by Clifford Smith
FME Law Counsel

In the blockbuster film “The Dark Knight,” Gotham City’s heroic District Attorney, Harvey Dent, first made his name as the head of the Office of Internal Affairs in the notoriously corrupt Gotham Police Department. In that position, he investigated corrupt payoffs and crooked cops, which made him a lot of enemies and some friends. In Dent’s case, his determination to fight wrongdoing earned him notoriety and respect, later propelling him to the DA’s office.

Two organizations whose mission it is to fight for transparency, the Energy and Environmental Legal Institute (E&E Legal) and the Free Market Environmental Law Clinic (FMELC), are hoping to get the same kind of determination from EPA Inspector General Arthur Elkins investigating undue influence and conflicts of interest. E&E Legal and FMELC have written a letter to IG Elkins requesting that he investigate improper influence between various “green” lobby groups and EPA regulations concerning climate change.

This request comes on the heels of two separate events, one, an in-depth report by E&E Legal, the result of numerous Freedom of Information Act (FOIA) requests, that went into great detail concerning conflicts of interests, inappropriate collusion, and otherwise improper influence on important EPA regulations from outside “green” lobby groups. Second, it comes after a different outside group, the Citizens for Responsibility and Ethics in Washington (CREW), sent IG Elkins a letter requesting that he investigate the influence of other outside groups, namely the Carlyle Group and Delta Airlines, on the EPA’s Renewable Fuel Standards regulations.

While E&E Legal and FMELC have different opinions than CREW on some issues, they agree that transparency and openness are the hallmarks of good government. Transparency is the best tool for smoking out undue influence and improper collusion, be it from corporations or politically connected activist lobbyists. E&E Legal and FMELC further agree with CREW that IG Elkins, the watchdog statutorily charged to oversee the EPA, ought to investigate potential conflicts of interests and undue influence on important regulations.

Why are independent, outside organizations who do investigations professionally looking for help from an insider investigator like Elkins? Well, federal offices of inspectors general, similar to offices of internal affairs in police departments, are legally part of the organization they investigate. This means, unlike outside investigations using FOIA or other law enforcement agencies using discovery, these offices have access to all available information, including confidential memos, documents protected by attorney client privilege, and easier access to witnesses. Also, while they are part of the organizations they investigate, they are legally independent, and are not under the direct thumb of administrators that may have other agendas, and are free to investigate whatever they want, whenever they want. This gives them advantages no other investigators have.

Understandably, this position puts internal investigators like Dent and Elkins in a difficult spot. Our fictional hero Dent, as we well know, was labeled “Two-Face” for his work in Internal Affairs by Gotham Cops. Insiders are afraid of getting caught up in the investigation, while outsiders often wonder if the internal investigator is truly independent or part of the corrupt machine. So are internal investigators sufficiently independent? It’s a fair question, one that isn’t always easy to answer. Even the most hardened investigators could become biased when they are investigating the same people they work with day in and day out. In Elkins case, he was also a longtime EPA employee before he got the IG job. Emails obtained by FMELC also suggest that Elkins was recommended for the position by former EPA Administrator Lisa Jackson. It is fair to question Elkins ability to be truly independent. Also, E&E Legal has not always been a fan of the IG’s investigative methods in other cases.

Yet, as we have seen, internal investigators have special advantages. This is especially important for the EPA IG, as the EPA has been the picture-perfect example of how not to be a transparent organization. While FOIA does indeed have various exceptions that allow agencies to withhold some documents that clearly should be withheld, such as documents that have sensitive personal or corporate information, other exemptions are more broad and difficult to define, like documents deemed “deliberative,” i.e. documents discussing agency policy before it is made final. This vague standard is prone to abuse, and EPA abuses it to the hilt, withholding massive amounts of information that should rightly be available to the public through FOIA. Additionally, since much of EPA’s work is done by lawyers, much is withheld under attorney client privilege. Internal investigators are not hamstrung by these restrictions, although the EPA is so resistant to transparency, they have attempted to obstruct them anyway. Cracking through this opaqueness will the tools of an an aggressive, independent IG conducting a fair, unbiased investigation.

Like Dent in “The Dark Knight,” Elkins has a choice. He can choose to be blind to the problems around him so as not to rock the boat, or he can choose to use the tools at his disposal to challenge the people he works with every day to live up to a higher standard, the one the law demands. He has the ability, the question is, does he have the will and the courage? E&E Legal, FMELC and even CREW hope that he does. The EPA’s relentless resistance to transparency, and all of the negative implications that it brings about, require a thorough, unbiased, and independent investigation, and IG Elkins is the man statutorily charged to conduct it. Ultimately, such an investigation is good not only for the country, but for the EPA itself.