EPA Must Produce Any Agency Records Supporting Administrator Pruitt’s Statement that Human Activity Is Not the Largest Contributor to Climate Change

Posted on June 8, 2018 by Seth Jaffe

Last Friday, EPA was ordered to produce documents, in response to a FOIA request, on which Administrator Pruitt relied in stating on CNBC that: “I would not agree that [carbon dioxide] is a primary contributor to the global warming that we see,” and “there’s a tremendous disagreement about of [sic] the impact” of “human activity on the climate.”

I’ve done a fair number of FOIA requests in my time.  The request here was about as plain and simple – and clear – as it is possible to be.  The extent to which the government contorted the request in order to make it seem impossible to answer did not sit well with the Court.  Here’s the request as modified by the plaintiffs.  They sought:

(1) agency records that Administrator Pruitt relied upon to support his statements in his CNBC interview,” and “(2) any EPA documents, studies, reports, or guidance material that support the conclusion that human activity is not the largest factor driving global climate change.

EPA objected to the request in part on the basis that it was an improper interrogatory that required the EPA to take a position on the climate change debate.  To which the Court stated that “this hyperbolic objection strays far afield from the actual text of both parts of the FOIA request.”

EPA also argued that the request was vague, asking “how is one to even know precisely what documents one relies on forming one’s beliefs.”  Yikes.  And what is the definition of “is,” Mr. Administrator?

I loved the Court’s response.

Particularly troubling is the apparent premise of this agency challenge to the FOIA request, namely: that the evidentiary basis for a policy or factual statement by an agency head, including about the scientific factors contributing to climate change, is inherently unknowable. Such a premise runs directly counter to “an axiom of administrative law that an agency’s explanation of the basis for its decision must include ‘a rational connection between the facts found and the choice made.  EPA’s strained attempt to raise an epistemological smokescreen will not work here to evade its obligations under the FOIA.”

Epistemological smokescreen.  Humph.

Nor was the Court done.  Responding to EPA’s objection to having to take a position on climate change, the Court trenchantly noted that:

EPA’s apparent concern about taking a position on climate change is puzzling since EPA has already taken a public position on the causes of climate change.

The bottom line?  EPA must complete a search for responsive documents by July 2, 2018, promptly disclose responsive documents, and explain any withholding by July 11, 2018.

This is not the first case under this Administration where I’ve thought how blessed I am that I’m not at DOJ and in the position of having to defend the indefensible from EPA.

Managing “Online” Info Impacts Agency Resources

Posted on February 26, 2015 by Irma S. Russell

The internet and social media have changed our lives in subtle and not-so-subtle ways.  Many of these changes are good.  Agencies offer an amazing array of information about their work and achievements on environmental issues.  Environmental NGOs and law firms provide websites and electronic newsletters with breaking news and hot topics in the environmental arena, catching our attention and educating us on important developments.  So today, everything seems to be just a click away.  (When was Ginger Rogers born anyway? And when did she and Fred star in Top Hat?  When will the EPA and the Corps finalize the “waters of the U.S. rule”?)  At any rate, information on environmental law and environmental issues is available faster than most of us would have dreamed when we began practice, and this on-demand on-line information is helpful.

Nevertheless, generally there are costs associated with benefits, and downsides as well as upsides to developments.  The sheer volume of information available online can be overwhelming.  Online research often leads to more questions and more research, creating confusion similar to a discovery response providing too many boxes of documents.  Managing and using voluminous and rapid-fire information can be difficult.  Moreover, the online and always “on” orientation can create heightened expectations – both by the public and clients.  The general sense has become that anything can be found online in an instant. (How many movies did Fred and Ginger make together anyway?) 

The goal of transparent government means agencies (including federal, state, and local agencies) make substantial information available on the internet.  The Freedom of Information Act of 1966 (FOIA) is by no means the only -- or even the primary -- tool for gaining information about the government.  The Federal Register provides a wealth of information.  Created in 1935, 44 U.S.C. § 1501, et seq. (2012), the Register now provides online access to virtually all agency decisions.  Additionally, numerous websites offer information on agency programs, processes, and enforcement actions, all without the need of filing a FOIA request.  For example, the U.S. Environmental Protection Agency (EPA) website provides scientific information relevant to environmental statutes, and extensive information on regulatory initiatives.  See, e.g., Environmental Protection Agency, Climate Change Science.  The EPA also gives specific guidance on how to submit a FOIA request.  See Environmental Protection Agency, Freedom of Information Act (FOIA).

Agencies invest substantial resources in the internet generally and social media in particular.  Necessarily the commitment to online access involves a cost, both in terms of expenditures and agency resources.  Recently EPA began using blast emails to get its message to the public on particular initiatives and to poll the public about environmental protection measures.  See, e.g., Thunderclap; Thunderclap, I Choose Clean Water, (Sept. 29, 2014) (showing EPA as organizer of the Thunderclap poll).

A dramatic recent example of the use of social media is found in the proposed rule on the “waters of the United States” (often referred to as “WOTUS”).  In April 2014, the EPA and the U.S. Army Corps of Engineers (Corps) published a proposed jurisdictional rule on waters of the United States for notice and comment.  The rationale of the proposed rule rests in significant part on the principles articulated by Justice Kennedy in his concurring opinion in SWANCC and asserts jurisdiction (by category under the rule) based on a determination that the nexus, alone or in combination with similarly situated waters in the region, is significant based on data, science, the CWA, and case law.  ACOEL and many other organizations and individuals commented on this important rule.  For a full exploration of the commenting process on the proposed WOTUS rule, see the article Social Media: Changing the Landscape of Rulemaking, by Nina Hart, Elisabeth Ulmer, and Lynn White, which will appear in the summer edition of Natural Resources & EnvironmentThe article reports on the increased use of social media in the rule making process, the dramatic number of comments submitted on the high-profile and contentious issue of classifying waters of the U.S., and the difficulties for the agencies in trying to respond to so many comments.  

While the difficulty of limited agency resources is nothing new, recent news coverage highlights the issue in the modern context of tight budgets. An example is found in the disappointing pace of EPA delay on the important work of listing toxic substances (showing EPA’s work of assessment of toxic chemicals has fallen below the pace set by the Bush administration). 

This is not to say that the burden of evaluating comments in one office of EPA is the cause of the shortfall on toxic chemical assessment in another.  Moreover, the difficulties of setting agency priorities and allocating scarce enforcement resources are new to no one.  Nevertheless, he challenges for EPA and other agencies in using the tools of the online age, including social media, are real.  As a practical matter, agencies need to give serious thought to reinventing government in the sense of using the technological tools to manage the growing flood of information.  Significant study will be required for agencies to fulfill the mission of educating and informing the public, managing data, and taking input seriously, all while meeting their statutory missions.