For Immediate Release:
July 16, 2014

Craig Richardson
[email protected]

EPA Bias on FOIA Fee Waivers – A Report on Abuses and Imminent Office of the Inspector General Whitewash

The Energy & Environment Legal Institute (E&E Legal) and the Free Market Environmental Law Clinic (FME Law) released a report today illuminating how, for the second time in recent months, the Environmental Protection Agency’s (EPA) Office of Inspector General (OIG) has improperly narrowed the scope of an investigation in a way that avoids addressing documented, inappropriate behavior of EPA officials.Specifically, the report documents evidence of EPA’s disparate treatment of disfavored conservative groups imposing delays and costing tens of thousands of dollars, mirroring the Internal Revenue Service (IRS) targeting of such groups. It also illustrates the impropriety of OIG’s design avoiding much of the evidence.E&E Legal and FME Law compiled this detailed exposé after an OIG interview with Chris Horner, counsel for both E&E Legal and the Competitive Enterprise Institute (CEI), revealed that office’s intention to “randomly” omit the most egregious evidence of the Agency’s abusive practice of unlawfully denying conservative requesters’ FOIA fee waiver requests. EPA thereby forces these groups into protracted, expensive administrative and judicial appeal processes instead of simply implementing the law as it is written – something they do for environmentalist groups with which it collaborates on a shared, aggressive regulatory agenda.OIG has indicated to Horner that it will not consider approximately half of the relevant evidence, — that pertaining to E&E Legal — but will focus on EPA treatment of groups that have not claimed a problem. By this decision OIG signals a whitewash of the practice in the very report that claims to investigate it. This comes directly on the heels of having been found to have improperly dismissed evidence of widespread use by senior EPA appointees of private email accounts for EPA correspondence, in a prior inquiry also urged by Congress.

EPA has in fact three times acknowledged to Horner, in writing, that it sets aside requests from him, or any group that EPA associates with him, for separate handling, treating them all as from him and regardless of the actual requesting party. It thereby admits the bias, and flatly contradicts its public denials of such practices. For OIG to work so hard to avoid addressing this is as self-discrediting an act as we can imagine.

This inquiry originated after a 2013 FOIA request submitted by Horner, on behalf of CEI, documented growing evidence of EPA fee waiver bias. The production yielded response letters showing the Agency’s pattern of denying fee waivers to conservative or limited-government “501(c)(3)” groups in overwhelming disproportion (EPA also simply ignored many of the groups’ requests, which also constitutes denial). When this drew media and congressional attention, EPA adopted a practice of largely avoiding substantive ruling on the groups’ requests. However, after OIG’s initial fact-gathering ended, and it decided to narrow the evidence it would consider, EPA resumed, and even magnified, its biased treatment of the disfavored groups.

Yet, as Mr. Horner notes, “The courts have made it very clear and for many years that fees may not be used as a barrier to the public’s right to know, particularly for non-profit groups whose missions include obtaining and disseminating public information. Regardless of ideology.”

Today’s report addresses EPA’s tactics imposing enormous costs on its targeted groups, even as EPA disingenuously claims that its bizarre refusal to provide the required cost assessments for record production — without which no request can proceed under EPA’s scheme — proves it isn’t actually costing the groups money. This ignores that EPA forces the groups to spend tens of thousands of dollars on unnecessary bureaucratic and legal wrangling. This time, of course, also would otherwise be spent reviewing and disseminating Agency information to the public.

Despite the groups’ shared experience, that EPA even acknowledges it treats their requests together as if they are sent from the same groups, and that EPA’s most egregious treatment as well as sworn evidence regarding this treatment involved E&E Legal requests, OIG narrowed its inquiry to only look into EPA’s treatment of FOIA requests made by CEI.

“Unfortunately, this Inspector General has once again tailored his investigation to avoid properly inquiring into evidence of abusive Agency practices,” said Horner. “Its claim to ‘randomly’ including CEI, and with equal randomness, excluding E&E Legal from an inquiry into allegations triggered by revelations of its treatment of both groups strains credulity; further, random examination, and instead examining into EPA treatment of others whose experience does not indicate they were similarly targeted, only makes sense if OIG is trying to change the subject and as it did once before simply to avoid the more troubling questions.”

“OIG’s decision is inexplicable, unless the explanation is simply to yet again avoid the more troubling questions,” said Craig Richardson, E&E Legal’s Executive Director.

This report is both an alternative to the product of OIG’s flawed process and a lens through which the OIG report should be read to reveal the true nature of bias at the EPA, all too familiar to those who have read of recent IRS abuses. Further, it complements recently revealed, deeper problems with OIG’s willingness and/or ability to carry out its mission of serving as watchdog over the Agency, as opposed to defense counsel.

The FME Law Clinic provides litigation and research services to qualified clients. We concentrate on cases involving landmark free-market pro-environmental litigation; use of open records and data quality laws to force greater governmental accountability and transparency; and, cases that allow the Clinic to help create the next generation of free market oriented attorneys.

The Energy & Environment Legal Institute (E&E Legal) is a 501(c)(3) organization engaged in strategic litigation, policy research, and public education on important energy and environmental issues. Primarily through its petition litigation and transparency practice areas, E&E Legal seeks to correct onerous federal and state policies that hinder the economy, increase the cost of energy, eliminate jobs, and do little or nothing to improve the environment.