Horner on Politico Story: ‘When the law is inconvenient, pretend it’s something else’

WASHINGTON, D.C., July 22, 2013 – The Competitive Enterprise Institute responded today to a story published by Politico, which takes issue with an earlier CEI review of documents produced after CEI filed suit under the Freedom of Information Act. That action sought Environmental Protection Agency letters granting and denying fee waiver requests at the critical “initial determination” stage of FOIA requests. These revealed the EPA regularly waived fees for the left-of-center groups with which it is collaborating on a shared agenda, and regularly denied them for comparable groups arguably working against that agenda. That analysis remains sound today.[1]

To dispute what CEI found and then conclude that, although the numbers still demonstrate disparate treatment, the disparate treatment isn’t as spectacular as CEI’s review indicated, Politico changed the parameters of the inquiry in material ways. These entailed dispensing with legal distinctions not-so-easily walked away from when applying the law as reporting on it, which EPA also had encouraged when first spinning its response to this revelation.

Politico says: “[Christopher] Horner used a broader definition of what he considers a denial. He argues that a late response to fee waiver requests constitutes a denial, even if EPA eventually grants the waiver. In contrast, Politico’s analysis called EPA’s response a denial only when it actually rejected a waiver request.”[2]

Horner responds: “Yes, CEI opted for the definition used in the statute and in relevant judicial precedent, not a situational one that reaches back to rehabilitate EPA denials as having never occurred. Politico’s ad hoc definition also equates EPA losing on appeal or dropping illegitimate opposition to granting a waiver with never having denied the request for waiver at all. The very notion is a legal fiction; the actual characterization of that is ‘reversal’. We understandably emphasized what the law says in our analysis of how that law is being applied, just as EPA or those defending it understandably might wish not to.”

Politico says: “Horner’s breakdown largely contrasted EPA’s treatment of major, national environmental groups such as the Sierra Club versus a smaller sampling of conservative groups such as CEI and the American Tradition Institute. Politico’s breakdown included lesser-known groups such as the Alliance for the Great Lakes, the Center for Food Safety, Parents for Nontoxic Alternatives and the Taxpayer Association of Kane County, Colo.”

Horner responds: “Yes, we compared apples to apples. Given the law’s terms conditioning a fee waiver on a group’s ability to broadly disseminate to the public … it certainly does tend to change the calculus by adding to the ”liberal” side of the ledger a host of groups that have little chance of demonstrating that. Instead, we chose a meaningful analysis of how EPA treats comparable groups, the major national green groups with whom it works closely on a shared agenda versus those who challenge that shared agenda.”

In summary: “So, for those familiar with FOIA, the situation is clear and exactly as we demonstrated. For those without familiarity, or hoping to – as this headline stated – make EPA’s case against what the records show, we understand that redefining what the law says as needed, and changing what’s being measured and how, would muddy things.”

Notably, since CEI first pointed out this disparity, EPA’s obstructions and runaround at least on fee waivers largely has evaporated, or at least taken on a less obstructive form. Now, instead of granting CEI’s requests for fee waivers, or continuing the practice of constructive or express denial, EPA routinely says the search is so minimal as to be “not billable.” EPA thereby avoids the indignity of acknowledging that CEI qualifies for a fee waiver, which would only present its recent actions in even more stark relief.

[1] CEI demonstrated this disparity was particularly pronounced in its own case after exposing former administrator Lisa Jackson’s false-identity email account, “Richard Windsor,”using FOIA. CEI also considered FOIA fee waiver denials that EPA did not release, including those the agency issued after providing CEI the records.

[2] Unfortunately for such an effort, “denial” includes refusing to respond (“constructive denial”), as well as express denial; for example, the reason Politico could sue on the numerous FOIA requests EPA granted Politico’s fee waivers for, but is sitting on, is that sitting on something is in fact denial.