Washington, DC — Under former Administrator Scott Pruitt, the U.S. Environmental Protection Agency routinely prevented the creation of records documenting the basis for its actions, according to a lawsuit filed by Public Employees for Environmental Responsibility (PEER) and Citizens for Responsibility and Ethics in Washington (CREW). With Pruitt gone and the suit inducing the agency to adopt new policies, it is an open question as to whether EPA has turned over a new leaf of transparency.
The groups’ 2018 lawsuit charged EPA with violating the Federal Records Act by eschewing a paper trail explaining key decisions. In July, U.S. District Judge James Boasberg ruled against EPA’s attempt to dismiss the suit, clearing the way for a trial.
In response, EPA adopted a new records management policy later that summer and in November, acting Administrator Andrew Wheeler issued an all-employee message on transparency that promised to comply with the Federal Records Act “to take care to document the formulation and execution of basic policies and decisions” and to create written records for “All substantive decisions reached orally.”
Citing these changes, this month Judge Boasberg dismissed the suit as moot, reasoning that “Pruitt is no longer at the Agency’s helm” and that, by its reforms, “EPA did voluntarily what the Court likely would have required it to do had the Plaintiffs prevailed.” However, he also held that should transparency problems recur “nothing in this decision bars them from bringing suit again.”
“We are glad that EPA has taken these steps, but the jury is still out as to whether they have resulted in meaningful change,” stated PEER Counsel Kevin Bell, referencing another PEER suit to force EPA to disclose its long-overdue assessment of formaldehyde exposure, involving one of the most commonly used industrial chemicals. “EPA is still playing hide the ball with important public health information.”
In fact, EPA employees are reporting that some of the worst practices under Pruitt continue under Wheeler. For example, EPA has an improperly narrow interpretation of what constitutes a record that should be preserved. In addition, oral communications with outside parties leading up to a decision are still not reduced to writing. This is of particular concern in the formaldehyde case where industry has heavily lobbied EPA to block the assessment, with one industry lobbyist claiming that “premature release” of the assessment would cause “irreparable harm” to companies using the chemical.
“With employee guidance, we are compiling a dossier on continuing Federal Records Act violations under Wheeler,” added Bell. “Meeting the challenge of documenting the lack of documentation takes time, however.”
The Senate Committee on Environment and Public Works is slated to vote this week on whether to recommend confirming Wheeler to take Pruitt’s place as Administrator to the full Senate.
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See ruling on scope Federal Records Act violations