Cracking the Code

Embattled Environmental Protection Agency (EPA) Administrator Lisa Jackson announced her resignation on December 27 citing the pursuit of “new challenges” and “opportunities to make a difference” as the reasons for leaving her high-profile post. I suspect her departure was caused less by altruism and more by self-preservation.

Chris Horner, senior fellow at the Competitive Enterprise Institute (CEI), released his latest book, The Liberal War on Transparency, in October 2012. The book describes the evidence for the existence of a number of “alias” email accounts that have been used by EPA administrators in order to avoid transparency of their actions and to avoid future Freedom of Information Act (FOIA) requests. The story described in Horner’s book continues to develop after publication, as you will read below.

Horner notes in his book that the first EPA administrator known to use alias email accounts was Carol Browner, in Jackson’s job during the Clinton Administration. You may recall that Browner ordered her hard drive reformatted and backup tapes destroyed to erase all her email even after a federal court ordered that those devices be preserved. She is also the one who said that it really didn’t matter that the backups were destroyed because she didn’t use her EPA email address anyway. The evidence supports the conclusion that Jackson also used alias email accounts to communicate with outside groups and organizations when a “paper trail” was undesirable.

The transparency of the communications of senior agency officials is established by law and required when conducting the public’s business. Secret communications suggests government officials working in secret, a government within a government so to speak, to accomplish some nefarious goal. The integrity of these institutions is at stake and those that intentionally act as though the law doesn’t apply to them must be held accountable. Also, though they were not in violation of the law, the integrity of those organizations outside the agency that collaborated with the use of email aliases is also suspect.

The EPA has so far identified 12,000 emails in Jackson’s account using the alias “Richard Windsor” that were responsive to the CEI’s FOIA request. The original request was for emails related to the administration’s “war on coal” and “climate change.” The EPA has been ordered by the U.S. District Court for the District of Columbia to release those emails to the CEI. To be clear, this FOIA is for a single alias account. There were multiple email aliases used by several senior EPA officials plus private computers and computer servers organized in a concerted effort to avoid public records laws.

Jackson claims to have told President Obama after his reelection that she intended to resign in early 2013, although her announcement was not made public at the time. As the pressure of the EPA’s inspector general and two congressional committees investigating the black email accounts increased, it became clear that she could not longer function as the administrator of the EPA. Jackson either resigned or was asked to leave to protect the Obama administration.

Fortuitous Accident

The revelation of these secret email aliases arose during Horner’s review of documents released by the EPA in response to an early 2012 FOIA request for materials to be used in his book. Horner found a document from 2008 that referenced alias email accounts used by former-EPA administrator Browner and what is described as a “dual account structure.” This occurred when senior EPA officials established parallel private email accounts administered by the agency. In particular, a memo to the National Archives and Records Administration revealed “the existence of these little-known secondary email accounts created under Clinton-Gore administrator, and later Obama ‘energy and environment czar’ Carol Browner.” The EPA memo stated, “few EPA staff members, usually only high-level staff, even know that these accounts exist.”

Horner subsequently (May 8, 2012) filed three FOIA requests for more information about the alias email accounts, particularly pertaining to Jackson’s emails related to climate change and its regulatory activities related to coal (see the figure for a timeline of the events). The EPA promised to respond in correspondence sent 10 days later, by June 5, 2012, but in fact continued to block the release for months.

The timeline for cracking the EPA’s alias email accounts secret. Courtesy: CEI

On August 5, the CEI filed an administrative appeal citing the EPA’s failure to provide the requested emails as required by the FOIA. The EPA’s weak argument was “that disclosure would not significantly inform the public of the activities or operations of government.” The EPA failure to release the requested documents prompted the CEI to file suit on Sept. 28, 2012, in the D.C. District Court for the District of Columbia to compel the EPA to produce “certain records pertaining to ‘secondary,’ non-public email accounts for EPA administrators, the existence of which accounts Plaintiff discovered in an Agency document obtained under a previous FOIA request.” An October 1 press release described the think tank’s rational for filing the lawsuit demanding release of these documents under the FOIA.

An EPA spokesman subsequently released a statement in response to the filing of the lawsuit: “EPA is strongly committed to transparency and strictly complies with open government laws such as the Freedom of Information Act. We will review this lawsuit closely and respond as appropriate.” Ironically, the spokesman also admitted the existence of the alias email accounts when attempting to minimize Jackson’s transgression, “The internal account is an everyday, working email account of the Administrator to communicate with staff and other government officials.” The job of EPA spokesperson must be distasteful at times.

The Plot Thickens

On Nov. 12, two high-level agency officials confirmed to Horner that the email aliases were used and that Jackson’s alias for her secret email account was “Richard Windsor.” The agency configured her email account such that the false identity was used in the “sent by” field. The existence of these email addresses was immediately made public.

Congressional response was immediate. The House Committee on Science, Space, and Technology sent a letter to Jackson on Nov. 16 questioning the need for the secret email accounts and issued a press release condemning the practice as illegal under a variety of laws and rules designed to “facilitate transparency and oversight.”

Three days later, the Daily Caller News Foundation revealed that the alias “Richard Windsor” appears on an email thread that was released in another FOIA request earlier in the year by an organization Horner identified as the Center for Progressive Forum.

The pressure on Jackson and other senior agency officials continued to rise with each new public disclosure of their secrets. The first to quit was EPA General Counsel Scott Fulton, Jackson’s deputy administrator at the time the secret aliases were established. Fulton resigned on Nov. 19 to take a position at the Environmental Law Institute.

In response to the lawsuit, the Department of Justice informed the CEI on Dec. 11 that the EPA had finally agreed to release 12,000 “responsive records” and would release 3,000 documents per month for the next four months.

On Dec. 13, The House Energy and Commerce Committee also entered the picture by asking Jackson seven tough questions about the secret email accounts and why Jackson believed it necessary to have the alias. A press release followed, outlining the actions the committee intends and the list of questions sent to Jackson.

On the same day, the EPA inspector general announced an audit of the agency’s email records to “determine whether EPA follows applicable laws and regulations when using private and alias email accounts to conduct official business.”

Jackson resigned on Dec. 27.

Expect More Revelations

The growing scandal doesn’t end with Jackson’s resignation. She will be held to account should the inspector general, either congressional committee, or the Department of Justice find evidence of evading laws and regulations meant to ensure transparency in the deliberative process of government rulemaking. Expect many more revelations as the four batches of emails are released in the coming weeks. There is blood in the water and the sharks are circling.

The alleged actions of Jackson and other appointed senior EPA officials have set a dangerous precedent by handling the people’s business in shady ways. Public-paid lawyers and scores of bureaucrats no longer shield Jackson from the consequences of her actions. Nor does she exercise control over the vast amount of electronic evidence now being scrutinized by multiple organizations. Unlike Jackson, I trust each investigating organization will conduct their inquiries with integrity and transparency.

—Dr. Robert Peltier, PE is COAL POWER’s editor-in-chief.

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