EPA Accused of Waging War on Transparency

SAN FRANCISCO (CN) – Accusing the U.S. Environmental Protection Agency of waging war on transparency, a federal lawsuit filed Wednesday claims new rules give the agency more power to deny public records requests, withhold information and prevent appeals against its decisions.

The Environmental Protection Agency Building in Washington. (AP Photo/Pablo Martinez Monsivais, File)

The plaintiffs, Ecological Rights Foundation and Our Children’s Earth Foundation, say the new rules will “insert political interference into what should be an objective” process and cause the EPA to “withhold information” that does not qualify for an exemption under the Freedom of Information Act.

The rule, published June 26 in the Federal Register, allows the EPA to redact portions of requested records if certain information in those files is not responsive to a specific FOIA request. This applies even if the information does not qualify for a FOIA exemption, such as exceptions for national security secrets and attorney-client privileged information.

The rule also sets a cut-off date allowing the EPA to not search for records produced after the date on which it receives a FOIA request.

It further requires all FOIA requests go through EPA headquarters, instead of EPA field offices, before they are processed, and it empowers EPA Administrator Andrew Wheeler to deny FOIA requests in the first instance and forbid appeals against his decisions.

Taken together, the new rules “will impede plaintiffs and other members of the public from successfully submitting FOIA requests to EPA” and hinder their ability to obtain public records, the plaintiffs argue in their 22-page complaint.

According to critics of the new rule, it follows an already pernicious pattern by the Trump administration’s EPA of failing to respond to FOIA requests within the time required by law.

The plaintiffs cite other policies the EPA has put in place, including a “first in, first out” policy that requires older FOIA requests submitted during the Obama administration to be processed before new ones.

The lawsuit references a June 11 letter by the U.S. House Committee on Oversight and Government Reform, which complains the EPA is “now responding more slowly, withholding more information, and rejecting more requests, according to EPA’s own data and independent sources.”

The plaintiffs claim the new FOIA rules were enacted without notice or an opportunity for public comment in violation of the Administrative Procedure Act.

The two conservation groups seek a court order invalidating the EPA’s new FOIA rules. The plaintiffs are represented by Christopher Sproul of Environmental Advocates in San Francisco.

Spokespersons for the EPA and Department of Justice declined to comment Wednesday.

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