The EPA has an IRS problem.
The agency has rubber-stamped fee-waiver requests from environmentalist groups seeking information, but it denied similar requests from conservative groups, an extensive examination of EPA correspondence suggests. It’s the latest instance in which federal agencies have used their executive authority against perceived political opponents.
Public information about government can be obtained through a Freedom of Information Act request. If a requester plans to use the information to improve public understanding about a policy issue or government operations, rather than putting it to commercial use, Congress has decided that the fees for collecting and transmitting this public information can be waived.
The Competitive Enterprise Institute obtained 1,200 pages of EPA correspondence between January 1, 2012, and April 26, 2013, in circumstances that appear to indicate the process is handled unfairly. A congressional review of these documents showed that environmental groups’ fee-waiver requests were approved 92 percent of the time, while CEI saw 93 percent of its fee-waiver requests denied. Only 8 percent of the total number of FOIA fee waivers granted went to conservative think tanks; their requests were denied 73 percent of the time. (Full disclosure: My employer, the Franklin Center, is one of the conservative groups whose requests were examined.)
Alisha Johnson, an EPA spokeswoman, would not answer specific questions about the statistics that suggest disparate treatment. “We make FOIA waiver determinations based on legal requirements, and these are consistently applied to all fee-waiver requests, so those determinations are not based on the identity of the reporter or the requester in general,” she says. Johnson added that EPA planned to review its criteria to “ensure that our FOIA process remains fair and transparent.”
But Chris Horner, a senior fellow at CEI and one of the central players in the controversy, says the records he has obtained, as well as his personal experience, have suggested the EPA has been “throwing what can be tremendous, even fatal, hurdles in the way to impede people that they don’t like. [The fees] can go up into the six figures. . . . This gets pretty nasty.”
Republican senators Charles Grassley (Iowa), James Inhofe (Okla.), and David Vitter (La.), along with representative Darrell Issa (Calif.), voiced concerns this week about the implications of FOIA fee-waiver favoritism in a letter to the EPA’s acting administrator, Bob Perciasepe.
“This disparate treatment is unacceptable, especially in light of the recent controversy over abusive tactics at the Internal Revenue Service, which singled out conservative groups for special scrutiny,” the legislators write, adding that “the startling disparity in treatment strongly suggests EPA’s actions are possibly part of a broader effort to collude with groups that share the agency’s political agenda and discriminate against states and conservative organizations.”
The four Republican legislators have asked the EPA to submit by May 31 all fee-waiver requests since Obama took office so they can be reviewed, says Luke Bolar, the communications director for the Senate Committee on Environment and Public Works.
But according to several sources, the EPA’s transparency problem isn’t limited to fee waivers. They say the agency has also stalled on public-information requests from conservative groups and business groups. And when the EPA does fulfill a request, it heavily redacts information, they say.
Luke Popovich, a spokesman for the National Mining Association, says that given his organization’s experience, as well as the experiences of other fossil-fuel industry groups, “it would not be surprising if this practice was as common as the critics say it is. It is surpassing strange that green activists seem to have a much easier time in getting documents and getting them way ahead of the curve.”
Bonner Cohen, a senior fellow at the National Center for Public Policy Research, tells me he’s experienced multiple delays when requesting public information from the EPA, and “the delay eventually becomes denial.” When he has received the information he requested, it’s often heavily redacted, “and we’re not talking about one word or sentence — sometimes, whole paragraphs or whole documents.”
The Chamber of Commerce has also experienced difficulties obtaining information from the EPA. Bill Kovacs, the senior vice president of environment, technology, and regulatory affairs, says that he sent a request in September asking for access to any of the EPA’s job-analysis reports done under Section 321 of the Clean Air Act. The EPA filed a request for extension in December, January, and February. In March, Kovacs says, the EPA told him that the computer system was changed, files had been damaged, and he’d have to begin his request all over again. “We’ve still never gotten a response,” he says.
In another instance, Kovacs explains, the Chamber of Commerce received “several boxes of totally worthless, redacted info. There was nothing in there that you could even read. The environmentalists get the FOIA. We don’t.”
The director of the American Tradition Institute’s environmental-law center, David Schnare, worked at the EPA for 33 years and says he personally experienced pressure to favor environmental groups. In an interview, he recalls one instance where the Natural Resources Defense Council submitted an information request, and he responded with a routine follow-up about the inquirer and her qualifications to determine whether a fee waiver would be appropriate.
Before long, Schnare says, his boss’s boss “called me in all pissed off. And I responded, ‘Hey, back off, this is what we do in government. It’s not a buddy system; we ask everyone the same questions.’ [But] he expected me to [yield to the requests of the NRDC].”
Green groups generally use the information they acquire from the EPA to sue private industry, Schnare explains. The EPA boss “viewed them as part of his operation,” he says, “because he didn’t have enough people to do what he wanted.”
The relationship between conservative organizations and the EPA “has never been this bad. It’s never been this blatant. . . . The refusal of the agency to [be] open, to be transparent — when their ideas are challenged is exactly when they need to be most transparent,” Shnare observes. “The EPA is out of control, and transparency is the only way to find out what they’re doing and why they’re doing that.”
— Jillian Kay Melchior is a Thomas L. Rhodes Fellow of the Franklin Center for Government and Public Integrity.