‘Nasty-Grams’ Return, Plus Wrangling Over FOIA Rules at EPA, Interior

WatchDog: ‘Nasty-Grams’ Return, Plus Wrangling Over FOIA Rules at EPA, Interior

EDITOR’S NOTE: Below is the second of a two-parter of the newly relaunched WatchDog, now an opinion column from SEJournal Online’s Joseph A. Davis. Find out more about the column’s return in Part One.

By Joseph A. Davis

Part Two of Two

1. WatchDog: “Nasty-Grams” Return to Environment Beat
2. Advocates Still Wrangle Over EPA Attempt To Change FOIA Rule
3. Interior FOIA Rule Change Ends in Consolidation of Power With Politicals

 

1. WatchDog: “Nasty-Grams” Return to Environment Beat

The bad news: Press-office “nasty-grams” have returned to the environment and energy beat. Journalists and their work are being regularly attacked by press offices at the U.S. Environmental Protection Agency and Interior Department.

Worse news: It seems to be part of the Trump administration’s general policy of attacking the news media. 

The good news: Maybe it’s not as bad as it was. And it certainly hasn’t discouraged the media from doing their job — reporting the news and telling the truth.

We don’t have room to go over all the destructive things Trump media wranglers have done since 2017. Suffice it to say the last official briefing by a White House Press Secretary was March 11, 2019. And President Trump still calls the news media “the enemy of the people.”

Nor is there room to review all the EPA press office attacks of yesteryear. Earlier iterations of the WatchDog have covered reports of personal smear campaigns, war-room-style media monitoring and barring reporters from events.

The news is that after some easing off, the press office has again started issuing releases criticizing particular articles it doesn’t like. The renewal was noticed and discussed at the Society of Environmental Journalists’ Jan. 24 year-ahead conclave in front of hundreds of journalists.

 

That EPA press office blast was accompanied 

by some of the other familiar tactics — including 

massive compilations of good press and 

“fact” sheets about disputed matters.

 

The most immediate example was a Jan. 23 EPA press release headlined “Correcting the Record: Media Erroneously Claims EPA and Army Jeopardize Wetlands & Stream Protection.” Whether the new Waters of the United States, or WOTUS, rule did that was exactly the matter under debate, and many wetlands and pollution experts said it did indeed jeopardize clean water.

But the EPA release singled out for criticism accounts from particular (respected) news outlets (EPA labeled them “offenders”): Politico, E&E News, the Los Angeles Times and the Guardian. In each case, EPA said the publication’s “error” was stating that the new WOTUS rule removed Clean Water Act protections from certain water bodies. Which was exactly what it did.

That press office blast was accompanied by some of the other familiar tactics — including massive compilations of good press and “fact” sheets about disputed matters.

And it came on the heels of a Jan. 14 EPA release, in the familiar and misleading “fact check” format, slamming a major story by the New York Times. Despite the implication in the “fact check” rubric, the EPA release did not actually point to any factual inaccuracy in the underlying Times article (may require subscription), which it did not link to.

The gist of the Times piece was that mostly foxes are guarding the hen house at Trump environmental agencies, especially EPA and Interior. Or, to cite the piece’s headline deck, “Among 20 of the most powerful people in government environment jobs, most have ties to the fossil fuel industry or have fought against the regulations they now are supposed to enforce.” It gave facts about the careers of key regulators — which EPA did not dispute.

Instead, the EPA release spoke of a Times’ “Campaign Against Trump Administration,” mocking the paper’s motto. EPA’s release said the Times “continued its march to irrelevance through extreme bias, launching an interactive hit list.” 

The biggest sin, EPA implied, was that the Times had not included an EPA statement saying the Trump EPA’s “focus has been to employ staff who are best suited to implement the President’s agenda.”

It may have been telling that a similar release from Interior’s press office, to the same effect, came out the same day. Although headed “CORRECT THE RECORD,” and complaining of “false attacks,” it, too, failed to mention any specific factual inaccuracies.

It happened that Lisa Friedman, one of the Times authors (with Claire O’Neill) was on the panel at SEJ’s year-ahead forum, and that an audience member asked about the nasty-grams. You can see the whole exchange on the recorded video, starting at 1:31:52.

“Having been on the receiving end of a few nasty-grams,” Friedman said, “one thing that I have noticed in a number of these press releases …  that it is often a lot of spin and not a lot of accusations of actual factual mistakes.”

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2. Advocates Still Wrangle Over EPA Attempt To Change FOIA Rule

The EPA’s effort to hamstring the Freedom of Information Act, or FOIA, is still being contested in court. The result could decide whether reporters can successfully FOIA politically sensitive (or embarrassing) documents.

In the summer of 2019, the SEJ and other groups protested vigorously a surprise EPA revision of its agency rules for complying with FOIA.

SEJ complained that EPA was issuing the rule wrongfully under a no-notice and no-comment procedure. SEJ also complained that EPA’s change would illegally concentrate disclosure power in the hands of political appointees rather than professional staff.

EPA countered that the complaints were baseless.

 

EPA singled SEJ out of the pack

and responded with an

erroneous complaint about errors.

 

But 37 other media groups had the same complaint, and wrote EPA in protest. EPA singled SEJ out of the pack and responded with an erroneous complaint about errors. SEJ pushed back.

But the controversy moved on from the press release pages and quickly landed in court. Several lawsuits were filed by environmental and open-government advocacy groups.

One was filed jointly by the Center for Biological Diversity and the Environmental Integrity Project. That one has reached no resolution.

Another suit against EPA’s FOIA change was filed by the group Citizens for Responsibility and Ethics in Washington, or CREW. That one is still dragging on in a federal district court, in a welter of motions and cross-motions, without any real decision yet. You can follow progress here.

Yet another was filed by two environmental groups, Ecological Rights Foundation and Our Children’s Earth Foundation, and has not been resolved yet either.

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3. Interior FOIA Rule Change Ends in Consolidation of Power With Politicals

After objections from SEJ and other journalism groups, the Department of Interior somewhat softened a FOIA rule change many saw as a shift of censorship power to political appointees.

Interior proposed a change in its FOIA rules way back in Dec. 2018, when much of the country was on vacation and sleeping off their holiday turkey. The proposal would have authorized Interior to refuse requests it found “burdensome” or “unreasonable.” Both are restrictions that FOIA law does not allow. 

On a separate track, not part of the rulemaking, Interior had instituted something called an “awareness review,” which delayed the fulfillment of FOIA requests while top political appointees looked them over.

Consternation ensued. SEJ objected on the docket, and joined a coalition of 39 journalism groups who also objected. After much wrangling, Interior issued a final FOIA rule in Oct. 2019 that removed some of the most objectionable provisions in the proposal. Not all.

The Reporters Committee for Freedom of the Press, which had led much of the resistance to the rule, eventually issued a thorough and lawyerly analysis of the final rule. You can find it here. It is worth studying.

 

What was not so apparent was the 

major consolidation of FOIA decision

power at the Interior Department.

 

What was not so apparent in the legal analyses was the major consolidation of FOIA decision power at the agency, which consists of a collection of disparate bureaus like the U.S. Geological Survey and the Bureau of Land Management.

One key shift was a centralization of FOIA authority in Interior’s Office of the Solicitor. That is a fairly rare way to organize an agency FOIA apparatus, which is actually prescribed in some detail in the actual FOIA law as amended.

And yes, Interior’s solicitor and top attendant staff are politically appointed. 

Daniel Jorjani, a former Koch brothers adviser, is Interior’s solicitor. He had been acting solicitor while all the FOIA arguments raged, but in Sept. 2019, the Senate confirmed him (subscription required) by a largely partisan 51-43 margin — even as he was under investigation (subscription required) by the Interior Inspector General’s Office. And yes, that investigation focused at least partly on his FOIA activities.

By many accounts, this story is ending (if it is ending) with a consolidation of Jorjani’s growing empire at Interior. He created a new legal team (subscription required) to handle FOIA matters and President Trump’s 2021 budget proposal (subscription required) would hike funding enough to expand the Solicitor’s office to 505 full-time employees.

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Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, as well as compiling SEJ's weekday news headlines service EJToday. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog column and WatchDog Alert.

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* From the weekly news magazine SEJournal Online, Vol. 5, No. 12. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.