EPA GETS IN ON FOIA AWARENESS RULE: More political appointees at the Environmental Protection Agency (EPA) could soon have the authority to weigh in on public information requests.
The rule is expected to be published in the Federal Register as early as Wednesday and will not allow for a public comment period.
According to the new language in the FOIA rule signed by EPA chief last week, the administrator and other officials would be allowed to review all materials that fit a FOIA request criteria, known as responsive documents, and then decide “whether to release or withhold a record or a portion of a record on the basis of responsiveness or under one or more exemptions under the FOIA, and to issue ‘no records’ responses.”
Why critics are worried: Lawyers outside the agency who specialize in FOIA requests say the “no records” response could lead to a situation where records seekers are being told there are no documents meeting their search criteria, even if they were found by EPA staffers who handle FOIA requests, with those documents ultimately withheld by political appointees.
“It’s allowing political appointees to make the decision that records someone has presumably identified as being responsive are not actually responsive. That theoretically would allow sensitive documents, that the agency doesn’t want to send you, to withhold those records — and that should shake out eventually in a lawsuit if that’s what’s happening,” said Matt Topic, government transparency and First Amendment lawyer at Loevy & Loevy, a Chicago-based firm that specializes in civil rights.
Agency pushback: EPA strongly disputed that interpretation, saying the new rule does not grant appointees the ability to label responsive documents as non-responsive.
“The new regulation does not grant any additional authorities to ‘reject’ FOIA requests by claiming ‘no records.’ A response that yields ‘no records’ is simply a request in which a search has been conducted and no responsive records are found, it is a frequent determination that has existed since the passage of the FOIA, and has been available to any official authorized to issue FOIA determinations. This new regulation brings EPA into compliance with the law, which the Obama administration ignored,” said Michael Abboud, EPA spokesman.
Topic, who reviewed the text of the rule, said it’s common for FOIA officers at government agencies to initially find responsive documents to requests that other officials later dispute in terms of qualifying for public release.
He said the new language in the EPA rule suggests officials may have the opportunity to prevent release of the documents on the basis that they don’t meet the criteria, and are therefore non-responsive.
“You could have a situation where there is a pile of documents that the FOIA officer thinks is responsive and have a political appointee overrule them and say, ‘I don’t think those documents are responsive because that’s not exactly what that person was looking for,'” he said. “There’s a lot of opportunity to screw around with that.”
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CONSERVATION FUND GETS BIPARTISAN LOVE: Republicans and Democrats pushed back against the Department of the Interior Tuesday, trying to secure funding for popular land conservation program cut under ‘s budget.
The Land and Water Conservation Fund (LWCF) helps state and local governments secure land for parks and wilderness areas. But the Trump budget gives no money to the fund to acquire new land, instead boosting funds to deal with maintenance backlogs at parks across the country.
“Unfortunately, although the LWCF is now permanently authorized, the program does not have any certainty of funding, as evidenced by the President’s budget proposal, which essentially zeroed out LWCF appropriations,” ranking Democrat (D-W.Va.) said during a Senate Energy and Natural Resources hearing on a bipartisan bill he sponsored that would permanently fund the LWCF program. “Permanent funding is the next step Congress must take.”
People in shirts that read “Save LWCF” have been a regular in the last few months at hearings that deal with public lands and other environmental issues. A House committee advanced a bill last week that would similarly fund the program.
The LWCF program secured permanent authorization earlier this year in a previous lands package, and the latest legislation to fully fund the program at $900 million a year has bipartisan support. That funding comes from existing development on public lands.
Several senators said the administration is “robbing Peter to pay Paul” by trying to make a dent in a deferred maintenance backlog now around $16 billion.
“To the extent we’re siphoning off these funds for other entirely different purposes that’s really not appropriate,” said Sen. (I-Maine), arguing that money that comes from the land should stay with the land.
Susan Combs, the Interior’s assistant secretary for policy, management and budget said Interior is obligated to make sure parks are safe to visit.
“We are the land stewards of the stuff we already own,” she said, adding that the growing backlog takes a great deal of her attention.
‘IT’S CLIMATE, NO IT’S WEATHER PATTERNS!’: Secretary of Agriculture downplayed concerns about climate change during an interview with CNN released Tuesday, referring to its effects as “weather patterns.”
“You know, I think it’s weather patterns, frankly. And you know, and they change, as I said. It rained yesterday, it’s a nice pretty day today. So, the climate does change in short increments and in long increments,” Perdue said.
The interview followed a Politico report that Perdue’s department has refused to publicize government-funded research indicating increasing threats due to climate change.
“I read that story and I can find no evidence at all from anything I said or anything having to do with climate change,” Perdue told CNN, adding that he “absolutely” wants such research made public and that he meets with climate scientists “on an ongoing basis.”
Perdue also said he has not discussed climate change with President Trump, who has repeatedly cast doubt on the issue despite the scientific consensus. Trump once called it a “hoax created by the Chinese” and told Piers Morgan, “I believe there is a change in weather and I think it changes both ways.”
“I think the president feels that I do, he’s a golfer, so sometimes he knows he gets rained out and sometimes it doesn’t, but the long-term consequences, I don’t know,” Perdue told CNN.
Vice President Pence repeatedly demurred during an appearance last Sunday on CNN’s “State of the Union” on whether he considers climate change a threat. Pence responded in part by saying the U.S. “has the cleanest air and water in the world,” which host noted was inaccurate.
ON TAP TOMORROW:
A subcommittee on the House Energy and Commerce committee tomorrow will hold a markup on H.R. 3432 the “Safer Pipelines Act of 2019.”
The Senate’s Energy and Natural Resources committee is having a hearing to consider the nominations of Daniel Habib Jorjani, of Kentucky, to be Solicitor, and Mark Lee Greenblatt, of Maryland, to be Inspector General, both of the Department of the Interior.
OUTSIDE THE BELTWAY:
Disaster city sees storm warnings every day, The Pew Stateline reports.
Hawaii hit hardest in modern-day plant extinctions, The Star Adviser reports.
Stories from Tuesday…
-Florida news outlets partnering for climate change reporting
-Democratic leader concedes on Oregon climate bill after Republican walkout
-Trump plan to strip public land conservation fund gets bipartisan pushback
-Agriculture secretary on climate change: ‘I think it’s weather patterns’
-New EPA rule could expand number of Trump officials weighing in on FOIA requests