Press Release: E&E Legal Sues EPA For Failure to Release FOIA’d Selenium Documents

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For Immediate Release:
April 1, 2014

Craig Richardson

E&E Legal Sues EPA to Compel Production Under FOIA of Records Related to the Agency’s Regulation of the Trace Element Selenium, Which EPA Has Used in its Ongoing “War On Coal” to Deny, and in One Case Retroactively Veto, Mining Permits

Washington, D.C. – The Energy & Environment Legal Institute (E&E Legal) along with its counsel, the Free Market Environmental Law Clinic (FME Law), has filed suit in the U.S. District Court for the District of Columbia against the U.S. Environmental Protection Agency (EPA), for that agency’s latest in a pattern of biased demands for thousands of dollars in fees to block certain groups from accessing public records under the Freedom of Information Act (FOIA). In this way, EPA is mimicking well-known IRS abuses to wear down disfavored groups and stop them from fulfilling their missions.

This case involves the Agency’s controversial veto of an already-granted permit to the Spruce No. 1 mine in Logan County, West Virginia and, more broadly, to shut down Appalachian coal mining in the name of one insect, the mayfly, whose populations EPA says are harmed by surface mining.

Under FOIA, a request delayed is a request denied, and EPA seems uniquely focused on delaying and denying E&E Legal’s requests of late, costing the group many thousands in staff and attorney time on needless administrative appeals and then litigation.

For the sixth time EPA has denied E&E Legal’s statutorily provided waiver of fees, to withhold every record in its entirety sought by a December 5, 2013 FOIA request. EPA habitually insists that E&E Legal “failed to express an intention to broadly disseminate” the requested information, regardless of how many pages E&E Legal dedicates to saying precisely that. The Agency is so ham-fisted in its abuse that E&E Legal recently inserted a “chalkboard” in a request on which they wrote ten times, “We intend to broadly disseminate responsive information”, in addition to extensively elaborating how and their pattern and practice of doing so. EPA promptly denied that request stating that plaintiffs failed to express an intention to broadly disseminate.

“EPA’s push to protect the mayfly is not about cleaning up the environment, but an obsession with shutting down coal in America,” said Chris Horner, FME Law counsel who filed the complaint. “This administration vowed to ‘bankrupt’ the coal industry, plainly an ideological move but one with grave human consequences. As our complaint notes, other documents obtained show EPA is conducting this campaign in partnership with green pressure groups, incredibly defining “stakeholders” as meaning “key supporters”. The public has a right to know more about this campaign, and EPA’s behavior to hide what it is doing with taxpayer money to our economy is outrageous.”

The Spruce mine had been granted a permit by the Army Corps of Engineers in early 2007; on January 13, 2011, the EPA retroactively vetoed the Corps’ permit. EPA’s overt power grab and unprecedented usurpation of the Corps’ authority has earned scathing criticism from a federal district judge, and Senator Jay Rockefeller was quoted in the Parkersburg News and Sentinel late last month, “The EPA never should have retroactively vetoed the permit.” EPA’s action was overturned by the U.S. District Court for D.C. but upheld by the D.C. Circuit Court.

“EPA’s rejection of our request on another improper and even facially absurd demand for fees is very troubling and, unfortunately, a common practice by the Agency to delay and thereby deny access to public records for certain groups that do not share their ‘worldview’,” said Dr. David Schnare, E&E Legal General Counsel and a former EPA employee with more than thirty-three years of tenure at the Agency. “Their basis for denying fee waiver is, once again, untrue on its face given our request’s plain assertions that we plan to continue what EPA knows all too well we do, which is broadly disseminate agency information to educate the public on EPA activities.”

E&E Legal and FME Law filed an appeal with EPA’s headquarters challenging the Agency’s denial on December 20, 2013, reiterating and elaborating on their already expressed intention and ability to disseminate the requested information. EPA then fell silent until March 7, 2014 – more than two months later and well past the 20 days response time required by law – when the agency sent a letter indicating that the Office of General Counsel denied the appeal and fee waiver request, and said they would not process the request until a substantial payment was received.

Except EPA had by then already waived its right to even seek fees — let alone persist in its facially absurd claims to deny them — by sitting on the request. It further waived any right to seek fees by refusing to provide a promised fee estimate, both part of a pattern of abusive EPA practice against groups that generally oppose its regulatory agenda.

Yesterday, after close of business on the date EPA had promised to produce responsive records, the Agency sent E&E Legal and FME Law 724 pages of published papers, regulatory comments, a Government Accountability Office (GAO) report and otherwise publicly available documents not covered by FOIA; approximately 600 pages from Excel spreadsheets converted for some reason from non-native format into useless and often blank pages; and reiterated its refusal to process E&E Legal’s request without assurance of payment of fees it is not entitled even to seek.

“The EPA had more than sufficient time both to address our request, and to make a proper judgment on our fee waiver appeal,” said Horner. “Unfortunately, the Agency continues to take months to respond, when it responds at all, and even then it does the wrong if by now predictable thing. The law is clear and, as we have been around this block with EPA before, it is not plausible for the Agency to claim ignorance on this. Once again they will have to explain their actions in Federal Court. Regardless, every time the Agency uses these tactics they do succeed in delaying disclosure and wearing down smaller, private parties with far fewer resources than the federal government.”

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.

The Free Market Environmental Law Clinic (FME Law) 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.