November 29, 2022

Volume XII, Number 333

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November 29, 2022

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November 28, 2022

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EPA Avoids Spoliation Sanctions, But D.C. District Court Not Pleased

On March 2, 2015, a D.C. district court denied a plaintiff’s motion for spoliation sanctions against the Environmental Protection Agency (EPA) for its conduct in connection with a Freedom of Information Act (FOIA) request. Despite the result, the court expressed its displeasure with the agency.

From the very start of its opinion, the court expressed its dissatisfaction with EPA’s behavior in connection with Landmark Legal Foundation’s FOIA request. The court speculated that EPA’s conduct in response to the request was for one of two reasons. “Either EPA intentionally sought to evade Landmark’s lawful FOIA request so the agency could destroy responsive documents, or EPA demonstrated apathy and carelessness toward Landmark’s request.” The court believed that “[e]ither scenario reflects poorly upon EPA and surely serves to diminish the public’s trust in the agency.”

Landmark Legal Foundation, a conservative public interest law firm, filed the FOIA request with EPA and later brought suit in order to obtain information as to whether the agency intentionally delayed proposing or finalizing any agency rules until after the 2012 presidential election. The court observed that EPA allegedly engaged in a variety of delay and spoliation tactics to destroy relevant information, including failing to produce emails from former Administrator Lisa Jackson’s personal email account that Landmark proved that she had used for official business.

Despite EPA’s conduct, the court denied Landmark’s motion, explaining that punitive spoliation sanctions require that the moving party demonstrate by “clear and convincing evidence that the opposing party destroyed relevant evidence in bad faith.” The court held that Landmark did not satisfy that standard.

In closing, however, the court noted that it was “left wondering whether EPA ha[d] learned from its mistakes, or if it will merely continue to address FOIA requests in the clumsy manner that has seemingly become its custom.” Finally, the court “implore[d] the Executive Branch to take greater responsibility in ensuring that all EPA FOIA requests – regardless of the political affiliation of the requester – are treated with equal respect and conscientiousness.”

© 2022 ArentFox Schiff LLPNational Law Review, Volume V, Number 79
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Energy industry stakeholders face unprecedented challenges in everyday operations as they seek to comply with changing market rules, evolving compliance obligations, and potential enforcement actions. Buying and selling energy in often difficult market conditions has become more complicated in the face of anticipated yet undefined climate change legislation and regulation. For the managers and general counsel of many energy companies, success in uncertain times has been the result of the counsel and representation provided by Schiff Hardin attorneys in the Energy and Public Utilities group...

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