly resulted in more than a hundred new federal rules, many of which cost more than $100 million annually.

The Chamber database also shows that several environmental advocacy groups have made the sue and settle process a significant part of their legal strategy. The Sierra Club has filed and settled 34 cases. By filing and then quickly settling lawsuits covering significant EPA rulemakings and regulatory initiatives, these groups have been able to circumvent the normal rulemaking process and effect immediate regulatory action with the consent of the agencies themselves.

Another popular diversionary tactic employed by the EPA relates to fee waivers for Freedom of Information Act (FOIA) requests. An investigation by the Competitive Enterprise Institutefound that the EPA often refuses to waive FOIA fees for conservative groups, while almost always waiving them for environmental groups.In a review of letters granting or denying fee waivers granted at the “initial determination” stage from January 2012 to this Spring, [CEI Senior Fellow Christopher] Horner found green groups, such as the Natural Resources Defense Council, Sierra Club, Public Employees for Environmental Responsibility and EarthJustice, had their fees waived in 75 out of 82 cases. Meanwhile, EPA effectively or expressly denied Horner’s request for fee waivers in 14 of 15 FOIA requests over this same time… “This demonstrates a clear pattern of favoritism for allied groups and a concerted campaign to make life more difficult for those deemed unfriendly,” Horner said.As the Washington Business Journal notes, “the waivers are significant since FOIA fees can run into the thousands of dollars – enough money to discourage groups from going forward with their requests for emails and other government documents.” In addition, it’s common practice to waive FOIA fees for media and public-interest groups. Instead, this is a clear case of EPA picking its’ friends and punishing its’ critics.

Luckily, Republican lawmakers, including Rep. Darrell Issa and Sens. David Vitter, Chuck Grassley and Jim Inhofe, are getting involved. They recently announced that they will be investigating CEI’s findings, and have asked the EPA to hand over all Freedom of Information Act fee waiver requests, responses to requests, and FOIA officer training materials since the beginning of the Obama administration.

The EPA could just follow the lead of  the White House Council on Environmental Quality (CEQ). They just take out their big black Sharpies and redact every single line of a FOIA-requested document. That’s what happened to the Chamber when it made a FOIA request to CEQ relating to agency records on climate change. As we wrote in 2010, the Chamber was told that CEQ had identified 87 documents totaling 759 pages that were responsive to our request. However, they could not release most of the documents because they "originated" with another agency but what they could release looked like this (see image above).

Maybe the EPA folks should stock up on Sharpies.

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Tags: EPA stonewalling , dodging, information requests, avoiding transparency, “sue and settle” lawsuits, EPA settlements, Clean Air Act, Fish and Wildlife Service, Endangered Species Act, The Sierra Club, To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. Thanks!