Food & Water Watch, Inc. et al v. Environmental Protection Agency et al

Filing 90

ORDER re 79 Second and 81 Third Discovery Letters. Signed by Judge Kandis A. Westmore on 3/12/2019. (kawlc2, COURT STAFF) (Filed on 3/12/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FOOD & WATER WATCH, INC., et al.

Case No. 17-CV-02162-EMC (KAW)

Plaintiffs,
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ORDER RE SECOND AND THIRD
JOINT DISCOVERY LETTERS

v.
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UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, et al.

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United States District Court
Northern District of California

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Defendants.

Dkt. Nos. 79, 81

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Plaintiffs filed the instant lawsuit seeking judicial review of Defendant United States

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Environmental Protection Agency's ("EPA") denial of Plaintiffs' petition to regulate the

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fluoridation of drinking water supplies under the Toxic Substances Control Act. (See Compl.,

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Dkt. No. 1.) Pending before the Court are two joint discovery letters. (Dkt. Nos. 79, 81.)

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Having reviewed the discovery letters, the Court requires supplemental briefing on the

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Second Discovery Letter. Specifically, the Court requires further information regarding the policy

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decisions at issue. Although Defendants contend that they are "not required to point to a specific

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decision as long as it can demonstrate that the documents were prepared to assist decisionmaker

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on a specific issue," the Ninth Circuit has held that an "agency must identify a specific decision to

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which the document is predecisional." Maricopa Audubon Soc'y v. U.S. Forest Serv., 108 F.3d

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1089, 1094 (9th Cir. 1997). While the agency need not state what the agency ultimately chose to

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do, the agency must still point to a specific decision. Id. The second Ross declaration fails to

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identify a specific decision that the following documents are related to: (1) the National

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Toxicology Program's ("NTP") 2016 systemic review of animal literature, and (2) the NTP's

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pending systemic review of human literature. (Second Ross Decl. ¶¶ 10-11, Dkt. No. 79-5.)

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Accordingly, Defendants shall, within one week of this order, identify the policy decision for

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which these documents were "prepared in order to assist an agency decisionmaker in arriving at

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his decision." Assembly of Cal. v. U.S. Dep't of Commerce, 968 F.2d 916, 920 (9th Cir. 1992)

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(internal quotation omitted). Plaintiffs may file a response within one week of Defendants' filing.

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The briefs shall be no more than five pages.

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Additionally, Defendants shall provide chambers copies of the eleven-document

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representative sample reviewed by Mr. Ross in preparing his declaration on the deliberative

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process privilege for in camera review. (Second Ross Decl. ¶ 5.) Defendants shall coordinate the

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submission of the material for in camera review with Courtroom Deputy Indira Aguilar, who may

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be reached at [phone]. Defendants shall ensure that the Court receives the materials by
March 22, 2019. The Court may compel production of these materials if Defendants fail to

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United States District Court
Northern District of California

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comply with any of the foregoing. If Defendants to not make arrangements to retrieve the

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materials after the Court has completed its in camera review, the Court will dispose of the

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materials.

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As to the Third Discovery Letter, the Court finds the Letter suitable for disposition without
hearing or further briefing and will issue a decision in a separate order.
IT IS SO ORDERED.
Dated: March 12, 2019
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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