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Urban Air Initiative, Inc. v. Environmental Protection Agency

United States District Court, District of Columbia

September 25, 2017

URBAN AIR INITIATIVE, INC., et al, Plaintiffs,
v.
ENVIRONMENTAL PROTECTION AGENCY, Defendant.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE.

         Plaintiffs Urban Air Initiative, Inc. and Energy Future Coalition sent a Freedom of Information Act ("FOIA") request to defendant Environmental Protection Agency ("EPA") on February 9, 2015, seeking records related to the EPAct/V2/E-89 Tier 2 Gasoline Fuel Effects Study, known as the EPAct Study. Compl. [Dkt. # 1] ¶¶ 6, 14. After the parties engaged in discussions narrowing plaintiffs' request and extending the deadline by which EPA had to respond, EPA provided an interim response on June 25, 2015, stating that while it was actively searching for and reviewing documents, and planned to produce them on a rolling basis, it could not even commit to be finished with the process before February of 2016. Id. ¶¶ 14-29.

         On August 17, 2015, plaintiffs filed this lawsuit, alleging that EPA was "unlawfully delaying its determination on [p]laintiffs' request for records, " Compl. ¶ 31, and "unlawfully withholding responsive records" in violation of 5 U.S.C. § 552. Id. ¶ 39. After completing its production of documents, defendant filed this motion for summary judgment, arguing that it has now met its obligations under FOIA. Def.'s Mot. for Summ. J. [Dkt. # 19] ("Def.'s Mot"); Mem. of Law in Supp. of Def.'s Mot. [Dkt. # 19-2] ("Def.'s Mem."). Plaintiffs opposed defendant's motion and also filed a cross-motion for partial summary judgment, maintaining that EPA did not conduct an adequate search and that it improperly withheld responsive records pursuant to FOIA Exemption 5. Pis.' Opp. & Cross-Mot. for Partial Summ. J. [Dkt. #21] ("Pis.' Cross-Mot."); Mem. in Supp. of Pis.' Cross-Mot. [Dkt. # 21-1] ("Pis.' Cross-Mem."). Plaintiffs are only seeking summary judgment with respect to 198 records withheld or redacted under Exemption 5's deliberative process privilege.[1] Pis.' Cross-Reply in Supp. of Pis.' Cross-Mot. [Dkt. # 34] ("Pis.' Cross-Reply") at 4-5.

         Because the Court finds that defendant has failed to establish that it conducted an adequate search for records under FOIA, it will deny defendant's motion in part and remand the matter to the agency. However, the Court will grant defendant's motion in part and deny plaintiffs' motion since it has determined that EPA properly invoked Exemptions 4, 5, and 6 to withhold or redact all of the documents at issue, and it has produced all reasonably segregable information.

         BACKGROUND

         I. Factual Background

         Plaintiff Urban Air Initiative, Inc. is an organization dedicated to educating the public about the health threats posed by the use of petroleum-based fuels. Compl. ¶ 3. Energy Future Coalition is a non-profit organization that seeks to identify and advance practical solutions to energy and environmental policy challenges. Id. ¶ 4. This lawsuit arises out of their interest in and inquiries about the EPAct/V2/E-89 Tier 2 Gasoline Fuel Effects Study, known as the "EPAct Study, " which was jointly supported by EPA, Department of Energy, and the Coordinating Research Council ("CRC"). Id. ¶ 6; Decl. of Kathryn Sargeant [Dkt. # 19-3] ("Sargeant Decl.") ¶ 8.

         In 2005, Congress directed EPA to produce an updated emissions model that considered the effect of individual fuel properties on emissions from vehicles. Sargeant Decl. ¶ 10. In order to create this model, which would become known as the MOVES2014 model, EPA developed the EPAct Study. Id. Ultimately, the MOVES2014 model included data from a range of sources, including the EPAct Study. Id.

         During the design phase of the study, "EPA defined the scope of the study, estimated costs, determined test procedures, and selected fuel parameters and vehicles." Sargeant Decl. ¶ 13. To test vehicles on different fuels, EPA engaged Southwest Research Institute ("SwRI"). Id. ¶ 12. Ultimately, the study "measured emissions from a fleet of 15 test cars and trucks from the 2008 model year using twenty-seven fuel blends." Id. ¶ 16. EPA issued the study's final report in April 2013. Id. ¶ 17.

         According to plaintiffs, the EPAct Study "was the basis for erroneous emissions factors" in the MOVES2014 model, which, plaintiffs claim, "will result in increased air pollution." Compl. ¶ 7. So plaintiffs, along with the states of Kansas and Nebraska, petitioned for judicial review of the MOVES2014 model, partially on the basis of "pollution modeling errors that are the direct result of defects in the EPAct study's design." Id. ¶ 10; see Ex. A to Compl. [Dkt. # 1-1].

         Plaintiffs submitted a FOIA request to EPA on February 9, 2015, in order to obtain information they needed to pursue their case. Compl. ¶ 14; see Def.'s Statement of Material Facts as to Which There are no Genuine Issues [Dkt. # 19-1] ("Def.'s SOF") ¶ 1; Pis.' Resp. to Def.'s SOF [Dkt. # 21-2] ("Pis.' Resp. SOF") ¶ l;[2] Sargeant Decl. ¶ 7. EPA's Office of Transportation and Air Quality received the request on February 10, 2015, and confirmed receipt on February 19, 2015. Def.'s SOF ¶ 2; Pis.' Resp. SOF ¶ 2; Ex. B to Sargeant Decl. [Dkt. # 19-4].

         At defendant's urging, plaintiffs narrowed their FOIA request on March 11, 2015, to information about specific contract and work assignments, as well as to 20 subtopics related to the "design phase" of the EPAct study. See Def.'s SOF ¶¶ 4, 7; Pis.' Resp. SOF ¶¶ 4, 7; Ex. D to Sargeant Decl. [Dkt. # 19-4]; Ex. F. to Sargeant Decl. [Dkt. # 19-4] ("FOIA Request"). Plaintiffs defined the "design phase" of the study as "everything that preceded the emissions testing that resulted directly in the reported results of any phase of the EPAct study." FOIA Request. Defendant confirmed the parameters of the narrowed request by letter on April 24, 2015. Def.'s SOF ¶ 9; Pis.' Resp. SOF ¶ 9; Ex. Gto Sargeant Decl. [Dkt. # 19-4]. Ultimately, plaintiffs' request sought:

a. Work Assignment 1-08
b. Work Assignment 3-02
c. Contract EP-C-07-028
d. All records created, received and/or maintained by the Environmental Protection Agency (including, but not limited to, documents created by or received from Southwest Research Institute, Coordinating Research Council, other contractors, and their employees), that pertain to the "design phase of the EPAct/V2/E-89 Tier 2 Gasoline Fuel Effects Study and any of the following topics:
1. re-design of fuel matrices
2. [retracted]
3. [retracted]
4. [retracted]
5. [retracted]
6. fuel 26 as identified in Fuel Matrix Designs #4, and fuel 26 as identified in Fuel Matrix Design #5 (fuel 23 as identified in Fuel Matrix Design #4)
7. fuel 27 as identified in Fuel Matrix Designs #4, and fuel 27 as identified in Fuel Matrix Design #5 (fuel 24 as identified in Fuel Matrix Design #4)
8. fuel 28 as identified in Fuel Matrix Designs #4, and fuel 28 as identified in Fuel Matrix Design #5 (fuel 25 as identified in Fuel Matrix Design #4)
9. fuel 30 as identified in Fuel Matrix Design #5 10. fuel 31 as identified in Fuel Matrix Design #5 11. [retracted]
12. [retracted]
13. [retracted]
14. T50
15. [retracted]
16. "a problem in blending the fuels at ETOH=15%" (El 5)
17. CRCE-67
18. CRCE-74b
19. Southwest Research Institute (SwRI)
20. Coordinating Research Council (CRC)
21. Lubrizol Corporation
22. Haltermann Solutions
23. Rafal Sobotowski
24. Richard Gunst
25. James (Jim) Uihlein 26. Chevron
27. "Quality Management Plan" and "Quality Assurance Project Plan" ...

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