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EPA stonewalled records requests by Republican-led states

By Michael BastaschDaily Caller

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Attorneys general from a dozen Republican-led states say the Environmental Protection Agency has been dragging its feet since February on their fee waiver requests, adding to a pattern of the agency making it harder for conservatives to obtain government records.

Twelve states with Republican administrations sent a Freedom of Information Act request for records regarding EPA “sue and settle” negotiations with outside environmental groups in lawsuits. These suits led to the agency entering into consent decrees that forced more federal intervention into state environmental plans.

“Oklahoma and other states seek this information out of substantial concern with EPA’s practice because it directly results in minimizing the substantive role of the States in energy, land use and environmental regulatory programs in a manner that is contrary to the cooperative federalism structure set forth in federal law and the United States Constitution,” wrote Oklahoma Attorney General Scott Pruitt on behalf of the twelves states. “The EPA must be transparent about its actions.”

The EPA denied fee waiver requests to the twelve attorneys general and the decision was appealed by the states in March. However, the EPA has been dragging its feet, twice asking for more time to consider their appeal.

The states are especially concerned given reports that the EPA has been routinely denying fee waiver requests to conservative groups seeking government records, while granting them to environmental groups that seek to push more federal involvement in state environmental rules.

The free-market Competitive Enterprise Institute obtained documents showing that since January 2012, the EPA granted fee waivers for 92 percent of FOIA requests from major environmental groups, while the agency rejected or ignored 81 percent fee waiver requests from conservative groups.

According to the states’ February FOIA request, the EPA has entered into at least 45 settlements with environmental groups under the Clean Air Act in the last three years, forcing the agency to engage in rulemaking. When this happens, the states — which have to implement the new rules — are kept out of the process.

“Not only does EPA’s action harm and jeopardize the States’ role as a partner with EPA, but it harms the interests of the citizens of the Requesting States,” reads the FOIA request sent by Pruitt and the states in February. The EPA has also disclosed nearly $1 million in attorneys’ fees to these groups.

Earlier this year, seventeen states, including Oklahoma, pushed back against the EPA’s new proposal that would revoke existing state implementation plans that grant exemption to fines for power plants and other emitters that exceed emissions limits during times of startup, shutdown, and malfunction (SSM). The new EPA rule was the result of a legal settlement with the Sierra Club.

If the rule becomes final, emitting facilities could be fined if they have excess emissions during times currently under SSM protection.

“The startling disparity in treatment strongly suggests EPA’s actions are possibly part of a broader effort to collude with groups that share the agency’s political agenda and discriminate against states and conservative organizations,” wrote Republicans including Rep. Darrell Issa and Sens. David Vitter, Chuck Grassley and Jim Inhofe in a letter to the EPA.

“EPA is instead making environmental policy on its own and with special interest groups and then forcing the states to comply with these new policies. This is far from what Congress had in mind,” a conservative environmental lawyer close to the issue told The Daily Caller News Foundation.

In February, twelve states — Oklahoma, Alabama, Arizona, Georgia, Kansas, Michigan, Nebraska, North Dakota, South Carolina, Texas, Utah, Wyoming — requested records pertaining to settlements the EPA entered into with environmental groups over state Regional Haze implementation plans.

The agency denied their request, arguing that the states did not express specific intent to disseminate the information to the public. However, the states did mention in their FOIA request that the information would be disseminated to the public. The states appealed, and the EPA has twice asked for more time to review the appeal.

If the agency doesn’t grant Oklahoma and the other eleven states’ fee waiver request by May 31, the states will act to “compel EPA’s compliance with applicable law.”

Republican senators pressed President Obama’s EPA nominee Gina McCarthy on the issue in the wake of her hearings.

“EPA can only approve State implementation plans that are consistent with the Clean Air Act and our regulations. I am committed to working with States so that more of these plans can be approved and litigation can be avoided,” McCarthy responded to a question regarding states challenging the EPA’s actions on state Regional Haze plans.

The EPA did not respond to The Daily Caller News Foundation’s request for comment.