Emails Show EPA’s Denver “Listening Tour” Stop A Collaboration Between Agency, Environmentalist Orgs
Emails published this week by the Washington Free Beacon’s Lachlan Markay illustrate a pattern of coordination and cooperation between the Environmental Protection Agency and external environmentalist groups, including the use of at least one agency event to “pressure” an Xcel Energy executive at the Denver stop of a 2013 “listening tour”:
The emails, obtained by the Energy and Environment Legal Institute (EELI) through a Freedom of Information Act lawsuit, could fuel an ongoing controversy over EPA policies that critics say are biased against traditional sources of energy.
Emails show EPA used official events to help environmentalist groups gather signatures for petitions on agency rulemaking, incorporated advance copies of letters drafted by those groups into official statements, and worked with environmentalists to publicly pressure executives of at least one energy company.
In October, the EPA launched an 11-city “listening tour” to gather commentary and input on carbon pollution regulations, and scheduled a stop in Denver. While Colorado houses the EPA Region 8 office, critics then questioned why the tour skipped states like West Virginia, Kentucky, and Colorado’s neighbor to the north, Wyoming–all states that produce more coal, with Wyoming the number one coal producing state in the country.
The documents shed light on part of the deliberation process, with Markay revealing how the “EPA decided on the locations for those hearings after consulting with leading environmentalist groups.”
According to emails written by EPA Region 8 administrator James Martin, the selection of “listening tour” stops had more to do with applying pressure to a related industry–natural gas–and singled out one industry executive in particular, while bypassing “friendlier forums” in California and Washington.
“San Fran and Seattle would be friendlier forums but CA has no coal plants and WA is phasing out its one plant,” Martin wrote. The recipient was Vicki Patton, general counsel at the Environmental Defense Fund (EDF).
“Choosing either may create opportunities for the industry to claim EPA is tilting the playing field,” Martin told Patton. “Denver would not have that problem.”
Martin continued on the choice of Denver. “The gas industry has way more presence here, too. One last point in its favor–it will make Roy Palmer nervous!” wrote Martin.
As Markay points out, Palmer is an executive at Xcel Energy, the state’s largest utility.
Markay also noted that Martin used a personal email address for official EPA business, a claim the EPA had first denied but that the released documents later substantiated.
Among other findings revealed by the internal emails, demonstrating a pattern of cooperation:
Nancy Grantham, director of public affairs for EPA Region 1, which covers New England, asked an organizer for the Sierra Club’s New Hampshire chapter to share the group’s agenda so EPA could adjust its messaging accordingly in an email dated March 12, 2012.
By William Yeatman
In mid-February, EPA Region 8 Administrator James Martin—who previously had served in the Ritter administration as the key facilitator of the Clean Air Clean Jobs Act—announced his resignation. The announcement came as a surprise, as Martin’s tenure at EPA was unusually brief. In fact, only one other (of 9) EPA Regional Administrators served a shorter term during the Obama administration. That was EPA Region 6 Administrator Al Armendariz, who quit after infamously comparing his enforcement strategy to a “crucifixion.” Martin served about 1 month longer than the disgraced Armendariz.
Martin cited “personal reasons” as the cause of his departure, but the truth is that he left amidst a storm of controversy. Only two weeks before his resignation, Martin was caught lying before a federal court about the extent to which he used his private email accounts to conduct official EPA business. Fibbing to a federal court is a much more likely explanation than “personal reasons” for Martin’s abrupt departure.
The lawsuit that led to Martin’s mendacity was filed by the Competitive Enterprise Institute. And CEI’s lawsuit, in turn, was based on records from a Colorado Open Records Act obtained by the Independence Institute. The upshot is that the two organizations likely toppled an EPA Regional Administrator. In light of Martin’s history of using public office (first in the Ritter administration, then in the EPA) to wage a war on affordable energy, the Independence Institute and CEI have performed a public service. This blog post explains how we did it.
It all began in the fall of 2010. At the time, Colorado state regulators were implementing the Clean Air Clean Jobs Act (CACJA), legislation requiring that Xcel Energy switch almost 1,000 megawatts of electricity generation from coal to natural gas. On this blog, Amy and I were posting regularly on the folly of the CACJA (see here, here, here, and here). In that capacity, we attracted the attention of the Colorado Mining Association, which was also opposed to the CACJA, for obvious reasons. The Mining Association had performed a Colorado Open Records Act request for all Ritter administration correspondence pertaining to the development of the CACJA. In return, the Mining Association received a huge tranche of almost 3,000 emails, which were provided to us.
The emails demonstrate that James Martin, who was head of the Colorado Department of Public Health and Environment when the Ritter administration pushed the CACJA through the General Assembly, was a central player in the development of the fuel switching plan.
Yet the emails also expose the fact that Martin worked exclusively from non-official email accounts while serving in the Ritter administration. Whereas every other state official involved in CACJA deliberations sent emails from a government email account (ending in “@state.co.us”), Martin used three different “@gmail.com” accounts.
At the time, I made a mental note of Martin’s unique use of private email for public business, but I didn’t think anything more of it…
…Until last summer.
A colleague of mine at the Competitive Enterprise Institute, Chris Horner, is one of the foremost transparency experts in the country. He literally wrote the book on the Freedom of Information Act (FOIA). While researching that book last summer, he came across mounting evidence that Obama administration officials are using private email accounts to conduct official business, in an effort to circumvent public scrutiny.
His concerns prompted my memory of Martin’s practice of using his gmail accounts. So we filed a FOIA request with EPA, asking for all email correspondence about policy between Martin and the professional greens at Boulder-based Environmental Defense. We limited the search to email traffic to and from Environmental Defense because Martin had spent ten years there as a litigator before joining Ritter’s team. Also, we knew from the Colorado Open Records Act emails that Martin coordinated public policy with his former colleagues. To be precise, with this FOIA request, we were trying to find out how much environmental policymaking was being rendered by unelected EPA bureaucrats colluding with unelected bureaucrats. (This is a practice known as “sue and settle” policymaking).
Here’s a timeline of what followed:
May 1, 2012: CEI files FOIA request for EPA Region 8 Administrator James Martin seeking all business emails between him and Environmental Defense. Our request noted that Martin had a history of using non-official email accounts to consuct official business.
May 7, 2012: EPA acknowledges our FOIA request, and assigns it ID number 08-FOI-00203-12
July 5, 2012: EPA responds to the request. The Agency provides 11 emails from an official “epa.gov” account. Regarding our specific request for EPA’s FOIA search to include all emails, in both official and non-official account, EPA states, “Documents sent to a personal email address that an individual is not intending to use for official purposes are not Agency records.” That’s all they said. We were confused. It seemed as if EPA was dodging the issue.
July 19, 2012: CEI files an administrative appeal of EPA’s July 5 FOIA response.
September 9, 2012: Although the Freedom of Information Act gives EPA 20 days to respond to an administrative appeal, the Agency ignores CEI’s July 19 appeal for more than 6 weeks. So we sued EPA in the District of Colubia federal district court. Here’s a copy of our complaint.
November 19, 2012: EPA files a motion to dismiss the case. The Agency’s motion relies on a signed affidavit by Martin, attesting to the fact that he had conducted a “broad” search of his personal email account, and had produced 19 records. Of the 19 records, Martin testified that “While some of these documents mention EPA of environmental issues, I did not solicit them, nor did I act on them in connection with my EPA position.” Based on this evidence, EPA moved to close the case.
January 29, 2013: Senator David Vitter and Rep. Darrell Issa launch an investigation into Martin’s use of private emails to conduct public business.
February 19, 2013: EPA Region 8 Administrator James Martin resigns.
March 7, 2013: EPA withdraws its motion to dismiss the case. The Agency tells CEI that Martin had “alerted us to additional documents that he came across. In a motion filed in court that day, EPA states,
“Based upon its review and analysis of the content of the additional documents, the EPA has concluded that there are additional documents from Mr. Martin’s personal, non-Government email account responsive to the FOIA request at issue in this litigation.”
Present day: CEI, the Department of Justice, and EPA are negotiating a full release of Martin’s newfound emails.
The timeline speaks for itself. Martin had a long history of using private emails to conduct official business. CEI learned of this history from the Independence Institute. CEI then filed a FOIA request to probe the extent to which Martin continued to employ non-official emails to perform official work. When EPA obfuscated, CEI sued. In the course of this litigation, Martin lied to CEI, EPA, the Justice Department, and a federal judge. Then he resigned. Case closed.
Good riddance. This is a positive development. Martin is not capable of being a disinterested civil servant. Rather, he is a professional environmentalist who has spent a career demonizing industry. It’s one thing to war with economic development as a lawyer at a deep-pocketed green group like Environmental Defense. It’s an entirely different ballgame when these same anti-industry zealots are allowed to take the reins of the EPA, and use state power to “bankrupt” entire sectors of the economy.