When Using FOIA Becomes a Sword

Louisiana's long fight against the EPA

I have a treat for readers. When we talk about the Freedom of Information Act we think about David v. Goliath. Journalists spring to mind. Curious taxpayers are another example. Exciting appeals might have a large corporation or an advocacy organization squaring off against the government.

Rarely does a state government sue the federal government over a Freedom of Information Act request, but last year Louisiana filed a lawsuit against the Environmental Protection Agency for not responding to Louisiana’s FOIA request. Even better, both sides show little inclination to resolve the issue without the guidance of a federal district court judge.

As a disclaimer, the Louisiana Attorney General’s office has been tight-lipped to the press, so to some extent this is speculation. However close reading of the state’s filings in its FOIA lawsuit accuse the EPA of leaking information to the press.

It has become apparent to the State from highly specific press inquiries that EPA has been prodigiously leaking information to the press, including the details of non-public negotiations. Your response does not deny that such contacts with the press have occurred, and any such denials would be, quite frankly, incredible.

So what gives?

The request goes back to an 85-mile stretch between Baton Rouge and New Orleans.¹ “Cancer Alley” holds an infamous reputation as one of the nation’s most polluted corners and in 2022 environmental justice groups filed complaints with the Environmental Protection Agency. They claimed Louisiana’s Department of Environmental Quality had engaged in racial discrimination under the Civil Rights Act and surprisingly the EPA opened a civil rights investigation into Louisiana’s permitting practices. The purpose was to evaluate whether LDEQ has granted permits for companies to build and pollute in a way that has caused disproportionate harm to Black communities. Ultimately, the EPA found signs of “disparate impact.”

The timeline of this administrative process is not essential, however the EPA’s “letter of interest” was sent in April, 2022. You can read a copy here.

The EPA’s initial determination reached in October, 2022 was that Louisiana’s Department of Environmental Quality was not paying enough attention to what the data said about disparate racial impact.

As explained in the Denka and Formosa discussions above, the failure to seek out, consider or analyze available information and data about health risks appears to have formed the basis for actions and/or 194 Rise, p. 17. 195 Rise, p. 18. 55 inactions by both LDEQ and LDH that may be subjecting Black residents of Louisiana to adverse disparate impacts.

In response Jeff Landry, now governor and then Attorney General, sued. He contended that the disparate impact standard was exceeding the statutory authority granted to the EPA under Title VI. In other words, he wanted to disable the EPA from arguing that greenlighting contaminating facilities in communities of color already overburdened by pollution (read: Cancer Alley) is discriminatory. If official policies do not announce discrimination as their intent then there likely won’t be a finding of impermissible discrimination. 

Unfortunately, the EPA backed down and closed the investigation shortly after the lawsuit was filed.

Then Louisiana went on the offensive.

Seemingly tired of the scrutiny Louisiana has faced, the state government used the Freedom of Information Act to collect information on specific critics of Louisiana’s policies related to “Cancer Alley.”

The EPA, naturally enough, dragged its feet.

Eventually, Louisiana’s Attorney General’s Office lost its cool a bit.

Respectfully, did you check this link before providing it to [Louisiana]? Directing the State’s attention to a link that is devoid of responsive information betrays a lack of diligence towards the State’s request that is difficult to miss. The State was able to ascertain the complete absence of useful information from that link in under two minutes, which fairly begs the question of whether EPA checked that link itself before providing that response to the State. And whether that response was the product of mere negligence or something more intentional, it is plainly insufficient.

The EPA in early December provided some of the requested records, including 360 pages of at least some of its communications with journalists and environmental groups, but did not include others.

On Dec. 19, the state sued the EPA for an alleged failure to comply with the Freedom of Information Act. In the suit, the state claimed the EPA took too long to produce the records, withheld them and concealed information that it shouldn’t have in some of the records they shared with the State of Louisiana.

I have seen some commentary floating around. For example, David Cuillier, director of the Brechner Freedom of Information Project, is quoted in “’Certainly Intimidation:’ Louisiana Sues EPA for Emails of Journalists and ‘Cancer Alley’ Residents” published in The Guardian. He thinks it’s unusual.

Generally, I can’t recall a recent government-government spat over FOIA. State governments will occasionally use FOIA as an excuse to release some good press. The appearance of proactivity is occasionally as good as the real thing.

For example California got into it with Trump-era EPA. CARB-FOIA-Complaint.pdf (California)

Likewise same thing but with immigration. Multi-state FOIA Request to Federal Immigration Agencies 06.29.17.pdf (ca.gov) (Massachusetts)

I did try to search around Fastcase and Westlaw, and Pacer does track in a rudimentary way FOIA cases. As far as I can gather this might be a very interesting case.

1. The two related cases are Louisiana v. U S Environmental Protection Agency, 2:2023cv01774; and Louisiana v. U.S. Environmental Protection Agency, 2:23-cv-00692. The former is the FOIA action the latter the civil rights action.