Overnight Energy: Senators push back on EPA's new FOIA rule | Agency digs in on rule change | Watchdog expands ethics probe of former EPA air chief

Overnight Energy: Senators push back on EPA's new FOIA rule | Agency digs in on rule change | Watchdog expands ethics probe of former EPA air chief
© Greg Nash

TRANSPARENTLY CONTROVERSIAL: A bipartisan group of senators is pushing back against the new public records policy at the Environmental Protection Agency (EPA), saying it may violate the law by giving political appointees the power to hold back requested information.

"The rule purports to make numerous changes to the EPA's FOIA process that appear to run contrary to the letter and spirit of FOIA, thus undermining the American people's right to access information from the EPA," the senators wrote in a letter to Administrator Andrew WheelerAndrew WheelerThe Hill's Morning Report - Trump touts new immigration policy, backtracks on tax cuts Overnight Energy: Green groups sue Trump over Endangered Species Act changes | Bureau of Land Management retirees fight plan to relocate agency | Wildfires in Amazon rainforest burn at record rate Trump admin erases key environmental enforcement tool MORE, referring to the Freedom of Information Act.

The new EPA policy, first reported by The Hill, was announced late last month without any opportunity for public feedback.

Sens. Patrick LeahyPatrick Joseph LeahyAppropriators warn White House against clawing back foreign aid House panel investigating decision to resume federal executions Graham moves controversial asylum bill through panel; Democrats charge he's broken the rules MORE (D-Vt.), Chuck GrassleyCharles (Chuck) Ernest GrassleyWhite House denies exploring payroll tax cut to offset worsening economy Schumer joins Pelosi in opposition to post-Brexit trade deal that risks Northern Ireland accord GOP senators call for Barr to release full results of Epstein investigation MORE (R-Iowa), Dianne FeinsteinDianne Emiel FeinsteinTrump administration urges Congress to reauthorize NSA surveillance program The Hill's Morning Report - More talk on guns; many questions on Epstein's death Juan Williams: We need a backlash against Big Tech MORE (D-Calif.) and John CornynJohn CornynThe Hill's Morning Report - Trump hews to NRA on guns and eyes lower taxes The Hill's Morning Report - Trump on defense over economic jitters Democrats keen to take on Cornyn despite formidable challenges MORE (R-Texas) are asking the EPA to reconsider the policy and -- at a bare minimum -- give the public a chance to comment on it, rejecting the agency's assertion that such a process is unnecessary. 

"It is difficult to understand, however, how a rule that limits where requests may be made and appears to affirm political appointees' authority to redact information in ways that may violate binding precedent is 'insignificant' or 'inconsequential,'" they said, pointing to the two exceptions under law for avoiding public comment on a new rule.

Grassley and others have floated the possibility of a legislative response to the FOIA rule, decrying what they call a culture of secrecy coming from the federal government.

EPA sticking with rule: EPA spokesman Michael Abboud said the agency "has no plans to withdraw the finalized rule" in a Monday statement to The Hill.

"As we have said this rule will enhance transparency and efficiency of responses to FOIA requests. Allegations made that the rule is changing the political appointees role in FOIA are false and irresponsible," Abboud said.

Lawmakers and media outlets have been vocal in their concerns about the rule, saying it would limit access to information by giving political appointees more power to determine whether documents are "responsive" to a requester's query.

The senators said the rule would give political appointees, including the administrator, the power to issue final determinations whether to release or withhold documents in response to FOIA requests.

"Expressly affirming appointees' authority to issue final determinations may embolden future senior officials and increase the chances -- under any administration -- that final FOIA determinations are unnecessarily delayed or driven by political considerations rather than the law," they wrote.

They were also concerned by an aspect of the rule that would allow political appointees to hold back portions of records, something they say does not fit under the current exemptions allowed by law and also violates a recent court decision that requires turning over a full record once it has been deemed responsive.

"You could have a situation where there is a pile of documents that the FOIA officer thinks is responsive and have a political appointee overrule them and say, 'I don't think those documents are responsive because that's not exactly what that person was looking for,'" Matt Topic, government transparency and First Amendment lawyer at Loevy & Loevy, a Chicago-based firm that specializes in civil rights, previously told The Hill. "There's a lot of opportunity to screw around with that."

Read more about the rule here.

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WEHRUM QUIT, BUT THE INVESTIGATIONS DIDN'T: The Environmental Protection Agency's (EPA) internal watchdog will continue to investigate the agency's former air chief for ethics violations tied to his prior lobbying clients, The Washington Post reported Monday.

The investigation comes after Sens. Sheldon WhitehouseSheldon WhitehouseSenate Democrats push Trump to permanently shutter migrant detention facility To cash in on innovation, remove market barriers for advanced energy technologies Democrats give cold shoulder to Warren wealth tax MORE (D-R.I.) and Tom CarperThomas (Tom) Richard CarperAmerica is in desperate need of infrastructure investment: Senate highway bill a step in the right direction FARA should apply to Confucius Institutes The 23 Republicans who opposed Trump-backed budget deal MORE (D-Del.) sent a letter to EPA's Office of the Inspector General with a lengthy report following their own investigation of Bill Wehrum, who stepped down as head of the Office of Air and Radiation in June. 

The two senators urged the inspector general in a letter sent Sunday to investigate Wehrum regardless of his departure from the agency.

"These are institutional concerns that are capable of repetition in the future, yet will evade your review should you abdicate your responsibility to conduct and complete an evidence-based investigation," the letter said. "Moreover, the ethical failings and absence of accountability that pervade the Trump Administration should not be aided by an implicit message that one can avoid investigation if one simply resigns before the investigation is complete."

A spokeswoman for the inspector general said they are reviewing both the letter and the report but would not confirm the existence of any investigations. 

Wehrum's conduct at the EPA spurred at least two other investigations from the inspector general, according to the Post. Those investigations primarily stem from Wehrum's previous work as a lobbyist for Hunton Andrews Kurth and an entity called the Utility Air Regulatory Group (UARG), which was comprised of several energy companies.

The EPA has repeatedly said that Wehrum has recused himself from all matters where DTE Energy is a party, though the allegations against Wehrum involve a number of other utilities.

Wehrum was one of the architects of the Trump administration's new rule for power plants that rolls back Obama-era requirements.

Whitehouse and Carper detail a number of ethics issues they say show "Hunton-represented industry groups are getting the policy results they seeking" at the EPA.

That lobbying firm represented a number of clients who would go on to organize through various coalitions specific to industries, including utilities, automakers and other groups like petroleum and paper manufacturers. 

It is the UARG, however, that has gotten the most attention. Though Wehrum recused himself from dealing with some of its members, the majority of the utilities were not part of his recusal.

Read more about the investigation here

ON TAP TOMORROW:

-Democrats on the House Energy and Commerce Committee are expected to unveil a proposal for tackling climate change. 

-The Senate's Commission on Security and Cooperation in Europe will have a briefing on pipeline politics in Europe.

- The Senate Commerce, Science, and Transportation Subcommittee on Science, Oceans, Fisheries, and Weather will look into America's waterfronts and their economic and environmental challenges. 

OUTSIDE THE BELTWAY:

-Landowner lawsuits could cost North Carolina more than $1B, the Raleigh News and Observer reports.

-Greta Thunberg receives Normandy's Freedom Prize, donates prize money to climate groups, we report

ICYMI

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Scientists honor Iceland's first glacier lost to climate change with plaque, eulogy

Watchdog probing more ethics investigations into EPA's former air chief: report

Bipartisan senators fight 'political considerations' in EPA's new FOIA rule