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Watchdog group seeks FOIA records on nonprofit EPA ‘bullied’ out of contract
Michal Conger, Washington Examiner, April 26, 2013
Environmental Protection Agency officials bullied a contractor into cutting ties with an air policy coalition designed to help states with cumbersome EPA clean air rules, the American Tradition Institute said Thursday.
ATI Files FOIA Request with EPA; Request Seeks Discussions Of Alleged Shakedown Of Private Contractor To Stop Working For Disfavored Group, Or Lose Government Business
Washington – Today, the American Tradition Institute (ATI) filed a Freedom of Information request with the Environmental Protection Agency (EPA) seeking all e-mails, instant messages (IMs), and texts from EPA’s Headquarters Office of Air and Radiation and/or Office of the Administrator that involve the Association of Air Pollution Control Agencies (AAPCA), and an EPA and AAPCA contractor, Battelle.
In January, a group of 17 states formed AAPCA in order to “create a technical forum to assist states with the application of various aspects of the Clean Air Act and associated regulations.” Apparently, the technical information generated by the group is not well received within EPA, and EPA has apparently intimidated at least one AAPCA contractor, Battelle, a nonprofit research and development organization, who appears to have succumbed to pressure from EPA to terminate its relationship with AAPCA for fear of jeopardizing current or possible future EPA contacts.
In a recent letter to the EPA, the Texas Department of Environmental Quality (TCEQ) expressed concern about this type of retaliatory actions by EPA against Battelle. In the letter, addressed to EPA Administrator for Air and Radiation Gina McCarthy, TCEQ questioned “EPA inform[ing] Battelle that Battelle would be required to terminate its contract with EPA or jeopardize other already established and future contracts Battelle has with EPA.”
In FY 2012-13, Battelle was awarded $14 million in EPA grants and contracts, and $239 million since 2005, according to USASpending.gov. This reliance on EPA grants and contracts would explain an EPA assumption that such pressure would work, and apparently it has, since ATI understands that Battelle dissolved the contract with AAPCA in March 2013 after EPA asserted this position.
“ATI is troubled by this credible allegation of ‘gangster government’ that, sadly, sounds all-too believable in the context of the past four years,” said Christopher Horner, ATI’s Environmental Law Center’s Director of Litigation, who filed the FOIA request. “As such, we look forward to learning what EPA officials said among themselves about this alleged mob-style intimidation of a private company, one more way to pressure states and advance an economically destructive agenda that was rejected by the proper, democratic process.”
Horner added, “We recognize, of course, that when dealing with in an administration, which early on made clear its attitude of “put nothing in writing, ever“, it is possible we will be left with a state regulator’s word against EPA’s. If that proves to be the case, we leave it to the public and lawmakers to decide whom to believe, based on their respective records.”
American Tradition Institute (ATI) is a public policy research and public interest litigation foundation advocating restoration of science and free-market principles on environmental issues, including air and water quality and regulation, responsible land use, natural resource management, energy development, property rights, and principles of stewardship. All supporting documents and images regarding the above-referenced litigation and findings may be accessed at www.atinstitute.org.
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ATI & CEI Dismiss IM Lawsuit Against EPA; Agency’s Detailed Response Prompts New Inquiries for Records
Washington – Yesterday, the American Tradition Institute (ATI) and the Competitive Enterprise Institute (CEI) withdrew their lawsuit without prejudice that they jointly filed against the Environmental Protection Agency (EPA), seeking to compel the Agency to respond to the groups’ requests for certain Instant Messages (IMs) to or from three senior current and former EPA officials. The groups dropped their suit after EPA provided an atypically specific response, openly acknowledging the availability of this previously unrevealed alternative to email it offers, asserting that no such records for the three officials ever existed, and that none of the three officials had ever used “the U.S. Environmental Protection Agency’s instant-message application.” This response also directed the parties to new lines of inquiry.
In its request at issue in this suit, ATI sought records relating to the Obama Administration’s “war on coal,” and its relationship with influential environmentalist groups like the Sierra Club, which like other green pressure groups, is involved in controversial and facially abusive “sue-and-settle” deals with the administration.
“We were forced to bring suit against the EPA because it had completely ignored our FOIA requests for this newly discovered class of communications, which, strangely, have apparently never been produced in response to FOIA and congressional oversight requests for ‘records’ and ‘electronic records’”, said Christopher Horner, lead attorney in the EPA FOIA suit, director of Litigation at ATI’s Environmental Law Center, senior fellow at CEI, and author of “The Liberal War On Transparency.” “We appreciate EPA’s uncharacteristically specific ‘no records’ response, and now look forward to answers to the questions it, and recent congressional testimony by Gina McCarthy, begs.”
Ms. McCarthy is President Obama’s nominee to replace Lisa Jackson as EPA Administrator. She testified at her recent confirmation hearing in front of the U.S. Senate Environment and Public Works Committee, “Have you ever used EPA instant messaging accounts?” She responded, “One good thing about being 58 is I don’t even know how to use them.”
Earlier this month, in the wake of widespread publicity regarding the ATI/CEI EPA lawsuit, acting administrator Bob Perciasepe sent a letter to all EPA staff reminding employees of their need to comply with open record laws. Most significant was his request to the EPA Inspector General to ensure that the agency does a better job of managing its IM record keeping. This represents the first admission that EPA does in fact use IMs to conduct business. (See ATI’s 4/9/13 press release for more details on Perciasepe’s letter.)
The parties are now requesting records whose existence is begged by Ms. McCarthy’s testimony, specifically seeking those that answer the questions:
- Did any of the three EPA officials, including Ms. McCarthy, sign or receive an acknowledgement or certification of training on the agency’s IM system;
- Were any of them ever registered users on EPA’s IM systems; and
- Did any of them have EPA’s IM system installed on their computers
How the public will learn whether these and other EPA officials indeed used non-EPA instant messaging systems, as EPA’s response to ATI and CEI begged, is an open question. It is one made more troubling by an EPA training PowerPoint document that the same groups discovered, and have brought to the attention of Congress, which encourages EPA staff to unlawfully make use of non-EPA instant messaging systems, specifically suggesting AOL and Yahoo, which of course would never be subject to federal record-keeping or disclosure laws.
The document also encouraged creating — and teaching other groups to create — websites on outside servers, where they “chat,” e-mail, and use other technologies whose trail will be difficult to follow with a cooperative agency, and likely impossible with one as committed to stonewalling “unfriendly” FOIA requests as this EPA.
Congressional oversight bodies have since also brought this document to EPA’s attention, seeking answers of their own. It, and other information developed by the parties to this lawsuit, have led the U.S. Senate Committee on Environment & Public Works Committee (Minority) to raise serious questions about EPA’s record-keeping and disclosure practices (“transparency”, and basic compliance with the laws). They have asked EPA five specific transparency requests in the hopes of “restoring public confidence that EPA will stop undermining public trust behind a veil of secrecy.” (See the EPW 4/24/13 blog for more information.)
“The EPA training document clearly illustrates that the agency has been pursuing ways around the law, unlawful means of conducting government business in a way they believed would allow them to work free from scrutiny, and, particularly, continue their collusion with outside interest groups,” said Horner.
“Our country is founded on the rule of law, we demand that our government conduct its business in the open as a way to protect all of us,” said Craig Richardson, ATI’s executive director. “What EPA has done with stonewalling and lying regarding various important FOIA requests, and the fact that they have sought to conduct official business in the shadows, will all be brought to the light, and ultimately EPA will be held responsible.”
American Tradition Institute (ATI) is a public policy research and public interest litigation foundation advocating restoration of science and free-market principles on environmental issues, including air and water quality and regulation, responsible land use, natural resource management, energy development, property rights, and principles of stewardship. All supporting documents and images regarding the above-referenced litigation and findings may be accessed at www.atinstitute.org.
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It’s Time for “Sound Science Day”
Yesterday marked the 43rd anniversary of Earth Day. Former Senator Gaylord Nelson (D-WI) is credited with founding the day in 1970. According to the EPA, Nelson believed that Earth Day was “a way to force this issue onto the national agenda. 20 million Americans demonstrated in different U.S. cities, and it worked!” By the end of 1970, Congress authorized the creation of the Environmental Protection Agency, and the rest is history, as they say.
In the beginning, Earth Day, and the increased focus on man’s impact on the the environment were sound developments. Policies were enacted that cleaned-up our air and water, many of which were initiated by the private sector.
Unfortunately, from the beginning, it was evident that extreme elements within the environmental movement, who would ultimately co-opt the effort, had a very different agenda. Following are some catastrophic predictions made at the time of the first Earth Day in 1970, which foreshadows how environmental zealots would approach the next forty plus years:
- “Dr. S. Dillon Ripley, secretary of the Smithsonian Institute, believes that in 25 years, somewhere between 75 and 80 percent of all the species of living animals will be extinct.” (Senator Gaylord Nelson)
- “It is already too late to avoid mass starvation.” (Denis Hayes, Earth Day’s main organizer)
- “Civilization will end within 15 or 30 years unless immediate action is taken against problems facing mankind.” (George Wald, Harvard Biologist)
- “Population will inevitably and completely outstrip whatever small increases in food supplies we make. The death rate will increase until at least 100-200 million people per year will be starving to death during the next ten years.” (Paul Ehrlich, Stanford University biologist)
- “Scientists have solid experimental and theoretical evidence to support…the following predictions: In a decade, urban dwellers will have to wear gas masks to survive air pollution…by 1985 air pollution will have reduced the amount of sunlight reaching earth by one half.” (Life Magazine, January 1970)
At one level, this hyperbole is actually humorous since its absurdity can be fully appreciated with the hindsight of history. As we all know, 80% of the living animals aren’t extinct, we haven’t had mass starvation, and most reassuring of all, our civilization did not end.
What isn’t funny, however, is that this type of over-the-top rhetoric has allowed EPA to justify much of its policies. Like any federal bureaucracy, once created, EPA had to find an ever expanding role to play, despite the fact that much of the initial work that it was created to address was complete. With air and water regulations in place, new “crises” were needed. These included global cooling, then global warming, and now climate change. With the help of environmental extremists and a sympathetic media, EPA uses new environmental “problems” to promulgate extensive regulations that are based increasingly on junk science, political science, and scare tactics. And it’s still going on today.
It seems the only thing missing in EPA’s approach today are proven scientific methodologies that seek to uncover the truth which can then lead to sound public policy based on facts not on a particular ideology or agenda. Maybe we can start a movement to create Sound Science Day.
ATI Joins Coalition Opposing NC Renewable Energy Mandates
The American Tradition Institute (ATI) joined other concerned public policy and grassroots organizations this week to oppose North Carolina’s renewable energy mandates. The state’s general assembly is currently considering legislation that would cap and end its mandated renewable portfolio standards (rps). Tom Tanton, ATI’s Director of Science and Technology Assessment, signed on behalf of the organization a letter that ATI and other coalition partners signed informing North Carolina state senators and state representatives that we are “opposed to the North Carolina government picking winners and losers in electricity generation and forcing its citizens to bear the higher costs.”
Dr. David Schnare Discusses New Colorado Bill That Validates ATI’s Lawsuit Challenging the Constitutionality of the State’s Renewable Energy Mandate on the Amy Oliver Show (4/4/13)
Dr. David Schnare, Director of ATI’s Environmental Law Center, appeared on The Amy Oliver Show to provide insights into the state’s attempt to “fix” its Renewable Energy Standard mandate with the introduction of Senate Bill 13-252 yesterday. In dropping the bill, members of the Colorado Senate and House admitted that the state’s law imposing a renewable energy standard is unconstitutional. This admission is of national significance and validates the lawsuit brought by the American Tradition Institute on behalf of Colorado ratepayers. In effect, Colorado is telling all states that have similar statutes that they are vulnerable to legal challenge and will have to change their laws to remove preferences for in-state producers.
ATI, CEI FOIA Suit for EPA’s Instant Messages Leads EPA Head to Acknowledge Poor Record Keeping and More
WASHINGTON – Stung by widespread publicity resulting from recent American Tradition Institute (ATI) and Competitive Enterprise Institute (CEI) Freedom of Information Act (FOIA) lawsuits seeking emails, and most troubling, instant messages (IM’s) filed against the Environmental Protection Agency (EPA), acting administrator Bob Perciasepe yesterday reminded EPA employees they are expected to comply with open-record laws. Notably, this all-staff memo promised to do better managing IMs — an alternative to email that we now know that EPA provides its employees, but which the Agency apparently has never provided to Congress or FOIA requesters.
This indicates the public should expect to hear, as soon as this week’s confirmation hearing for Administrator-nominee Gina McCarthy, whether EPA has simply been refusing to search and produce from IM accounts, or destroying the transcripts. As these are clearly federal records this would represent a possible violation of the U.S. criminal code, specifically 18 U.S.C. 2071 (Concealment, removal or mutilation of federal records).
“It is clear from Bob Perciasepe’s memo that our IM lawsuit prompted discovery of more EPA violations of record-keeping and disclosure laws. His mention of IMs for the first time publicly indicates EPA is about to reveal whether it has been sloppy, deceitful, or possibly even criminal in its refusals to turn these records over to FOIA requesters and Congress,” said Chris Horner, lead attorney in the EPA FOIA suit, director of Litigation at ATI’s Environmental Law Center, senior fellow at CEI, and author of “The Liberal War On Transparency.” ”Unfortunately, this hints that EPA will admit it has been destroying communications with and about anti-growth pressure groups with which it has been collaborating to set federal environmental policy. If so, EPA’s notorious and expanding ‘transparency’ troubles are only just beginning.”
Last week, ATI and CEI announced their joint filing of a lawsuit in the Federal District Court in Washington, D.C. seeking certain described EPA IMs, to and from former EPA Administrator, Lisa Jackson, nominee McCarthy, and one other former senior official. Responsive records will address the administration’s “war on coal”, and its relationship with influential environmentalist groups, including one, Sierra Club, involved in high-profile “sue-and-settle” deals with the Obama administration. (See ATI’s 4/1/13 press release for more details on the suit). The suit resulted in widespread media coverage, and calls from the U.S. Congress for greater transparency from the agency. Both groups are already in court seeking emails meeting similar descriptions.
“That the acting head of the EPA felt compelled to send this warning to his employees about open-record laws – letting on that EPA has found a problem with previously undisclosed IM correspondence and within days of our lawsuit seeking the same – clearly signals that EPA is worried about what we have uncovered, and is an admission that their house is not in order,” said Craig Richardson, ATI executive director. ”What is clear from Perciasepe’s letter yesterday is that many of these correspondence were not properly maintained and preserved – that is, deleted – and therefore probably lost forever. Given the EPA’s track record in recent years, one has to wonder if this was done deliberately,” he added.
“We will continue to hold the EPA’s feet to the fire with regards to transparency laws, laws that were put in place to stop precisely such secretive and abusive deals to make policy for which EPA is now famous,” said Horner. ”It is not right for the former EPA Administrator, or any public official, to use any means of communication to circumvent disclosure laws, particularly involving their dealings with close and often improperly influential allies. Sadly, be it IMs, private email accounts or even, in Lisa Jackson’s case, a false-identity account, that appears to be epidemic in this EPA,” he concluded.
American Tradition Institute (ATI) is a public policy research and public interest litigation foundation advocating restoration of science and free-market principles on environmental issues, including air and water quality and regulation, responsible land use, natural resource management, energy development, property rights, and principles of stewardship. All supporting documents and images regarding the above-referenced litigation and findings may be accessed at www.atinstitute.org.
EPA memo promises emphasis on transparency after FOIA lawsuit
Michal Conger, Washington Examiner, April 9, 2013
Acting Administrator Robert Persiacepe circulated an agency-wide warning to Environmental Protection Agency employees yesterday about complying with the federal Freedom of Information Act.
Dr. David Schnare Discusses New Colorado Bill That Validates ATI’s Lawsuit Challenging the Constitutionality of the State’s Renewable Energy Mandate on the Amy Oliver Show (4/4/13)
Dr. David Schnare, Director of ATI’s Environmental Law Center, appeared on The Amy Oliver Show to provide insights into the state’s attempt to “fix” its Renewable Energy Standard mandate with the introduction of Senate Bill 13-252 yesterday. In dropping the bill, members of the Colorado Senate and House admitted that the state’s law imposing a renewable energy standard is unconstitutional. This admission is of national significance and validates the lawsuit brought by the American Tradition Institute on behalf of Colorado ratepayers. In effect, Colorado is telling all states that have similar statutes that they are vulnerable to legal challenge and will have to change their laws to remove preferences for in-state producers.
Colorado Admits Certain Defeat In Renewable Energy Lawsuit With Introduction Of New Bill
DENVER - Facing certain defeat in a federal lawsuit challenging the constitutionality of Colorado’s Renewable Energy Standard mandate, lawmakers attempted to “fix” major elements of the law with the introduction of Senate Bill 13-252 yesterday. In doing so, members of the Colorado Senate and House admitted that the state’s law imposing a renewable energy standard is unconstitutional.
This admission is of national significance and validates the lawsuit brought by the American Tradition Institute on behalf of Colorado ratepayers. In effect, Colorado is telling all states that have similar statutes that they are vulnerable to legal challenge and will have to change their laws to remove preferences for in-state producers. Among states with such discrimination in their laws, California is the biggest offender.
ATI may still have to argue these unconstitutional preferences in court, however, because the bill is not a done deal. It contains “poison pills” that Colorado ratepayers and their representatives may not wish to swallow. The bill more than doubles the amount of renewable energy that electrical cooperatives must purchase by 2020, while also allowing these coops to immediately double the amount they charge for renewable energy. Further, the new, higher renewable energy standard cannot be achieved.
“This bill appears to remove some, but not all of the unconstitutional elements of the statute,” says Dr. David Schnare, Director of ATI’s Environmental Law Center and lead counsel for the plaintiffs, “but it also mandates new unconstitutional requirements by increasing the renewables standard to levels that, that like the current statute, cannot be justified when balanced against the harm they cause to interstate commerce.”
The bill’s sponsors have not publicly discussed their legislation, but its impact appears to be large. Based on the Beacon Hill Institute’s study of the Colorado renewables standard, this change in the law is going to mean the loss of thousands of Colorado jobs and increases in affected ratepayers’ bills by hundreds of dollars over the next seven years.
“Colorado knows it’s on the losing side of our lawsuit against their renewable energy mandate, and legislators are trying to sneak a bill through that magically makes it constitutional,” said Craig Richardson, Executive Director of the American Tradition Institute. “Their original renewable energy law is not only unconstitutional but it’s bad policy, and trying to fix it years later is like putting lipstick on a pig. The new bill, like the current law, still violates the constitution, and worse yet, it drives up the cost of energy in Colorado, kills jobs, and has no positive impact on the environment.”
“Wind power remains a high-cost, unreliable and therefore low-quality source of electricity and the portions of our law suit that this bill does not reach will put wind on trial,” concluded Dr. Schnare.
ATI’s Environmental Law Institute is a non-profit advocacy organization that brought its case against Colorado because the renewable energy standard actually causes harm to the environment, does not protect public health, causes economic loses for labor and rate payers and violates the Interstate Commerce Clause of the U.S. Constitution.
American Tradition Institute (ATI) is a public policy research and public interest litigation foundation advocating restoration of science and free-market principles on environmental issues, including air and water quality and regulation, responsible land use, natural resource management, energy development, property rights, and principles of stewardship. All supporting documents and images regarding the above-referenced litigation and findings may be accessed at www.atinstitute.org.
