EPA tossed Trump-era memo that cuffed watchdog

By Kevin Bogardus | 09/27/2021 12:34 PM EST

EPA headquarters. Francis Chung/E&E News

EPA withdrew a controversial memo drafted during the Trump administration that had diminished its internal watchdog and stemmed from a high-profile tussle with the agency’s former chief of staff.

The move is seen as an attempt to bolster the authority of the inspector general. Administrator Michael Regan has also urged staff to provide "full cooperation" with EPA’s Office of Inspector General.

Pulling back the memo could also help repair relations between EPA and the inspector general’s office. The two often battled over access to documents and personnel when investigations into Trump political appointees at the agency grew intense and exploded into public view.

Melissa Hoffer, EPA’s acting general counsel, withdrew the legal opinion in a memo to Regan, obtained by E&E News under the Freedom of Information Act. She didn’t explain why she was pulling back the memo, which had argued the IG lacked authority and questioned the office’s areas of inquiry.

"Today, by this memorandum, I am withdrawing the November 8, 2019 memorandum," Hoffer said in the April 26 memo, which also pulled back an earlier version of the opinion.

Two days later, on April 28, Regan sent an agencywide email to EPA employees, encouraging them to work with the inspector general.

That message has become a tradition for EPA administrators. Regan’s predecessors sent similar memos to staff, including Andrew Wheeler, Scott Pruitt, Gina McCarthy and Lisa Jackson.

"It is therefore my expectation that EPA personnel provide OIG timely access to records or other information which relate to the Agency’s programs and operations and that are needed by the OIG to accomplish its important mission, consistent with the [Inspector General] Act," Regan said in his email, adding "full cooperation" with the watchdog office is in the public interest and improves the agency (Greenwire, April 30).

Regan didn’t mention in the message EPA had withdrawn the memo that sparked protests from its internal watchdog.

"EPA is committed to restoring and maintaining public trust, building a culture of transparency and ensuring accountability throughout the agency. That includes a commitment to full cooperation with EPA’s Office of Inspector General," EPA spokesperson Tim Carroll told E&E News. "Working with the OIG as they carry out their mission to provide oversight of EPA’s programs is in the best interest of the public we serve and provides the agency with an opportunity to improve program performance and efficiency."

Sending an agencywide email on cooperation with the IG office is a standard practice for new administrations and was not related to the withdrawal of the memo, according to Carroll with EPA.

Past agency watchdogs said EPA was right to pull back the memo.

Gregory Friedman, a former Department of Energy inspector general, said although he didn’t have a full understanding of why EPA withdrew the memo, "it seems quite clear that the agency has re-thought its earlier position."

"The November 2019 positions of the EPA general counsel suggest a questioning of the fundamental authority of the inspector general," Friedman told E&E News. "This strikes me as problematic."

Kevin Minoli, who served as EPA’s acting general counsel, said withdrawal of the memo wasn’t a surprise, adding the inspectors general he worked with at EPA "all saw challenges to their authority or independence as going to the core of their existence, and those were issues that they would not walk away from easily."

The IG office had noted the memo had been withdrawn in its latest semiannual report, saying the opinion had "adopted an unacceptably narrow interpretation of the OIG’s authority to access information and interview Agency personnel."

"The Office of Inspector General’s leadership is pleased the EPA withdrew the November 2019 memo and appreciative of Administrator Regan’s instruction to provide the OIG with timely access to all EPA information and to fully cooperate with the OIG," EPA OIG spokesperson Jennifer Kaplan told E&E News. "As we stated back in 2019, access and cooperation are essential for the OIG to provide independent and objective oversight related to EPA programs and operations."

Others had pushed EPA at the time to withdraw the memo. A trio of Democratic House chairs requested in a letter to then-Administrator Wheeler to pull it back immediately.

"The memorandum includes dubious legal claims that, if accepted, would eviscerate the authority of the Inspector General and undermine the ability of EPA to function in a transparent manner," House Science, Space and Technology Chair Eddie Bernice Johnson (D-Texas); Energy and Commerce Chair Frank Pallone (D-N.J.); and House Oversight and Reform Chair Carolyn Maloney (D-N.Y.) said in their letter.

The memo also said the IG couldn’t compel interviews with agency staff. Friedman said that wasn’t the case.

"In general, executive branch employees are required to respond to a request for an interview by the Office of Inspector General. The standards of conduct are clear on this point," Friedman said. "And agency management is required to assist in this process if the employee is recalcitrant and/or is unwilling to participate."

‘Seven Day Letter’ hoopla

EPA’s memo questioning the inspector general’s authority was drafted during a flare-up between the agency and its watchdog office.

In October 2019, then-acting EPA IG Charles Sheehan took a rare step and sent a "Seven Day Letter" to Wheeler after Ryan Jackson, then EPA’s chief of staff, had refused to cooperate with various investigations.

That set off a storm of legal memos by EPA and the IG office (Greenwire, Nov. 8, 2019).

Jackson later agreed to sit for an interview requested by the IG’s investigators, helping to resolve the matter. Yet the EPA memo on the IG’s authority still lingered. It was cited by the IG office as interference with its independence in a subsequent semiannual report.

Matt Leopold, then EPA’s general counsel, drafted the memo and its earlier version, which have now both been withdrawn by the agency.

Leopold declined to comment when contacted by E&E News for this story.

Jackson’s interview with the IG’s agents following the Seven Day Letter was part of the watchdog office’s investigation into him and another senior Trump appointee at EPA, Charles Munoz.

The inspector general’s report on that investigation said Jackson and Munoz had arranged "improper post-termination pay" for two EPA employees fired from the agency as well as an "improper" pay increase for Munoz.

In turn, the IG office had discussed potential criminal prosecution. It referred cases from the probe six different times to the Justice Department, which declined to prosecute on each occasion (Greenwire, June 28).

EPA withdrawing the memo questioning the IG’s authority removes another vestige of the Trump era from the agency.

Minoli, now a partner at Alston & Bird LLP, told E&E News, "The withdrawal would be meaningful to individuals across the OIG, in that it removed a memo that they likely saw as diminishing their role."

But he added, "There are numerous areas where agency officials and IG office officials work well together for the benefit of the agency, and that work is too often overshadowed by the one or two public disagreements that nearly every administrator will have, eventually, with the IG."