Judge Brings EPA to Fore on Climate Change Position

WASHINGTON (CN) – The Environmental Protection Agency faced a federal judge’s rebuke Friday for refusing to disclose records on which its chief relied when he said that human activity doesn’t drive climate change.

EPA Administrator Scott Pruitt made the statement during an appearance on CNBC’s “Squawk Box” on March 9, 2017, prompting Public Employees for Environmental Responsibility to file a request the next day under the Freedom of Information Act.

The environmental nonprofit sought the records because Pruitt’s statement directly contradicts the EPA’s own conclusion that the burning of fossil fuels is the primary human activity driving climate change.

But more than a year later, the EPA has still not searched for the records and says it’s not obligated to do so. Long before his appointment by President Donald Trump to the EPA, Pruitt earned a reputation as Oklahoma attorney general for his close ties to the energy industry.

EPA said the request, which the nonprofit eventually narrowed, was overly broad and burdensome. But the agency also argued that the request was “an impermissible attempt” to force the EPA and Pruitt to take a position on global climate change.

Judge Howell meanwhile called out this objection Friday as “hyperbolic.”

“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,” Howell wrote, abbreviating the Freedom of Information Act.

The chief judge pointed out that this runs counter to administrative law, which requires an agency to have a rational explanation for its decisions.

“EPA’s strained attempt to raise an epistemological smokescreen will not work here to evade its obligations under the FOIA,” the ruling says.

The Department of Justice did not immediately respond to an emailed request for comment on the ruling.

Paula Dinerstein, general counsel at the nonprofit behind the 2017 FOIA lawsuit, said the group is pleased with Howell’s ruling.

“She’s told EPA that if you’re going to change your position totally on climate change you’ve got to put up or shut up,” Dinerstein said in a phone interview. “You’ve got to reveal what the reasons are.”

Dinerstein said she thinks the EPA’s refusal to even search for the records shows that the agency is resisting any effort to unearth Pruitt’s reasoning and justification for claiming human activity is not a primary driver of global climate change.

“Whereas Scott Pruitt has been promoting this red-team, blue-team idea that we’re going to have a debate on this, there’s nothing there for the red team. They’re not showing anything,” Dinerstein said. “Now that they’ve been ordered to produce the documents we’ll find out whether there really is anything at all supporting the red team.”

In the ruling, Howell said she was puzzled by the EPA’s concern over taking a position on climate change since the D.C. Circuit has issued rulings based on the agency’s scientific evidence, which supports the proposition that human activity is driving greenhouse gas emissions that are warming the climate.

“Given EPA’s plain position on climate change presented in litigation before the D.C. Circuit and the Supreme Court, the FOIA request at issue may be viewed as seeking agency records underpinning a potential change in position signaled by Administrator Pruitt’s March 9, 2017, public statements,” the ruling says.

Howell ordered the EPA to complete a search for the records by July 2 and begin releasing them to Public Employees for Environmental Responsibility on a rolling basis.

The EPA must also provide the nonprofit with an explanation by July 11 for any documents it won’t release.

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