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Center for Biological Diversity v. U.S. Environmental Protection Agency

United States District Court, District of Columbia

March 27, 2019

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant.

          MEMORANDUM OPINION

          BERYL A. HOWELL CHIEF JUDGE.

         This is the second round of summary judgment briefing in this lawsuit instituted by the plaintiff, Center for Biological Diversity (“CBD”), under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for the disclosure of records relating to the U.S. Environmental Protection Agency's (“EPA”) findings, set out in two addenda issued in 2014, that a new pesticide named Enlist Duo, when used according to the restrictions in its labeling, would have “no effect” on endangered species or their habitats, after the EPA had earlier concluded in 2013 that this pesticide was “toxic to birds, mammals, fish, and aquatic invertebrates” and considered stricter usage restrictions than are reflected in the two addenda. After granting partial summary judgment to each party on their initial cross-motions for summary judgment, the parties continue to dispute whether EPA has conducted an adequate search, sufficiently justified the withholding of 80 records under FOIA's Exemption 5, and segregated non-privileged information for disclosure. Pending before the Court are EPA's Renewed Motion for Summary Judgment (“Def.'s 2d MSJ”), ECF No. 37, and CBD's Renewed Motion for Summary Judgment (“Pl.'s 2d XMSJ”), ECF No. 38. For the reasons set forth below, each party is again granted partial summary judgment, which resolves this case.

         I. BACKGROUND

         The facts underlying this action have been explained in the Court's prior Memorandum Opinion and need not be repeated in detail here. See Center for Biological Diversity v. EPA (“Ctr. for Biological Diversity”), 279 F.Supp.3d 121, 129-36 (D.D.C. 2017). A brief review of the factual and procedural background provides context for the remaining disputes between the parties.

         A. Factual Background

         CBD's two FOIA requests at issue in this case seek “all documents and correspondence” related to EPA's addenda, issued in February 2014 and September 2014, assessing the risk of Enlist Duo to endangered species in a total of sixteen states. See Pl.'s Cross-Mot. Summ. J. (“Pl.'s 1st XMSJ”), Exs. J & L, Letters from Brett Hartl, CBD, to EPA (June 26 and Oct. 20, 2014, respectively) (“CBD FOIA Requests”), ECF Nos. 17-14, 17-16; id., Ex. D, Addendum to 2, 4-D Choline Salt Section 3 Risk Assessment: Refined Endangered Species Assessment for Proposed New Uses on Herbicide-Tolerant Corn and Soybean (“Six-State Assessment”), ECF No. 17-8; id., Ex. G, Addendum to 2, 4-D Choline Salt Section 3 Risk Assessment: Refined Endangered Species Assessment for Proposed New Uses on Herbicide-Tolerant Corn and Soybean for AR, KS, LA, MN, MS, MO, NE, ND, OK, TN (“Ten-State Addendum”), ECF No. 17-11 (collectively, “the Addenda”). While EPA's original January 2013 Environmental Risk Assessment for Enlist Duo considered whether a 202 foot spray-drift buffer could be used to reduce the “acute” toxicity risk of the pesticide for birds, mammals and plants, the Addenda concluded that Enlist Duo would have “no effect” on endangered species or their habitats in the sixteen states when used according to the restrictions in its labeling, which restrictions reduced the buffer from 202 feet to 60 feet and then to 30 feet. Compare id., Ex. B, Memorandum from Meghan Radtke, Biologist, EPA, and Faruque Khan, Senior Scientist, EPA, to Michael Walsh, Risk Manager Reviewer, EPA, et al. (Jan. 15, 2013) (Environmental Risk Assessment) at 2, ECF No. 17-6, with Six-State Assessment at 2 (noting that “spray drift mitigation language that has been added to the label . . . requires the use of a 60 ft on-field buffer”) and Ten-State Addendum at 2 (noting that “spray drift mitigation language that has been added to the label . . . requires use of a 30 ft on-field buffer”).

         EPA relied upon the Addenda when deciding, in 2015, to approve Enlist Duo for use in fifteen of the sixteen states, pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136 et seq. See Pl.'s 1st XMSJ, Ex. F, Final Registration of Enlist Duo Herbicide (Oct. 15, 2014) at 19, ECF No. 17-10; id., Ex. I, Decision to Amend Enlist Duo Herbicide Label to Include Additional States: Arkansas, Kansas, Louisiana, Minnesota, Missouri, Mississippi, Nebraska, Oklahoma, and North Dakota (Mar. 31, 2015) at 2, ECF No. 17-13.

         Separate from Enlist Duo's registration under FIFRA, the Endangered Species Act of 1973 (“ESA”), 16 U.S.C. § 1531 et seq., requires that “[e]ach Federal agency . . . insure that any action authorized, funded, or carried out . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species, ” 16 U.S.C. § 1536(a)(2), and in so doing, “each agency shall use the best scientific and commercial data available, ” id. Although the ESA states that the agency “shall” make its “not likely to jeopardize” determination “in consultation with and the assistance of the Secretary [of the Interior or Commerce], ” id., the practice has long been to allow agencies to make an initial determination on their own accord without consultation. See Final Rule, Interagency Cooperation Under the Endangered Species Act, 2008 WL 5210535, 73 Fed. Reg. 76, 272, 76, 279 (Dec. 16, 2008) (“[T]he Services have long implemented section 7(a)(2) through regulations that exclude from case-by-case consultation those actions that the action agency determines will have ‘no effect' on listed species or critical habitat even though the statute makes no express exception for such actions.”).[1]

         By regulation, only if the agency first determines that its action “may affect listed species or critical habitat, ” 50 C.F.R. § 402.14(a), does the agency then have an obligation to engage in consultations. See Def.'s 2d MSJ, Ex. 3, Decl. of Sujatha Sankula, Branch Chief, Environmental Fate and Effects Division (“EFED”), EPA (“First EPA EFED Decl.”) ¶ 9, ECF No. 37-3 (“[U]nder the Services' implementing consultation regulations . . . action agencies have the initial obligation to determine whether their actions ‘may affect' listed species or habitat, in which case consultation is required, or will have ‘no effect' on listed species or habitat.”); see also Ctr. for Biological Diversity v. Dep't of Interior, 563 F.3d 466, 475 (D.C. Cir. 2009) (“If the agency determines that its action will not affect any listed species or critical habitat, . . . then it is not required to consult with NMFS or Fish and Wildlife.”); Karuk Tribe of California v. U.S. Forest Serv., 681 F.3d 1006, 1027 (9th Cir. 2012) (en banc) (“An agency may avoid the consultation requirement only if it determines that its action will have ‘no effect' on a listed species or critical habitat.”); California ex rel. Lockyer v. U.S. Dep't of Agriculture, 575 F.3d 999, 1019 (9th Cir. 2009) (“An agency's finding that its action will have no effect on listed species or critical habitat obviates the need for consultation.”). With respect to Enlist Duo, the EPA determined, as part of the Addenda used to register Enlist Duo pursuant to FIFRA, that the pesticide would have “no effect” on endangered species, nullifying any requirement for consultation with the Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Services under ESA's section 7(a)(2). See Pl.'s Mem. Supp. Cross-Mot. Summ. J. & Opp'n Def.'s Mot. Summ. J. (“Pl.'s 1st Opp'n”) at 19, ECF No. 17 (acknowledging that “these records are where EPA chose to make its ‘no effect' determinations”); Pl.'s Reply Supp. Cross-Mot. Summ. J. (“Pl.'s 1st Reply”) at 4, ECF No. 24 (“In the particular circumstances of this case, EPA's Section 7(a)(2) process for each determination culminated in the Addenda.”); Def.'s Reply Supp. Mot. Summ. J. (“Def.'s 1st Reply”) at 2, ECF No. 22 (“Plaintiff is not challenging the merits of this ‘no effect' determination here, but rather, is simply challenging the withholding of materials used to make this determination.”).

         B. Procedural History

         In the first round of cross-motions for summary judgment, CBD raised, inter alia, initial challenges to the adequacy of EPA's search for responsive records, justifications for withholdings and segregation of disclosable information. See Pl.'s 1st Opp'n at 2-3.[2] With respect to the adequacy of EPA's search, summary judgment was granted to CBD because EPA's prior three searches were inadequate to establish “beyond material doubt that its search[es] w[ere] reasonably calculated to uncover all relevant documents.” Ctr. for Biological Diversity, 279 F.Supp.3d at 140. Several deficiencies in EPA's searches were described, including that (1) the searches used September 26, 2014 as the cut-off date, but EPA “articulated no compelling justification for using” that date over CBD's objection, id. at 141; (2) the searches covered only 13 custodians, despite EPA's records revealing a greater number of individuals involved in communications regarding Enlist Duo, id. at 141-142; and (3) EPA was unclear whether the searches covered all forms of communications, such as instant messages, text messages, “or any other kind of chats” that may have been “used by OPP staff to communicate on the drafting and review of documents related to the Endangered Species Assessment, ” id. at 143.

         EPA was therefore “directed to conduct a supplemental search with the following features”: (1) use of the new supplemental search date as the cut-off date; (2) use of uniform search terms most reasonably calculated to uncover all relevant documents; (3) expanded search locations of electronic and hard-copy documents of the initial custodians and ten potential custodians identified by CBD; and (4) “text messages, instant messages, or other similar agency communications, ” if feasible and not already searched. Id. at 143.[3] In addition, if, after conducting its supplemental search, EPA continued not to disclose or identify “any records of communications with state agencies or other third parties, ” EPA was directed to “submit a supplemental declaration explaining the absence of any [such] records.” Id. at 143-44.

         In addition to inadequacies identified in the searches, EPA's Vaughn indices were found to be “patently insufficient” in explaining withholdings under the deliberative process privilege and attorney-client privilege. Id. at 144, 153. EPA was therefore directed, “after completion of the supplemental search, ” to “submit a second supplemental Vaughn index for any documents the agency continues to withhold in full or in part, ” id. at 145, and to include specific categories of information, including each withheld document's title, date, the author and the author's job title, the recipient and recipient's job title, the total number of pages, the disposition (whether withheld partially or in full), the reason for the withholding, the statutory authority for the withholding, and the number of pages with redacted, withheld information, id.

         Finally, EPA was directed, with respect to any document withheld pursuant to Exemption 5, to “describe the relevant deliberative process, the role the document played in that process, the nature of the decisionmaking authority vested in the office or person issuing the document, and the positions in the chain of command of the parties to the documents, ” id. at 153, and to “adequately explain why further nonexempt material cannot be segregated from any exempt material, ” id., and to do so with “a particularized explanation of non-segregability for each document, ” id. at 152. After EPA produced its next Vaughn index, however, CBD was unable to cross-reference its entries with the entries in EPA's previous Vaughn indices, and accordingly, could not distinguish newly-released documents from previously released documents. See Joint Status Report (Dec. 21, 2017) (“2017 JSR”) at 6, ECF No. 32. EPA was then directed to clarify, with respect to each entry, whether it had been previously identified in one of EPA's Vaughn indices, and if so, to provide information to facilitate cross-referencing. See Memorandum and Order (Jan. 5, 2018) at 4-5, ECF No. 34.

         C. EPA's New Searches and Withholdings

         EPA conducted a new search, which the agency avers “addressed the deficiencies identified by the Court.” Def.'s Reply Mem. Supp. Def.'s Renewed Mot. Summ. J. & Opp'n Pl.'s Mot. (“Def.'s 2d Reply”) at 3, ECF No. 42. In particular, EPA searched using the terms “(‘risk assessment' OR ‘assessment' OR ‘RA') AND (‘Enlist' OR ‘Choline' OR ‘2, 4-D') AND (‘ESA' or ‘endangered species'), ” Third Supp. Decl. of Earl Ingram, Jr., Chief, Public Information and Records Integrity Branch (“PIRIB”), Office of Pesticide Programs, EPA (“Fourth EPA PIRIB Decl.”) ¶ 7, ECF No. 37-2, which are “the very terms that were common to both FOIA requests, ” Def.'s 2d Reply at 7, and “identified 51, 871 potentially responsive documents, of which only 201 were identified as responsive and not accounted for in previous productions, ” Fourth Supp. Decl. of Earl Ingram, Jr. (“Fifth EPA PIRIB Decl.”) ¶ 1, ECF No. 42-3.

         After completing the new search, EPA, on December 4, 2017, released to CBD 87 new records, of which 34 records were withheld in part, along with a third Vaughn index. Joint Status Report (Dec. 21, 2017) at ¶ 8, ECF No. 32; EPA's Supplemental Vaughn Index (“Third Vaughn Index”), ECF No. 33. In addition, EPA withheld in full an additional 31 documents pursuant to FOIA Exemption 5's deliberative process privilege, 12 of which were withheld in full under both the deliberative process privilege and attorney client privilege. Id. EPA made another supplemental production on March 1, 2018, along with an updated Vaughn index, see Letter from Casey Pickell, Attorney-Advisor, Office of General Counsel, EPA, to Margaret Townsend, CBD (Mar. 1, 2018), Attach. (“Fourth Vaughn Index”), ECF No. 38-10, by which date EPA had “completed its production of all nonexempt records subject to FOIA in accordance with the Court's Order.” Joint Status Report (Mar. 15, 2018) (“2018 JSR”) at ¶ 5, ECF No. 35. By the same date, the parties reported that the list of records remaining in dispute was narrowed to 88 records, id. ¶ 6, and proposed a briefing schedule with time to continue discussions to narrow the remaining disputes, id. ¶ 8.

         Upon the timely filing of the parties' cross-motions, along with EPA's fifth Vaughn index, see Fourth EPA PIRIB Decl., Ex. A. (“Fifth Vaughn Index”), ECF No. 37-2, and submission of the 80 records that remain in dispute for in camera review, see EPA's Notice Compliance Ct. Order In Camera Submission, ECF No. 45, the pending cross-motions for summary judgment are ripe for review.

         II. LEGAL STANDARD

         Under Federal Rule of Civil Procedure 56, summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “In FOIA cases, ‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)); see also Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (“[A]n agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced or is wholly exempt from the Act's inspection requirements.'” (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978))). Most FOIA cases will be resolved on summary judgment. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

         FOIA was enacted “to promote the ‘broad disclosure of Government records' by generally requiring federal agencies to make their records available to the public on request.” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (quoting U.S. Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988)). To balance the public's interest in governmental transparency and “legitimate governmental and private interests that could be harmed by release of certain types of information, ” United Techs. Corp. v. U.S. Dep't of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (quoting Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc) (alterations omitted)), FOIA has nine exemptions, set forth in 5 U.S.C. § 552(b), which “are explicitly made exclusive and must be narrowly construed, ” Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted). “[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976).

         FOIA authorizes federal courts to “enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). District courts must “determine de novo whether non-disclosure was permissible.” Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015). When the sufficiency of “the release of information under the FOIA” is challenged, “the agency has the burden of showing that requested information comes within a FOIA exemption.” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904 (D.C. Cir. 1999); see also U.S. Dep't of Justice v. Landano, 508 U.S. 165, 171 (1993) (noting that “[t]he Government bears the burden of establishing that the exemption applies”). This burden does not shift even when the requester files a cross-motion for summary judgment because “the Government ‘ultimately [has] the onus of proving that the [documents] are exempt from disclosure, '” while the “burden upon the requester is merely ‘to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.'” Pub. Citizen Health Research Grp., 185 F.3d at 904-05 (quoting Nat'l Ass'n of Gov't Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)) (alterations in original).

         III. DISCUSSION

         CBD has renewed its motion for summary judgment again challenging the adequacy of EPA's search for responsive records, and the appropriateness of EPA's withholding of 80 records pursuant to Exemption 5's deliberative process and attorney-client privilege. Pl.'s Mem. Supp. Renewed Cross-Mot. Summ. J. & Opp'n Def.'s Renewed Mot. Summ. J. (“Pl.'s 2d Opp'n”) at 5, ECF No. 38.[4] EPA counters that it has conducted an adequate search consistent with the Court's prior order and has disclosed all responsive records, including reasonably segregable portions of privileged records. Def.'s Mem. Supp. Renewed Mot. Summ. J. (“Def.'s 2d Mem.”) at 2, ECF No. 37. The adequacy of EPA's search is considered first before turning to the sufficiency of EPA's justifications for withholding documents and EPA's efforts to ensure that segregable portions of any of the withheld documents are released.

         A. Adequacy of the Search

         As noted supra Part I.B, EPA was directed to conduct a supplemental search that: (1) used March 31, 2015 as the search cut-off date; (2) used uniform search terms most ‘reasonably calculated to uncover all relevant documents'; (3) covered electronic and hard-copy documents of the initial custodians and ten potential custodians identified by CBD; (4) included responsive text messages, instant messages, or other similar agency communications, if such searches were feasible; and (5) if no responsive “records of communications with state agencies or other third parties” were identified, to “submit a supplemental declaration explaining the absence of any [such] records.” Ctr. for Biological Diversity, 279 F.Supp.3d at 143-44; Order (Oct. 23, 2017), ECF No. 30. CBD takes issue with EPA's compliance with only two of these directions, i.e., the second and third, but none of CBD's criticisms are persuasive.[5]

         1. Uniform Search Terms

         EPA understood its original search terms to be “‘reasonably calculated to uncover all relevant documents, '” Ctr. for Biological Diversity, 279 F.Supp.3d at 143 (quoting Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011)), and therefore “utilize[ed] the same search terms used in the previous eDiscovery search (‘risk assessment' OR ‘assessment' OR ‘RA') AND (‘Enlist' OR ‘Choline' OR ‘2, 4-D') AND (‘ESA' or ‘endangered species').” Fourth EPA PIRIB Decl. ¶ 7. The plaintiff takes issue with EPA's approach, contending, first, that “EPA failed to provide a ‘reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched, '” Pl.'s 2d Opp'n at 21, and, ...


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