JANUARY 2022. WASHINGTON, D.C. Tycko & Zavareei LLP represented the Environmental Defense Fund (EDF) in Freedom of Information Act (FOIA) litigation against the Environmental Protection Agency (EPA).* FOIA, 5 U.S.C. § 552, obligates federal agencies to disclose records in response to requests for information that do not fall within an exemption or exclusion.
The litigation concerned FOIA requests that EDF submitted to EPA in 2017, including requests for documents concerning then EPA Administrator Scott Pruitt’s conflicts of interest and EPA’s handling of the same; directives, guidance, and questionnaires distributed to EPA’s scientific staff about external communication of scientific research and findings; and documents regarding then Administrator Pruitt and senior managers’ schedules (including daily activities and meeting attendees, for purpose of gauging possible influences on agency decisions).
As expressed in a December 3, 2020 filing submitted on behalf of EDF, “EPA’s violation [of FOIA] directly weakens EDF’s ability to effectively engage in, provide public oversight of, and disseminate full, accurate, and current information to the public regarding matters of significant public concern involving EPA.” Dkt. No. 43-1 at 15.
However, the litigation helped to correct the violation. According to the Court in ruling on EDF’s Motion for Attorneys’ Fees and Costs, “it was only after this lawsuit was filed and the court compelled EPA to process EDF’s FOIA requests that the agency began to do so.”
Ultimately, EPA disclosed documents bearing on environmental and public health. For example, EDF and other organizations used one disclosure to endorse postponing the effective date of a final rule that would force EPA to ignore certain scientific studies in forming public health protections. (EPA later cited this petition in its Unopposed Motion for Vacatur and Remand, after which the rule was vacated.) EDF and state government officials used another disclosure to oppose postponing limits on hazardous landfill pollution.
Our firm performed this work pro bono, but in recognition of these favorable results in January of 2022 the Court granted EDF’s Motion for Attorneys’ Fees and Costs—a result that will hopefully encourage others to submit requests for documents relevant to public interest and incentivize agency transparency.
“We are grateful to have supported EDF in this critical effort to hold EPA accountable to its statutory obligations,” said Partner Hassan A. Zavareei. “FOIA is important not only to individual freedom but also to collective progress against threats of all kinds, including environmental.”
Tycko & Zavareei LLP received assistance from then Senior Attorney for Environmental Defense Fund (current Senior Attorney for Earthjustice), Benjamin Levitan.
The case is EDF v. EPA, Case No. 1:17-cv-2220 in the United States District Court for the District of Columbia.
*Tycko & Zavareei LLP also represented EDF in separate FOIA litigation against EPA, EDF v. EPA, Case No. 1:18-cv-02861-JEB in the United States District Court for the District of Columbia, regarding FOIA requests for documents also germane to environmental wellbeing—including requests for communications between EPA and external law firms (in light of reports that EPA might hire external law firms to help draft regulations); reports from certain facilities showing compliance with new source performance standards for greenhouse gases and volatile organic compounds from certain oil and gas sources; records regarding EPA’s review of the Clean Power Plan (CPP) that culminated in EPA’s proposal to repeal the CPP; and records of reports that glider vehicle manufacturers needed to submit to EPA on their glider production in order to exercise an exemption to emission standards. That case settled in July of 2021.