JUDGE ORDERS SPEEDY RESOLUTION TO EPA’S CASE AGAINST THE DEPARTMENT OF THE INTERIOR
As EPA previously reported, we were forced to sue the Department of the Interior when the agency refused to grant fee waivers or expedited processing relating to requests for records showing what the erstwhile Biden nominee for Deputy Secretary of the Interior,Elizabeth Klein, disclosed to DoI ethics officers and when she disclosed it. Kleinwas previously announced as the expected appointee for the position of Deputy Secretary of the Interior, but was placed in a career position after it became obvious that her nomination could not survive the Senatorial confirmation process.
Friday morning at 9:30 a.m., a hearing was held in Energy Policy Advocates v US Dept of Interior, 1:21cv1247, a case filed when Interior reversed its longstanding practices, placing fee and other barriers in EPA’s path to obtaining Ms. Klein’s disclosures about various ethical conflicts to the Office of the Solicitor’s Ethics Officer, and that office’s handling of such disclosures. These records would include the list of decisions Ms. Klein is recused from involvement in — now also the subject of Congressional inquiry after EPA filed suit. At Friday’s hearing, EPA’s counsel withdrew the group’s Motion for a Preliminary Injunction in exchange for DoI addressing the merits of the case on an expedited schedule, to wit:
- DOI produces Interior’s Administrative Record by June 23
- DOI Answers EPA’s Complaint by June 25
- EPA files a Motion for Summary Judgment by July 7
- DOI files combined Opposition and Cross-Motion for Summary Judgment by July 23
- EPA files its Reply by Aug. 6
- DOI files its Reply by Aug. 20
Shortly after August 20, the Court will rule on the merits. Putting aside DoI’s inexplicable change of practices delaying release of these important public records, this advances the case by months.
Shortly after the hearing concluded, EPA filed another suit against Interior relating to the same FOIA request, Energy Policy Advocates v. US Department of Interior, Case No. 1:21cv1519. That new case gets to the meat of the issue, rather than being restricted to whether Interior is required to process the records at a certain pace and what fees are allowed. In the newest case, EPA alleges that Interior has ignored its request beyond its statutory deadline for complying with FOIA and has yet to provide any determination regarding what records it might eventually produce. EPA therefore seeks a Court order that Interior actually produce the records that EPA requested.
PROBLEMS CONTINUE TO MOUNT FOR BELEAGUERED DEPARTMENT OF INTERIOR AND EMPLOYEE LIZ KLEIN
AS EPA URGED IN AMICUS BRIEF, SUPREME COURT REJECTS BALTIMORE’S ATTEMPT TO KEEP NATIONAL CLIMATE POLICY SUITS IN LOCAL COURTS
The Supreme Court’s opinion this morning in Mayor and City of Baltimore v. BP plc et al., serves as another reminder of the importance of the state vs federal jurisdictional issue in the wave of “climate” litigation washing over state courthouses around the country. All of these suits represent transparent attempts to manufacture state jurisdiction for a previously admitted national campaign to substitute verdicts for a failed policy agenda.
This change in tack by the climate litigation industry followed several defeats in federal court which confirmed that this abusive multi-front campaign stands little chance there, where it belongs. As Energy Policy Advocates wrote in its amicus briefs before the Supreme Court, the plaintiffs’ obsession with manufacturing jurisdiction in friendly (blue-)state fora derives from the apparent hope for more favorable rulings toward obtaining a “sustainable revenue stream” for these cities and states (and their contingency-fee attorneys).
Soon EPA will reveal, for the first time, damning details about who is actually conducting this purportedly governmental litigation campaign and how they are doing it. EPA’s work under the state freedom of information laws makes continued doubt about who is really bringing these nominally governmental suits into being implausible.
On remand to the Fourth Circuit — and in other fora in coming months —we look forward to shedding more light on these improper litigation tactics.