North Dakota attorney general in legal battle with EPA over open records request
North Dakota Attorney General Drew Wrigley speaks about the state's slew of lawsuits against the federal government at the Lignite Energy Council's annual meeting on Oct. 3, 2024. (Michael Achterling/North Dakota Monitor)
The North Dakota Attorney General's Office has filed suit against the Environmental Protection Agency over records it believes will reveal the federal agency used its regulatory power to intentionally harm the fossil fuel industry.
The lawsuit mainly concerns energy sector regulations adopted by the EPA this spring, including those targeting carbon emissions and air toxins like mercury, said Attorney General Drew Wrigley.
The EPA has said the rules mitigate pollution and the release of climate change-causing greenhouse gasses.
One rule seeks to reduce the emission of air toxins including mercury, arsenic, lead and other pollutants by coal-fired plants by about 70%. There's also a new regulation the EPA says will reduce pollution traced to coal plant wastewater by 660 million pounds per year, according to an April announcement by the agency.
The Attorney General's Office in legal briefs has argued that rules won't actually benefit the environment and will be too expensive for energy producers to implement. It also claims that the EPA did not have the authority to issue them. North Dakota has already joined forces with other states to sue the EPA over the rules in federal court.
Wrigley says he's convinced the EPA adopted the rules in an underhanded attempt to force coal-fired power plants to close.
"They are pushing politics," Wrigley said Thursday during a speech at the Lignite Energy Council's annual meeting in Bismarck.
The Attorney General's Office in April submitted a records request to the EPA in an effort to confirm those suspicions. Such information could be useful ammunition in the state's ongoing lawsuits against the federal agency, Wrigley indicated during his speech.
The state agency asked for documents and communications related to the rules from 2022 and 2023. Court records state that the original scope of the request could have yielded up to 16,000 records.
Under ordinary circumstances, the federal Freedom of Information Act requires federal agencies to respond to records requests within 20 working days. This initial response is supposed to include, among other things, information about whether the agency will comply with the request or if it has decided to withhold any records. Agencies then must produce the records within a few weeks of making that determination.
The Attorney General's Office said the EPA did not meet any of any of those deadlines.
The office in July filed suit against the EPA in North Dakota federal district court accusing it of slow-walking its response in violation of federal law.
"We've had to sue them for the information that we're entitled to, to inform our judgments and assessments of our legal arguments in all these other matters," Wrigley said Thursday.
The complaint alleges that EPA personnel failed to follow not only Freedom of Information Act requirements, but also the federal agency's internal policy governing records requests. At one point, the EPA estimated it would take more than two years to review the records request, the state agency claims.
The Attorney General's Office worked with the EPA to narrow the scope of the request somewhat, though court filings indicate the amended request still covered an estimated more than 9,000 documents. The agency told the Attorney General's Office it could review the documents at a rate of approximately 825 records per month.
As of the time North Dakota filed suit, the Attorney General's Office still had not received any documents from the federal agency.
The state asked the court to order the EPA to finish the request in no more than two months.
"Stale information is of little value," it says in its complaint.
The EPA has stated in legal filings that it acted in accordance with public records laws, and that it is allowed to take more time processing complex records requests. It also argued the Attorney General's Office did not adequately describe the records it is looking for.
In August, U.S. District Court Judge Daniel Hovland ordered the parties to meet to "significantly narrow the search request and reduce the volume of identifiable records to be reviewed." From that point onward, EPA must continue to process at least 825 records a month, his order states.
Both parties must also file reports every two months updating the court on the progress of the records request.
Since Hovland's order, the EPA has started providing records, Wrigley said.
He said the Attorney General's Office still has concerns about how the EPA is handling the matter, but declined to go into specifics.
"I don't presume bad faith," Wrigley said of the EPA. "At the same time, it's our job to ensure that there isn't bad faith."
The EPA did not respond to a request for comment from the North Dakota Monitor.
