When the public goes to the federal Environmental Protection Agency with a Freedom of Information Act request, it will first go to the lawyers. That’s literally by design, under a reorganization program headed up by EPA Administrator Andrew Wheeler.
Leif Palmer, regional counsel for EPA Region 4, talked Friday as the keynote speaker for the first day’s session of the State Bar of Georgia’s Environmental Law Section annual summer seminar, held at the King & Prince Resort on St. Simons Island.
“This has been a push of the administration, to make sure all the regional offices have a similar structure to their headquarter counterparts,” Palmer said. “I don’t know if you’ve worked with more than one region, but we’re all very different. We’re like children of the same family that don’t look like each other, at all.”
He said the big news for regional administrators was that all regulatory enforcement matters are now handled in the new Enforcement and Compliance Assurance Division. Also, his Office of Regional Counsel received control of the FOIA program.
“This is not something I volunteered for, as you can probably imagine,” Palmer said. “And I was at the meeting that day when they handed it out, I just didn’t have a choice. That’s a national change. EPA’s Office of General Counsel is also taking on the FOIA program up there. They work so closely with the lawyers, I guess it made sense to somebody. Previously, they had been in what is now our Mission Support Division.”
And that’s not all. The Hill reported in late June, which was subsequently borne out by a new rule, that EPA wants to allow the administrator and other political appointees to be able to review all materials requested through FOIA. The rule was not put out for public comment, and the EPA argues there are exceptions to the public comment requirement that allowed the agency to issue the rule in this manner.
The rule allows political appointees 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.”
As could be expected, the response from transparency and environmental organizations hasn’t been friendly.
“One of the rule’s most worrisome changes grants authority to the administrator — and a hierarchy of other political appointees — to determine which records are ‘responsive’ to a FOIA request,” Society of Environmental Journalists Executive Director Meaghan Parker said in a June 26 letter to Wheeler. “The determination takes place entirely before the records are reviewed or redacted for legitimate FOIA exemptions.
“It is arbitrary and invisible, and virtually impossible to appeal, because the agency need not disclose to the requester what records were initially found or why they were deemed non-responsive. This provision badly distorts the true and proper meaning, under FOIA, of ‘responsiveness.’”
In his address, Palmer also discussed Georgia’s new coal ash permitting program. For instance, there are issues not dealt with by the state program, which include requirements relevant to endangered species.
Requirements for unlined impoundments to continue receiving coal ash, and requirements for clay-lined impoundments, are not part of Georgia’s program, but they aren’t settled on the federal level, either. Courts vacated regulations for both, so EPA has to establish new regulations for those requirements.
“If you think about this, the last three years we’ve been working on this (coal combustion residuals) rule,” Palmer said. “During that time, we’ve had vacaturs, remands, and so Georgia’s program is not a full approved one, it’s a partial approval of just those things that aren’t stayed, those things that aren’t under redevelopment by EPA. One of the important topics for you to know is that EPA — even though we’ve approved Georgia’s CCR program, or are proposing to — we still retain enforcement authority.”
He said that regardless of states taking over the lead in a permitting process, EPA almost never gives up enforcement authority.
“The Georgia program itself is broader than ours…,” Palmer said. “It’s kind of designed to go around those exclusions that we’ve got, and remands, from the courts. We think it’s been a great success for us. It’s a great example of cooperative federalism, because it would almost be to the point where my staff and the legal staff from EPA and the program had written up a proposal notice, just to see that oops, you’ve got to take it all back and rewrite it now, because of a remand or a vacatur. So, we are pleased to get it out and we hope there are no court rulings in the next few weeks.”