When the Freedom of Information Act was passed five decades ago, Congress did not see it as an environmental protection law. But the present frenzy of the Trump administration’s efforts to slash federal regulations, primarily those designed to protect the air we breathe and the water we drink and to eliminate the toxic chemicals that can kill us, may well open a new chapter for the 51 year old FOIA. It may, in fact, have already become a crucial environmental protection weapon.
Under direct orders from the president, shadowy task forces have been established by the Office of Management and Budget to formulate plans to halt or undo actions by most federal agencies.
A leading target is the Environmental Protection Agency. Under President Obama, the EPA issued key rules, such as the Clean Power rule and the Waters of the United States rule, designed to reduce major human health threats from the environment: primarily excess carbon dioxide in the air and impure run off of toxic chemicals into rivers and streams. These two rules have been under intense attack by the regulated industries, such as coal, oil and real estate development, which would like less government oversight of their operations. The Trump administration would like to assist them through elimination or reduction of these and other rules.
Based on documents obtained under the Freedom of Information Act the EPA/OMB deregulation task force, whose membership remains secret, is probably made up primarily of representatives of the fossil fuel and energy industries and of land developers that have in the past, expressed forceful opposition to the air and waters rules. It remains unknown whether any public representatives or independent experts are included in the membership. This is despite continuing efforts by environmental and citizen organizations as well as some states, both before the agency and in the courts, to obtain disclosure of the members.
The prime weapon of the press and public groups is the fifty-one year old Freedom of Information Act. It was passed by a legislative coalition of Democrats and Republicans over the fierce opposition of four presidents, of both political parties. Those chief executives argued that an opening up government records would invade the powers of the president, impair the operation of the executive branch and, surprisingly, aid the Russians (then known as the “Communist Threat”).
FOIA arose out of the “McCarthy era” and the Cold War, a time filled with fear of Russia and Communism and marked by government abuses and mandated secrecy.
It took 12 years of intense struggle to enact the open government law. The fight was led by a young California congressman named John E. Moss, who had been tarred as a “red” himself as a as a candidate for Congress.
FOIA was one of the first laws worldwide to attempt to force transparency on reluctant chief executives. Today that includes the secretive President TrumpDonald TrumpTrump goes after Cassidy after saying he wouldn't support him for president in 2024 Jan. 6 panel lays out criminal contempt case against Bannon Hillicon Valley — Presented by Xerox — Agencies sound alarm over ransomware targeting agriculture groups MORE and his EPA Administrator Scott PruittEdward (Scott) Scott PruittOvernight Energy & Environment — Biden makes return to pre-Trump national monument boundaries official Trump-era EPA board member sues over firing EPA bans use of pesticide linked to developmental problems in children MORE.
“Sunlight is the best disinfectant” the great American jurist and Supreme Court Justice Lewis Brandeis once said. Moss spent much of his congressional career and fought presidents of his own party, to prove that was right. Lyndon Johnson reluctantly signed “the f…ing thing” into law on July 4 1966.
Many nations have followed the U.S. lead. FOIA has been a means of building democracy (including in former communist bloc countries), limiting corruption and giving power to ordinary citizens. As of today 110 nations around the world have adopted laws based on FOIA, as have most American states. Only Sweden and Finland preceded the U.S. in passing such a law.
The key to FOIA’s appeal is that it provides that “any person” may upon a simple written request (subject to some exceptions) ask for “any agency record”, be it a task force memorandum or White House guest list. The courts can order production of the documents. There are severe penalties for agencies refusing to produce them.
FOIA was a reaction to excessive government secrecy in another time. But history does tend to repeat itself. Can FOIA be used to block a reckless anti-regulatory administration and support the gains already made in environmental protection? There are many efforts under way as well as some notable successes that suggest it can.
In August of this year, the Attorney General of California, Xavier Beccerra, sued the EPA under FOIA for failing to provide agency records. California argued that the EPA records would establish that Scott Pruitt, the administrator who had previously sued EPA repeatedly as a state official, has existing conflicts of interest which would prejudice his objectivity and participation in the administrative processes in cases like the attempted Trump clean air rule repeal and the proposed clean waters revision. Such conflicts could affect Pruitt’s ability to render a fair decision on repeal or revision of the Clean Power, Clean Waters and similar deregulation rules.
Simultaneously, a public interest group called Democracy Forward, filed suit under FOIA over the secrecy of the administration’s appointees to all its so called regulatory reform task force panels. The case is still pending in federal court.
Another citizens group sued using FOIA to obtain information on EPA’s encrypted monitoring of its employee’s mail. The contractor has now withdrawn after a lawsuit by the consumer group, Public Citizen, charging the contract was placed with a political ally of the Trump administration and was not awarded by required competitive bidding.
Reporters have used FOIA to uncover a long relationship between Scott Pruitt and Devon Energy Company which wrote letters to the agency which Pruitt dutifully signed. FOIA was also used to uncover Pruitt’s meetings with the Oklahoma Independent Petroleum Association industry, just prior to the issuance of a proposed rule limiting the clean air rule.
Will these efforts using the Freedom of Information Act slow or reverse the Trump administration’s push to undo environmental protections laboriously erected over past decades?
The challenges are not yet fully decided. FOIA is probably only part of the answer. But FOIA leads ultimately to more information to the public; to the sunlight of democracy. The public will at minimum learn more about the close economic ties of the regulated industries and the Trump administration.
And there is a reckoning coming… as early as November 2018.
Michael R. Lemov was counsel to the House Commerce and Banking Committees. He is the author of People’s Warrior: John Moss and the Fight for Freedom of Information and Consumer Rights (Fairleigh Dickinson University Press, 2011) and Car Safety Wars, 100 years of Technology, Politics and Death (Id. 2014).