The EPA Doesn’t Have to Tell Anyone Anything, Or Does It?

I am the new president of the Competitive Enterprise Institute – also known as the feistiest think tank in D.C. – and the newest contributor for  Human Events. My hope for my column is that it provides some insight into Washington from someone who has worked in the liberty movement for more than 20 years and can put that feistiness to pen and paper.

It won’t always be a shill piece for CEI’s work, , but it is coincidental that one issue we’ve worked on quite a bit may finally be attracting  the attention it deserves.

Former EPA Administrator Lisa Jackson was back in the news this week. She hired an attorney. That is insignificant, you say, since countless of “ex” public officials have been known to, ahem, rely on counsel to remedy the reasons leading up to their “ex-ness” in the first place. What is telling is the timing of this decision. CEI forced the EPA to produce emails, some of which indicate Jackson told a lobbyist from Siemens to use her home email for future contacts. This suggests a clear intent to violate the law and operate in secret, and Congress is finally awakening and seriously seeking  answers.

Chris Horner, CEI senior fellow, author of The Liberal War On Transparency and our resident expert on the Freedom of Information Act, said she won’t be the last.

“The D.C. legal bar should be kept quite busy by Obama administration employees,” he said recently. “They have promiscuously used private email accounts for official correspondence and then did not turn over this correspondence in response to FOIA or congressional oversight requests.”

Horner has been on this since 2011, when he caught wind the Obama administration had become interested in pushing for a carbon tax. Its cap-and-trade proposal had died, it was looking for another way to punish energy production, and it was building  a coalition – including using some voices from the moderate right – to support the measure.

So Horner began filing FOIA requests for emails and texts of the top political appointees that dealt with carbon taxes and the war on coal. These are public records, subject to disclosure. Although EPA turned over approximately 12,000 e-mails as a result of a federal court order, they redacted (blacked out) thousands of them. CEI is still in  federal court trying to force the agency to come clean. Now two congressional committees have used CEI’s discoveries to begin investigations and, voila, Ms. Jackson goes out and hires a lawyer.

It is not an exaggeration when Chris says, “What we already know amounts to a legal scandal more widespread than any ever seen in politics, and all taxpayers should demand that Congress and the courts air the truth as to how widespread, and to what ends, this unlawfulness really was.”

He says this because it’s not just the EPA. Across government – Treasury, NSA, IRS – top officials in the Obama administration thumb their noses at FOIA requests, do what is supposed to be the people’s business outside of public view and take little heat for it from an adoring press. The arrogance is appalling, even by Washington standards.

In responding to us, EPA has thrown up every roadblock imaginable. It tried to charge us for printing emails, clearly forgetting what the “e” stood for in electronic mail and that CEI had requested them in, um, electronic form.

It refused to grant waivers for the fees it charges FOIA requesters even though officials knew we are not subject to those fees and never lose an appeal of such a decision. EPA didn’t even show up in court to defend this practice; it did this solely to make us jump through an extra legal hoop. Adding to this harassment was outright hypocricy – EPA denied 15 of our 17 fee waiver requests at one point but approved 85 of 92 similar requests from political allies such as the  Sierra Club and Natural Resources Defense Council.

Then, when EPA finally acquiesced to Justice Department demands to release emails to CEI, the emails were redacted in such a way that we got both a good laugh and a cry. In one, Jackson appears to ask what do we, the EPA, think about this fracking thing. Um, ok?  But we did not laugh about the fact that in other emails EPA clearly redacts the information illegally – such as blacking out the questions Jackson should expect from a reporter for a pending afternoon interview. Must have been a heck of an interview.

We have been trying to discover how, why, and with whom the Obama administration was seeking to build support for a carbon tax – but the emails reveal nothing, because we literally cannot read them. So, at least for now, this stonewalling appears to be working.

But now there is a new EPA administrator and she, too, has read the administration’s manual on how to hide her communications from public review.

In the emails we’ve seen, McCarthy is almost never the sender – even though she was head of the Air and Radiation Office, which is responsible for the policy areas covered in our FOIA requests. We heard she avoids email and texts instead. So we asked for the texts. No responsive records, the agency said. So we asked for the bill for her EPA-issued phone. Oops, wait, she does text – and the agency produced a document indicating how many texts she sends per month. But, wait, the agency says, she texts only friends and family. Nothing business-related. Leaving aside the question of why taxpayers provide her with a phone to talk only to her family, did anybody look at the phone or the bill and check that? If not, does FOIA have any meaning anymore?

This is not over. In fact, in the circle of life that is D.C., we may be closer to the beginning than to the end. But think about this: Jackson resigned when her ‘Richard Windsor’ fake email account was exposed. So did her senior counsel. So did a regional administrator found to be using private phones for public business. Whatever they’re hiding…for that matter whatever they’re doing, there seems no end to the number of bodies they’re willing to throw out to keep it secret.