Overnight Energy: Fight between EPA watchdog, agency lawyers heats up | Top EPA official under investigation over document destruction | DOJ issues subpoenas to automakers in California emissions pact

CUE TOM PETTY’S ‘WON’T BACK DOWN’: The Environmental Protection Agency’s (EPA) inspector general is pushing back on a legal opinion from EPA lawyers that minimized their responsibility to comply with investigations, the latest tit-for-tat between the agency and its internal watchdog.

The EPA’s Office of Inspector General (OIG) had originally released a letter Wednesday tearing into the EPA’s highest ranking staff for “refusal to fully cooperate and provide information.”

The complaint centers on Ryan Jackson, the chief of staff to EPA Administrator Andrew Wheeler, though the letter also criticized Wheeler for ignoring emails from the inspector general asking him to encourage cooperation from Jackson. 

The OIG’s rebuke came in a rare “Seven Day Letter,” a term used to describe the process of notifying Congress of serious roadblocks to investigations.

{mosads}That letter was initially sent to the EPA on Oct. 29, prompting Wheeler to ask the agency’s general counsel for a legal opinion on their obligations for dealing with investigators.

The subsequent legal opinion released this week suggested that the EPA met their obligations by offering an interview with Jackson after the Seven Day Letter had already been drafted.

“Your attempts to accommodate the OIG, nonetheless, fulfilled your legal obligation,” general counsel Matthew Leopold wrote Tuesday. 

But the latest pushback from acting Inspector General Charles Sheehan said the legal opinion “grafts wide and wholesale evasions” on the law dictating inspector general investigations.

“He offers free rein to agency staff to refuse OIG requests for information,” Sheehan said of Leopold, adding that the “interpretation of the General Counsel subverts our independence.”

OIG investigators were trying to meet with Wheeler’s chief of staff to discuss how he obtained an advanced copy of testimony designated for lawmakers, a move that could be considered interfering with or intimidating individuals who testify before Congress.

But Jackson refused to answer the questions or sit down for an additional interview with investigators. 

“Will I say where I got it from? No,” he said in an Oct. 3 interview.

The latest letter from the OIG — which is dated Thursday and was released Friday — picks apart the general counsel legal opinion point by point, in some cases noting the “authority” referenced in the letter came from “a single, dissenting judicial opinion” or a legal brief.

Sheehan also said the legal opinion “misconstrues facts” by claiming EPA was in the process of complying with investigators when the Seven Day Letter was sent.

“There was no agency accommodation ‘progress’ whatsoever—quite the opposite—by the time the Seven Day Letter was issued. As detailed in the Seven Day Letter, the OIG made repeated, fruitless attempts over weeks and months, including OIG elevation to the Administrator, Associate Deputy Administrator and General Counsel, in writing and in person, to produce Mr. Jackson’s audit and investigation cooperation,” Sheehan wrote.

 

Just when I thought OIG was going to get the last word…

The EPA later Friday produced a new memo from its general counsel.

“I have considered these issues, and nothing in the acting inspector general’s reply warrants a revision to the fundamental conclusions,” Leopold wrote, though he attached an updated version of the memo “with the hope of narrowing the precise legal dispute and preventing my advise from being further mischaracterized by OIG, or in the future by the agency.”

Read more about all the letters and legal opinions here. 

 

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SPEAKING OF RYAN JACKSON: A top Environmental Protection Agency (EPA) political appointee is under investigation for his suspected involvement in the destruction of important documents that should have been retained, Politico reported late Thursday.

The investigation by EPA’s Office of the Inspector General (OIG) focuses on Ryan Jackson, the chief of staff to agency head Andrew Wheeler.

Politico reported the OIG is trying to determine whether Jackson has routinely destroyed sensitive documents, including schedules and communications with lobbyists like Richard Smotkin, who helped arrange former EPA head Scott Pruitt’s controversial trip to Morocco.

The investigation renews interest in claims that Pruitt was keeping a “secret calendar” in order to hide meetings with executives from industries regulated by the EPA.

A National Archives and Records Administration (NARA) investigation found those claims to be unsubstantiated, but EPA’s OIG has continued the probe.

A source told Politico that Jackson was repeatedly put on notice that he was improperly handling documents.

“They would scold us on a daily basis and Ryan would say, ‘Oh, I didn’t know, we’ll do better next time,’” a former official told the publication.

The EPA pushed back on Friday.

“Even the National Archives have publicly stated these claims are ‘unsubstantiated.’ Politico choosing to run this story on the baseless claims of one disgruntled former employee does not make it true. EPA takes record retention seriously and trains all employees (career and political) on proper protocols and will continue to follow them,” spokesman Michael Abboud wrote in an email to The Hill.

Abboud also pointed to a letter from NARA focused on the calendar review, which found “no evidence that staff members deleted meetings that actually occurred from the official calendar.”

It is not clear whether the OIG probe is limited to destroying documents related to Pruitt’s calendar.

Read more about the investigation here. 

 

DOJ GOES AFTER AUTOMAKERS, PART II: The Department of Justice (DOJ) has issued civil subpoenas to four car manufacturers that agreed to a tailpipe emissions agreement with California over the summer, The Wall Street Journal reported Friday.

The Trump administration has been working for years to roll back tailpipe emissions standards, going head-to-head with California, which for decades has been permitted to enact tougher standards than the rest of the nation.

As negotiations between the state and administration hit a wall, California announced in July an emissions pact between Volkswagen, Honda, Ford, BMW and the California Air Resources Board.

DOJ then reached out to the companies in late August to see if they coordinated with each other before agreeing to the state’s guidelines. Such communications would raise antitrust questions, the department told the automakers.

Mary Nichols, chairwoman of the California Air Resources Board, has previously stated that the state worked individually with the automakers and that all parties were mindful of not violating antitrust laws.

The civil subpoenas, also known as civil investigative demands, indicate the initial talks between the DOJ and automakers did not fully resolve the DOJ’s concerns.

A source close to the matter told the Journal that the subpoenas don’t force the auto makers to turn over any documents, but instead ask them directly if they colluded before agreeing to the pact.

Read more about the subpoena here. 

 

INTERIOR SUGGESTS GIVING A CONTRACT TO… BERNHARDT’S FORMER EMPLOYER: The Interior Department has proposed awarding one of the first permanent federal water contracts to an influential California district for which Interior Secretary David Bernhardt worked as a longtime lobbyist.

According to The Associated Press, the contract would go to the Westlands Water District, the largest agricultural water supplier in the nation. The district serves some of the U.S.’s wealthiest and most influential farmers.

Bernhardt, who first joined Interior as a deputy secretary in 2017, was a lobbyist for the district until just the year before.

Conservation groups who are unhappy with the proposal are calling for more transparency regarding the financial terms of the contract as well as an environmental review of the deal, the AP reports.

Rep. Jared Huffman (D-Calif.) told the AP “the Interior Department needs to look out for the public interest, and not just serve the financial interests of their former lobbying clients.”

Bernhardt’s lobbyist history has drawn scrutiny from congressional Democrats and conservation groups, who have accused him of multiple conflict of interest, as many of the industries that Bernhardt lobbied for fall under Interior’s jurisdiction.

For example, as a lobbyist in 2016, Bernhardt played an integral role in the passage of the federal law that made the proposed contract possible.

Interior spokeswoman Carol Danko said that the Westlands contract was completely delegated to California staffers from the Bureau of Reclamation, a subagency under Interior.

The law reportedly allows districts to lock up permanent water contracts from California’s federal water project as long as the district pays the federal government their share of the cost.  

Environmentalists who are critical of the contract say that it will allow California’s water companies to skip future negotiations with environmental groups, which puts endangered species of wildlife and fish in danger.

Read more about Westlands here. 

 

ON TAP NEXT WEEK:

On Wednesday, a subcommittee of House Natural Resources will hold a hearing on the roadless rule, which was recently used to open up logging in the Tongass National Forest.

The House Committee on Science, Space and Technology will hold a hearing on science in EPA rulemaking. 

Senate Environment and Public Works will hold a hearing on nuclear power.

On Thursday, the House Committee on Science, Space and Technology will hold a hearing on water and geothermal power.

House Natural Resources will hold a hearing on illegal fishing. 

The Senate Energy and Natural Resources will review the nomination of Dan Brouillette to replace Rick Perry as head of the Department of Energy.

 

OUTSIDE THE BELTWAY: 

Cruise line announces it will be carbon neutral by 2020, we report.

Officials Responding to Oil Spill From Cargo Ship in Hawaii, the Associated Press reports.

 

ICYMI: Stories from Friday…

Interior suggests ex-client of department head for major contract

DOJ issues subpoenas to automakers in California emissions pact: report

Top EPA official under investigation in document destruction

EPA watchdog hits back at agency’s legal reasoning in dodging investigations

Cruise company announces it will be carbon neutral by 2020