Last week’s primary document dump used a case study of an ongoing lawsuit (Sierra Club, et al. v McCarthy) in order to demonstrate the inner workings of a legal strategy employed by environmental special interests known as “sue and settle.”
For this week’s primary document dump, we’re again focusing on sue and settle. In particular, we’re addressing the suspicious lines of communications maintained by ex-EPA Region 6 administrator Al Armendariz with plaintiffs in pending sue and settle litigation. Before he became EPA Region 6 administrator, Armendariz was a “technical advisor” to WildEarth Guardians, and he also maintained a close relationship with Sierra Club (an organization for which he is currently employed, after resigning from EPA amid controversy for having compared his enforcement style to a crucifixion). During his time at the EPA, these environmental special interests filed a number of deadline citizen suits that led to sue and settle negotiations. We have evidence that EPA lawyers had to intervene in order to impose a recusal on their colleague Armendariz, which I’ve reconstructed in the four emails immediately below:
11 November 2010, 6:02 PM: An email among EPA employees acknowledges a deadline citizen suit filed by two environmental special interests: Sierra Club & WildEarth Guardians. Notably, the email indicates that EPA never even considered defending its prerogatives to set its own priorities. Instead, a negotiated consent decree is assumed.
11 November 2010, 6:11 PM: Only 9 minutes after learning about the sue and settle negotiations, EPA’s Lawrence Starfield emailed EPA Region 6 administrator, in order to preemptively recuse Armendariz from the case, due to prior relationship with the Sierra Club. It is unclear what was Armendariz’s relationship with Sierra Club had been. Currently, Armendariz works for Sierra Club’s “Beyond Coal” campaign.
11 November 2010, 6:25 PM: A quarter hour later, Armendariz responded to Starfield. In his response, the EPA Region 6 administrator rejects Starfield’s conclusion regarding the need for a recusal. Armendariz then tells Starfielf that, “if needed” he could “call Jeremy [Nichols] at [WildEarth Guardians] and grab [EPA Region 6] an extended deadline.” Jeremy Nichols is described on WildEarth Guradians website as, “Director of the Climate and Energy Program, taking action to fight fossil fuels, promote clean energy, slash greenhouse gases.” On Armendariz’s cv, Nichols is listed as a personal reference.
11 November 2010, 10:06 AM: The next morning, Starfield responds, and lays the smack down on Armendariz. He tells the Region 6 Administrator that he is recused, period. Again, Starfield cites the reason for the recusal as being Armendariz’s relationship with Sierra Club, instead of his personal relationship with WildEarth Guardians.
For this particular sue and settle lawsuit, EPA career officials intervened, and thereby ensured that EPA Region 6 administrator Al Armendariz didn’t collude on pending litigation with former colleagues. The system could thus be said to have worked. However, the email chain re-posted above nonetheless demonstrate two damning charges:
- Al Armendariz thought it was ok to call his friend & ex-colleague Jeremy Nichols at WildEarth Gurdians and “grab an extension” on an pending sue and settle case and,
- EPA officials were aware of Armendariz’s ex parte contacts, and discussed them before alerting Armendariz that he was recused. Clearly, this was something about which EPA officials were wary.
Two years ago, my CEI colleague Chris Horner filed a FOIA requesting all correspondence between Armendariz and his former colleagues regarding a major sue and settle case—WildEearth Gurdians v. Jackson—that unfolded over much of 2010.
Below, I’ve reposted the documents that were responsive to that FOIA request. And below that, I’ve posted an index/timeline of the records. In that document, I lay out the case that Armendariz worked closely with WildEarth Guardians and the administration of former New Mexico governor Bill Richardson (D) in order to manipulate deadlines pursuant to the aforementioned WildEarth Gurdians v. Jackson sue and settle, and thereby ensure that Richardson’s successor, Susana Martinez (R), would not have the authority to set environmental policy at the San Juan Generating Station, a large coal-fired power plant near Farmington, New Mexico.