Group goes to court over text messages of Obama's EPA nominee

A group accusing the Environmental Protection Agency (EPA) of shielding official work from public view is suing to obtain the text messages of Gina McCarthy, the senior EPA official President Obama has nominated to run the agency.

The conservative Competitive Enterprise Institute (CEI) filed a lawsuit Wednesday seeking potential messages to or from McCarthy, the agency’s top air pollution regulator, on 18 dates when she testified before Congress.

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The lawsuit alleges EPA has not provided the records or a “substantive” response to a late April Freedom of Information Act request, which covers dates McCarthy testified between 2009 and 2012.

CEI alleges McCarthy “regularly used text messaging as an alternative to email for work-related communications.”

The group’s lawsuit also claims that a senior EPA official cautioned McCarthy to “cease using that function on her PDA, due to concerns about the propriety of her texting about Members of Congress specifically on days when she testified before either the House or Senate.”

The EPA said it’s reviewing the latest lawsuit from CEI for internal EPA communication. The suit was filed in the United States District Court for the District of Columbia.

“We are in the process of responding to CEI’s FOIA request, and will review the new lawsuit,” EPA spokeswoman Alisha Johnson said in an email.

CEI in early April sued the EPA to obtain a separate form of communication – instant messages – to or from McCarthy and two former top officials, including former Administrator Lisa Jackson when she was at the agency.

But the group withdrew the lawsuit in late April after what it called an “atypically specific response” from the EPA showing that such records didn’t exist and that the officials didn’t use the EPA’s instant message application.

McCarthy told the Senate Environment and Public Works Committee in mid-April that she has never used instant messaging. “One good thing about being 58 is I don’t know how to use them,” McCarthy said. “I have never used an IM. I don’t know how.”

CEI has also been critical of use of a secondary federal email account by Jackson under the name “Richard Windsor” while she was at the agency.

But EPA officials say a secondary federal account is needed for internal communication, noting the large volume of emails – more than 1.5 million in fiscal year 2012 alone – sent to Jackson’s public account. EPA also notes that administrators from both parties have used a secondary account.

On another front, CEI recently accused the EPA of routinely waiving FOIA fees for environmental groups while often refusing the waivers for conservative groups.

Acting EPA Administrator Bob Perciasepe said May 16 that he has asked the agency’s inspector general to help review the allegation.