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Group Files Suit to Obtain Records of Closed Door Clean Air Act Meetings at White House

Environmental Integrity Project

The Environmental Integrity Project (EIP) filed suit late on May 8 under the Freedom of Information Act (FOIA) to obtain records of 65 meetings that the White House Office of Information and Regulatory Affairs (OIRA) held with interest groups to discuss four major Clean Air Act rules under consideration by the Environmental Protection Agency (EPA).

The scope of the EIP lawsuit includes 51 meetings with representatives of utilities and other industries, and 14 with public interest organizations.

The EPA rules in question are: the Mercury Air Toxics Rule, the Ozone Rule, the Boiler Rule and the Cross-State Air Pollution Rule. OIRA’s website maintains a list of meetings and attendees for each pending rulemaking.

EIP attorney Alayne Gobeille said: “We are filing the suit because we have received no response from OIRA to our original FOIA request of Jan. 24, 2012, although the law requires to agency to respond within than 30 days. Executive Orders put in place by President Clinton and reaffirmed by President Obama require the records of any meetings that have a significant impact on regulations to be made publicly available as part of the rulemaking record."

Office of Management and Budget's (OMB) website identifies attendees and posts written materials presented at these meetings, but provides no information about the substance of the discussion. No materials were provided at 16 of the meetings in question, including four attended by OIRA Administrator Cass Sunstein, leaving the public no clue about the content of those conversations. “Industry lobbyists have every right to meet with the White House about EPA rules,” said Gobeille. “But the public ought to know what was said at these meetings and whether it influenced decisions that are supposed to protect our health and the environment.”

Gobeille added: “OIRA has clearly emerged as a major chokepoint when it comes to regulations that affect the public health, hosting no fewer than 123 meetings related to EPA regulations alone in 2011, including those pertaining to solid waste and the Clean Water Act. Most of these regulations are required by statute and subject to court order requiring their completion. Reasonable people may disagree about the role that OIRA should play in these reviews, but all parties should agree that meeting records that include a summary of discussion should be part of the public record to inform debate about proposals and final decisions.”

The EIP lawsuit focuses on a number of key meetings including the following:

  • On Dec. 16, OIRA Administrator Cass Sunstein met with Congressman Darryl Issa to discuss the mercury rule. There were no representatives from EPA present, possibly in violation of Executive Order 12,866, which requires that, “[a] representative from the issuing agency shall be invited to any meeting between OIRA personnel and such person(s).” Gobeille said: “It is possible that this had no impact on the final decision, which was announced the same day, but the meeting violates the spirit of the Executive Order, if not the letter of that document.”
  • Administrator Sunstein also met five times with industry representatives to discuss the mercury rulemaking, twice with representatives of Exelon (Feb. 28 and March 3, 2011), twice with leaders of the Edison Electric Institute (Oct. 31 and Dec. 14, 2011) and once with the CEO of Constellation Energy (March 8, 2011). Written materials were provided at only one of these meetings, and EIP has obtained no summary of discussions in response to our FOIA request. Gobeille said: “It is difficult to believe that five meetings between the head of OIRA—who did not meet with environmental groups on the mercury rule—had no significant impact on the outcome of the rulemaking. At least 16 lawyers or lobbyists did not identify who they were representing at these meetings, leaving the record incomplete. For example, Jeff Holmstead, former director of the Office of Air and Radiation, appeared twice in 2011 without identifying his client.

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