Bay Journal Media, the nonprofit organization that publishes the Bay Journal, on Nov. 20 filed an appeal with the U.S. Environmental Protection Agency contending that the agency’s decision to terminate a multi-year grant was unlawful and potentially an infringement on the First Amendment to the Constitution.
The EPA had notified Bay Journal Media on Aug. 23 of its intent to cancel the six-year award to help produce the Bay Journal. The agency acted after funding only two years of the grant, citing an unspecified “shift” in agency priorities.
Its decision came after the EPA, in a departure from past practice, charged a political appointee in the Office of Public Affairs, John Konkus, with reviewing the agency’s grants — a task usually handled by career employees. Members of Congress and outside watchdog groups have criticized the change.
The appeal said that in making its Bay Journal grant decision, the agency failed to follow proper procedures, failed to consult with other members of the Chesapeake Executive Council which oversees the state-federal Bay Program partnership, acted contrary to positive grant performance reviews, and ignored the critical outreach role played by the publication.
The appeal, crafted by a legal team representing the organization, called the grant termination “an ill-conceived and poorly executed political decision” that may have been triggered by published articles. If so, the appeal said, the agency also violated the First Amendment, which guarantees freedom of expression and the press.
The 25-page appeal recounts how, after responding to a competitive proposal request issued by the EPA’s Bay Program Office, the media organization was awarded in January 2016 a six year grant to produce the Bay Journal, and had receiving glowing grant reviews from the agency until the grant ended without warning.
The appeal contends there was no basis in law or in regulations to terminate a grant for a “shift in priorities.” Further, it said the agency provided no basis for its decision or evidence of such a shift. To the contrary, it noted that Chesapeake Bay Program priorities are established in consultation with the Chesapeake Bay Executive Council which, besides the EPA administrator, also includes governors of the Bay states, the District of Columbia mayor and the chair of the Chesapeake Bay Commission, a bipartisan panel of state lawmakers.
The Bay Commission, in a letter to the EPA, said it was “unaware of any shift in priorities” and that there was no consideration of the grant decision by the Bay Program partnership.
The agency has 180 days to respond to the appeal, although that can be extended in some situations.
Under the grant, the organization was to receive $325,000 next year to help produce the Bay Journal. The EPA had supported publication of the paper since 1991 to help inform the public about Bay-related issues.
Meanwhile, Bay Journal Media also filed a suit against the EPA on Nov. 13 for failing to meet a deadline to comply with a Freedom of Information Act request which sought information about the agency’s grant decision.
The suit, filed in the U.S. District Court for the District of Columbia, sought EPA records and internal communications related to the Bay Journal, and also documentation of any “shift in priorities” affecting the agency’s Bay Program Office.
The agency has a huge backlog of FOIA requests, and is currently defending 41 lawsuits related to them. In a press release issued Nov. 21, EPA Administrator Scott Pruitt said his agency was “committed to transparency” and working to clear the backlog of requests.
Both the appeal and the suit were prepared by Democracy Forward, a nonprofit legal organization that scrutinizes executive branch activities, and the DC-based law firm of Arnold & Porter Kaye Scholer. Both are representing Bay Journal Media pro bono.