by Clifford Smith
FME Law Counsel

When most Americans think of the Tennessee Valley Authority (TVA), they probably think of the Great Depression and Franklin Delano Roosevelt’s New Deal public works programs designed to employ the unemployed masses in the rural south.  The program was popular and fairly successful in providing cheap power  to area customers. As a result of its popularity the program survived long after the depression finally ended. The TVA has expanded and grown over the years, becoming a huge supplier of power.  While it is a government owned corporation, it still has a significant amount of independence and isn’t as politically “charged” as many other government agencies.

However, the current Administration has managed to politicize everything from the Department of Justice to the Internal Revenue Service.  In such an environment, even a nominally independent agency like TVA has thus began to feel the pressure to comply with an explicitly political agenda.  Reports indicate that the Obama Administration was intent on using all possible government agencies to crack down on climate change (read: to destroy the coal industry).  To accomplish this the Administration put forward its “Climate Action Plan,” which was “voluntary” for independent agencies like the TVA.  To learn more about TVA’s actions with regard to this plan, The Energy & Environment Legal Institute (E&E Legal) along with the Free Market Environmental Law Clinic (FMELC), decided to file a Freedom of Information Act (FOIA) request seeking information about TVA’s strategy to implement this “voluntary” plan, and to learn how it might affect rate payers and the energy industry as a whole.

While it is not uncommon to face resistance for FOIA requests that might potentially embarrass the powers that be, smaller government agencies like TVA tend to comply with FOIA laws more easily and readily than more politicized agencies like the EPA.  TVA, however, responded with a surprising level of unprofessional politicization and vitriol.

Some of the most important parts of the FOIA law for non-profit organizations are the fee waiver provisions, which entitle non-profits, media and educational organizations to waived or reduced fees for producing the documents these groups requested under FOIA.  Without a fee waiver, non-profits like E&E Legal and FMELC are prevented from doing their jobs because the prohibitive costs of FOIA requests would functionally block their requests since they would be cost prohibitive.  Indeed, legislative history indicates it was precisely to ensure non-profits, media and educational organizations would hold government accountable that legislators wrote these provisions into the law in the first place.  FOIA requesters often ask for these fee waivers, and agencies often grant such waivers as a matter of course.  If an agency denies a fee waiver then of course, requesters have a right to appeal within the agency to seek judicial remedies, and so forth.

In this case, without either waiving fees or denying fee waiver, TVA responded to E&E Legal and FMELC’s request with an unprecedented and invasive, 21-point questionnaire. The questionnaire repeatedly asked the requesters if the information on their websites was “accurate” and asked requesters to describe their “lobbying” activities, which non-profit organizations are prohibited from engaging, and asked about the “interlocking” nature of requesters’ organizations, among numerous other questions probing into the details of the requesters’ business practices.  Essentially, they were questioning the status of E&E Legal and FMELC as non-profits.  It was almost as if the requesters, rather than TVA, were the subject of a FOIA request.  It is worth noting that the requesters had already included 17 pages in their initial request fully explaining the facts and law relevant to the agency granting a fee waiver under FOIA.

This questionnaire was scandalous and reminiscent of the IRS’s widely publicized targeting of various “Tea Party” and other conservative groups who were also sent invasive, wildly inappropriate questionnaires.  In one sense, TVA’s actions were even worse than the IRS’s past acts, as at least the IRS had the authority to determine the status of these organizations, even if it  had blatantly abused its  tax collecting power. The TVA, on the other hand, was attempting to abuse power it didn’t even have.  It had no authority whatsoever to determine the status of non-profit organizations or to probe into their business practices.

Nonetheless, the requesters responded amicably, without giving in to TVA’s bullying, by answering the questions they could in good conscience answer, and providing TVA proof of the IRS’s determination that they were, in fact, non-profit organizations.  Requesters also pointed out that TVA lacked the authority to determine the requesters’ status.

TVA’s response was to double down.  They excoriated E&E Legal and FMELC’s response, implying they were acting illegally as “middle-men” for unnamed “supporters,” and making sweeping claims that requesters had an “apparent lack of understanding of TVA and its activities,” a false charge that was not up to TVA to determine in any event.  They also took a new and unprecedented step of listing other various organizations, that E&E Legal and FMELC management and counsel had previously or concurrently been employed by accusing them of being “alter-egos,” before finally denying a fee waiver and giving a fee estimate of almost $500 dollars for a few emails.

It could not escape notice that if TVA had taken the same amount of time to find and produce the records that it had in investigating the requesters personnel’s past employers and writing invasive questionnaires, the entire task would long since have been accomplished.  However, now having a concrete denial of a fee waiver and a fee estimate, the requesters paid under protest, and promptly appealed TVA’s decision.  In their appeal, they demonstrated not only that TVA was incorrect in not granting them a fee waiver, but also that TVA was acting well beyond the scope of its authority, and that it was not complying with the law. The appeal also pointedly explained that E&E Legal and FMELC intended to litigate this matter fully if their request was not granted promptly.

TVA suddenly backed off, maybe because they believed they would lose in court and/or they would embarrass themselves publicly.  They granted the fee waiver and produced approximately 60 pages of emails.  Interestingly, TVA also gave a detailed list of redactions made in these documents, explaining what was redacted and why.  Such a list is actually required by statute, but it is frequently ignored in practice by many agencies unless the issue is forced by the courts.

Unfortunately, while the documents give some information, namely just that TVA is in fact engaged in considering how to respond to the Obama Administration’s “Climate Action Plan,” and that TVA has met with groups such as Sierra Club to discuss issues related to the Administration’s plan; much of the discussion concerning its implementation is redacted.  Some of the redactions appear to be improper, and E&E Legal and FMELC are currently evaluating their options.

TVA’s imperfect and belated response would be troublesome enough.  Its vitriolic, unprecedented assault on the requesters in response to efforts at transparency shows just how politicized even nominally independent agencies like the TVA have become as a result of radical environmental policies.  This makes the mission of groups like E&E Legal and FMELC more difficult, and even more essential.