Carper, Whitehouse Sound Alarm about Thousands of Pages of Unreleased Communications between Pruitt and Special Interests

Washington, DC – In a letter sent to Environmental Protection Agency Administrator Scott Pruitt and federal ethics officials today, Senators Tom Carper (D-DE) and Sheldon Whitehouse (D-RI) called attention to at least 3,100 pages of unreleased communications between Pruitt, fossil fuel companies, and other special interests now with business before the EPA.  These documents, the Senators write, may call into question Pruitt’s ability to do his job impartially as required by federal administrative and ethics law. 

The Center for Media and Democracy filed suit in Oklahoma state court last year seeking the release of documents from Pruitt’s tenure as Oklahoma Attorney General between 2011 and 2017.  According to a newly released court document, emails, draft legal filings, and other records withheld by Pruitt’s former office could shed light on his connection with over 40 entities from the fossil fuel industry and other polluting interests that are directly affected by the work of the EPA.  Pruitt’s close collaboration with these entities in fighting the EPA as Oklahoma Attorney General could mean that Pruitt is making decisions as EPA administrator in matters from which he should be recused, Carper and Whitehouse write.

“If you, as Attorney General, reviewed industry-produced drafts of EPA rules or industry data to be used in litigation against the EPA, that would raise serious concerns,” Carper and Whitehouse write.  “In particular, your review of industry-produced drafts raises doubt about whether you are approaching your responsibilities in an open-minded way.  Other interests should be assured that you are willing and able to consider evidence and viewpoints made available to you in your role as Administrator, and that you are not considering industry-produced data outside of the formal rulemaking process.”

According to a list of documents state officials believe are privileged and immune from disclosure, known as a privilege log, the Oklahoma attorney general’s office is withholding at least 1,122 pages of “emails containing documents, amicus briefs, and legal strategy which are part of litigation files”; 1,754 pages of “emails containing documents, drafts of proposed rules, pleadings and drafts, legal strategy and data from investigations for cases in litigation”; and 196 pages of “emails regarding personal matters not related to the transaction of public business.”  As Carper and Whitehouse note, it is difficult to see how the former Attorney General’s meetings and communications with businesses and organizations that have a significant stake in battles against the EPA – like Koch Industries, Devon Energy, and the Republican Attorneys General Association – are not “related to the transaction of public business.”

Carper, Whitehouse, and other members of the Senate Environment and Public Works (EPW) Committee pressed Pruitt for his communications with a range of special interests during his confirmation process in January 2017, but, instead of providing the documents, Mr. Pruitt refused, referring the Senators to the same Oklahoma Open Records Act process at issue in the Center for Media and Democracy lawsuit.  Democrats ultimately boycotted the EPW vote in February over Pruitt’s refusal to provide emails and other requested documents.  After Pruitt was confirmed, records released by the Oklahoma Attorney General showed he had used a personal email address to conduct state business and that he had a special alias government email address that he did not list on his documentation for the Senate.

Full text of the Senators’ letter is below.  A PDF copy is available here.

May 2, 2018

The Honorable Scott Pruitt

Administrator

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, NW

Washington, D.C. 20460

Dear Administrator Pruitt,

It has come to our attention that the Office of the Oklahoma Attorney General (OK AG) is currently withholding from public production at least 3,100 pages of documents related to communications with fossil fuel and other industry groups that may have interests before the U.S. Environmental Protection Agency (EPA).  This remarkable number of documents, which coincide with your time as Oklahoma Attorney General, were never disclosed to the Senate Environment and Public Works (EPW) Committee and raise new questions about your ability to execute the functions of your office impartially.  Further, the existence of these documents likely makes the recusal statement you have filed with EPA incomplete.  

The documents at issue have been identified by the OK AG as responsive to a series of requests under the Oklahoma Open Records Act by the Center for Media and Democracy.  They include requests for communications with over forty companies, law firms, and individuals that have either direct or indirect interest in matters before EPA.^[1]  The Oklahoma Attorney General has described the documents to the state court currently handling the litigation over these open records requests as follows: ^[2]

1,122 pages of “emails containing documents, amicus briefs, and legal strategy which are part of litigation files,” 1,754 pages of “emails containing documents, drafts of proposed rules, pleadings and drafts, legal strategy and data from investigations for cases in litigation,” and 196 pages of “emails regarding personal matters not related to the transaction of public business.”    

Each of these categories of documents may contain information directly relevant to your ability to do your job impartially.  For example, while you have agreed to recuse yourself from decisions related to litigation involving the State of Oklahoma as a “party, petitioner, or intervenor,”^[3] the 1,122 documents identified by the OK AG as “part of litigation files” cover parties beyond the State of Oklahoma and could indicate your recusal list is incomplete.  Another 1,754 pages of emails have been described as including “drafts of proposed rules” and “data from investigations for cases in litigation.”  If you, as Attorney General, reviewed industry-produced drafts of EPA rules or industry data to be used in litigation against the EPA, that would raise serious concerns.  In particular, your review of industry-produced drafts raises doubt about whether you are approaching your responsibilities in an open-minded way.  Other interests should be assured that you are willing and able to consider evidence and viewpoints made available to you in your role as Administrator,^[4] and that you are not considering industry-produced data outside of the formal rulemaking process.

Finally, we trust that the plaintiff in this open records act litigation will aggressively litigate whether you waived privilege when you shared litigation documents with private non-parties.  Further, we expect the plaintiff to address the far-fetched claim that 196 pages of communications with entities that may include Koch Industries, Devon Energy, and the Republican Attorneys General Association are “not related to the transaction of public business” and, therefore, not subject to disclosure under Oklahoma law.  For the purposes of Senate oversight, and your compliance with federal ethics regulations and the Administrative Procedures Act, such documents should be public as they involve your actions as EPA Administrator. 

The fact that you were confirmed without the Senate knowing about many of your industry communications is not new.  You directed members of the EPW Committee to file Open Records Act requests of your office at least twelve times in response to questions for the record.^[5]  Now that it has become evident that the OK AG intends to assert privilege over many of these documents and aggressively litigate those claims, we may have to wait another year before we discover the full scope of your industry ties and how they have impacted your actions as EPA Administrator. 

While you have chosen to send the public and Congress chasing through state bureaucracy and the courts to learn about your industry ties, it remains your responsibility under federal ethics rules to provide to EPA’s designated agency ethics official (DAEO) information that may be relevant to whether or not you should be recused from particular matters.  See 5 C.F.R. §2635.502(a).  By regulation, the DAEO may undertake an independent assessment of the facts, at any time, of your compliance with the rules.  The OK AG’s determination that thousands of pages of documents are privileged because of litigation makes them immediately relevant to the scope of your recusal.  Through this letter, we are putting the DAEO and the Office of Government Ethics on notice of these materials with a request that steps be taken to obtain and review these documents to ensure your full compliance with the Ethics in Government Act as well as the accuracy and completeness of your recusal statement. 

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