Aug 022013

By Nick Worth
Attorney General Tom Horne has announced that Arizona has joined 11 other states in a lawsuit against the federal Environmental Protection Agency (EPA).
The lawsuit has been filed by the state of Oklahoma, and is joined by Arizona, Alabama, Georgia, Kansas, Michigan, Nebraska, North Dakota, South Carolina, Texas, Utah and Wyoming.
According to a press release from Horne’s office, the lawsuit accuses the EPA of not releasing public records that may shed light on why the agency often chooses to settle–rather than litigate–lawsuits threatened by some environmental interest groups.
“For the past three years, the EPA has allowed its regulations to be largely defined by legal settlements it has agreed to with various environmental groups,” Horne said in the announcement. He further noted that the EPA’s policy of settling threatened lawsuits, rather than fighting them “creates a tyrannical form of government policy-making where special interest groups threaten to sue an agency, and rather than fight the case based on the facts, the agency simply caves in, often to the detriment of consumers.”
According to the lawsuit, this policy of settlement with the special interest groups results in “consent decrees” which outline changes to EPA rulings that affect the states, but does not allow the states a voice in determining those changes.
According to Horne, in some instances, the EPA entered a consent decree the same day a lawsuit was filed by a special interest group, suggesting prior knowledge.
Oklahoma Attorney General E. Scott Pruitt filed the lawsuit after repeated unsuccessful attempts to obtain EPA records of communications with 82 different special interest groups under the Freedom of Information Act (FOIA). The FOIA letter requested electronic and print documents that involve several organizations, including Greenpeace, Defenders of Wildlife, WildEarth Guardians, Sierra Club and the AFL-CIO.
The response from the EPA was that the request was “overbroad” in nature, so Pruitt trimmed the list to 16 groups and was again denied.
According to language found in the lawsuit, “In its denial letter, EPA claims that the states’ FOIA request ‘fails to adequately describe the records sought,’ and therefore the request was denied. EPA’s denial of the states’ FOIA request is consistent with their apparent protocol to avoid compliance with FOIA by telling requestors that their FOIA request is overbroad.
“In a recent email exchange disclosed by EPA as a result of a FOIA request, an EPA official advises a Region 6 EPA employee that ‘standard (EPA) protocol’ is to tell all ‘requestors that they need to narrow their (FOIA) request because it is overbroad.’”
“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,” Pruitt said. “We are investigating the pervasiveness of this tactic, and have requested documents to help in that effort. 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.”
“We only file lawsuits as a last resort when the federal government violates laws designed to protect the environment and public health,” said Jason Rylander, senior attorney for Defenders of Wildlife. “In some cases, these lawsuits are resolved through a settlement agreement.”
Representatives of Greenpeace and the Sierra Club could not be reached for comment by press time.
The EPA also reportedly refused to provide the records at no fee, as is required under federal law.
In the suit, the attorneys general wrote, “A recent study found that EPA disproportionately denies fee waiver requests from noncommercial requesters who seek records so as to understand whether EPA is faithfully complying with applicable law. According to the Competitive Enterprise Institute’s (CEI) study, 92 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.”
According to a press release on Oklahoma Attorney General Pruitt’s website, out of the 45 settlements the details of which have been made public, the EPA has paid nearly $1 million in attorneys’ fees to the environmental groups, while also committing to develop sweeping new regulations.
“One EPA consent decree led to the EPA’s costliest regulation ever–the Mercury Air Toxics Standards (MATS),” Pruitt’s statement reads.
“Not only does EPA’s action harm and jeopardize the states’ role as a partner with EPA, but it harms the interests of the citizens of the requesting states,” the 12 attorneys general wrote in the request letter. “Our citizens rely on and expect the states to implement federal environmental law. Often, these implementation efforts require the states to design plans to meet the individual circumstances of the state, while protecting and advancing the environmental goals and requirements of federal environmental law.
“When EPA coordinates with non-governmental organizations regarding how federal environmental law should be applied and implemented in an individual state and excludes the state from that effort, the state and its citizens are harmed.”
“This is an outrageous abuse of federal power and it must be stopped,” Horne added. “The first step is to have the EPA obey federal law and release these public records so we can know what was discussed behind closed doors with these environmental groups.”
Speaking to the recent consent decrees by the EPA that affect the area’s coal-fired power plants, Horne said the lawsuit “also raises the broader issue of the EPA’s proposed regulations that will have a devastating effect on Arizona consumers.
“While not specifically challenged in this legal action, among the proposals is a visibility standard on emissions from the Navajo Generating Station which cannot be seen by the naked eye,” Horne said. “Only the federal government would propose the absurd idea of an invisible visibility standard.
“It would be comical except that it may require the closure of the Navajo station, resulting in much higher electricity costs for the Central Arizona Project, which relies on that electric power to pump water into Phoenix and Tucson,” Horne said. “Those costs would skyrocket and be passed on to millions of water users–including residential customers–in much of Arizona.”