EPA will pay $6,000 for Ferguson’s attorney fees in lawsuit over FOIA request
OLYMPIA — As a result of Attorney General Bob Ferguson’s lawsuit, the Environmental Protection Agency (EPA) has provided more than 1,700 pages of communications previously not made public between the EPA and advisory committee members in the wake of its 2017 policy barring scientists who receive grants from the agency from serving on the committees.
In addition to providing the documents, the EPA must pay $6,000 in attorney costs and fees to the Washington Attorney General’s Office to resolve the case.
In May of 2018, Ferguson filed the lawsuit in the U.S. District Court for the Western District of Washington after the EPA failed to respond to his Freedom of Information Act (FOIA) request. The FOIA request sought communications between the EPA and advisory committee members regarding the agency’s new policy barring scientists who receive EPA grants from serving on advisory committees.
EPA used the new policy to force a number of Washingtonians to choose between continuing important EPA-funded research and serving on EPA committees, such as the Science Advisory Board.
This is Ferguson’s 22nd consecutive legal victory against the federal government since President Donald Trump took office. The State of Washington has not lost a case against the Trump Administration. Including this case, 12 of Ferguson’s 22 legal victories against the Trump Administration are final, and cannot be appealed or overturned. Today’s announcement marks Ferguson’s sixth legal victory against the EPA and the 13th legal victory against the Trump Administration in a case regarding environmental protections. This case is the 10th victory in an environmental case against the Trump Administration that is not appealable, including five against President Trump’s EPA.
“This administration continues to try to evade its lawful obligations at every possible turn,” Ferguson said. “We shouldn’t be forced into a courtroom to ensure that the federal government follows the laws requiring it to be open and accountable to the people it serves. Our undefeated record in court against the Trump Administration indicates the lack of respect this administration has for the rule of law.”
Ferguson’s legal record against the Trump Administration
Ferguson has filed 36 lawsuits against the Trump Administration and has not lost a case. Of these 36 lawsuits:
- 18 involve environmental protections (record: 13-0);
- 10 of the 18 specifically challenge actions by President Trump’s EPA (record: 6-0);
- 8 relate to immigration (record: 4-0);
- 5 relate to health care access (record: 3-0);
- 3 of the 5 health care cases relate to reproductive health care access (record: 2-0);
- 2 relate to consumer protections for student borrowers (record: 1-0);
- 1 relates to 3D-printed guns (record: 1-0);
- 1 relates to the military transgender ban; and
- 1 relates to net neutrality.
Twelve of the 22 victories are final and cannot be appealed, which means they cannot be overturned.
Washington state is the lead plaintiff state (or co-lead) in 13 of the 36 lawsuits. Including today’s victory, Washington’s record in these 13 cases is 7-0. These victories also include the following cases:
- The original travel ban case;
- 3D-printed guns;
- Federal Energy Regulatory Commission (FERC) FOIA lawsuit;
- Drift Gillnet Rule; and
- Title X “gag rule.”
After more than two years of litigation, no court to rule on the merits of the Attorney General’s arguments in a lawsuit against the Trump Administration has ruled against the office.
The Attorney General’s affirmative litigation divisions (Civil Rights Division, Consumer Protection Division, Counsel for Environmental Protection, and the affirmative section of the Complex Litigation Division) led every case in which Washington state is the lead plaintiff, and the majority of cases in which Washington joined multistate litigation led by other states. Multistate efforts led by other states require significantly fewer resources from the Washington Attorney General’s Office. Affirmative litigation divisions have not received any taxpayer funding since January 2017. They are fully funded through recoveries in successful civil enforcement cases. Consequently, the impact to taxpayers from this federal litigation is minimal.
The Attorney General’s Office maintains an up-to-date list of all its federal litigation cases, including case summaries, case status and lead state, on its website. That list can be found here.
EPA FOIA Lawsuit
Ferguson submitted his FOIA request in March of 2018, about four months after then-EPA Administrator Scott Pruitt announced the new policy. The EPA did not respond to Ferguson’s FOIA request, prompting Ferguson to sue the EPA on May 3, 2018.
Four months after filing suit, the EPA began providing documents to the Attorney General’s Office. After seven months of negotiations, the EPA provided more than 1,700 pages.
The documents provide a clearer picture of how the new EPA policy was implemented, including the exchanges between EPA staff and members of the advisory committees who were frustrated at being told they were no longer allowed to serve.
In the communications (which can be found here), advisory committee members expressed confusion about the new policy, as well as questioning why their grant status created an alleged conflict of interest. They also voiced concerns about the ability of the advisory committees to do their work in the wake of the new directive.
EPA’s policy has been challenged in three lawsuits in federal courts in New York, Massachusetts and Washington, D.C. Although the EPA has prevailed in those cases, two of those lawsuits are currently on appeal, and the third was dismissed without prejudice. The State of Washington is not a party to those cases.
Assistant Attorney General Bill Sherman and the Counsel for Environmental Protection are handling this case on behalf of the Attorney General’s Office.
In 2016, Attorney General Ferguson created the Counsel for Environmental Protection to protect our environment and the safety and health of all Washingtonians.
The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.
Brionna Aho, Communications Director, (360) 753-2727; Brionna.firstname.lastname@example.org