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Environmental Integrity Project v. Small Business Administration

United States District Court, District of Columbia

August 5, 2015

ENVIRONMENTAL INTEGRITY PROJECT, et al., Plaintiffs,
v.
SMALL BUSINESS ADMINISTRATION, et al., Defendants.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE

The Effluent Limitation Guidelines (“ELGs”) are federal requirements that limit what toxins may be discharged from coal-fired power plants. Plaintiffs Environmental Integrity Project, Earthjustice, and Sierra Club filed Freedom of Information Act (“FOIA”) requests with the Small Business Administration (“SBA”) and the Office of Management and Budget (“OMB”) for records regarding OMB’s review of an Environmental Protection Agency (“EPA”) proposed update to the ELGs. SBA and OMB provided hundreds of documents in response to the requests, but withheld others based on the deliberative process privilege. Plaintiffs brought this action challenging the agencies’ assertion of the privilege and their refusal to release allegedly segregable factual information contained in the records they did release. Plaintiffs also contest OMB’s ability to claim the deliberative process privilege at all in light of a 1993 executive order, EO 12866, directing OMB’s Office of Information and Regulatory Affairs (“OIRA”) to disclose all documents exchanged with an agency during the regulatory review process. The parties have cross-moved for summary judgment. Because SBA’s Vaughn index and affidavits are too brief and conclusory for the Court to determine whether the privilege applies, it will reserve judgment on SBA’s withholdings pending an in camera review of the relevant documents. In contrast, the Court finds OMB’s submissions to be sufficient to support its privilege assertion, EO 12866 notwithstanding. The Court will therefore grant summary judgment for Defendants as to OMB’s withholding.

I. Background

This case stems from a proposed change in the Steam Electric ELGs, the regulations limiting the amount of pollutants coal-fired power plants may discharge into rivers, streams, and lakes. See Pls.’ Statement of Material Facts (“Pls.’ Statement”) at ¶ 1.[1] According to Plaintiffs, coal-fired plants discharge massive amounts of pollutants into the nation’s waterways every year. Id. In early 2013, OMB led an inter-agency review of a proposed rule to revise the ELGs. Id. ¶ 5. Representatives of SBA actively participated in this review. Id. ¶ 6. After a ninety-day review period, a different-and, Plaintiffs contend, weaker-version of the rule initially proposed by EPA was published in the Federal Register. Id. ¶¶ 3, 5.

In April 2013, plaintiffs submitted identical FOIA requests to SBA and OMB. Id. ¶ 7. The requests sought the release of records in three categories:

(1) all records exchanged and all records related to any meetings, telephone conversations, emails, or any other communications between [SBA/OMB] and the utility industry, representatives of the utility industry, trade group, special interests groups, and/or other non-governmental parties related to the Effluent Limitation Guidelines for the Steam Electric Generating Category; wastewater discharges from coal-fired power plants; and/or treatment technologies, or best available technology economically achievable (“BAT”) for wastewater discharges from coal-fired power plants since April 3, 2013;
(2) all records exchanged and all records related to any meetings, telephone conversations, emails, or any other communications between [SBA/OMB] and the EPA; [SBA/OMB], Council on Environmental Quality; Executive Office of the President; and/or White House staff, including, but not limited to, Heather Zichal, Rob Nabors, and Denis McDonough during interagency review for EPA’s proposed Steam Electric ELGs Rule; and
(3) all records related to handling of bottom ash wastewater, flue gas desulfurization (FGD) wastewater, and combustion residual leachate.

Compl. ¶ 36.

In June 2013, SBA provided Plaintiffs all category (1) and (3) records, and eventually released all but eleven category (2) records, which it withheld under FOIA Exemption 5. Pls.’ Statement of Material Facts, ¶¶ 8-11. OMB initially released 140 pages of records, but withheld in their entirety thousands of pages of records that it claimed were also exempt from disclosure under FOIA Exemption 5. Id. ¶ 13. After Plaintiffs timely appealed, OMB released an additional 850 pages of records with heavy redactions. Id. ¶ 14. OMB continued to withhold hundreds of documents in whole or in part. Id. ¶ 15.

Plaintiffs filed this action against SBA and OMB in December 2013. In November 2014, Defendants moved for dismissal or, alternatively, for summary judgment. In support of their motion, the agencies submitted Vaughn indices and declarations from Claudia Rodgers, SBA’s FOIA Officer and Deputy Chief Counsel, and Dominic Mancini, Deputy Administrator of OIRA. Defendants filed supplemental declarations from Ms. Rodgers and Mr. Mancini in January 2015.

II. Standard of Review

Congress passed FOIA “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1, 5 (D.C. Cir. 2011). The statute imposes a general obligation on the government to provide records to the public. 5 U.S.C. § 552(a). Although FOIA provides exemptions to this general obligation to disclose, 5 U.S.C. § 552(b), “[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed, ” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Thus, FOIA “‘exemptions are explicitly made exclusive, ’” Milner v. U.S. Dep’t of Navy, 562 U.S. 562, 565 (2011) (citing EPA v. Mink, 410 U.S. 73, 79 (1973)), and they “must be ‘narrowly construed, ’” id. (citing FBI v. Abramson, 456 U.S. 615, 630 (1982)).

FOIA cases are appropriately decided on cross-motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In deciding a motion for summary judgment, the Court assumes the truth of the non-movant’s evidence and draws all reasonable inferences in the non-movant’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The government bears the burden to establish that its claimed exemptions apply to each document for which it invokes an exemption. Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). The government cannot satisfy this burden with affidavits that are vague or conclusory, or merely parrot the statutory standard. Consumer Fed’n of Am. v. U.S. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006). The declarations must describe the justifications for withholding in “specific detail, demonstrate[ing] that the information withheld logically falls within the claimed exemption.” Am. Civil Liberties Union, 628 F.3d at 619. “When demonstrating that a FOIA exemption applies to some portion of a document withheld, the agency must also provide a detailed justification for its non-segregability, ” Johns ...


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