07/19/2019 - EPA Mission Tracker

Hiding Information

by EELP Staff, James Pollack

Climate Change

The EPA has hidden access to information on its website about climate change.

The American public relies on EPA’s website for detailed and dependable information about critical environmental subjects, including climate change. On April 28, 2017, the EPA announced it was updating its website to “reflect the agency’s new direction under President Donald Trump and Administrator Scott Pruitt.”

Many of these “updates” take the form of numerous webpages that include only notices that state the page is being updated. While some pages remain available via a “snapshot” of what was available on the website at the end of the Obama Administration, accessing this information requires searching for it specifically within the old archive, making it harder to find.  Almost by definition, the information on the snapshots, fixed in time as it is, is out-of-date, failing to reflect continually evolving science and technologies.

This includes EPA’s climate change webpage which previously included information about regulations, policies, and science, with a special focus on “reviewing” information related to climate change. Where webpages provide information about EPA rules and programs, benefits or impacts related to climate change are not included. In fact, the Environmental Data and Governance Initiative released a study about censorship of climate change information that stated, “of all agencies, the EPA has removed the most climate web content” – leaving the public without a once reliable, comprehensive and up-to-date source of information about a critical and complex subject.

As of November 2018, the update notice has been removed from the climate change webpage and it appears as though the administration has abandoned the update project for the page. The only link provided is to the archived version of the page from Jan. 19, 2017.

Public Records

More recently, EPA has taken steps to restrict access to public records. 

The public, press, and public interest groups rely on transparency laws like the Freedom of Information Act (FOIA) to learn more about the functioning and decision making of government agencies, including obtaining studies, documents, and emails that are not otherwise released to the public. On June 26, 2019, the EPA published a final rule that would require any documents to be produced in response to a FOIA request to first go to political appointees and other officials for review, and would empower those officials to decide “whether to release or withhold a record or a portion of a record on the basis of responsiveness or under one or more exemptions under the FOIA, and to issue ‘no records’ responses.” 

This review process would politicize the FOIA process by allowing political appointees to redact or withhold documents that would otherwise be produced in response to a request. 

Critics have pointed out a number of ways the new rule might violate federal law. Crucially, the rule was posted without prior notice and without a comment period. This may violate the Administrative Procedure Act (APA). Further, its inclusion of partial redaction of responsive documents may violate a recent appeals court decision. In American Immigration Lawyers Ass’n v. Executive Office for Immigration Review, 830 F.3d 667, 677 (D.C. Cir. 2016), the D.C. Circuit Court of Appeals held that agencies may not redact non-responsive information from a record deemed to be responsive to a FOIA request. In other words, once a document is determined to be responsive to a request, the entire document should be released and the only material that may be redacted is information protected by a statutory exemption. Information cannot be redacted solely because it isn’t directly relevant to the request. Therefore, that portion of the rule may violate FOIA.

A number of groups have reached out to EPA regarding the posted rule. On July 9, 2019, sixteen environmental and public interest organizations sent a letter to the EPA requesting that the agency delay the rule’s implementation and open the rule for public comment. On the same day, 39 news organizations sent a similar letter to the EPA also to request that the agency delay the rule’s implementation and open the rule for public comment. Both letters argue that the final rule, as currently written, would violate the APA and FOIA.

Pending potential legal challenges, the rule and its new review process will go into effect on July 26, 2019.

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