Natural Resources Defense Council v. U.S. Environmental Protection Agency
Filing
101
MEMORANDUM OPINION AND ORDER re: 93 CROSS MOTION for Summary Judgment . filed by Natural Resources Defense Council, 90 SECOND MOTION for Summary Judgment . filed by U.S. Environmental Protection Agency. The NRDC's motion is GRANTED, and the EPA's motion is DENIED with respect to Documents 26339, 10238, 6761, and 14043 - that is, the Court concludes that none of these records are exempt from FOIA under the deliberative process privilege. Nevertheless, the EPA's obligation to produce Documents 26339 and 10238 to the NRDC is STAYED pending resolution of its related interlocutory appeal. By contrast, the NRDC's motion is DENIED, and the EPA's motion is GRANTED with respect to Docume nt 1370, which was properly withheld. Similarly, the NRDC's motion is DENIED, and the EPA's motion is GRANTED with respect to the seventy-four documents for which the NRDC challenges segregability determinations. No later than two weeks from the date of this Memorandum Opinion and Order, the parties shall jointly file a letter describing what, if any, issues remain to be decided in this case and proposing next steps. The Clerk of Court is directed to terminate ECF Nos. 90 and 93. SO ORDERED. (Signed by Judge Jesse M. Furman on 11/24/20) (yv)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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NATURAL RESOURCES DEFENSE COUNCIL,
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Plaintiff,
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-v:
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U.S. ENVIRONMENTAL PROTECTION AGENCY,
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Defendant.
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17-CV-5928 (JMF)
MEMORANDUM OPINION
AND ORDER
JESSE M. FURMAN, United States District Judge:
Plaintiff Natural Resources Defense Council (the “NRDC”) sues the United States
Environmental Protection Agency (the “EPA” or the “Agency”) under the Freedom of
Information Act (“FOIA”), 5 U.S.C. §§ 552 et seq., seeking documents and records that the EPA
has withheld pursuant to one of FOIA’s enumerated “exemptions” — specifically, records
concerning a senior manager’s participation in certain agency policymaking activities. Now
pending are the parties’ cross-motions for summary judgment. See ECF Nos. 90, 93. For the
reasons discussed below, both parties’ motions are granted in part and denied in part.
BACKGROUND
The Court has issued two prior opinions in this matter. See Nat. Res. Def. Council v. U.S.
Env’t Prot. Agency, No. 17-CV-5928 (JMF), 2019 WL 4142725 (S.D.N.Y. Aug. 30, 2019); Nat.
Res. Def. Council v. U.S. Env’t Prot. Agency, No. 17-CV-5928 (JMF), 2019 WL 6467497
(S.D.N.Y. Dec. 2, 2019). The Court assumes familiarity with both opinions and, thus, will
summarize subsequent factual developments only. These relevant facts are drawn from the
parties’ affidavits and are undisputed for purposes of these motions.
Case 1:17-cv-05928-JMF Document 101 Filed 11/24/20 Page 2 of 10
On December 13, 2019, following briefing and a status conference, the Court ordered the
EPA to review sixty-four documents listed in its first Vaughn index that had been withheld under
the deliberative process privilege “for reasonably segregable, non-exempt information” by
January 31, 2020. ECF No. 79, at 1. On January 16, 2020, in light of an anticipated appeal of its
ruling on the EPA’s first motion for summary judgment and subsequent motion for
reconsideration, the Court granted a stay of the EPA’s requirement to produce a set of twentyeight documents the Court had previously determined were improperly withheld under the
deliberative process privilege (the “Messaging Records”). See ECF No. 81. On January 31,
2020, the EPA disclosed segregable portions of four records after completing the segregability
review of the sixty-four documents ordered by the Court. See ECF No. 92 (“Myrick Decl.”), ¶ 5;
see also ECF No. 92-1. That same day, the EPA also filed a notice of appeal from the Court’s
prior rulings concerning twenty-two records, including eighteen Messaging Records. See ECF
Nos. 83, 84. On March 6, 2020, the NRDC informed the EPA that it intended to challenge the
EPA’s review of the sixty-four records for reasonably segregable, non-exempt information, and
identified several records that it believed contained such information. See ECF No. 92-2; Myrick
Decl. ¶ 6. The EPA then re-reviewed the sixty-four documents and, on March 10, 2020,
produced additional portions of two more records. See Myrick Decl. ¶ 6; ECF No. 92-3.
The Court’s prior opinions concerned only a subset of records responsive to the NRDC’s
FOIA request (the “First Tranche”). On December 9, 2019, the NRDC wrote to the Court
seeking an order requiring the EPA “to supplement its Vaughn index” with respect to a “Second
Tranche” of 163 “records or portions thereof.” ECF No. 74, at 4. 1 The NRDC indicated that it
1
The December 9, 2019 letter described 165 relevant records, but the true figure was 163.
See ECF No. 94 (“Pl.’s Mem.”), at 6 & n.5.
2
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would “relinquish[] its claim to the 792 remaining records if EPA disclose[d]” these 163 records.
ECF No. 74, at 4. The Court ordered the EPA to review the 163 records, inform the NRDC by
January 21, 2020, whether the EPA agreed with the NRDC’s categorizations, and produce the
records as appropriate by February 19, 2020. See ECF Nos. 79, 81. Following this process, by
January 27, 2020, the parties had whittled down the remaining set of records over which they
disagreed to only thirty-nine. See ECF No. 82. The Court then ordered the EPA to produce a
draft, followed by a final, Vaughn index for these records by February 26 and April 8, 2020,
respectively. See ECF Nos. 85, 87, 89. The EPA then reviewed this set of records “for
segregable non-exempt material and to identify any records that [we]re subject to applicable
FOIA exemptions but nonetheless [could] be discretionarily released because the passage of time
ha[d] reduced any potential harm from disclosure,” and made additional disclosures on February
19 and 26, 2020, reducing the number of withheld or redacted records at issue to twenty-six.
Myrick Decl. ¶ 10; ECF Nos. 92-4, 92-5. The EPA produced a revised draft Vaughn index for
the remaining twenty-six Second Tranche records on February 26, 2020. See Myrick Decl. ¶ 11;
ECF No. 95, ¶ 7; ECF No. 95-3. On March 6, 2020, the NRDC informed the EPA that it
intended to challenge the EPA’s basis for withholding sixteen of the twenty-six records in the
draft Vaughn index (but would not challenge the other ten). See Myrick Decl. ¶ 12; ECF No. 922. “After further review and consideration,” the EPA then produced ten of these sixteen records
in full on March 10, 2020, Myrick Decl. ¶ 13; and upon still further review, one more record on
March 24, 2020, id. ¶ 14, leaving five Second Tranche records still in dispute.
In sum, then, the remaining dispute concerns (1) five Second Tranche records for which
the NRDC challenges the EPA’s basis for withholding; and (2) ten Second Tranche records and
sixty-four First Tranche records with respect to which the NRDC argues there is reasonably
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segregable, non-exempt material that has not been disclosed. The EPA moved for summary
judgment on April 8, 2020, ECF No. 90; the NRDC cross-moved for summary judgment on May
4, 2020, ECF No. 93. The EPA requests that the Court find that it has complied with its FOIA
disclosure obligations; the NRDC argues that the EPA has (1) not shown the five disputed
Second Tranche records are exempt from disclosure and that the Court should order them
disclosed to the NRDC (or alternatively, should order them submitted to the Court for in camera
review); and that (2) the EPA has not shown that it disclosed all reasonably segregable, nonexempt information in the other seventy-four records (sixty-four from the First Tranche and ten
from the Second Tranche) and that the Court should order a subset of these documents to be
submitted to the Court for in camera inspection.
LEGAL STANDARDS
FOIA mandates disclosure of agency records unless the records fall within an enumerated
exception. See, e.g., Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 76 (2d Cir. 2002) (Sotomayor,
J.). The exemptions notwithstanding, an agency must also produce any non-exempt portions of a
record that are “reasonably segregable” from portions that are exempt. 5 U.S.C. § 552(b).
Summary judgment is the procedural vehicle by which most FOIA actions are resolved.
See, e.g., Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999). “In resolving
summary judgment motions in a FOIA case, a district court proceeds primarily by affidavits in
lieu of other documentary or testimonial evidence . . . .” Long v. Office of Pers. Mgmt., 692
F.3d 185, 190 (2d Cir. 2012). As the Second Circuit has explained, “[s]ummary judgment is
warranted . . . when the affidavits describe the justifications for nondisclosure with reasonably
specific detail, demonstrate that the information withheld logically falls within the claimed
exemption, and are not controverted by either contrary evidence in the record nor by evidence of
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agency bad faith.” Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009) (quoting Larson
v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). In analyzing information withheld by an
agency, a court reviews the agency’s determination it falls within a FOIA exemption de novo,
see 5 U.S.C. § 552(a)(4)(B); Dep’t of Air Force v. Rose, 425 U. S. 352, 379 (1976), but it must
“accord[]” the affidavits submitted by the agency in support of the agency’s determination “a
presumption of good faith,” Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994)
(internal quotation marks omitted). Ultimately, “the agency’s justification is sufficient if it
appears logical and plausible.” ACLU v. U.S. Dep’t of Def., 901 F.3d 125, 133-34 & n.9 (2d Cir.
2018), as amended (Aug. 22, 2018); accord Wilner, 592 F.3d at 73 (internal quotation marks
omitted).
DISCUSSION
A. Deliberative Process Privilege Determinations
As noted, there are five Second Tranche records for which the NRDC challenges the
EPA’s assertion of the deliberative process privilege under Exemption 5. Upon review of the
parties’ summary judgment papers, the Court rules with respect to these documents as follows.
Documents 26339 and 10238. The EPA itself argues that Document 26339 — “briefing
materials for a meeting on May 15, 2017 between then-EPA Administrator Scott Pruitt and the
Chemours Company President and CEO,” ECF No. 92-7 (“Vaughn Index”), at 1 — is analogous
to Document 5427, ECF No. 91 (“Def.’s Mem.”), at 11, while Document 10238 — an “[e]mail
chain between Agency officials concerning preparation for a Congressional budget hearing,”
Vaughn Index 3 — is “analogous to Documents 9765, 11126, 13150, 13257, 19639, 21815,
25096, and 25349,” Def.’s Mem. 12, all of which the Court previously held were not exempt
from disclosure, see NRDC, 2019 WL 4142725, at *10 & n.7. Although the EPA maintains that
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Documents 26339 and 10238 are encompassed under Exemption 5, Def.’s Mem 12-13, it raises
the same arguments that the Court previously considered and rejected in its August 2019
opinion, see NRDC, 2019 WL 4142725, at *10. Thus, Documents 26339 and 10238 are not
protected by the deliberative process privilege for the same reasons. Nevertheless, the Court
agrees with the EPA that Documents 26339 and 10238 are sufficiently similar to the documents
subject to the EPA’s currently pending interlocutory appeal that the EPA’s obligation to produce
these records should be stayed pending resolution of that appeal. 2
Documents 1370 and 6761. Document 1370 is an email chain “generally discussing
chlorpyrifos-related academic literature.” Vaughn Index 5. The withheld portion contains a
science advisor’s “opinions regarding and characterizations of certain academic literature
relevant to ongoing discussions concerning chlorpyrifos” and “input on which literature would
be useful to inform decision-making concerning chlorpyrifos.” Id. Similarly, Document 6761 is
an email chain, the withheld portions of which includes “information and opinions concerning a
study related to chlorpyrifos.” Id. at 6. The NRDC argues that these records are much like
Document Nos. 14518, 14561, and 25173, Pl.’s Mem. 15-16, which the Court previously
determined should not have been withheld, NRDC, 2019 WL 4142725, at *11, while the EPA
contends they are more like Document 15910, ECF No. 98 (“Def.’s Reply”), at 6, which the
Court previously determined was “appropriately withheld by the agency,” NRDC, 2019 WL
4142725, at *11. The Court agrees with the NRDC as to Document 6761. The EPA’s Vaughn
Index provides no basis for a connection between it and the chlorpyrifos registration review other
than the fact that the review was occurring at the same time and the underlying study was
2
Document 5427, which is analogous to Document 26339, was previously analyzed
primarily as a briefing record, but the Court recognized that it could be construed as a Messaging
Record and rejected the EPA’s FOIA exemption claim on that basis as well. See id. at *11 n.9.
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“related to chlorpyrifos.” It is thus far from clear that this record “relate[s] to a specific decision
facing the agency,” Tigue, 312 F.3d at 80, or that it “form[s] an essential link in a specified
consultative process,” Grand Cent. P’ship, 166 F.3d at 482 (internal quotation marks omitted).
By contrast, the withheld portion of Document 1370 contains “opinions regarding and
characterizations of certain academic literature,” including which “literature would be most
useful for Nancy Beck to review to inform upcoming chlorpyrifos registration-related decisionmaking.” Vaughn Index 5. Contrary to the NRDC’s assertion, therefore, the EPA does “assert in
its Vaughn index that Document No[]. 1370 . . . reflect[s] deliberations about the chlorpyrifos
registration review decision.” ECF No. 100 (“Pl.’s Reply”), at 4.
Document 14043. Document 14043 is an email chain “concerning which materials need
to be included in the docket for the TSCA Framework Rules.” Vaughn Index 2. The EPA
argues that this record is exempt “because deliberations concerning the documents that belong in
a rulemaking docket bear directly on the formulation or exercise of policy-oriented judgment.”
Def.’s Reply 8. The Court disagrees, substantially for the reasons stated in the NRDC’s briefs.
See Pl.’s Mem. 16-17; Pl.’s Reply 4-5. Much like the Messaging Records at issue in the Court’s
earlier opinions, the EPA does not sufficiently demonstrate that these decisions on how to
comply with its own guidance on compiling a rulemaking docket (1) are actually exercises of the
EPA’s “essential policymaking role” in and of themselves, New York v. U.S. Dep’t of Commerce,
No. 18-CV-2921 (JMF), 2018 WL 4853891, at *3 (S.D.N.Y. Oct. 5, 2018) (emphasis added), or
(2) would “reflect[] internal agency deliberation on matters of substantive policy prior to . . .
public announcement of those decisions,” Fox News Network, LLC v. U.S. Dep’t of Treasury,
739 F. Supp. 2d 515, 546 (S.D.N.Y. 2010) (emphasis added); see also, e.g., Petroleum Info.
Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992) (Ginsburg, J.) (“To fall
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within the deliberative process privilege, materials must bear on the formulation or exercise of
agency policy-oriented judgment. The deliberative process privilege, we underscore, is centrally
concerned with protecting the process by which policy is formulated.” (citations omitted)).
B. Request for In Camera Review of Segregability Determinations
The NRDC also requests that the Court “review in camera a subset of the remaining 74
records” — including sixty-four First Tranche and ten Second Tranche records — “to determine
whether EPA has disclosed all reasonably segregable, non-exempt information in them.” Pl.’s
Mem. 21. A court may inspect withheld documents in camera when “the reasons for
withholding [a]re vague or where the claims to withhold [a]re too sweeping . . . or where it might
be possible that the agency ha[s] exempted whole documents simply because there was some
exempt material in them.” Halpern v. FBI, 181 F.3d 279, 292 (2d Cir. 1999). But in camera
review “is considered the exception, not the rule.” Local 3, Int’l Bhd. of Elec. Workers, AFLCIO v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988).
The Court previously ordered the EPA to produce records for in camera review of its
segregability assertions. See Nat. Res. Def. Council v. U.S. Env’t Prot. Agency, No. 17-CV-5928
(JMF), 2019 WL 3338266, at *2 (S.D.N.Y. July 25, 2019). But “[t]hat order was prompted by
(1) the agency’s sweeping, conclusory assertion that it had conducted a segregability analysis
and its declaration that any non-disclosed factual material was ‘inextricably intertwined’ with
privileged material and (2) the NRDC’s colorable argument that at least some segregable factual
material was improperly withheld.” NRDC, 2019 WL 4142725, at *15. Here, the NRDC’s
claim that some segregable factual material was improperly withheld is predicated in large part
on the results of the Court’s previous in camera inspection of a sample of ten records, which
determined that five records were not exempt from disclosure at all and four contained some
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segregable factual information that should have been disclosed. See Pl.’s Mem. 19. The NRDC
contrasts the fact that the “EPA has disclosed additional material from only 6 out of the 64
records it was ordered to re-review for segregable, non-exempt information” with the fact that
the “EPA disclosed additional information in 9 out of 10 records the Court reviewed in camera.”
Id. The NRDC neglects to note, however, that the sample of records the Court previously
reviewed was far from representative. Instead, the Court “inspect[ed] those records identified by
the NRDC as most likely to contain factual information that is segregable from exempt
deliberative material.” NRDC, 2019 WL 3338266, at *2 (emphasis added). It is thus
unsurprising that the remaining First Tranche records would contain fewer records, on a
percentage basis, that contain reasonably segregable, non-exempt material. The NRDC provides
even less basis for in camera inspection of the ten Second Tranche records it identifies, given
that it contrasts the “high proportion of second tranche records [the EPA] disclosed,” Pl.’s Reply
8; see also Pl.’s Mem. 19, with the lower proportion of such First Tranche records.
Here, the EPA avers that, after conducting multiple re-reviews applying the standards
articulated in the Court’s August 2019 opinion, it “has not identified any remaining segregable,
non-exempt factual material” other than what has already been produced. Myrick Decl. ¶ 7; see
also id. ¶ 14. “Agencies are entitled to a presumption that [they] disclosed reasonably segregable
material,” Knight First Amendment Inst. at Columbia Univ. v. U.S. Dep’t of Homeland Sec., 407
F. Supp. 3d 334, 343 (S.D.N.Y. 2019), and the affidavits submitted by the agency in support of
its determination “are accorded a presumption of good faith,” Carney, 19 F.3d at 812 (internal
quotation marks omitted). The NRDC provides no basis to overcome these presumptions.
Although the NRDC argues that the “EPA’s unsystematic disclosure of additional information
from records . . . in piecemeal fashion” warrants in camera review, Pl.’s Mem. 25, the Court will
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not hold against the EPA the fact that it revisited records it had already reviewed and
reconsidered earlier exemption determinations in the face of continued challenges from the
NRDC. That is the way the FOIA process should work. And to hold an agency’s willingness to
reconsider its determinations against the agency when reviewing its later determinations would
disincentivize reconsiderations by agencies, thereby undermining the ultimate goal of promoting
the disclosure of records where an exemption does not apply.
CONCLUSION
In sum, the NRDC’s motion is GRANTED, and the EPA’s motion is DENIED with
respect to Documents 26339, 10238, 6761, and 14043 — that is, the Court concludes that none
of these records are exempt from FOIA under the deliberative process privilege. Nevertheless,
the EPA’s obligation to produce Documents 26339 and 10238 to the NRDC is STAYED pending
resolution of its related interlocutory appeal. By contrast, the NRDC’s motion is DENIED, and
the EPA’s motion is GRANTED with respect to Document 1370, which was properly withheld.
Similarly, the NRDC’s motion is DENIED, and the EPA’s motion is GRANTED with respect to
the seventy-four documents for which the NRDC challenges segregability determinations.
No later than two weeks from the date of this Memorandum Opinion and Order, the
parties shall jointly file a letter describing what, if any, issues remain to be decided in this case
and proposing next steps. The Clerk of Court is directed to terminate ECF Nos. 90 and 93.
SO ORDERED.
Dated: November 24, 2020
New York, New York
__________________________________
JESSE M. FURMAN
United States District Judge
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