So.. one of the things we do here at The Smokey Wire is to learn from each other. Today is our first published FOIA. I asked USDA and CEQ for FOIAs on the fire retardant issue, because I was curious as to who was calling the shots for the Admin position and what their backgrounds were to be able to make those kinds of calls. Remember at the time, we didn’t know whether the judge would enjoin fire retardant while the FS was applying for a permit, estimated to be 2-3 years.
Some people in the emails I know, some people I’ve heard of, and some were a surprise. Please bear with me, as there are several things about this which are above my pay grade. Also, if I got this story wrong, please correct me in the comments or send me an email. I don’t reveal sources and I really want to get the story right.
First, it seems that key people involved were with White House NSC, the National Security Council:
The National Security Council (NSC) is the President’s principal forum for considering national security and foreign policy matters with his or her senior advisors and cabinet officials. Since its inception under President Truman, the Council’s function has been to advise and assist the President and to coordinate matters of national security among government agencies.
If so, I guess fire retardant is related to national security.. but wouldn’t almost everything fit in the broader scope of “national security” then? It’s pretty cool that our humble world has come to the attention of the “big guns” (so to speak),” but folks could wonder “why, why now, and do these people know anything about wildfire? And shouldn’t there be something more directly related to National Security for them to work on?”
So I’m quite puzzled, and maybe you good folks at TSW can help me out.
Second, how do different agencies use “deliberative process privilege”? Is this consistent across agencies/levels? And why are some names and emails in and others blocked out? I’m hoping our legal minds at TSW will have a breadth of experience in this.
Third, I did not want to bring Scott Streater’s article-related drama up in this, but it turned up. It’s interesting to see how things work at White House with media, at least with some media, for some things.
Fourth, I worked closely with CEQ when I worked at the Office of Science and Techology Policy during the Clinton Administration. In fact, the interagency task force I co-led was chaired by CEQ and OSTP. As I recall, at that time, CEQ mostly focused on NEPA. It’s interesting that fire retardant doesn’t seem to have a NEPA nexus, it’s more of a Clean Water Act thing. So it’s interesting how much CEQ seems to be in the weeds of FS policy right now. I’ll go out on a limb here.. I don’t think that having people make decisions who don’t really know about the issue is a good idea for the country.
Here’s the response letter and the FOIA results.
I’m still waiting on my CEQ FOIA, last I heard it was going through some kind of interagency approval process. Enjoy!
Amazing. Is the of fire retardant a “national security” issue, or just a dodge for “we don’t want to answer that question”?
I wonder about that also..but by involving those folks does the Admin displace itself further from people who know about things and the associated science involved.
I’ m not sure I saw any Forest Service participation in this at all. I’m wondering why you FOIA’d USDA rather than the Forest Service (or if this is where the FS sent it), and whether the Forest Service could/would have given you something different. Back in the day, I don’t remember that many Forest Service requests got the Department’s attention.
The deliberative process exemption is commonly used and frequently includes the records that would be most interesting and wanted. Because the FOIA exemptions are permissive (an agency can always choose to release privileged documents unless that would violate some other law), there has been variability over time as administrations change, and no doubt also variability across agencies to the extent that an administration allows it.
Just based on the recent FOIA case I summarized in the last litigation update, you should have gotten a lot more information on any records withheld (or redactions). I can’t believe they are saying these are the only responsive records, so there should have been something documenting particular records (or types of records) withheld beyond the generic overview they provided, and they should have explained the harm specific to each record (or type).
I think the Environmental Quality Improvement Act is the source of CEQ’s authority beyond NEPA. “The Director shall assist and advise the President on policies and programs of the Federal Government affecting environmental quality” could lead to a broad scope and getting into the weeds, and you would hope they do have the expertise to fulfill this goal. https://environmentallaw.uslegal.com/federal-laws/environmental-quality-and-improvement-act/#:~:text=The%20U.S%20Environmental%20Quality%20Improvement,the%20Council%20on%20Environmental%20Quality.
I FOIAd OSEC because I thought the higher level discussions might be interesting. I also think that CEQ is responsible for resolving disagreements among agencies. I have heard from some knowledgeable people so more on this later.
The Smokey Wire asked only for documents to or from individuals from the White House (including CEQ) on the topic of fire retardant. The documents show that the Biden administration reviewed testimony for an up-coming House hearing. That should hardly come as a surprise. The incumbent administration reviews ALL testimony by executive branch officials on EVERY topic to ensure the testimony conforms to the administration’s position.
Yes, and the Dept is the “Admin” too. The question is “who above the Dept reviews what kinds of things and who is ultimately calling the shots?” And how much does this change from topic to topic and Admin to Admin.
Point being, the rumor I heard is that the Sec was overruled by others. I just wanted to know who the others were.
The retardant matter involves multiple departments (e.g., USDA, DOI) and multiple agencies (e.g., EPA, FWS, NOAA). EPA, not USDA, administers the Clean Water Act’s NPDES program. Thus it comes as no surprise that higher-level W.H. officials were involved in crafting the administration’s position on a bill that seeks to exempt this toxic pollutant from Clean Water Act protections.
I agree that it makes sense that different agencies are involved in crafting an Admin position. Another solution would have been to huddle and develop an expedited process and signal that both CWA and helping fire suppression are key concerns of the Admin. I think Chris said 2-3 years at the hearing. Point being there is lots of middle ground, at least process-wise.
What if Chris had said.. gee, Congressfolk, we agree that this is a problem. Look, EPA and we agree that we will use retardant this fire season and will have permitting in place including states, by next fire season. We are going to have an all-hands on deck approach at both agencies. If the permitting is not in place by Jan 2024, EPA has agreed to continue allowing retardant until permitting is accomplished, with permits approved in each State.