EPA Texts Disappear, Suspicions of Misdeeds Do Not

The EPA has refused to share text messages requested by whistleblower group PEER over alleged tampering with the agency’s chemical risk assessments. WatchDog argues that for environmental journalists, such refusals damage reporting on the agency. Photo: www.freeimages.co.uk.

WatchDog Opinion: EPA Texts Disappear, Suspicions of Misdeeds Do Not

By Joseph A. Davis

You may remember the FBI seizing the cellphone (may require subscription) of former Justice Department official Jeffrey Clark in June. That’s because the bureau can find all kinds of evidence on phones, especially texts. 

But when it comes to the U.S. Environmental Protection Agency, phone texts are just … not there.

That’s the upshot from the whistleblower group Public Employees for Environmental Responsibility, or PEER, which tried to get certain EPA text messages under the Freedom of Information Act as it pursued alleged tampering with the agency’s chemical risk assessments.

The EPA’s statement to PEER was stark: “Currently, EPA doesn’t have the capability to retrieve the content of text messages.”

Except, of course, that FOIA and other federal records law requires the agency to treat text messages on agency cell phones as government records. The Federal Records Act requires agencies to preserve their records. PEER cites extensive case law that requires text messages to be treated as federal records under FOIA.

 

Evidence of regulatory capture

Why does this matter to environmental journalists? Well, for starters this dispute involves one of the biggest scandals to darken the EPA in years. It involves the “capture” of some EPA toxic chemical regulators by the industries they are supposed to regulate.

It’s a long, dark and winding story — one told well by reporter Sharon Lerner during the time she worked for The Intercept. Told so well, in fact, that Lerner won a bunch of prizes for the work from the Society of Environmental Journalists — culminating with SEJ’s top honor for outstanding environmental reporting, the 2022 Nina Mason Pulliam Award. You can access almost all of the multipart series, including the reporting most relevant to the PEER text message request.

 

The saga reveals the EPA's prejudice

in favor of the chemical industry from

the years before former President

Donald Trump and his allies took office.

 

The saga is almost too big to summarize. It reveals the EPA's prejudice in favor of the chemical industry from the years before former President Donald Trump and his allies took office. It continued after the Trumpists were supposed to have left the EPA, persisting through the years when reforms intended in the 2016 amendments to the Toxic Substances Control Act, or TSCA, were supposed to be implemented.

TSCA requires the EPA’s New Chemicals Division, part of the Office of Pollution Prevention and Toxics, to evaluate the human health risks of new chemicals (and old ones marketed for “significant new use”). Lerner’s expose highlighted the division and showed that while some EPA staff were shilling for industry, other staff were blowing the whistle.

One of those accused of helping industry was Tala Henry, then a high official in the EPA’s toxic office. The scandal at the EPA was not really resolved when Henry announced her retirement rather abruptly in December 2022. The text messages the EPA seemingly could not find or give to PEER? They were Henry’s.

 

EPA denial raises bigger issues

The EPA’s refusal to provide text messages to PEER raises important issues — the biggest being that it is illegal. For environmental journalists, access to all nonexempt EPA records is key to full and accurate reporting on the agency. Because PEER is a gadfly and watchdog, it means the agency is resisting potentially embarrassing disclosures.

Remember, the allegations that both Lerner and PEER have been investigating involve collusion that is essentially illegal. Federal law (e.g., the Administrative Procedure Act) requires that interactions between regulator and regulated be on the record.

 

While we journalists love our devices,

we also know that they can be

used to subvert openness rules.

 

While we journalists love our devices, we also know that they can be used to subvert openness rules. For example, it is not uncommon for various committee members to subvert open-meetings law by having private text conversations. Likewise, cell phones offer a channel for lobbyists and regulators to keep their interactions out of public sight.

The missing EPA texts raise another issue. Most agency rules strictly limit personal use of agency equipment, including cell phones. The EPA is no exception. Lack of FOIA access to such texts obscures any possible misuse of agency devices for personal communications — whether to a babysitter … or a lobbyist.

The EPA’s refusal to disclose the texts was also poorly communicated. The denial did not make clear why the texts were unavailable. What happens to a phone when an employee leaves the agency and is no longer employed (as was the case with Henry)? EPA policy requires departing employees to save text messages and wipe their phones. How and where are (or should be) the messages saved? This is not clear. Was the EPA saying that they are not saved at all?

The EPA’s denial of texts only adds to other failures of openness in the PEER case. The agency has taken the position that interim drafts of regulatory documents can be “written over” — obscuring or destroying the original material with subsequent changes. This makes it impossible to determine whether (and how) a document was changed.

That matters a lot if — just hypothetically — the EPA were to alter a scientific assessment of a toxic chemical’s health effects at the request of the chemical’s manufacturer.

What matters in the end is not the procedures. The law and the agency are supposed to be protecting public health from toxic chemicals. When the EPA fails, journalists and watchdogs should hold them to account. When evidence of EPA’s failure is concealed, withheld or destroyed, something is very wrong. The EPA could fix it by treating all text messages on agency phones as government records.

Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, and curates SEJ's weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column.

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* From the weekly news magazine SEJournal Online, Vol. 8, No. 1. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.