CEI/Cooler Heads Sue EPA: Agency Stonewalling on Constitutional End-Run

The Cooler Heads Coalition and the Competitive Enterprise Institute filed suit against the United States Environmental Protection Agency (EPA) in the US District Court for the District of Columbia on March 13.

The complaint seeks to prohibit the EPA from continuing to withhold documents in its possession in violation of the Freedom of Information Act (FOIA). The lawsuit is the latest move on the part of CEI and Cooler Heads dating back to last summer seeking documents relating to the apparent backdoor implementation of the Kyoto Protocol treaty on global warming

The Constitution requires Senate ratification of any international treaty, such as the Kyoto Protocol, before the United States can be bound by its strictures. The Clinton White House has refused to formally submit the treaty for ratification because it knows it faces certain rejection by the Senate. Nevertheless, CEI and the Cooler Heads Coalition have uncovered increasing evidence the Clinton administration has been attempting to implement American compliance with Kyoto despite the absence of any Senate authorization.

Several legislative prohibitions already have been attached to a number of spending bills in congress expressly making such extra-constitutional backdoor implementation illegal. These have come to be known as "Knollenberg restrictions," named after the congressman, Joseph Knollenberg (R-MI), who has been leading the charge in Congress to block the constitutional end-run.

Increasingly disturbed by obvious EPA violations to these Knollenberg restrictions, CEI and Cooler Heads began issuing a series of requests to the Agency under FOIA seeking documents relating to a wide universe of backdoor implementation matters last June.

An EPA clearly reluctant to reveal possible executive branch defiance of congressional intent parried with a series of "didn’t understand the question"-type responses. In the midst of these stall tactics CEI and the Cooler Heads Coalition provided numerous clarifications and reminders to the purposefully forgetful Agency.

The Agency tried another tactic, playing hardball with the routine CEI/Cooler Heads request for a waiver on document production fees. This is a standard (though illegal) ploy federal agencies use to obstruct the FOIA requests of parties deemed unfriendly, since the agencies can often claim fees ranging into the many tens of thousands of dollars—quite a sum for any nonprofit organization.

A plain reading of the Freedom of Information Act shows the statute forbids agencies from using fees as a weapon against requesters seeking access to government information, as well as from hiding certain information or protecting against certain requesters. Recognizing FOIA’s mandatory language, EPA routinely grants fee waivers to non-profit entities.

But not in the case of CEI and the Cooler Heads Coalition.

Which led us to inquire as to which groups do get their fee requests waived. Another FOIA request, looking at all successful 1999 fee waiver requests, revealed that EPA chose to waive fees for: the Sierra Club; an activist private citizen apparently sounding alarm over pesticides; an "environmental scientist" concerned with public exposure to pesticides; an activist group worrying about possible expired water discharge permits; an entity seeking to escalate regulation and/or diminish use of MTBE (a request initially classified as "commercial"); a reporter pursuing "the usual" story; a biologist promoting specie diversity; the Natural Resources Defense Council; and, rounding out this distinguished crowd, an animal rights group.

CEI and Cooler Heads also FOIA’d unsuccessful fee waiver requests, and what we discovered was just as shocking, if hardly surprising: We were the only requesting parties through the concurrent time period whose request for a fee waiver was refused.

After CEI/Cooler Heads successfully had the fee waiver rejection overturned, EPA assured us that our requests for information were being duly processed.

Two months then passed. Needless to say, EPA didn’t call and didn’t write. Which is what brought CEI and the Cooler Heads Coalition to federal court last month seeking documents that have been wrongfully withheld. As plaintiffs, CE and Cooler Heads are seeking access to the documents, as well as legal fees and whatever sanctions the court deems appropriate. FOIA provides for individual sanctions in addition to "specific performance" under the law.

Consistent at least in its "hear no evil" stance, according to press accounts and the court docket, EPA has yet to be "available for comment." As of press time (late March), the Agency had yet to respond.

Chris Horner ([email protected]) serves as counsel to the Cooler Heads Coalition.