Freedom of Information Act Archives

Supreme Court to Review Endangered Species FOIA Case

March 3, 2020 — The Supreme Court is taking up the Trump administration’s legal quest to keep certain Endangered Species Act records from the public eye.

The justices agreed Monday to review a petition from two U.S. agencies trying to reverse a court order to release draft documents from a controversial species consultation process. The Freedom of Information Act case could have broad ramifications for agency disclosure in other contexts.

Government lawyers warned in their petition that allowing the order to stand would undermine a FOIA exemption that allows for “candid” communication between agencies during decision-making processes. But the Sierra Club, which filed the underlying case, says FOIA doesn’t allow agencies to shield important records simply by labeling them drafts.

“If an agency makes a decision that alters the course of either another agency’s decision-making or affects the public, it doesn’t get to just stamp that document ‘draft’ or ‘secret’ or ‘for our eyes only’ or anything else,” Sierra Club attorney Sanjay Narayan told Bloomberg Law.

Some legal analysts predict that the court’s decision to take the case means the justices will side with the government.

Read the full story at Bloomberg Law

US advocacy group takes aim at vessel monitor funding rules

April 3, 2019 — BOSTON — While most of the thousands of attendees to the Boston seafood show were there to buy and sell fish or otherwise drum up business for their companies, Ryan Mulvey was on a “fact-finding mission” of sorts.

Mulvey, an attorney, along with a team of others from the Cause of Action Institute, a Washington, D.C.-based advocacy group, spent the show speaking to fishermen about what it refers to as “overregulation” in the fishing industry. This can include issues such as requirements that fishermen bear the cost of having observers on board, the development of offshore wind farms curtailing fishing areas, cuts to quota and problems with the “reliability” of federally conducted stock assessments, he told Undercurrent News.

“We want to hear stories and we had a huge number of fishermen come up to us and tell us ‘Oh, we’re struggling so much. Every year we’re allowed to catch fewer and fewer fish and we’re making less and less money and new and heavier regulatory costs get imposed on us’,” Mulvey said.

The institute advocates for what he called “reasonable regulation that still preserves economic freedom” and has been active in litigating on behalf of fishermen suing the federal government in cases of “government overreach”, Mulvey said. It does this through legal action as well as by launching investigations through the aggressive use of public records laws like the Freedom of Information Act.

Read the full story at Undercurrent News

Interior wrote proclamations scuttling ocean sites — emails

July 24, 2018 — Senior Interior Department officials prepared last fall to eliminate the Northeast Canyons and Seamounts Marine National Monument — even as they had yet to agree on the public justifications for doing so, according to newly disclosed internal documents.

Interior last week accidentally released thousands of pages of unredacted internal emails in response to Freedom of Information Act requests.

Copies of those emails, provided to E&E News by the Center for Western Priorities, detail Interior’s strategy — including a focus on timber harvesting, mineral rights, and oil and gas extraction — as it reviewed the boundaries of more than two dozen national monuments under an executive order from President Trump.

The documents also disclose internal deliberations over the future of some marine monuments, including reintroducing commercial fishing to some sites and reducing the boundaries of others.

In [a] September email, [Interior official Randy Bowman] advised that Interior strike data on commercial fishing in the [Northeast Canyons and Seamounts monument]. A deleted sentence states that four vessels in 2014-15 relied on the monument area for more than 25 percent of their annual revenues, while the majority of ships generated less than 5 percent of their revenues from the area.

“This section, while accurate (except for one sentence) seems to me to undercut the case for the commercial fishing closure being harmful. I suggest in the attached deleting most of it for that reason,” Bowman wrote.

Saving Seafood Executive Director Bob Vanasse disputed the idea that data didn’t support the repeal of the commercial fishing ban but said it instead was removed because it could be taken out of context.

“While it is generally accurate, if one looks at the entire fishing industry in the region, to make the statement that only a small number of vessels derive more than 5 percent of their revenue from the Monument area, for those vessels and fisheries that conduct significant portions of their operations in the monument area, the economic harm is significant,” Vanasse said in a statement.

He added in an interview: “The suggestion is that the administration is hiding the facts, and I don’t think that’s the case.”

Read the full story at E&E News

Experts: Seismic testing may release radioactive material from ocean floor

April 18, 2018 — New fears of releasing toxic and radioactive materials buried in the ocean floor are fueling concerns about the affects of seismic testing for oil and natural gas in the Atlantic Ocean.

This is in response to the Trump administration’s new draft five-year program (2019-2024) for oil and gas development on the outer continental shelf, which proposes to expand future oil and gas leasing to nearly all U.S. waters including the Atlantic, Pacific, Arctic and eastern Gulf of Mexico. This is the largest number of potential offshore lease sales ever proposed.

The South Carolina Small Business Chamber of Commerce has filed a Freedom of Information Act request with the U.S. Department of Defense to obtain the facts about ammunition dumps in the Atlantic that contain conventional, chemical and radioactive weapons and materials, according to a press release. FOIA requests were also sent to the Nuclear Regulatory Commission and the U.S. Department of Commerce for information on radioactive waste disposed of in the Atlantic, the release states.

“For over 60 years our country has used the Atlantic Ocean as a trash can for all kinds of toxic materials,” said Frank Knapp Jr., president and CEO of the chamber. “According to a 2009 Defense Department report, ‘Prior to the 1970s … sea disposal was considered one of the safest alternatives available to dispose of munitions.’ That report indicates that over 17,000 tons of munitions with highly toxic materials have been dumped along the Atlantic Coast. In the 1950s the old Atomic Energy Commission approved the dumping of radioactive waste in 55-gallon drums in the ocean. Industries creating other kinds of toxic wastes did the same.”

The FOIA requests seek to identify the exact locations, types of toxic materials, containers used, weight of deposits and dates of the dumps, Knapp said. This information would be the basis for asking for mitigation strategies to prevent the disturbance of these toxic material dump sites should federal agencies approve seismic surveys, he said.

Read the full story at Southstrand News

Scott Pruitt pushes back on finding that would restrict pesticides’ use to protect fish

February 5, 2018 — For months, chemical companies have waged a campaign to reverse findings by federal fisheries scientists that could curb the use of pesticides based on the threat they pose to endangered species. They scored a major victory this week, when Environmental Protection Agency Administrator Scott Pruitt announced he would press another federal agency to revisit a recent opinion triggering such restrictions.

The struggle over an arcane provision of the Endangered Species Act, in which the EPA must affirm that the pesticides it oversees do not put species’ survival in jeopardy, has become the latest front in the battle over a broad-spectrum insecticide known as chlorpyrifos. Pruitt denied a petition to ban its agricultural use after questioning EPA scientists’ conclusions that exposure impedes brain development in infants and fetuses.

Speaking to the National Association of State Departments of Agriculture on Wednesday, Pruitt said he plans to inform the National Oceanic and Atmospheric Administration’s Marine Fisheries Service “that there needs to be a consultation because we have usage data, frankly, that wasn’t considered.”

NOAA Fisheries issued a Biological Opinion on Dec. 29, which was publicly released Jan. 9 by the environmental law firm Earthjustice, finding that the current use of chlorpyrifos and malathion “is likely to jeopardize the continued existence” of 38 species of salmon and other fish in the Pacific Northwest and destroy or harm the designated critical habitat of 37 of those species. It found another pesticide, diazinon, could jeopardize the continued existence of 25 listed fish species and could harm critical habitat for 18 of them.

In allowing chlorpyrifos to stay on the market — the product is already prohibited for household products — Pruitt cited concerns raised by the Department of Agriculture, pesticide industry groups and an EPA scientific review panel about studies the agency used to conclude that the pesticide poses a serious enough neurological risk to ban its use on dozens of crops. One study, by researchers at Columbia University, found a connection between higher exposure levels to chlorpyrifos and learning and memory problems among farmworkers and children.

Read the full story at the Washington Post