EPA’s new public records rule lets Trump administration pollute in private

If it weren’t for the public records law, scandal-plagued Scott Pruitt might still be running the Environmental Protection Agency. 

Spending records and other public documents released to conservation groups under the Freedom of Information Act revealed a litany of Pruitt scandals ― from his $43,000 private phone booth to his unethical attempt to leverage his position to land his wife a job at Chick-fil-A. These revelations ultimately forced him to resign. 

But Americans’ access to such crucial information is now at risk. Andrew Wheeler, the new EPA administrator, has signed a new rule allowing him and other political appointees to review requests for public documents and decide which ones to release.

This is a great deal for Wheeler and the fossil-fuel industry, but a dangerous development for public health, wildlife and the environment.  Maybe that’s why, in a dazzling display of hubris that almost matches his predecessor, Wheeler ignored the required public comment period before quietly signing the rule last month.

This week the Center for Biological Diversity joined 16 other conservation and public-interest groups to urge Wheeler ― a former oil-industry lobbyist ― to delay the rule at least until the public has a chance to weigh in.

Wheeler’s EPA mischaracterizes these significant changes as minor and claims any public discussion about this is “contrary to the public interest.” Those claims are false and ridiculous.

Previous administrations have taken pains to separate political appointees from the process of determining which of the public’s records should be released to the public. But the Trump administration has taken government secrecy to a whole new level. 

Injecting politics into the public records process defeats the law’s key purpose. It gives this pollution-friendly administration a powerful new way to hide the damage it’s doing to our air, water and wildlife by unprecedented rollbacks of environmental protections.

Wheeler’s new public records rule also creates an entirely new reason for the EPA to hide federal documents ― “responsiveness.”

This contradicts longstanding Department of Justice interpretations of the law. And it conflicts with previous court rulings that forbid federal agencies from redacting or withholding public records or portions of public records they deem “non-responsive.”

Even worse, this new blanket exemption from the public records law will make it nearly impossible for people to challenge EPA’s decisions to keep documents secret. If the EPA says there are no records because a political appointee has determined, illegally, that the documents are “not responsive” to the public records request, then the requestor won’t know that the records even exist.

That makes a mockery of the Freedom of Information Act.

As if that weren’t enough, Wheeler’s new rule will funnel all public records requests to EPA’s Washington, D.C., headquarters, which is already bogged down with an ever-growing backlog.

No longer will regional FOIA staff ― those who are most familiar with the issues ― make decisions about what to release and what to redact. That crucial task is now entrusted to the office with most of EPA’s political appointees.

This comes despite an internal audit that showed hundreds of career EPA FOIA staffers opposed efforts to centralize the work in D.C. And it contradicts EPA’s claim that this new rule is an effort to improve efficiency and transparency. In fact, it will have the opposite effect. 

Regional EPA staff recently blew the whistle on a Minnesota pollution regulator who was trying to stifle EPA’s concerns about the proposed PolyMet open-pit copper mine. Wheeler’s new rule would take dedicated career employees like these out of the loop.

Let’s be clear. This new EPA rule is aimed at hiding policies that foul our air and water, harm endangered wildlife and benefit polluting industries.

The changes to EPA’s public records rule are similar to those approved by the Interior Department earlier this year. As with the Interior rule, the intention is obfuscation and secrecy, not efficiency or transparency. 

The public records law may have led to Pruitt’s downfall, but the law is about much more than that.

When our federal agencies undermine the public records law, they hijack democracy and jeopardize public health and the environment. The Trump administration is already working overtime to give powerful polluters everything they want. If Trump’s EPA is able to operate in the shadows, beyond the reach of public scrutiny, the damage could be inconceivable.

Meg Townsend is an open government attorney at the Center for Biological Diversity, a non-profit advocacy organization focused on protecting at-risk species and protecting the lands, waters and climate those species need to survive.