Environmental Integrity Proj., et al v. EPA
OPINION  filed (Pages: 4) for the Court by Judge Kavanaugh. [16-5109]
USCA Case #16-5109
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 10, 2017
Decided May 30, 2017
ENVIRONMENTAL INTEGRITY PROJECT, ET AL.,
ENVIRONMENTAL PROTECTION AGENCY,
Appeal from the United States District Court
for the District of Columbia
Thomas Cmar argued the cause and filed the briefs for
Marina Utgoff Braswell, Assistant United States Attorney,
argued the cause for appellee. With her on the brief was R.
Craig Lawrence, Assistant United States Attorney.
Before: KAVANAUGH, Circuit Judge, and GINSBURG and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge KAVANAUGH.
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USCA Case #16-5109
KAVANAUGH, Circuit Judge: This case concerns the
relationship between two statutory provisions: Exemption 4 of
the Freedom of Information Act and Section 308 of the Clean
Exemption 4 of FOIA authorizes agencies to withhold
“trade secrets and commercial or financial information
obtained from a person and privileged or confidential.” 5
U.S.C. § 552(b)(4). Section 308 of the Clean Water Act
authorizes EPA to obtain records from power plants and states
that those records “shall be available to the public” unless EPA
determines that the records “would divulge methods or
processes entitled to protection as trade secrets.” 33 U.S.C.
§§ 1318(a), (b).
The problem is that Exemption 4 and Section 308 appear
to conflict in certain circumstances. Exemption 4 exempts
from disclosure both trade secrets and certain commercial and
financial information. Section 308 exempts from disclosure
only trade secrets, but it seemingly requires disclosure of
commercial and financial information.
In this case, several environmental groups –
Environmental Integrity Project, Sierra Club, and
Earthjustice – requested records from EPA that the agency had
previously obtained from power plants under Section 308. All
parties agree that the records requested by the environmental
groups do not qualify as trade secrets (which are exempt under
both Section 308 and Exemption 4) but do qualify as
“commercial or financial information” under Exemption 4 of
FOIA. 5 U.S.C. § 552(b)(4). As a result, the records requested
by the environmental groups are exempt from disclosure under
Exemption 4 of FOIA but seemingly must be disclosed under
Section 308 of the Clean Water Act.
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USCA Case #16-5109
Which statute prevails in that circumstance?
Administrative Procedure Act directly answers that question.
Section 559 of Title 5 provides that FOIA exemptions apply
unless a later statute expressly supersedes or modifies those
exemptions. The statute states: “Subsequent statute may not
be held to supersede or modify” the APA, of which FOIA is a
part, “except to the extent that it does so expressly.” Id. § 559
Section 308 is the later statute here: Exemption 4 of FOIA
was enacted in 1967, while Section 308 was enacted in 1972.
Section 308 does not expressly supersede Exemption 4.
Therefore, EPA permissibly invoked Exemption 4 to deny the
environmental groups’ FOIA request.1
If Congress had wanted Section 308 to supersede
Exemption 4, Congress could have drafted express language to
that effect, as it has in other statutes. For example, when a
FOIA request is submitted to EPA for certain records obtained
by the agency under the Toxic Substances Control Act, “the
Administrator may not deny the request on the basis of section
552(b)(4)” – that is, Exemption 4. Frank R. Lautenberg
Chemical Safety for the 21st Century Act, Pub. L. No. 114-182,
§ 11, 130 Stat. 448, 483 (2016) (to be codified at 15 U.S.C.
§ 2613(b)(5)). Similarly, the Secretary of Transportation and
the EPA Administrator “may withhold information under
section 552(b)(4)” – Exemption 4 – “only if the Secretary or
Administrator decides that disclosure of the information would
The environmental groups also argue based on EPA’s
regulations that the records are not in fact “confidential” under
Exemption 4 because Section 308 “requires disclosure of the
information.” 40 C.F.R. § 2.208(d). That argument merely disguises
the environmental groups’ assertion that Section 308 supersedes
FOIA. That argument in effect would require the Court to read
Section 308 as prevailing over the FOIA exemptions.
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USCA Case #16-5109
cause significant competitive damage.” 49 U.S.C. § 32910(c).
By contrast, when enacting Section 308, Congress did not use
language expressly superseding Exemption 4.2
The environmental groups retort that the phrase “shall be
available to the public” in Section 308 would be meaningless
if Section 308 did not require disclosure in these circumstances.
But the suggestion that Section 308 would be meaningless
under our interpretation is not correct, at least in historical
context. Under FOIA, federal courts may order agencies to
disclose only “agency records.” 5 U.S.C. § 552(a)(4)(B). As
of 1972 when Section 308 was enacted, it was not entirely clear
that records obtained by EPA from power plants would qualify
as “agency records” subject to disclosure. Cf. Forsham v.
Harris, 445 U.S. 169, 182-84 (1980). Absent Section 308,
therefore, it would not have been clear whether records
obtained from power plants were subject to disclosure under
FOIA. Section 308 clarified that records obtained by EPA
from power plants under Section 308 are subject to FOIA. So
Section 308 was not meaningless at the time that it was enacted.
In sum, Section 308 of the Clean Water Act does not
expressly supersede Exemption 4 of FOIA. Therefore, EPA
permissibly invoked Exemption 4 to withhold the records at
issue in this case. We affirm the judgment of the District Court.
This Court has previously suggested that a later-enacted statute
may also supersede FOIA if the statute establishes “some rules and
procedures – duplicating those of FOIA – for individual members of
the public to obtain access” to agency records. Church of
Scientology of California v. IRS, 792 F.2d 146, 149 (D.C. Cir. 1986).
That principle is not applicable here: Section 308 does not establish
rules or procedures for obtaining records from EPA.
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