The Heritage Foundation’s Oversight Project has appealed a court ruling siding with the Environmental Protection Agency in its refusal to disclose information about the toxic train derailment in East Palestine, Ohio.
The Feb. 3 train derailment gained significant national media coverage for the Ohio town of 4,700, as well as a visit from former President Donald Trump the day before Transportation Secretary Pete Buttigieg arrived on the scene.
Twenty of the 50 train cars that derailed or were damaged by fire reportedly carried toxic chemicals, including vinyl chloride, butyl acrylate, ethylhexyl acrylate, and glycol.
Government officials conducted a controlled burn Feb. 6, apparently sending more chemicals into the air.
The Heritage Foundation’s Oversight Project sued under the Freedom of Information Act after the EPA denied its request for expedited delivery of documents. (The Daily Signal is Heritage’s multimedia news organization.)
The federal public records law calls for expedited processing when there is a “compelling need” and “an urgency to inform the public about an actual or alleged federal government activity.”
The EPA and the Justice Department already have sued the railroad, Norfolk Southern.
In a decision April 14, U.S. Chief Judge James Boasberg of the District of Columbia sided with the EPA rather than Heritage’s Oversight Project.
“To be clear, the court does not hold that a definite end-date is necessary to show that delay would compromise a significant recognized interest,” Boasberg wrote in his opinion. “It holds only that, because at this stage plaintiffs have neither provided a convincing counter to that rule [for expedited production of documents] nor offered any concrete time frame, the court is not persuaded that they are likely to succeed on the merits as to this component.”
On Tuesday, the Oversight Project appealed the case to the D.C. Court of Appeals.
“We disagree with the opinion of the judge,” Roman Jankowski, senior investigative counsel to the Oversight Project, told The Daily Signal. “We believe that the residents of East Palestine are irreparably harmed every day they lack information that is vital to making informed decisions.”
“The EPA allowed almost every other environmental nonprofit to jump the line when they thought it was in their best interest,” Jankowski added. “But when conservatives want to get a judicial remedy because there is an urgency to inform the public about an actual federal government activity, the EPA and court say no. We just want to be treated equally under the law. That’s why we are appealing.”
The EPA argued in court that Heritage did not establish an “urgency to inform the public.” The agency said it would need to review “thousands of potentially responsive records, coordinat[e] with several offices within EPA, and consult[] with other agencies,” and wouldn’t be possible to produce the request documents fully until Nov. 1.
The agency didn’t immediately respond to The Daily Signal’s request for comment.
The Oversight Project’s request for public records asks about 20 separate issues surrounding the government’s response to the derailment.
These include “all communications relating to the incident with any employee of Norfolk Southern Railroad,” “all records relating to the Incident and ‘Trump,’” and “records related to the ‘controlled burn’ undertaken in response to the incident.” The request also seeks “records sufficient to show whether separate testing for potentially toxic residues attributable to the incident is being performed on surfaces and soil in the area surrounding the chemical burn.”
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