A dozen states sue EPA over FOIA stonewalling

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Michael Bastasch DCNF Managing Editor
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After months of haggling, 12 states are suing the Environmental Protection Agency to compel them to release documents related to the agency’s controversial “sue and settle” practice.

The attorneys general of twelve Republican-led states, led by Oklahoma, filed a lawsuit on Tuesday after the EPA failed to respond to the attorneys general’s appeal of a Freedom of Information Act fee-waiver request.

The fee-waiver request was denied by the EPA in February.

“This appears to be a blatant strategy by the EPA to go around the process and bend the rules to create environmental regulations that have failed in Congress,” Oklahoma Attorney General Scott Pruitt said in a statement. “As part of our investigation into the pervasiveness of this tactic, we requested documents that the EPA has refused to produce. If the EPA is making backdoor deals with environmental groups to push their agenda on the American people while bypassing the states and Congress, we need to know.”

Oklahoma was joined by Alabama, Arizona, Georgia, Kansas, Michigan, Nebraska, North Dakota, South Carolina, Texas, Utah and Wyoming.

The states sought documents on communications between environmental groups and EPA officials regarding consent decrees from sue-and-settle lawsuits with environmental groups that directed the agency to implement regulations under the Clean Air Act’s Regional Haze program.

The states asked for EPA communications with environmental groups — including Greenpeace, Defenders of Wildlife, WildEarth Guardians and the Sierra Club — all of which engaged in sue-and-settle lawsuits to control the EPA’s enforcement of the Regional Haze program, critics say.

According to Pruitt’s office, “Under the Clean Air Act, the states – not the EPA – design and implement plans for compliance with the Regional Haze program.” However, states are cut out of the process when the EPA enters into a consent decree, but the states are responsible for implementing whatever new regulations the EPA proposes.

One sue-and-settle lawsuit resulted in the EPA’s costliest clean air regulations ever – the Mercury Air Toxics Standards. Other cases noted by Pruitt were settled in the same day the suit was filed, suggesting maybe some level of coordination.

Pruitt raised concerns about the EPA’s actions in a letter sent to the agency in May, after it was reported that the EPA had also been routinely denying fee waiver requests to conservative groups while granting them to environmental groups.

“Looking at FOIA fee waivers, it’s clear that EPA favors far-left environmentalist groups over conservative think tanks, but today’s lawsuit is just another example demonstrating EPA’s discrimination extends toward states as well,” said Louisiana Republican Sen. David Vitter.

The free-market Competitive Enterprise Institute obtained documents showing that since January 2012, the EPA granted fee waivers for 92 percent of FOIA requests from major environmental groups, while the agency rejected or ignored 81 percent of fee-waiver requests from conservative groups.

“Ninety-two percent of the time EPA grants fee-waiver requests from noncommercial requesters who are supportive of EPA’s policies and agendas, but denies a majority of fee-waiver requests from noncommercial requesters who are critical of EPA,” reads the state’s complaint. “States properly asked for specific records … [and] EPA violated FOIA’s mandate.”

According to Pruitt, the EPA has awarded nearly $1 million in attorneys fees in 45 settlements with environmental groups it has made public.

The EPA did not immediately respond to The Daily Caller News Foundation’s request for comment.

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