Today, federal watchdog groups Energy Policy Advocates (EPA) and Protect the Public’s Trust (PPT) announced the first batch of publicly released documents obtained via EPA’s Freedom of Information Act (FOIA) litigation with the US Department of the Interior (DOI). The documents pertain to the one-time intended nominee for Deputy Secretary and current Senior Counselor to Secretary Elizabeth Klein, raising many new questions. Immediately clear is that Klein sought to have the Department grant her an ethics waiver so she could deal with issues before the Department involving her former clients. In pursuit of this waiver, known officially as a “502 authorization,” DOI ethics officials developed what they tellingly described as “non-standard language” that departed from the typical restrictions imposed on appointees facing Senate confirmation. Communications between Interior and the Office of Government Ethics released to the nonprofit group EPA further raise questions about whether it is now Biden Administration policy to change the long-standing interpretation of the 502 ethics regulation in favor of a narrower, appointee-friendly approach.
Given DOI’s refusal to provide public records outside of litigation, the status of the ethics waivers for Klein remains unknown and the subject of two ongoing lawsuits by EPA. Last week, the United States District Court for the District of Columbia ordered that the Defendant DoI “shall process at least 400 potentially responsive pages [of Klein ethics docs] each month until processing is complete [and] shall issue an interim response on the 23rd of each month until processing is complete,” and report to the court on September 27, 2021 on what this means by then (how much of how much total have they processed and produced, and what remains).
After that first production shortly before the Court’s order came down, some engineering of Klein’s initial recusal list appears evident based on the records produced to EPA on Friday, July 23. For instance, three states (NY, MD, MN) that were initially cited by Klein in January as her former clients were later dropped when she sought approval to participate in an April meeting on the Alaska National Wildlife Refuge (ANWR) leasing program. Confusing matters more, even the five clients initially identified by Klein contrasts with her former employer’s website, which indicates 11 states participated in the relevant program.
The effort put into seeking a “502 authorization” for Klein represents an extraordinary step in light of the last Administration’s practice, when no such ethics waivers were granted or even requested by Interior officials.
“The Biden Administration is touting itself as the most ethical in history, but the Department of the Interior certainly doesn’t appear to have gotten that message,” stated Michael Chamberlain, Director of PPT. “From the beginning of this administration they’ve been acting as if they have something to hide and, with the documents EPA was able to obtain after filing suit, it appears they probably do. This sparks the question of what else is going on that the public should be concerned about?”
“As glad as we are breaking through the stonewall that Interior erected when faced with requests for public records,” EPA Executive Director Robert Schilling said, “the documents released, and Interior’s withholding of attachments to the emails, appear to raise more questions rather than providing any answers. Was Interior looking out for the public, or creating backdoor workarounds for high-level officials faced with ethical issues?”
EPA-acquired records raise several questions:
- Was Klein granted 502 authorization(s) for her former clients?
- Is the “Becerra approach” that relies on “non-standard language” the Administration’s policy and being used for its most senior political appointees? What other appointees have relied on this “non-standard language”?
- Was Klein entirely candid with the DOI and OGE ethics officials about the extent and true nature of her relationship with the nearly one third of states that sued DOI in concert with her former employer? Were these relationships analyzed as being covered relationships?
- What party matters involving States has Klein participated in since joining the Department? Has she participated in party matters involving the three states that dropped off her recusal list by April 2021 (New York, Maryland and Minnesota)?
- Once Klein’s nomination was pulled in late March, why was her ethics recusal memo not finalized until June 5?