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Judge: US EPA must produce documents sought in records suit despite shutdown


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Judge: US EPA must produce documents sought in records suit despite shutdown

A federal judge lifted a court stay Jan. 16 that would have allowed the U.S. Environmental Protection Agency to delay the production of 20,000 emails sought by the Sierra Club until after the partial federal government shutdown ends. Instead, a new order directed the EPA to begin releasing the emails over an expedited 10-month timeline regardless of how the fight between congressional Democrats and President Donald Trump over his promised border wall plays out.

The documents are at the center of a public records lawsuit filed with the U.S. District Court for the Northern District of California by the Sierra Club in June 2018 accusing the EPA of failing to produce communications records in a timely manner consistent with the Freedom of Information Act, or FOIA. The Sierra Club claimed that the emails and calendar invitations it seeks between industry representatives and top agency officials including EPA Acting Administrator Andrew Wheeler and Office of Air and Radiation Administrator Bill Wehrum could shed light on potential conflicts of interest. The two officials have played a central role in guiding the Trump administration's efforts to roll back a slew of Obama-era energy policies, including a range of proposals to ease regulations on coal-fired power plants.

On Dec. 26, 2018, District Court Judge Elizabeth Laporte sided with the Sierra Club by rejecting the EPA's proposed four-year production plan, stating that it was "a very far cry from making them 'promptly available'" as required by FOIA. Under the Sierra Club's proposed 10-month timeline, the first batch of documents was to have been released in late February. But due to the EPA's lapse in funding, Laporte also granted a request from the agency to delay production until after the partial government shutdown ends.

A day before Wheeler's confirmation hearing in front of the Senate Environment and Public Works Committee, however, the Sierra Club asked Laporte to lift her earlier stay. The group specifically cited a letter from four Democrats on the committee asking whether the EPA was violating its contingency plan and federal spending laws by allowing staff to help Wheeler prepare for his hearing during the shutdown.

"Even while ceasing to review and produce documents relevant to Congress's consideration of Mr. Wheeler's nomination, as required by law and order of this court, EPA is using its limited resources to prepare for his hearing," the Sierra Club argued. The group also noted that the U.S. Department of Justice attorneys and EPA staff can continue to work during a shutdown if a judge declines to pause ongoing litigation.

Under Laporte's Jan. 16 order, the Sierra Club and the EPA must file an adjusted release schedule for the first installment of documents consistent with the group's proposed timeline. Environment and Public Works Committee Chairman Sen. John Barrasso, R-Wyo., on Jan. 16 said he expects to call a meeting in early February to consider advancing Wheeler's nomination to the full Senate.

The case is Sierra Club v. U.S. Environmental Protection Agency (No. 3:18-cv-3472-EDL).