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06/6/2017

CoA Institute Investigates EPA’s “Scientific Integrity” Officer

Cause of Action Institute (“CoA Institute”) today filed a Freedom of Information Act (“FOIA”) request with the Environmental Protection Agency (“EPA”) to investigate claims of politicization at the Office of Scientific Integrity. Dr. Francesca Grifo, the agency’s Scientific Integrity Officer, who previously worked at the Union of Concerned Scientists, is accused of cozying up with liberal interest groups while “actively working from within to thwart” the new policy agenda of President Trump and Administrator Pruitt.

Dr. Grifo was hired in 2013 under President Obama to be an internal watchdog for the quality of the science and technology used in agency decision-making. Yet her hiring caused a bit of a stir at the time, with Forbes calling it a case of the “blind leading the blind.” “If you needed to hire a person to head the financial integrity division of the Securities and Exchange Commission, how about someone who had held that position in Bernie Madoff’s investment firm?”

Four years later, it remains unclear how Dr. Grifo has worked to improve the situation at the EPA, which regularly creeps into the news for administrative overreach, out-of-touch regulatory proposals, political favoritism, and, most recently, the troubling resistance of a handful of its employees to the new Administration. Our FOIA request seeks information concerning whether and to what extent Dr. Grifo has engaged in partisan efforts in her position as Scientific Integrity Officer.

Ryan Mulvey is Counsel at Cause of Action Institute.

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06/1/2017

Pruitt Should Reconsider Obama-Era Settlement with Harley-Davidson That Funnels Millions to an Unrelated, Politically-Favored Project

Washington, D.C. – Cause of Action Institute (CoA Institute) today sent a letter to EPA Administrator Scott Pruitt urging him to reconsider an Obama-era settlement reached with Harley-Davidson, Inc. for selling after-market “super tuner” devices to boost performance of their motorcycles. The EPA alleged these devices were sold in violation of the Clean Air Act. Without admitting liability, Harley-Davidson agreed to settle the lawsuit.

The settlement included a controversial requirement that Harley-Davidson fund a seemingly unrelated program to replace or retrofit wood-burning stoves with cleaner appliances, which appears to violate the agency’s own guidance on the issuance of consent decrees.

CoA Institute also issued a separate Freedom of Information Act (“FOIA”) request to the EPA for documents related to the settlement negotiations.

CoA Institute President and CEO John Vecchione: “EPA is erring by not implementing a mitigation project by Harley-Davidson that fits the violation as required by applicable rules. The Obama administration’s pattern of using settlements to fund favored political projects is a dangerous precedent that should be reviewed and reversed. Funneling settlement funds to pet projects should not supplant the congressional appropriations process or applicable rules that mitigation projects address the underlying harm caused.”

Unlike the defeat devices unknowingly installed in Volkswagen vehicles, the Harley-Davidson “defeat devices” were freely and intentionally purchased by individuals, and came with labels that detailed what “performance enhancements are considered street legal and for competition-use only” and warned against improperly using the devices. Harley-Davidson maintains that these products, which have been sold for over two decades, “[were] and [are] legal to use in race conditions in the U.S.”

The “Emissions Mitigation Project” included in the consent decree requires Harley-Davidson to fund a “wood-burning appliance changeout and retrofit.” The project is defined as a “supplemental environmental project” (“SEP”). However, in 2015, the EPA issued a guidance document outlining the legal requirements enforcement officials must adhere to when crafting an SEP.  The Harley-Davidson consent decree violates EPA’s guidance on SEPs by not establishing a sufficient nexus between the mitigation project and the alleged underlying violations.

In its letter, CoA Institute urges EPA Administrator Pruitt to reconsider the Harley-Davidson consent decree’s unlawful Emissions Mitigation Project, and replace it with a project that conforms to the SEP Policy’s sufficient nexus requirement.

The letter to Administrator Pruitt is available here The FOIA request is available here

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

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03/23/2017

CoA Institute Uncovers EPA Investigation into Employees’ Use of Encrypted Messaging App

Hours after filing a lawsuit demanding that the Environmental Protection Agency (“EPA”) disclose records about its employees’ use of an encrypted messaging application, Cause of Action Institute (“CoA Institute”) received a letter from the EPA’s Office of General Counsel acknowledging that there is an “open law enforcement” investigation looking into the matter.

The EPA indicated that records created or received by its employees on “Signal,” and records concerning efforts “to retrieve, recover, or retain” those messages, were “part of one or more open law enforcement file(s).” The agency claimed such records were exempt from disclosure under the Freedom of Information Act (“FOIA”) because they were compiled for “law enforcement purposes” and their disclosure “could reasonably be expected to interfere with ongoing enforcement proceedings.”  Further, the EPA stated that it could not find any records reflecting “permission, clearance, or approval” for the use of the encrypted messaging app.

Cause of Action Institute Assistant Vice President Henry Kerner: “The EPA’s response to our lawsuit is unsurprising, but still deeply disturbing.  The unauthorized use of an encrypted messaging app by a government employee is inappropriate, and the EPA appears to agree that its employees might have broken the law.  Although we are pleased to learn that the agency is examining potential wrongdoing, we will continue to fight for the disclosure of records responsive to our FOIA request because we do not agree that the law prohibits the disclosure of the Signal messages.  It will be up to the courts to decide.”

Even though the EPA purports to have provided a final response to CoA Institute’s FOIA request, the recently filed lawsuit will continue. CoA Institute disputes the sufficiency of the EPA’s determination, which suggests that a search for potentially responsive records was never carried out. In addition, we disagree with the agency’s reliance on FOIA Exemption 7(a).

The EPA’s letter can be found here

 

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03/22/2017

Lawsuit Demands Records on EPA Employees’ Use of Encrypted Messaging App

Washington, D.C. – Cause of Action Institute (“CoA Institute”) has filed a lawsuit in the U.S. District Court for the District of Columbia after the Environmental Protection Agency (“EPA”) failed to disclose records about its employees’ use of an encrypted messaging application, “Signal,” to discuss the Trump administration’s expected changes to the agency’s policy agenda.

The lawsuit follows a February 2, 2017 Freedom of Information Act (“FOIA”) request, which sought all records of Signal communications created or received by EPA officials, as well as records concerning the EPA’s efforts, if any, to retriever, recover, or retain such work-related correspondence in accordance with federal records management laws.

Cause of Action Institute Assistant Vice President Henry Kerner: “Career employees at the EPA appear to be using Signal to avoid transparency laws and vital oversight by the Executive Branch, Congress, and the public.  Communications on this encrypted application, however, which relate to agency business must still be preserved under the Federal Records Act and be made available for disclosure under the FOIA.  Taxpayers have a right to know if the EPA’s leadership is meeting its record preservation obligations.”

According to media reports, at least a dozen EPA career employees have been using Signal to communicate about work-related issues, including how to prevent President Trump’s political appointees from “undermin[ing] their agency’s mission to protect public health and the environment” or “delet[ing] valuable scientific data.”  CoA Institute’s investigation into this matter has been widely discussed in the press, along with Congress’s request for the EPA’s watchdog to independently investigate the matter.  To date, the EPA has failed to issue a timely determination on CoA Institute’s FOIA request, let alone produce any responsive records.

The full complaint can be found here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

 

 

 

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02/3/2017

CoA Institute Investigates EPA Employees Using Electronic Messaging Apps to Thwart Transparency

Washington D.C. – Cause of Action Institute (“CoA Institute”) has filed a Freedom of Information Act (“FOIA”) request after recent media reports identified a number of career EPA employees possibly using an encrypted electronic messaging app called “Signal” to communicate about work-related issues, including how to prevent political appointees from “undermin[ing] their agency’s mission to protect public health and the environment” or “delet[ing] valuable scientific data.”

“It appears that some employees at the EPA may be using encrypted apps on their phones to avoid transparency laws in an effort to conceal their communications from internal and external oversight,” said CoA Assistant Vice President Henry Kerner. “Under the Federal Records Act, the EPA has a legal obligation to preserve all records made by employees working on official government business.  This obligation is all the more important if EPA employees are using personal cellular devices or private accounts for such purposes.  These messages must also be made available under the Freedom of Information Act.  Agency leadership, Congress, and the public have a right to know if federal employees are using encrypted electronic messages to evade transparency.”

It is unknown whether these employees discuss work related issues on Signal using their EPA-issued or personal devices. Under the Federal Records Act, the EPA has a legal obligation to preserve records evidencing employees working on government business, no matter the medium of their communication. CoA Institute is submitting this Freedom of Information Act request and notifying Acting Administrator McCabe of her obligation under the Federal Records Act to ensure that all work-related Signal messages are retained or retrieved by the EPA.

The full FOIA can be found here.

 

 

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10/11/2016

The EPA Must Account For Its Actions (Judge Lechner op-ed)

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ALFRED J. LECHNER, JR. – 10/07/2016
Federal regulation is the American economy’s silent killer. Every day, the vast bureaucracy in D.C. issues reams of red tape that stifle the creation of new jobs or snuff out good-paying jobs that already exist.

That is why my organization, Cause of Action Institute, has formally petitioned one of the most regulation-happy federal agencies — the Environmental Protection Agency (EPA) — to fulfill its statutory requirement to investigate the careers and opportunities it has crushed.

The Clean Air Act, signed into law by President Lyndon B. Johnson in 1963, contains a little-known provision that enables individuals who have lost their jobs to ask the EPA to examine whether its regulatory actions were at fault. Upon receiving such requests, the agency must conduct an investigation and potentially hold public hearings. Congress specifically included this requirement to better gauge the impact of EPA regulations on the American job market.

Unfortunately, 50 years after the Act’s passage, the EPA has still not set up this process, much less given it teeth. As a result, Americans who wish to request an investigation have no idea where to start; this undoubtedly dissuades many from trying.

Equally concerning, the agency has failed to establish any rules to guide its actions. This enables the EPA to tilt the few investigations it does undertake in its own favor — or ignore requests entirely. [Read More…]

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05/20/2014

CoA Investigation Leads Oversight Committee to Investigate White House Politicization of EPA

Once again, the United States Congress has relied upon Cause of Action’s work to hold federal agencies accountable and demand transparency.

On May 15, 2014, the House Committee on Oversight and Government Reform (OGR) sent a letter to the Environmental Protection Agency (EPA) asking for documents based on internal emails Cause of Action obtained showing White House intervention into FOIA and congressional document requests.

OGR seeks documents that will determine “whether White House or EPA employees have engaged in illegal conduct by actively obstructing this Committee’s investigation.”

  • On July 2, 2013, Cause of Action sent a FOIA request to the EPA regarding White House review of document requests, both from FOIA requesters and Congress.
  • The EPA responded to our request with internal e-mails showing the White House delayed an April 10, 2013 joint document request from OGR, led by Chairman Darrell Issa (R-CA) and the Senate Committee on Environment and Public Works, led by Ranking Member David Vitter (R-LA).
  • In response to our findings, on November 7, 2013, OGR subpoenaed the EPA for communications with White House officials regarding the agency’s delay to a congressional document request.

According to the Committee’s latest letter, EPA withheld documents improperly: “When the Committee was finally able to review the unredacted e-mails, it was clear that the redactions applied to the FOIA production were made to hide embarrassing conversations between EPA staff.  The redactions were not, in fact, covered by the FOIA exemptions cited by EPA.  It is unacceptable for EPA to hide behind improper FOIA redactions.”

In March 2014, Cause of Action released a report, Grading the Government: How the White House Targets Document Requesters, detailing how the White House is politicizing FOIA and Congressional document requests.

Cause of Action’s strategic investigations help Congress to expose the hypocrisy of this Administration’s claim to be “the most transparent in history.”  Moreover, Cause of Action has empowered the House Oversight Committee to raise unique constitutional concerns related to alleged obstruction of congressional oversight by the President.

In order to hold EPA accountable and give the American taxpayers transparency, Cause of Action has now sent a Freedom of Information Act (FOIA) request to EPA requesting all documents provided to Congress pursuant to a subpoena as well as documents evidencing communications between EPA and the White House.

You can read CoA’s letter to the EPA here.

You can read the OGR letter to the EPA here.

See all the documents from Cause of Action’s investigation here.

 

Oversight Committee Letter to EPA Administrator Gina McCarthy by CauseOfAction

May 19, 2014 FOIA to EPA re White House review of records by CauseOfAction

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