United States District Court, District of Columbia
ROSEMARY M. COLLYER, District Judge.
Plaintiffs John Odland and Michael Mojica sue the Federal Energy Regulatory Commission (FERC) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to compel the release of records concerning FERC's review and approval of an application for a certificate of necessity and convenience for the construction of a compressor station by Millennium Pipeline Company. The compressor station will be built near Plaintiffs' homes. FERC moved for summary judgment, and the motion will be granted.
Millennium Pipeline Company (Millennium) owns a natural gas pipeline system that runs across southern New York. The pipeline is subject to the jurisdiction of FERC under the Natural Gas Act, 15 U.S.C. §§ 717, et seq. Millennium applied for a certificate of public convenience and necessity from FERC to build a 12, 260 horsepower compressor station for the purpose of facilitating the flow of the natural gas through the pipeline. The proposed compressor station would be located "within several hundred yards" of Plaintiffs' homes in Minisink, New York. Cross Mot. for Summ. J. (Cross MSJ) [Dkt. 14] at 7. Plaintiffs object to the project, alleging that the compressor station will be toxic, hazardous, and noisy. Id. at 9. On July 17, 2012, FERC granted the certificate of public convenience and necessity. See Cross MSJ, Ex. 2A (FERC Docket No. CP11-515, Order Issuing Certificate, 140 FERC ¶ 61, 045 (July 17, 2012)). On December 5, 2012, FERC denied and dismissed a petition for rehearing, stating that "Commission advisory staff did not produce independent evidence' to be used by the Commission as a basis for its decisions." Id., Ex. 2B (FERC Docket No. CP11-515, Order Denying and Dismissing Requests for Reh'g, 141 FERC ¶ 61, 198, ¶ 73, n.111 (Dec. 5, 2012)). Plaintiffs then filed a petition for review of FERC's order. See Minisink Residents for Environmental Preservation & Safety v. FERC, Case No. 12-1481 (D.C. Cir. 2013).
The FERC proceeding generated a large public record, including an Environmental Assessment, see FERC Exhibits, Tao Decl. [Dkt. 12-1] ¶ 6, as well as the FERC Orders cited above, i.e., the Order Issuing the Certificate and the Order Denying and Dismissing Requests for Rehearing. Hoping that additional FERC records will assist them in their opposition, Plaintiffs seek disclosure of records related to Millennium's application that are not in the public record. To obtain these records, Mr. Odland sent one FOIA request to FERC and Mr. Mojica sent two FOIA requests to FERC, as described below. Their requests were overlapping.
A. Mr. Odland's Request FY12-33
On March 7, 2012, Mr. Odland submitted a FOIA request and on March 14, 2012 he amended it. As amended, the request sought: all email and correspondence between FERC staff and between FERC staff and Millennium related to the compressor station proceeding; all hydraulic analyses and models submitted by Millennium; draft proposals and recommendations relating to the Environmental Assessment; studies submitted by Millennium; and lists of landowners near the project. Id. ¶ 15. FERC assigned the FOIA request tracking number FY12-33 and began to search and release documents on a rolling basis. According to the Declaration of Leonard Tao, Director of the Office of External Affairs at FERC, FERC released forty-seven documents on April 25, 2012. Tao Decl. ¶ 19. On June 4, 2012, FERC withheld five documents, which were hydraulic models. Id. ¶ 21. Rolling production continued. On July 27, 2012 FERC released fifty-five documents, see id. ¶ 23, and on September 28, 2012, it released twenty-seven documents, see id. ¶ 25. The fifth and final response to Mr. Odland's Request FY12-33 was issued on November 8, 2012: FERC released eighty-three documents, forty-nine of which were redacted pursuant to Exemption 5 or 6, and it withheld 575 documents based on Exemptions 3, 4, 5, 6, and 7(F). Id. ¶ 27. In the November 8, 2012 notice, FERC notified Mr. Odland of his appeal rights, i.e., that under 18 C.F.R. § 388.110(a)(1), "any appeal from this determination must be filed within 45 days of the date of this letter." FERC Exhibits, Ex. 11 [Dkt. 12-13] (Nov. 8, 2012 letter from FERC to Odland) at 8.
Mr. Odland appealed the June 4 decision withholding a hydraulic model, and that appeal was denied. Tao Decl. ¶¶ 22, 24. Mr. Odland also separately appealed the withholding of documents under FOIA Exemptions 3, 5, and 6. The withholding under Exemption 3 was reversed and that document, a cultural resource report, was released. Id. ¶ 30. Eleven documents that had been withheld under Exemption 5, as applicable to the deliberative process privilege, were ordered released in part, with portions redacted pursuant to Exemption 5. Id. The Exemption 6 withholding of names, addresses and personal information of landowners was upheld. Id. 
B. Mr. Mojica's Request FY12-60
On June 29, 2012, Mr. Mojica sent a FOIA request to FERC seeking some of the same documents that Mr. Odland sought, as well as other records. Mr. Mojica requested, inter alia, email and correspondence among FERC staff, email and correspondence between FERC staff and Millennium, landowner lists, and background information on FERC employees. Id. ¶ 36. FERC labeled this Request FY12-60. On August 10, 2012, FERC notified Mr. Mojica that it would release documents on a rolling basis and it released twenty-eight documents, thirteen of which were redacted pursuant to the personal privacy interest protected by FOIA Exemption 6. Id. ¶ 39. FERC also notified Mr. Mojica that pursuant to 18 C.F.R. 388.110(a)(1), "any appeal from this determination must be filed within 45 days of the date of this letter." FERC Exhibits, Ex. 19 [Dkt. 12-21] (Aug. 10, 2012 letter from FERC to Mojica) at 5. Mr. Mojica did not appeal the August 10 decision and did not wait for a final release, but instead filed this lawsuit on February 4, 2014.
On March 20, 2013, FERC issued its final response to FY12-60, and released sixty-four documents, forty-nine of which were redacted in accordance with Exemption 5 (deliberative process privilege) and Exemption 6 (personal privacy). Id. ¶ 43. Five hundred fifty-four documents were withheld via Exemption 5. Id. 
C. Mr. Mojica's Request FY12-66
On August 10, 2012, Mr. Mojica sent another FOIA request to FERC, this time asking for the all studies and analysis performed by FERC staff of Millennium's hydraulic data, as well as privileged documents submitted by Millennium as Accession No. 20120730-5151. Id. ¶ 48. FERC assigned the tracking number FY12-66. On September 7, 2012, FERC provided public documents as a courtesy and continued to process the request on a rolling basis. Id. ¶ 52. On November 20, 2012, FERC withheld the following: a cultural resource report; five hydraulic models; a Compressor Station Site Plan; a response to FERC data requests dated November 22, 2011; and FERC staff draft analyses of Millennium models. FERC invoked FOIA Exemptions 3, 4, 5, and 7(F). Id. ¶ 54. FERC also notified Mr. Mojica of his right to appeal within 45 days, under 18 C.F.R. 388.110(a)(1). FERC Exhibits, Ex. 26 [Dkt. 12-28] (Nov. 20, 2012 letter from FERC to Mojica) at 7. Mr. Mojica appealed the assertion of Exemptions 3 and 5, but did not appeal the assertion of Exemption 4 or 7(F). Tao Decl. ¶ 55. The Office of General Counsel required that the cultural resource report be released as non-exempt under Exemption 3, but upheld the application of Exemption 5. Id. ¶ 56.
D. CEII Requests for Records Withheld under Exemption 7(F)
The records that FERC withheld solely pursuant to Exempt 7(F) constituted Critical Energy Infrastructure Information (CEII). Requesters can elect to seek such information through FERC's separate CEII request process. See 18 C.F.R. § 388.113. CEII material may be released to a requester with a legitimate need for the information so long as the requester signs a non-disclosure agreement. Id. Through the CEII process, Plaintiffs were able to obtain hydraulic model information (the same hydraulic information sought in FOIA requests FY12-33 and FY12-66) as well as other technical material and confidential commercial information. Tao Decl. ¶¶ 60-61; Cross MSJ at 11.
E. This Suit and Documents No Longer in Contention
Messrs. Odland and Mojica filed this suit in February 2013, seeking disclosure of the exempt documents. Millennium filed an unopposed motion to intervene, which was granted. See Minute Order Feb. 21, 2013. FERC moved for summary judgment, see FERC Mot. for Summ. J. (MSJ) [Dkt. 11], and Plaintiffs filed a cross motion for summary judgment/opposition, see Cross MSJ; Opp'n [Dkt. 14].
Subsequently, the parties conferred and agreed to narrow the scope of documents in contention. As a result, the following documents are no longer in dispute:
Hydraulic models of Millennium's pipeline system;
Material from a compressor manufacturer, Solar Turbines;
Cultural Resource Reports;
Rate and accounting documents;
Documents relating to internal agency review of comments submitted by the public in the proceeding;
Intra-agency emails discussing data requests and draft data requests; and
Intra-agency emails discussing Millennium's responses to data requests.
See FERC Reply [Dkt. 21] at 2-3; id., Supp. Tao Decl. [Dkt. 21-1] ¶¶ 4-8; Millennium Reply [Dkt. 19] at 1-3; Pls. Surreply [Dkt. 25-1] at 2, 11-13. With regard to the records withheld in whole or in part, FERC filed three amended Vaughn indices. See FERC Reply, Ex. 2 (FY12-33 Vaughn Index) [Dkt. 21-2], Ex. 3 (FY12-60 Vaughn Index) [Dkt. 21-3]; Ex. 4 (FY12-66 Vaughn Index) [Dkt. 21-4]. As described below, other documents that were withheld in whole or in part remain in dispute. See generally Pls. Surreply. Plaintiffs do not challenge the adequacy of FERC's search for the requested records; instead, they challenge certain asserted exemptions to disclosure.
II. LEGAL STANDARD
A. Summary Judgment
FERC contends that it is entitled to summary judgment because there is no genuine dispute as to any material fact and it is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment is properly granted against a party who "after adequate time for discovery and upon motion... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, a court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's ...