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The EPA’s Own Email Problem

Another government employee, another private account, another crashed hard drive.

by Kimberley A. Strassel     •     Wall Street Journal

epa-logoWhen a government official (think Hillary Clinton) uses a private email account for government work (think Hillary Clinton) and then doesn’t turn over records (think Hillary Clinton), the public has to wonder why. For an example of that why, consider Thursday’s federal-court subpoena of Phillip North.

The North story hasn’t gotten a lot of attention, but it is a useful tale for clarifying exactly why we have federal records and sunshine laws. You see, government workers don’t use private email because it is “convenient.” They use private email to engage in practices that may be unsavory, or embarrassing, or even illegal. Let’s be clear about that.

Mr. North was, until a few years ago, a biologist at the Environmental Protection Agency, based in Alaska. Around 2005 he became enmeshed in reviewing the Pebble Partnership’s proposal to develop a mine there. Mr. North has openly admitted that he was opposed to this idea early on, and he is entitled to his opinion. Still, as a government employee his first duty is to follow the law.

In the normal course of law, Pebble would file for permits and the Army Corps of Engineers would get the first say over approval. The EPA has a secondary role. But records show that EPA officials, including Mr. North, had no intention of letting the process get that far. They set about to “pre-emptively” veto the mine, before Pebble could even file for permits. But for the EPA to so flagrantly insert itself into the process, it needed cause. This is where Mr. North and his private email come in.

The biologist was deeply involved in most of the work on Pebble, and would later brag about his role in killing the project. He had briefed high-level officials; drafted an early “options paper” laying out the veto strategy; and taken a star role in the “science” the EPA would use to justify the 2014 veto. But perhaps Mr. North’s biggest contribution was as serving as a liaison to (and coordinating with) anti-mine activists.

The EPA would ultimately claim that it acted “in response to petitions” filed against the mine in 2010 by Native American tribes. But those petitions didn’t spring from nowhere. According to documents Pebble has given a federal court, Mr. North was working with those outside activists to engineer the petitions—from inside the EPA. He also worked with the activists, including a lawyer representing the tribes, to hone the EPA’s veto strategy. And he did this via a private email address. Why? Because he shouldn’t have been doing any of it.

The EPA has acknowledged the email problem, telling the National Archives in early August that the EPA Inspector General had informed it of at least “five instances where [Phil North] used a personal, non-EPA email” to do government business with “a third party and failed to forward such emails into Agency systems.” The EPA continued that it “cannot confirm whether or not these emails are the only instances.” Separately, the agency admitted that it has been unable to access documents that were created and encrypted by Mr. North on a thumb drive.

It gets weirder, in that Mr. North was one of those Obama employees whose government hard drives conveniently crashed. Only after Congress started investigating the Pebble scandal did the EPA inform lawmakers that Mr. North’s crash just happened to wipe out documents from the period in question.

Mr. North, meanwhile, has fled the country. He retired from the EPA in the spring of 2013. The House Oversight Committee in July of that year asked him to appear for an interview. They went round and round on a possible date, until in October 2013 he claimed he was on a world boat tour, and that moreover his boat had suffered damage. He also hired a lawyer, who has not made Mr. North available for in-person or telephone interviews. He’s thought to be in Australia.

That’s why Pebble in mid-August asked a federal court to subpoena Mr. North and his documents. The EPA for its part has continued to suggest that Mr. North was only a junior employee who had no real role in the veto process.

On Thursday in Anchorage, Alaska, U.S. District Judge H. Russel Holland strongly disagreed—noting that Mr. North “appears to be at the center of Pebble’s claims that EPA impermissibly” worked with outside groups, and that he is the “originator of documents likely related to the claims” held on “private computer equipment.” He issued the subpoena, dryly noting: “Mr. North’s personal appearance is necessary. Indeed, the court would be surprised if the EPA were not as anxious as Pebble to obtain testimony and access to documents controlled by Mr. North.”

Judge Holland, consider yourself surprised. The EPA isn’t anxious for Mr. North to appear, any more than the State Department is anxious for the FBI to scour Hillary Clinton’s server. Those agencies know exactly why their employees use private email. And they know the release of it means nothing but trouble.