Ars Technica reports (https://bit.ly/2kRp1y9) that a federal judge has ordered the Environmental Protection Agency to provide documents on which Scott Pruitt, the Administrator of the agency, relied in stating, in March 2017, that carbon dioxide was not a major contributor to climate change. See https://bit.ly/2JowYWp Immediately after Pruitt’s statement, Public Employees for Environmental Responsibility (PEER) filed a Freedom of Information Act request for documents on which Pruitt relied in his conclusion which conflicts with the overwhelming consensus of scientific thought on the subject, including statements published by EPA itself before Pruitt assumed his position.
According to the Ars Technica report, the EPA refused the FOIA request and PEER sued the agency. On June 1, Beryl A. Howell, Chief Judge of the U.S. District Court for the District of Columbia issued a 19-page opinion ordering EPA to produce the documents by July 2 or explain why they can’t by July 11. https://bit.ly/2Jleztq
The opinion opens by observing that EPA’s own webpage contradicted Pruitt’s statement, yet “EPA has performed no search for and produced no records in response to the plaintiff’s FOIA request.” EPA stalled for over a year.
The judge would have none of EPA dissembling and stumbling attempts to shield the Administrator and avoid justifying the statements he made:
“Particularly troubling is the apparent premise of this agency challenge to the FOIA request, namely: that the evidentiary basis for a policy or factual statement by an agency head, including about the scientific factors contributing to climate change, is inherently unknowable. Such a premise runs directly counter to “an axiom of administrative law that an agency’s explanation of the basis for its decision must include ‘a rational connection between the facts found and the choice made,’” [case citations omitted] EPA’s strained attempt to raise an epistemological smokescreen will not work here to evade its obligations under the FOIA. [Opinion at 10]
In a major case of understatement, typical of judicial opinions, Judge Howell said:
“At the outset, EPA’s apparent concern about taking a position on climate change is puzzling since EPA has already taken a public position on the causes of climate change. The D.C. Circuit described as “substantial” the “body of scientific evidence marshaled by EPA,” which “scientific evidence of record included support for the proposition that greenhouse gases trap heat on earth that would otherwise dissipate into space; that this ‘greenhouse effect’ warms the climate; that human activity is contributing to increased atmospheric levels of greenhouse gases; and that the climate system is warming.” [citations omitted]
“EPA is construing the second part of the FOIA request far more broadly than the text supports in a thinly veiled effort to make the request more complex and burdensome than it is.”
“EPA has failed to demonstrate a viable legal basis for its refusal to conduct any search whatsoever in response to the plaintiff’s straightforward FOIA request. When the head of an agency makes a public statement that appears to contradict “the published research and conclusions of” that agency, Compl. ¶ 20, the FOIA provides a valuable tool for citizens to demand agency records providing any support, scientific or otherwise, for the pronouncement, and to oblige agencies to search for and produce any non-exempt responsive records. Compliance with such a request “would help ‘ensure an informed citizenry, vital to the functioning of a democratic society.’”
If the EPA had devoted the time spent resisting the FOIA request on actually complying with it, the agency would have been finished with this matter long ago. Now the agency has been ordered to finish the search in a month and report shortly thereafter on remaining issues.
I cannot avoid the conclusion that the professional agency staff at EPA knows that the documents sought to support the Administrator’s claims re climate change simply don’t exist. They are doing what they can to protect Pruitt from himself, but Chief Judge Howell has seen through the smokescreen. Pruitt has no meaningful science or internal agency research to support his right-wing political position that, as his President and enabler Donald Trump would put it, “climate change is a hoax.” So, July 2, assuming EPA does not continue to resist by appealing to the D.C. Circuit Court of Appeals, will be an interesting day of reckoning.