Lawsuits soaring

Anti-secrecy lawsuits soaring against Pruitt's EPA

Freedom of Information Act litigation is pouring in as the agency refuses to divulge details about the administrator's activities and travels.

By EMILY HOLDEN

The Environmental Protection Agency has experienced a huge surge in open records lawsuits since President Donald Trump took office, an analysis of data reviewed by POLITICO shows — a trend that comes amid mounting criticism of EPA's secrecy about Administrator Scott Pruitt’s travels, meetings and policy decisions.

The legal attacks also reflect widespread interest in the sweeping changes Pruitt is enacting.

The suits have come from open government groups, environmentalists and even conservative organizations that have run into a wall trying to pry information out of Pruitt’s agency. The documents they’re seeking involve a broad swath of decisions, ranging from EPA’s reversals of the Obama administration’s landmark climate change and water rules to pesticide approvals and plans for dealing with the nation’s most polluted toxic waste sites.

Several of the cases involve requests for the administrator’s schedules and travel records, which EPA released routinely under past administrations but now refuses to make public except in response to lawsuits. Pruitt has drawn criticism for withholding information about those matters, and for the expenses he has run up by demanding round-the-clock security, installing an eavesdropping-proof chamber in his office and flying first class to avoid potential threats from critics in the coach cabins.

All told, plaintiffs have filed 55 public records lawsuits against EPA since Trump's inauguration, according to POLITICO's review of a database of cases compiled by The FOIA Project, an initiative run by the Transactional Records Access Clearinghouse at Syracuse University.

Forty-six of those lawsuits came in 2017, making it the busiest calendar year by far for open-records cases brought against EPA, according to data stretching back to 1992. The second-busiest year was 2015, when plaintiffs filed 22 such suits against the agency as it was completing major rules on topics such as wetlands protection and power plants' carbon pollution. The federal government as a whole has seen a rise in lawsuits over public records during Trump's presidency, but not at anywhere near the rapid uptick EPA is experiencing.

Former President George W. Bush's EPA — hardly a darling of the environmental movement — faced only 57 FOIA lawsuits during his entire presidency, according to the database's list of cases.

The agency has been especially slow to resolve information requests directed specifically at Pruitt's office, according to a separate data analysis that the Project on Government Oversight conducted for POLITICO.

Pruitt’s critics say the surge demonstrates how blatantly EPA is flouting the Freedom of Information Act under his reign.

“The FOIA process isn’t optional,” Sen. Tom Carper (D-Del.) said in an emailed statement. “The American people are entitled to know what government officials, including Mr. Pruitt, are doing with their time and taxpayer money. Yet, from the agency’s refusal to document major environmental policy decisions, to the fictitious ‘blanket waiver’ that it tried to use to justify Mr. Pruitt’s travel expenses, this EPA is evasive when it should be working to be transparent.”

EPA has seen a jump in FOIA requests under the Trump administration, especially for information specifically from Pruitt’s office. That increase, plus the agency’s new emphasis on answering years-old requests before addressing newer ones, has frustrated groups seeking the documents behind Pruitt’s rollback of environmental regulations.

From Jan. 20, 2017, to the end of last year, EPA received 11,431 FOIA requests, up about 17 percent compared with an equivalent period during former President Barack Obama’s last year in office, according to the analysis by POGO. Requests targeted at Pruitt’s office in particular rose fivefold to 1,181.

But Pruitt's office has closed only about 17 percent of the requests that deal specifically with his activities. EPA has been faster to resolve requests to other offices — the agency overall has closed 79 percent of FOIA requests filed since Trump’s swearing-in, and its Washington headquarters has closed 57 percent, the POGO numbers show. Closed cases include those in which EPA either provided some or all of the requested documents or declined to provide them.

If EPA ignores a FOIA request for more than a month or rejects it, filers can take the agency to court to try to force it to hand over documents.

The 55 FOIA lawsuits filed against EPA since Trump took office compare with 11 filed in the final 12 months of the Obama administration, according to The FOIA Project's database.

Those lawsuits, filed by groups ranging from Earthjustice to the conservative Cause of Action Institute, are seeking evidence of what businesses Pruitt might have consulted before deciding how to regulate pesticides, what information EPA considered in postponing rules for coal-fired power plants discharging polluted wastewater into waterways, and whether agency staffers are using encrypted messaging apps to evade records laws.

The lawsuits aim to compel EPA to provide Pruitt’s calendars and messages, as well as records about Pruitt’s plans for holding a debate about the scientific reality of climate change, and what he’s said in closed-door speeches to industry groups. The Sierra Club is also seeking documents about how EPA is processing FOIA requests, and two groups — Citizens for Responsibility and Ethics in Washington and Public Employees for Environmental Responsibility — filed a suit last week alleging that Pruitt has illegally told staffers not to take notes.

Environmental groups say they’ve seen a marked slowdown since Trump took office.

“As the administration has shown us time and time again, they’re operating under a cloud of secrecy that is further underscored by agencies like the EPA and their delay tactics by not responding to FOIA requests within the time frame that the statute requires,” said Margaret Townsend, an open government staff attorney at an environmental group called the Center for Biological Diversity. “The administration is so favorable to industry at the expense of human health and the environment. The American people don’t have the same ability — even though they have the right — to get this information.”

Eric Schaeffer, director of the Environmental Integrity Project, said EPA’s tactics seem designed to throw sand in the gears of the FOIA process.

“I think the idea is make it take a long time,” he said. “Why would you do that? Maybe that will result in fewer requests and less disclosure and maybe [they will] be out of here before some of this stuff starts turning up.”

But Lee Steven, assistant vice president at the Cause of Action Institute, said his group has long had trouble getting public records from EPA, even before Pruitt took over.

“We’ve found that if we really want to get movement on these FOIA requests, we have to sue,” said Steven, whose group is suing over records showing which staffers may be using encrypted messaging apps like Signal. “Most institutions that do FOIA requests don’t have the resources, time or expertise to do that. That’s not how it should be. You should not have to sue as a matter of course.”

EPA spokeswoman Liz Bowman said the agency is focused on clearing a backlog of requests left over from previous administrations, while responding to “the large volume of incoming requests.” EPA had more than 650 requests open from previous years as of early October and has since closed 60 percent of them, Bowman said.

FOIA staffers recently participated in a multiday event with EPA’s Office of General Counsel to more efficiently process requests submitted to Pruitt’s office, and they will take part in another event this month to improve efforts agency-wide, she added.

“This was an intensive effort led by career staff to maximize efficiencies, ensure the best use of resources and improve response time,” Bowman said.

EPA critics acknowledge that the FOIA process has always been slow and imperfect, though some say it has degraded even further during Pruitt's tenure. “It’s terrible for everyone,” Schaeffer said. “When you send your FOIA in you have to really dog it to make sure it goes to the right office and they understand the request. I think there are sort of long-term chronic issues, and I think it’s gotten worse.”

But environmental groups say EPA is using the backlog as an excuse to withhold current records. They are concerned that senior staffers are vetting the records releases, reviewing the information for politically sensitive details and slowing down the process. They also say EPA is increasingly shooting down their requests as overly broad and asking them for specific search terms, rather than topics or types of communications.

“There’s no question in my mind that Scott Pruitt’s administrator’s office is a serious obstacle to FOIA compliance,” said Austin Evers, executive director of the government transparency group American Oversight, which has obtained several months of Pruitt’s calendars through court action. “We experience it firsthand every day with straightforward FOIA requests languishing in his office for weeks at a time in a black hole.”

Earthjustice is part of a coalition suing for records about EPA’s decision to postpone wastewater discharge rules for power plants.

“This is not how government should work,” said Thomas Cmar, a staff attorney for Earthjustice. “The intent behind FOIA is that citizens are supposed to have the right to know what their government is up to, and clearly under this administration that’s not happening. Even if the process works the way it’s supposed to, you don’t get your documents until a year after your request.”

Public Employees for Environmental Responsibility, one of the watchdog groups suing Pruitt for allegedly telling staffers not to keep records, has also filed a lawsuit seeking communications about how Pruitt decided, in contrast to scientific consensus, that man-made emissions of carbon dioxide aren’t warming the planet.

“Virtually all of our EPA requests are going to litigation because there’s not any indication there will be production,” PEER Executive Director Jeff Ruch said.

Despite criticisms about its lack of transparency, Pruitt’s staff has declined to release his schedule ahead of time, contending it would jeopardize his security. In the past few weeks, he has appeared unannounced in Florida to meet with the state Farm Bureau and Chamber of Commerce, then spoke at an event hosted by the conservative Federalist Society at a Walt Disney World resort. He made a surprise trip to New Hampshire, where he met privately with Gov. Chris Sununu. He had planned a trip to Israel but postponed it after media reports detailing his first-class travel, which were triggered by FOIA responses that EPA released during legal battles with the Environmental Integrity Project.

EPA does post Pruitt’s past schedule on a public website, but the listings do not include all his meetings and rarely list attendees or the topics discussed. Some of the calendars Pruitt has released under FOIA lawsuits have also proved to be incomplete.

One updated record released to the Environmental Integrity Project in October included a previously undisclosed March 29, 2017, meeting between Pruitt and an executive from WaterGen, an Israeli company that sells technology that generates drinking water from air condensation. That meeting, the updated calendar noted, "came as a request of Sheldon Adelson," the casino billionaire and Republican megadonor.

Other than suing, groups concerned about how Pruitt is running the agency have little leverage in forcing the agency to open its files, because Republicans control the White House and both chambers of Congress.