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2013 Year End Review: The Fight for Transparency & Oversight Within the Obama Administration
December 17, 2013

During 2013, the U.S. Senate Environment and Public Works Committee Republicans and ranking member U.S. Sen. David Vitter (R-La.), have been working to bring more transparency to the U.S. Environmental Protection Agency (EPA), and the rest of the Administration.

When taking office, President Obama promised Americans that his would be "the most transparent Administration" in history. Unfortunately, the Administration has failed to meet such standards and has gone to great lengths to hide the true scope of its red tape agenda. This Administration has denied accountability for the delayed publication of its regulatory plans in the legally mandated Unified Agenda, mangled its transparency obligations under the Freedom of Information Act (FOIA), and lied about its consideration of a carbon tax. The lack of sunshine has been particularly troublesome in light of the reams of red tape the EPA has been using to strangle the American economy. After a dogged pursuit of transparency, EPW Committee Republicans and ranking member Sen. Vitter have forced the Administration to admit some of its failings, improve its FOIA processes, and will continue to advocate for greater transparency.

Holding Administration Accountable for Failing Regulatory Obligations

The Obama Administration has a poor record for fulfilling its legal requirements in publishing the biannual Unified Agenda, which is necessary to provide regulatory certainty for the American people so they know what regulations are coming down the pike. The legally mandated rulebook holds the federal government accountable for what regulatory action it is working on. The Administration purposefully delayed publishing the Unified Agenda until after elections in the past four years. In fact, only one Unified Agenda was published for 2012, 8 months past the deadline.

On Jan. 23, 2013, Vitter questioned why EPA had not submitted its regulatory agenda to OIRA and demanded accountability. In response, EPA essentially placed the blame on OIRA and refused to take responsibility for its actions.

The Administration tried to bury the release of the Spring 2013 Unified Agenda the day before the Fourth of July and the Fall 2013 Unified Agenda two days before Thanksgiving, which laid out hundreds of rules specific to the EPA that will have substantial impact on the future of this country's energy production and independence.

Bringing Sunshine and Reform to EPA's Email Practices

EPA's history with inappropriate record keeping practices and the use of secret email aliases has led to major concerns, especially among senior officials. In order to stop the use of secret emails, Vitter directly challenged senior officials about conducting EPA business on their private email accounts. Such behavior directly violated EPA policy, and could have violated the Federal Records Act.

On January 15, 2013, Vitter raised questions about EPA's use of secret emails to conduct agency business. Such emails could allow EPA to collude with their environmentalist allies and shield the discussions from public discovery.

On Jan. 29, 2013, Vitter, along with Rep. Darrell Issa (R-Calif.), Chairman of the House Oversight and Government Reform Committee, sent a letter to James Martin, Region 8 Administrator, questioning his use of personal email to conduct agency business. Martin later resigned, admitting to the abuse. Vitter's efforts have led to EPA revising their internal rules and training requirements to emphasize that EPA employees should only be using their official email address to conduct agency business.

Vitter also obtained documents that demonstrated several problems with the EPA's administration of FOIA, including an email from EPA's Office of General Counsel advising Region 6 officials that standard EPA protocol was to "alert FOIA requesters that "they need to narrow their request because it is overbroad, ...and that [the request] will probably cost more than the amount they agreed to pay." In addition, a review of EPA records strongly suggest that EPA had been frequently granting fee waivers for Freedom of Information Act requests to national environmental groups, but rarely granting them to conservative think tanks, states and local entities.

Vitter, along with Sen. Chuck Grassley (R-Iowa) and Chairman Issa, notified the Department of Justice (DOJ) of these severe irregularities on March 7, 2013, and on July 26, DOJ announced that, as a result of the inquiry, they had taken a number of steps to improve and enhance EPA's accountability in FOIA processing. On May 17, 2013, Vitter, along with Sen. Inhofe, Sen. Grassley, and Chairman Issa, questioned EPA's processing of FOIA fee waiver requests. Subsequently, Vitter is working closely with the EPA's Inspector General (IG) to investigate accusations that EPA abuses the FOIA Fee Waiver system.

These investigations and others were summarized and released in September 2013, in a comprehensive report, "A Call for Sunshine: EPA's FOIA and Federal Records Failures Uncovered."

Earlier this year, Sen. Vitter led efforts during the process of Gina McCarthy's nomination to be EPA Administrator to improve transparency measures throughout the Agency, especially focusing on the secret science used to justify expensive new rules and regulations. On July 9, 2013, Sen. Vitter allowed Gina McCarthy's nomination to proceed after extensive negotiations with the Agency, regarding commitments from them on a number of 5 specific transparency requests, including:

• A commitment by EPA to mandate the re-training of the 17,000+ EPA workforce in proper protocols involving Freedom of Information Act (FOIA) requests, as well as issuing new guidance on records maintenance and use of personal email accounts pursuant to and upon completion of the audit by the Inspector General.
• As well as having already providing certain requested data, EPA has initiated the process of obtaining the requested scientific information, as well as reaching out to relevant institutions for information on how to de-identify and code personally identifying information that may be included in some of the data.
• EPA launched a process to convene an independent panel of economic experts with experience in whole economy modeling to review EPA's ability to measure full regulatory impacts, and to make recommendations to the agency.
• To help address transparency issues, in particular the "sue and settle" practice, EPA created websites to publish the Notices of Intent to Sue (NOI) and Petitions for Rulemaking (PFR) upon receipt. Those websites can be found at http://www2.epa.gov/aboutepa/petitions-rulemaking and http://www.epa.gov/ogc/noi.html.

Exposing the Administration's Plans to Impose a Carbon Tax

The Administration has gone through extreme measures to remain secretive on anything related to a carbon tax. Sen. Vitter has pressed the Administration, including the Department of the Treasury (Treasury), to disclose who is involved in developing a carbon tax. Treasury has been wholly unresponsive for more than year and has even avoided a FOIA request for related emails. The Administration continues to deny that they are planning a carbon tax, but the EPA has been moving forward with the functional equivalent in new regulations.

Earlier this year, the Congressional Budget Office (CBO) released a report on the impacts of a carbon tax, which said, "Without accounting for how the revenues from a carbon tax would be used, such a tax would have a negative effect on the economy. The higher prices it caused would diminish the purchasing power of people's earnings, effectively reducing their real (inflation-adjusted) wages. Lower real wages would have the net effect of reducing the amount that people worked, thus decreasing the overall supply of labor. Investment would also decline, further reducing the economy's total output.....Higher fuel prices, in turn, would raise production costs and ultimately drive up prices for goods and services throughout the economy...Thus, consumers would see the biggest price increases for items such as gasoline and electricity."

EPW Republicans will be sending out additional documents recapping the committee's work during 2013 on various issues. Stay tuned for more in the coming days.

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