Judge Dismisses Attack on Right-to-Know

On March 11, 1998, U.S. District Court Judge Thomas Hogan dismissed a motion for a preliminary injunction brought against the Environmental Protection Agency by the U.S. Chamber of Commerce and Jim Tozzi, a Washington, D.C. attorney whose firm represents industry clients that sought to block EPA from publishing on the Internet industry data that environmental groups say provides valuable information about industry compliance with environmental safeguards.

The judge's decision strengthens community groups' right to know about toxic chemicals released into their communities and industry violations of federal environmental protections. In dismissing the request for a preliminary injunction against EPA, Judge Hogan said that Tozzi and the Chamber of Commerce failed to show that release of the information would cause immediate and irreparable harm to companies required to disclose the information. He further stated that the plaintiffs failed to show a substantial likelihood of success on the merits,"as the Court is not convinced that Plaintiffs have stated a cause of action."

At the heart of the case lies EPA's effort, through an EPA program called the Sector Facility Indexing (SFI) Project, to release information on the Internet regarding industry compliance with environmental safeguards. The data, which will come from information already being collected by EPA under other federal requirements, cover five industries: auto manufacturing, paper, petroleum-refining, steel and nonferrous-metals industries. Industry groups have fought the public's right to know about industry compliance records, while environmental groups have pushed to make the information available to the public as a way of tracking industry compliance with important environmental laws such as the Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act. SFI Project data is useful to individual facilities as well in gauging their own environmental records. Individual facilities will be able to use the data to compare their own environmental records with the records of similar facilities elsewhere and ask, as one EPA official put it, "Am I a true leader or am I way down at the bottom?"

The ruling confirms that federal agencies have the right to reuse information already collected from the public and sends a strong message that the regulated community cannot use the Paperwork Reduction Act (PRA) as a tool to slow down or stop agency actions related to the dissemination and use of information. While the Act requires agencies to obtain approval for any new collection of data in order to minimize the burden on entities required to provide information to the government, the judge's ruling confirms that agencies need not get OMB approval for each and every reuse of information already collected.

"The dismissal sends a clear message to those attempting to use the Paperwork Reduction Act as a means for blocking agency responsibility for carrying out their regulatory obligations and disseminating public information," said Gary Bass, executive director of OMB Watch. "Community groups and those who support the community right-to-know about toxic chemicals in communities and neighborhoods should be very happy with the judge's decision."

Observers say the decision may have turned on the procedural question of whether the Paperwork Reduction Act allowed for citizen lawsuits for alleged violations of PRA. The judge may have decided that the plaintiffs, including Jim Tozzi, a Deputy Administrator of the Office of Management and Budget's Office of Information and Regulatory Affairs during the Reagan Administration and currently president of a firm that represents business interests in regulatory matters, and the Chamber of Commerce, which claimed to represent several industry sectors that fall under the SFI Project, had no authority to sue EPA. The Act does not explicitly permit private citizens to sue under the Act except in one instance dealing with whether there is an OMB "control number" on government forms. Rather, enforcement of the Act is primarily the responsibility of OMB, agencies, and Congress.

The judge's complete opinion in the case is expected in the next few days.

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