What Happens When Agencies Don’t — or Won’t — Create Records?

The first important thing to know is the Federal Records Act imposes obligations on agency heads to “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency.” Moreover, the federal agencies have an affirmative obligation to retain all recorded information—”regardless of form or characteristics”— that was “made or received by a Federal agency under Federal law or in connection with the transaction of public business” and serves as “evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government….” 44 U.S.C. § 3301 (2012).  A thoroughly-researched memo by the Sierra Club Environmental Law Program details the record retention policies at the Environmental Protection Administration, the Department of Interior, and the Department of Energy.

The New York Times reported1 earlier this month on reports and indications of secrecy at the EPA—including employees sometimes being told not to take notes at meetings.  More troubling for accountability, Administrator Pruitt’s aides recently asked career employees to make major changes in a rule regulating water quality in the United States (Waters of the United States or WOTUS)—without any records of the changes they were being ordered to make.  Citizens for Responsibility and Ethics in Washington (CREW) has noted that “That same rule was initially backed up by an analysis of “the economic benefits of preventing water pollution,” but once Mr. Pruitt decided to reverse the rule EPA “‘economists were verbally told to produce a new study that changed the wetlands benefit[.]’”* 

As the above memo notes, EPA’s records policy covers “all records made or received by EPA employees under federal law or in connection with the transaction of public business, and preserved or appropriate for preservation as evidence of EPA functions, organization and activities or because of the value of the information they contain.”2 Records must be retained if they contain information related to how EPA carries out its mission, such as communicating EPA requirements, or documenting the agency’s
decision-making process.

In a letter to the Archivist of the United States, CREW points out that Mr. Pruitt and EPA “are evading public scrutiny of their decisions by failing to create records in the first place.  Not only are these actions bad from a public policy perspective, but also they appear to violate the FRA requirements to both document and preserve records reflecting essential EPA decisions and policies and how they are made.  Adequate documentation is one of the two main pillars of the FRA; EPA’s failure to create this documentation undermines the goals of the FRA and deprives the public of access to records that document how the agency is fulfilling its statutory mission.”

The letter requests that the Archivist exercise his authority and responsibility under the Federal Records Act to evaluate actions of the U.S. Environmental Protection Agency (“EPA”) and EPA Administrator Scott Pruitt that appear to violate the Federal Records Act, and make recommendations to EPA for their correction and “full compliance with the FRA and inform both the President and Congress of these violations.”

* There is a pattern in this Administration; see White House Blocks Report Showing Societal Benefits of Refugees in the US

1Coral Davenport and Eric Lipton, Scott Pruitt is Carrying Out His E.P.A. Agenda in Secret, Critics Say, New York Times, Aug. 11, 2017 ;  EPA Information Policy, Records Management Policy (dated 7/07/2005),  at 1 – from SCELP Memo3  Id at 3.

White House Blocks Report Showing Societal Benefits of Refugees in the US

When the President released his second travel ban, it was accompanied by a Presidential Memorandum in which he called on the secretary of state to consult with the secretaries of Health and Human Services and Homeland Security and his White House budget director and — “[t]o further ensure transparency for the American people regarding the efficiency and effectiveness of our immigration programs in serving the national interest” — submit within 180 days “a report detailing the estimated long-term costs of the United States Refugee Admissions Program at the federal, state, and local levels, along with recommendations about how to curtail those costs.” As noted by the New York Times, the budget Trump released in May argued that refugees and other immigrants were a fiscal drain. “Under the refugee program, the federal government brings tens of thousands of entrants into the United States, on top of existing legal immigration flows, who are instantly eligible for time-limited cash benefits and numerous noncash federal benefits, including food assistance through SNAP, medical care and education, as well as a host of state and local benefits.” It would be less costly, it argued, if there were fewer refugees, since “each refugee admitted into the United States comes at the expense of helping a potentially greater number out of country.”  The White House apparently thought it was perfectly clear that the President was not interested in hearing about any benefits brought by refugees….

The internal (State, HHS, DHS) study, completed in late July but never publicly released, was obtained by The New York Times. The draft found that refugees “contributed an estimated $269.1 billion in revenues to all levels of government” between 2005 and 2014 through the payment of federal, state and local taxes. “Overall, this report estimated that the net fiscal impact of refugees was positive over the 10-year period, at $63 billion.” This report was spiked but, the Times notes, it was not clear who in the administration decided to keep the benefits-of-refugees information out of the final report. An internal email (shown to the Times), dated Sept. 5 and sent among officials from government agencies involved in refugee issues, said that “senior leadership is questioning the assumptions used to produce the report.” Continue reading

Walking Across the Line? Sidelining the Courts’ Review of Agency Actions

Language restricting judicial review has been included by conservative legislators in 28 House and Senate bills this Congress (at least 13 of which explicitly involve environmental issues).

As reported in E&E Daily, bills to reform the judicial system or restrict judicial review of agency actions are hardly a new phenomenon in Congress: several of the bills proposing changes in the broader legal system passed the House mostly along party lines during the Obama administration but stalled in the Senate and never made it to the president’s desk.

Judiciary Chairman Bob Goodlatte (R-Va.) has led the effort on the House side. According to Reilly, since the beginning of 2017 his committee has approved at least 10 pieces of litigation under a judicial reform agenda, including bills that would:

  • impose mandatory sanctions on attorneys who file “baseless” lawsuits;
  • set restrictions on groups of people who can file class-action lawsuits;
  • bar settlement dollars from going to third parties;
  • move certain cases against corporations from state to federal courts; and
  • “counter” ‘sue and settle’  — through which, GOP critics say, special interests sue friendly agencies in order to force them to issue new regulations.

In January, Senate Judiciary Chairman Chuck Grassley (R-Iowa) introduced a companion bill to the House’s sue-and-settle legislation.

Read here for more specifics about the bills.

“Deconstructing” the Administrative State – Part Two

In a post explaining what conservatives mean by the ‘deconstructing’ phrase — and why they are so excited by the Trump administration’s personnel choices — Jonah Goldberg wrote on National Review (in February 2017):

Deconstructing the administrative state is a kind of nightingale’s song for many intellectual conservatives, particularly my friends in the Claremont Institute’s orbit. It’s been great fun watching mainstream journalists, who are not fluent in these things, talk about the administrative state as if they understand what Bannon means. The “administrative state” is the term of art for the permanent bureaucracy, which has come untethered from constitutional moorings (please read Phillip Hamburger’s Is Administrative Law Unlawful?, or Charles Murray’s By the People..). Most of the law being created in this country is now created on autopilot, written by unelected mandarins in the bowels of the government. It is the direct result of Congress’s decades-long surrender of its powers to the executive branch. The CIA is not the “deep state” — the FDA, OSHA, FCC, EPA, and countless other agencies are.

Goldberg goes on to note that “… any attempt to simply move the unlawful arbitrary power of the administrative state to the political operation of the West Wing will not be a triumph for liberty, it will simply amount to replacing one form of arbitrary power with another.”

Which, for me, raises the question if the power of the unelected corporate mandarins now taking over the Executive Branch is less “abitrary”?  Or less driven by “favored groupsand not imposing “heavy economic, political, and social costs onthe unfavored public?

Patrice McDermott


The Administrative Procedure Act — Part of the Swamp or Moat?

Earlier this month on Who.What.Why, Christine Capozziello outlined several lawsuits that have been brought against federal agencies on the basis of violation of the Administrative Procedure Act (APA).  Before your eyes completely glaze over, please note that the Freedom of Information Act amended the APA.

Capozziello asks, “What do the Department of Energy, the Department of Education, and Environmental Protection Agency have in common? They’ve all faced lawsuits for putting the brakes on Obama-era regulations.” Each of the agencies is being sued on the grounds that argues that the delay violates the Administrative Procedure Act (APA).

In April, New York Attorney General Eric Schneiderman sued the Department of Energy; a total of six Obama-era energy efficiency standards were delayed and Schneiderman argued that the APA had been violated.

The same month, the Department of Labor came under fire for delaying a long-awaited rule that would significantly decrease the permissible exposure limit to silica dust for construction workers.

In early July, a federal court cancelled the EPA’s attempt to delay implementation for new regulations on methane emissions. In the same week, the attorneys general from 18 states and Washington D.C. sued Education Secretary Betsy DeVos for delaying borrower defense rules that were scheduled to take effect on July 1. In the same week, a federal court cancelled the EPA’s attempt to delay implementation for new regulations on methane emissions.

Those who wish to see the “Administrative State” dismantled likely see the delays as a needed push-back against the economic, political, and social costs on individuals and businesses by favored groups [see July 10 post]. Others see the regulations as the moat protecting those with less — or no — power against powerful individuals and businesses.

Understanding the Process of Deconstruction

The Environmental Law Institute (ELI) has issued a series of short “fact sheets,” to aid understanding of the legal mechanisms and processes that the White House, federal agencies, and Congress are considering as a means of changing the regulatory approach to environmental, natural resources, and health and safety standards and safeguards.

Rather than re-invent a wheel that has been already well-designed and well-implemented, a number of them are provided here.  My intent is to help readers understand the processes that can and, in some cases, must be followed to do away with public protections.

Each of the linked sheets addresses a specific legal tool or pathway that could be used to change existing environmental — and other — protections. They assume the reader has some familiarity with the federal regulatory landscape, but no particular legal or technical background. Each fact sheet identifies the relevant actors, describes the applicable procedures, discusses key features of each procedure, and opportunities for public engagement. The  information is current as of March 21, 2017. Where relevant, the fact sheets highlight opportunities for stakeholder engagement that are specific to individual processes. The links (in process..) below do not include all the fact sheets; see Regulatory Reform in the Trump Era for more.

1: Reversing or Revising Executive Orders and Actions; 2: Undoing Presidential Actions Protecting Public Lands and Resources; 3: Fast-Tracking Projects That Require Federal Approval; 4: “Cancelling” the Paris Agreement on Climate Change; 5: Reversing or Revising Agency Regulations, Generally; 7: Implementing the New “Two-for-One” Executive Order on Federal Regulations; 12: Subjecting Agency Regulations to Additional Cost-Benefit Analysis; 13: Enacting New Procedures for Federal Regulation

Nominee for Administrator of OIRA and “the Administrative State”

Neomi Rao, the nominee for Administrator of the Office of Information and Regulatory Affairs, comes from founding the Center for the Study of the Administrative State at George Mason University.  The home page for the Center has a good summary of the arguments put forward about the ‘Administrative State’ by proponents of its dismantling:

Problems of administrative accountability occur in all three branches of the federal government.

  • Congress often delegates open-ended authority to agencies, but manages waivers and exemptions for its favored groups.
  • Executive Agencies often seize broad authority from open-ended statutes, regulating through informal mechanisms, and imposing requirements through consent decrees and litigation threats.
  • The Judiciary has posed few barriers to this expansion, because current judicial doctrines require significant deference to agency interpretations.

Administration increasingly occurs in informal and unorthodox ways, allowing for the growth of the federal government outside the checks and balances of the Constitution. In practice, compliance with regulatory requirements imposes heavy economic, political, and social costs on individuals and businesses.

The Senate is expected to approve Ms. Rao’s nomination today.  For more background, see Steve Eder’s article in Sunday’s New York Times. UPDATE: Rao was confirmed by the Senate on 10 July 2017.

ICE should release its death reports so we can know the truth about immigration detention deaths

In a 25 May op-ed, Grace Meng (a senior U.S. researcher at Human Rights Watch) and Christina Fialho (an attorney and the co-executive director of CIVIC – Community Initiatives for Visiting Immigrants in Confinement) write that ICE is required to investigate every death in detention and produce a “detainee death report,” but it generally does not publicly release these reports. ICE provides only sparse information about deaths in detention in its news release — the person’s name, nationality, and occasionally immigration or criminal history.

Meng and Fialho report that last June, ICE took the unusual step of releasing reports covering 18 of the 21 deaths of immigrants in detention from May 2012 through June 2015. At the request of HRW and CIVIC,  independent medical experts analyzed the facts and timelines, as documented by ICE’s own investigation. They found that the patients had received appropriate care in only two cases. In 16 of the deaths, the experts found evidence of severely inadequate medical care. In seven of the cases, they concluded that the poor medical care directly contributed to the deaths of these immigrants.

Thanks to the Marshall Project for highlighting this story.

Disappearing Information/Deconstructing Accountable Government — What We Track

How do removals of information and limitations of access pertain to the Administrative State?  What is this thing (if it is, indeed, a thing), from where/whom does the concept come, and where does it lead (cui bono)?  Is it the immutable, first principles, originalist reading of the Constitution its proponents would have us believe — or is it quite mutable to suit the purposes of those it benefits?

This concept and how it relates to what is being done to our government and the career civil servants who make it work will be one of the focuses of Government Information Watch.

Continue reading