Lawsuit targets EPA for withholding records on Trump nominees

By Elizabeth Alt | May 13, 2018

SAN FRANISCO – The grassroots environmental organization Sierra Club filed a lawsuit on May 2, claiming the Environmental Protection Agency has violated the Freedom of Information Act by refusing to respond to requests from Sierra about two EPA nominees.

Sierra alleges the EPA has violated the FOIA by failing “to adequately respond to requests for agency records submitted by the Sierra Club.” There is a 20-day deadline to which the EPA had to respond to Sierra Club with a “responsive determination.”

In October 2017, Sierra sent two requests under the FOIA for communication records between the EPA and Susan Parker Bodine and Michael Dourson, who President Donald Trump nominated for appointments to the EPA, but were awaiting Senate confirmation at the time. 

Sierra noted in its complaint that media sources published stories detailing how, “Mr. Dourson and Ms. Bodine participated in EPA decision-making within the offices to which they had been nominated, prior to their confirmation by the United States Senate.”

Sierra noted in the FOIA request that the two nominees were still under consideration for their appointments, and “the nature of their activities prior to their appointment are of critical, and immediate, public interest." Sierra specifically noted its concern over the role Bodine and Dourson had as “unconfirmed nominees” and pointed to the “significant concerns” surrounding the nomination of Dourson, who was alleged to have corresponded with chemical industry officials when he was being considered to head the agency's Chemical Safety Division.

According to the complaint, the EPA notified Sierra in January 2018 that it would not expedite processing per Sierra's request and granted the fee waiver to one of Sierra’s requests. Sierra states, “EPA has failed to make a final determination with regard to Sierra Club’s requests for records, to produce responsive materials, or to identify any grounds to withhold the responsive records.”

Sierra Club stated in its FOIA request that, “The public has, to date, no meaningful information as to the nature of Ms. Bodine and Mr. Dourson’s role at EPA during the period prior to their nomination. The “level of public understanding prior to the disclosure” sought here is, consequently, near zero ... the information sought by the request will illuminate the manner in which the agency understands its obligations to respect the Senate’s constitutional power of advice and consent.” Bodine was confirmed in December 2017 and Dourson withdrew.

Sierra Club is requesting a court order for EPA to produce the requested documents, attorneys’ fees and other costs of litigation.

Sierra Club is represented by Nathaniel Shoaff and Sanjay Narayan with Sierra Club Environmental Law Program in Oakland.

U.S. District Court for the Northern District of California, Oakland Division, case number 3:18-cv-02592-LB

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