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Exxonmobil Corporation v. Department of Commerce

December 8, 2011

EXXONMOBIL CORPORATION, PLAINTIFF,
v.
DEPARTMENT OF COMMERCE, ET AL., DEFENDANT.



The opinion of the court was delivered by: Signed by Royce C. Lamberth, Chief Judge,

MEMORANDUM OPINION

Plaintiff ExxonMobil Corporation brings this action against defendants Department of Commerce and Environmental Protection Agency under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, as amended, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 791 et seq., challenging defendants' responses to multiple FOIA requests that plaintiff submitted. Plaintiff also seeks a writ of mandamus pursuant to 28 U.S.C. § 1361 and a declaratory judgment pursuant to 28 U.S.C. §§ 2201--2202. Before the Court is defendants' Motion [13] for Summary Judgment and plaintiff's Cross-Motion [16] for Summary Judgment. Upon consideration of both Motions, plaintiff's opposition [16] to defendants' motion, defendants' reply [21] in support of their motion and opposition to plaintiff's cross-motion, plaintiff's reply [22], the entire record in this case, and the applicable law, the Court will GRANT defendants' Motion for Summary Judgment and DENY plaintiff's Cross-Motion for Summary Judgment.

I.BACKGROUND

A.Exxon Valdez Oil Spill Trustee Council

On March 24, 1989, the oil tanker T/V Exxon Valdez spilled approximately 11 million gallons of crude oil owned by Exxon Corporation into Prince William Sound, Alaska. Compl. Ex. C ("Agreement"). In 1991, plaintiff ExxonMobil ("Exxon") entered into an Agreement and Consent Decree with the United States and the State of Alaska under which Exxon paid the two Governments $900 million in settlement of the Governments' claims against Exxon arising out of the oil spill. Agreement ¶¶ 8, 10; see United States v. Exxon Corp., et al., Nos. 3:91-0082 & 3:91-0083 (D. Alaska). The Agreement provided for the $900 million to be disbursed over a ten-year period, providing compensation for all existing and future natural resource damages, assessment costs, and restoration costs stemming from the spill.

The Exxon Valdez Oil Spill Trustee Council ("Trustee Council") was created in 1992 to oversee the use of these settlement funds for restoration efforts. Defs.' Mot. for Summ. J. Ex. 2 ("Hagen Decl."), ¶ 7; Defs.' Mot for Summ. J. Ex. 3 ("O'Connor Decl."), ¶ 6. The Trustee Council is composed of three State of Alaska trustees and three Federal trustees. Compl. Ex. G. The three Federal trustees are the National Oceanic and Atmospheric Administration ("NOAA"), a component of the Department of Commerce; the Department of the Interior; and the Department of Agriculture. Id. Each Trustee agency designates its own representative to serve on the Trustee Council. Id. The National Marine Fisheries Services ("NMFS") Alaska Regional Administrator represents NOAA on the Trustee Council and oversees the NMFS Office of Exxon Valdez Oil Spill Damage Assessment and Restoration, which administers projects carried out by NMFS researchers and outside contractors, and facilitates research planning and coordination between EVOS projects and other programs. Hagen Decl. ¶ 8. The Trustee Council operates by unanimous consent among its trustees and establishes its own policies and procedures consistent with the Agreement to make all decisions related to injury assessment, restoration activities, or other use of the natural resource damage recoveries obtained by the Governments. Id. An Executive Director administers the Trustee Council office and oversees the creation of an annual workplan using a competitive process to solicit project proposals. Id.; O'Connor Decl. ¶ 7.

Since the settlement in 1991, hundreds of research, monitoring, and general restoration projects have been funded to restore the ecosystem of Prince William Sound and the Gulf of Alaska to its condition prior to the spill. Hagen Decl. ¶ 7; O'Connor Decl. ¶ 6. The Trustee Council does not have independent fiscal authority, so it operates through its Trustee agencies acting on behalf of the Trustee Council to enter into contractual agreements with third parties to implement these projects. Hagen Decl. ¶ 10; O'Connor Decl. ¶ 9. The Trustee council is responsible for soliciting project proposals and administering the proposal process, including the issuance of contract bids for restoration proposals. Hagen Decl. ¶¶ 9--10; O'Connor Decl. ¶¶ 8-- 9. The bid announcement specifies the restoration actions that are sought and the terms under which the project proposals will be awarded, and the proposals are evaluated by Trustee Council staff, which obtain funding recommendations and develop workplans based on the recommendations. Hagen Decl. ¶¶ 9--10; O'Connor Decl. ¶¶ 8--9.

As one of the implementing agencies of the Trustee Council, NOAA issues a Broad Agency Announcement ("BAA") concurrent with the Trustee Council invitation for proposals. Hagen Decl. ¶ 10; O'Connor Decl. ¶ 9. Interested parties are asked to submit a copy of their proposal to NOAA at the same time that it is submitted to the Trustee Council, but the review, evaluation, and selection of the proposals are done solely by the Trustee Council. Hagen Decl. ¶ 10; O'Connor Decl. ¶ 9.

Once the Trustee Council unanimously approves a workplan, the U.S. Department of Justice and the State of Alaska Department of Law initiate the process of withdrawing funds from the settlement account and transferring them to the Federal or State agency administering the particular project for distribution to the entity implementing the project. Hagen Decl. ¶ 11; O'Connor Decl. ¶ 10. Funds for projects that are submitted under the BAA are routed to NMFS Alaska Regional office, which works with the NMFS procurement office to obligate those funds and enter into contracts with the third-party entities using the Trustee Council-approved project proposal as the contract statement of work. Hagen Decl. ¶ 11; O'Connor Decl. ¶ 10. To fund these projects, the Trustee Council transfers money from the $900 million settlement account to the implementing agency, such as NOAA. Hagen Decl. ¶ 11; O'Connor Decl. ¶ 10. The work performed by contract awardees is not funded by trustee agency appropriations. Hagen Decl. ¶ 11; O'Connor Decl. ¶ 10.

B.Restoration Projects 070801 (Michel Study) and 070836 (Boufadel Study)

A provision entitled "Reopener for Unknown Injury" in the 1991 Agreement between ExxonMobil and the Governments allows the governments to seek additional funds from Exxon under specific circumstances enumerated in the Agreement. See Agreement ¶¶ 17--19. On May 31, 2006, the Governments submitted a claim to Exxon under the Reopener to develop and implement a restoration plan to accelerate the removal of lingering subsurface oil. Compl. Exs. D, E. The goals of the Reopener Claim are: (1) to determine the locations, approximate amounts, and chemical states of all significant residual deposits of oil from the 1989 spill; and (2) to accelerate the natural processes of degradation and dispersal of the lingering oil through active remediation. Compl. Ex. E, at 2. The day after the Reopener Claim was submitted, on June 1, 2006, the Trustee Council issued an Invitation for Proposals for fiscal year 2007 for a project that would "map distribution and assess patterns of lingering oil remaining in [Prince William Sound]" and a project that would "investigate the physical and chemical processes that influence the lingering oil in [Prince William Sound]." Compl. Ex. H, at 8--9.

On February 16, 2007, the Trustee Council approved Restoration Project 070801, entitled "Assessment of the Areal Distribution and Amount of Lingering Oil in Prince William Sound and the Gulf of Alaska" ("Michel Study"). Compl. Ex. I. The proposal was submitted by Dr. Jacqueline Michel, of Research Planning, Inc.; Dr. Jeffrey Short, a scientist of Auke Bay Laboratory, a unit of the NMFS Alaska office; and Dr. Gail Irvine, of the United States Geological Survey. See id. On March 9, 2007, the Trustee Council also approved Restoration project 070836, entitled "Factors Responsible for Limiting the Degradation Rate of Exxon Valdez Oil in Prince William Sound" ("Boufadel Study"). Compl. Ex. J. The proposal was submitted by Dr. Michel Boufadel, of Temple University; Dr. Albert Venosa, of the EPA; and Brian Wrenn of Washington University. See id.

NOAA was the implementing agency for both the Michel and the Boufadel Studies. See Hagen Decl. ¶ 3. The Program Manager for the Exxon Valdez Oil Spill Office within the NMFS Alaska Regional Office servied as the Contracting Officer's Technical Representative ("COTR") for both studies. Id. ¶¶ 14, 27. Consistent with the Trustee Council's directives, the COTR monitored the performance and progress of the contractors with respect to the statement of work and recommended payment of invoices to the Contracting Officer. See id. However, the COTR did not have any supervisory function over the researchers or any substantive involvement in their projects; rather, the COTR's role was limited to the administrative function of monitoring the progress of the projects for purposes of reimbursing the researchers. Id. Under the terms of the contract awards for both projects, quarterly, annual, and final reports are provided directly to the Trustee Council, and the only documents required to be provided to NMFS during the course of the project are cost and progress reports. See id. ¶¶ 15, 28.

C.Plaintiff's FOIA Requests to NOAA

By letters dated October 29, 2007, January 16, 2008, April 2, 2008, October 17, 2008, and October 20, 2008, ExxonMobil submitted FOIA requests to NOAA's headquarters in Silver Spring, Maryland, seeking records related to the Michel Study and the Boufadel Study. See Compl. ¶¶ 21--31. Due to the subject matter of the requests, NOAA's FOIA office assigned the requests to the NMFS FOIA headquarters and to NOS. Defs.' Mot. for Summ. J. Ex. 5, ¶ 5. The NMFS FOIA Officer further assigned the requests to the NMFS Alaska Regional office. Id. ¶ 5--

6. In response to each of the FOIA requests at issue, NMFS searched its Exxon Valdez Oil Spill records, all of which are located at either the Auke Bay Laboratory or the ...


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