Judges weigh FOIA requests on alleged scientific misconduct

By Amanda Reilly | 03/12/2018 01:15 PM EDT

The U.S. Court of Appeals for the District of Columbia Circuit heard a case related to alleged scientific misconduct by U.S. EPA, shown here, during the Obama administration.

The U.S. Court of Appeals for the District of Columbia Circuit heard a case related to alleged scientific misconduct by U.S. EPA, shown here, during the Obama administration. Tim Evanson/Flickr

Federal judges today struggled with a convoluted Freedom of Information Act lawsuit stemming from accusations of scientific misconduct at U.S. EPA.

"This is not the typical FOIA case," attorney John Hall, who is representing a coalition of Northeast cities, acknowledged at the outset of the arguments in front of the U.S. Court of Appeals for the District of Columbia Circuit.

The case stems from a 2012 decision by EPA Region 1 — which encompasses the Northeastern states — to seek to impose more restrictive nitrogen limits for sewage treatment plants to protect New Hampshire’s Great Bay estuary.


In response to the decision, the Great Bay municipal coalition, which includes the city of Dover and neighboring communities, wrote to then-EPA Administrator Lisa Jackson and Inspector General Arthur Elkins alleging scientific misconduct.

The coalition claimed that EPA Region 1 ignored peer-reviewed studies and analysis by an independent technical advisory committee to impose the limits, which the cities say will cost millions of dollars to meet.

EPA responded to the group’s concerns with a two-page letter concluding that EPA "has not seen evidence that Region 1 has engaged in scientific misconduct."

On Oct. 4, 2012, law firm Hall & Associates filed a FOIA request on behalf of the coalition seeking records that EPA relied on to come to its conclusion that there was no misconduct. Hall followed up on Oct. 22 with eight additional FOIA requests related to nutrient loading, Region 1 decisionmaking and EPA’s peer review process.

EPA responded to the first request but denied the others because they were "articulated in the form of an interrogatory-like question." In other words, responding would have required the agency to conduct analysis and research.

In a March 2015 decision, the U.S. District Court for the District of Columbia ruled that EPA adequately responded to the first request and agreed with the agency that the other FOIA requests were improper because they could be construed as questions. After a back-and-forth with Hall and lawyers from EPA, the court suggested a modified FOIA request. EPA provided Hall with more documents.

The law firm, though, was still unsatisfied with the response. More than a year after the March decision, the firm asked the court to reconsider and filed a motion for attorneys’ fees, arguing that it should receive fees because EPA released more documents as a result of its litigation.

After the district court denied both requests, the law firm appealed to the D.C. Circuit.

Hall today argued that, despite the concerns at EPA headquarters about the wording in the FOIA requests, there was no confusion among Region 1 staffers about the information that was sought.

The FOIA requests were about a "specific issue specifically defined," Hall said, adding that his law firm has filed "virtually the same" type of FOIA requests in the past.

He complained that EPA had not yet provided all relevant documents, despite the district court’s decision to reword the FOIA requests.

But at multiple points during today’s arguments, the three-judge panel appeared confused about the focus of the appeal.

"I’m not sure what you’re really asking for," said Senior Judge David Sentelle, a Reagan appointee.

Judge Brett Kavanaugh, a George W. Bush appointee who presided over today’s proceedings, several times pressed attorneys for both the plaintiffs and EPA over the issue of attorneys’ fees.

"I’m trying to figure out why we’re here," Kavanaugh said.

While the FOIA requests in question occurred during the Obama administration, the Trump EPA has continued to defend against the case. In court documents, EPA has charged that Hall & Associates refused to work with the agency to clarify the requests because it was "incentivized by the allure of potentially large attorneys’ fees."

EPA says it offered the firm the opportunity to modify or clarify the request. Hall instead took the case to the courts.

Peter Pfaffenroth, an assistant U.S. attorney representing the agency, today said that EPA acted in "good faith" and charged that the litigation was "an attempt to weaponize FOIA."

"These are sophisticated plaintiffs," Pfaffenroth told the judges.

Judge Patricia Millett, an Obama appointee, also seemed concerned about Hall’s reticence to modify its FOIA requests outside of the litigation process.

"I don’t think you made it very clear," she said, adding, "Why didn’t you just ask for all documents that were involved in the preparation of your response?"

The court is expected to issue a decision in the coming months.