The EPA says conservatives’ numbers tell only part of the story. | POLITICO Staff EPA: Numbers disprove bias claims

The math underlying conservatives’ allegations of ideological bias at the Environmental Protection Agency doesn’t add up, the agency says in a breakdown provided to POLITICO.

For one thing, EPA says the activist complaining about the agency’s denial of fee waivers for document requests never actually had to pay any money, regardless of whether it officially waived the costs.


And EPA says it granted the vast majority of waiver requests he filed on behalf of one right-wing group — numbers not included in the statistics that Republican lawmakers and conservative news outlets have been trumpeting for weeks.

EPA’s figures seek to rebut Republican allegations that have tried to lump the environmental agency with the Internal Revenue Service as spearheads of a partisan, ideologically driven Obama administration. GOP lawmakers have seized on the issue, sending a slew of letters to EPA demanding an investigation of the charges, including claims that the agency routinely approves almost all fee waivers sought by environmental groups while denying and delaying waivers sought by conservative nonprofit organizations.

The gist of EPA’s response: The conservatives’ numbers tell only part of the story and don’t look at the final outcome on whether groups had to pay fees for their Freedom of Information Act requests.

But the conservative activist who started the whole ruckus says EPA is dodging the real issue: Even if they never end up shelling out money, he alleges, conservatives seeking information from the agency have to jump through hoops that liberal groups don’t.

“EPA’s response to POLITICO amounts to changing the subject, denying charges never leveled,” said Chris Horner, a senior fellow at the Competitive Enterprise Institute.

“At no time have we asserted that EPA is able to actually extract fees from us; instead, the law is clear that EPA is prohibited from doing so,” Horner wrote in an email. He added that the agency “persists, even to this day, with a campaign of serially denying fee waiver requests outright or by refusing to grant them, buying time and costing its perceived enemies scarce resources to appeal and, far too often, sue, to compel EPA to do what the law requires it to do.”

The agency fired back on Friday.

“CEI’s claims do not stand up against the facts,” said EPA spokeswoman Alisha Johnson. “EPA makes FOIA fee waiver decisions based upon clearly stated legal requirements that all requesters, regardless of affiliation, are subject to.”

She added: “EPA has responded to an unprecedented number of FOIA requests for CEI, and the organization has not paid a single penny to EPA for these responses. It is unfortunate that CEI continues to present a narrative to the American people that is simply untrue.”

The two sides’ numbers are starkly different.

Horner’s calculations, which have become a constant theme in the Republican attacks, allege that EPA denied 14 out of his 15 fee waiver requests when he sought information including emails between EPA officials and outside parties — a 93 percent rejection rate. Meanwhile, he said, the Natural Resources Defense Council, Sierra Club, Public Employees for Environmental Responsibility and Earthjustice got their fees waived in 75 out of 82 cases, or 91 percent of the time.

Horner’s numbers are far from comprehensive: He looked at a sampling of major environmental groups, a few conservative groups and his own FOIA requests.

But EPA says neither Horner nor any of the environmental or conservative groups cited in his analysis paid the government any fees.

The agency also took its own look at the same groups and the time period — Jan. 1, 2012, to April 26, 2013 — that Horner’s statistics examine. And it says he left out a lot of information.

For example, EPA says it granted 11 fee waiver requests that Horner had filed on behalf of the Competitive Enterprise Institute and denied only six during that period. The agency denied two requests from the American Tradition Institute, also filed by Horner, EPA’s analysis shows.

More broadly, EPA says it granted 54 percent of the 28 fee waiver requests that several conservative groups cited by Horner had asked for during that time span. Those consisted of Horner’s groups along with the Franklin Center, the Institute for Energy Research, Judicial Watch and the National Center for Public Policy Research, all of which self-identify to the right of the political spectrum.

All told, EPA identified 147 FOIA fee waiver requests from the groups Horner’s analysis cited and says it denied 16 percent. Horner identified 118 requests.

EPA also differs from Horner in the details of how many waiver requests it granted for environmental groups, though it acknowledges that it approved almost all of them.

The agency didn’t break down the denials by groups’ political leanings but does categorize the information requests by groupings such as “media/education” (17 percent denied), “media” (20 percent) and “commercial” (87 percent). In a catchall group, “other,” the agency denied 62 percent of waiver requests.

An EPA official intimate with the process said FOIA officers make fee waiver decisions based on what’s in the request not the name of the requester. “We don’t know who you are when you apply. Your name means nothing a lot of times, and sometimes names are confusing, … especially here in Washington,” the official said.

Legally, requesters are more likely to qualify for waivers if they can show they plan to disseminate the information widely or use it to improve the public’s understanding of government, as opposed to using it for their own commercial gain. Some groups are experienced at navigating the process, the official noted.

The crux of the disagreement in EPA’s and Horner’s characterizations of whether CEI’s and ATI’s fee waivers were granted lies in dramatically different interpretations of what is considered a denial.

For example, Horner’s tally includes cases in which the agency failed to make a decision by the legally required timeline. Horner routinely heads to court when that happens.

“Having denied a CEI fee waiver request, [the fact that the EPA] ultimately granted it or at least stopped denying it is not relevant to our allegation,” Horner said.

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