Posted on June 8, 2018 by Seth Jaffe
Last Friday, EPA was ordered to produce documents, in response to a FOIA request, on which Administrator Pruitt relied in stating on CNBC that: “I would not agree that [carbon dioxide] is a primary contributor to the global warming that we see,” and “there’s a tremendous disagreement about of [sic] the impact” of “human activity on the climate.”
I’ve done a fair number of FOIA requests in my time. The request here was about as plain and simple – and clear – as it is possible to be. The extent to which the government contorted the request in order to make it seem impossible to answer did not sit well with the Court. Here’s the request as modified by the plaintiffs. They sought:
(1) agency records that Administrator Pruitt relied upon to support his statements in his CNBC interview,” and “(2) any EPA documents, studies, reports, or guidance material that support the conclusion that human activity is not the largest factor driving global climate change.
EPA objected to the request in part on the basis that it was an improper interrogatory that required the EPA to take a position on the climate change debate. To which the Court stated that “this hyperbolic objection strays far afield from the actual text of both parts of the FOIA request.”
EPA also argued that the request was vague, asking “how is one to even know precisely what documents one relies on forming one’s beliefs.” Yikes. And what is the definition of “is,” Mr. Administrator?
I loved the Court’s response.
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. EPA’s strained attempt to raise an epistemological smokescreen will not work here to evade its obligations under the FOIA.”
Epistemological smokescreen. Humph.
Nor was the Court done. Responding to EPA’s objection to having to take a position on climate change, the Court trenchantly noted that:
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 bottom line? EPA must complete a search for responsive documents by July 2, 2018, promptly disclose responsive documents, and explain any withholding by July 11, 2018.
This is not the first case under this Administration where I’ve thought how blessed I am that I’m not at DOJ and in the position of having to defend the indefensible from EPA.