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Center For BiologicaL Diversity v. United States Environmental Protection Agency

United States District Court, District of Columbia

March 27, 2019




         Plaintiff, the Center for Biological Diversity, submitted a request to the U.S. Environmental Protection Agency (“EPA”) under the Freedom of Information Act, 5 U.S.C. § 552, seeking records related the agency's revisions to the aquatic life water quality criteria for the heavy metal cadmium in 2015 and 2016. Compl. [Dkt. # 1] ¶ 1. Thereafter, plaintiff filed this lawsuit, arguing, among other things, that the agency unlawfully withheld certain records under FOIA Exemption 5, and failed to reasonably segregate and produce non-exempt information. Id. ¶¶ 48-73. The agency moved for summary judgment, and plaintiff opposed the motion and filed its own motion for summary judgment. For the reasons that follow, the Court will grant EPA's motion for summary judgment and it will deny plaintiff's cross-motion.


         The Clean Water Act and Cadmium Report

         Section 304(a)(1) of the Clean Water Act, 33 U.S.C. § 1314(a)(1), directs the EPA to “develop and publish water quality criteria that reflect the latest scientific knowledge” on the effects of pollutants in bodies of water. Decl. of Kathryn Gallagher [Dkt. # 15-2] (“Gallagher Decl.”) ¶ 4. EPA publishes the numeric concentration of pollutants that will protect against unacceptable adverse ecological effects to aquatic life, as well as “specific recommendations on the duration and frequency of any exceedance of those numeric concentrations that would remain protective.” Id. Under Section 304(a)(1), the EPA's water quality criteria serve as non-binding recommendations to states and tribes that are responsible for adopting standards to protect the bodies of water under their jurisdiction. Id.

         On December 1, 2015, EPA announced the release of a draft report revising the aquatic life water quality criteria for cadmium “to reflect the latest scientific information, and current EPA policies and methods.” 80 Fed. Reg. 75097 (Dec. 1, 2015). The notice in the Federal Register marked the beginning of a public comment period for “scientific views on the draft.” Id. According to EPA, cadmium is “a relatively rare, naturally occurring metal” which is known for its industrial uses in the “manufacturing of batteries, pigments, plastic stabilizers, and metal coatings, alloys and electronics.” Id. at 75098. “Chronic exposure [to cadmium] leads to adverse effects on growth, reproduction, immune and endocrine systems, development and behavior in aquatic organisms.” Id.

         Plaintiff submitted a public comment urging the agency to consult with the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) prior to taking any action. Ex. A to Decl. of Brett Hartl [Dkt. # 16-5] at 1-2. EPA reviewed and responded to public comments, including plaintiff's, prior to releasing the final report.[1] Gallagher Decl. ¶ 7. The agency declined to follow plaintiff's recommendation of coordinating with FWS and NMFS. EPA Response at 17. The draft report also underwent an internal EPA review and external peer review process. Gallagher Decl. ¶ 7

         On April 4, 2016, EPA announced the publication of the final report titled Aquatic Life Ambient Water Quality Criteria Cadmium - 2016 (“Final Cadmium Report”). 81 Fed. Reg. 19176 (Apr. 4, 2016).[2] This marked the culmination of the agency's internal and external peer review process. Gallagher Decl. ¶ 7. In the final report, EPA explained that it revised the cadmium water quality criteria based on “data that have become available since 2001.” Final Cadmium Report at xii. The 700-page report, including references, provides a detailed analysis of the scientific models applied, the effects of cadmium on specific aquatic organisms, the national criteria for cadmium, and an appendix of the unused data with an explanation for why certain data was excluded. See generally Final Cadmium Report.

         The FOIA Request

         On April 5, 2016, plaintiff submitted a FOIA request to the EPA seeking “all records relating to the revised water quality criteria for cadmium, docket EPA-HQ-OW-2015-0753.” Gallagher Decl. ¶ 2. On January 4, 2017, the agency issued its “Final Release” letter informing plaintiff that it had identified 654 responsive documents, of which 280 were withheld in their entirety, 87 were released with redactions, and 287 were released in full. Attach. I to Gallagher Decl. [Dkt. # 15-2]. The agency withheld some of the information pursuant to FOIA Exemption 5. Id.; Gallagher Decl. ¶ 20.

         Plaintiff filed a timely administrative appeal, and the agency subsequently released more records and revised some of its redactions. Decl. of Brett Hartl [Dkt. # 16-4] (“Hartl Decl.”) ¶ 17; Gallagher Decl. ¶ 11. After plaintiff filed this suit on June 28, 2017, the agency released additional records, and on December 18, 2017, defendant supplied plaintiff with a Vaughn Index of its withholdings and redactions. Gallagher Decl. ¶ 15.

         The parties met and conferred, and they agree that there are 67 records that remain in dispute in this matter. Gallagher Decl. ¶ 19; Pl.'s Statement of Material Facts As To Which There Is No. Genuine Issue [Dkt. # 16-2] (“Pl.'s SOF”) ¶ 26. Of the 67 records that remain in dispute, 34 have been withheld in full and 33 in part pursuant to the deliberative process privilege of FOIA Exemption 5, 5 U.S.C. § 552(b)(5). See Ex. C to Gallagher Decl. [Dkt. # 15-2] (“Vaughn Index”).

         On March 16, 2018, defendant moved for summary judgment, Def.'s Mot. for Summ. J. [Dkt. # 15]; Def.'s Mem. of P. & A. in Supp. of Mot. for Summ. J. [Dkt. # 15] (“Def.'s Mem.”), and plaintiff opposed that motion and cross-moved for summary judgment on April 16, 2018. Pl.'s Cross-Mot. for Summ. J. & Opp. to Def.'s Mot. [Dkt. # 16] (“Pl.'s Cross-Mot”). After the motions were fully briefed, the Court ordered defendant to submit unredacted versions of a portion of the withheld records for in camera inspection to assist the Court in making a responsible de novo determination of the agency's withholdings. Min. Order (Feb. 12, 2019); Notice of Delivery of Docs. For In Camera Inspection [Dkt. # 27].


         Summary judgment is appropriate when “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). Most FOIA cases are appropriately resolved on motions for summary judgment. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

         To prevail in a FOIA action, the agency must establish that the asserted exemption justifies the redactions and withholdings. 5 U.S.C. § 552(a)(4)(B). To satisfy that burden, the agency “must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.” Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). “To enable the Court to determine whether documents were properly withheld, ” the agency must submit a “Vaughn Index and/or accompanying affidavits or declarations” that specifically explains why certain documents were redacted or withheld. Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 88 (D.D.C. 2009); see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973); Judicial Watch, Inc. v. FDA, 449 F.3d 141, 145- 46 (D.C. Cir. 2006).

         In a FOIA action, the Court may award summary judgment solely on the information provided in affidavits or declarations that describe “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability ...

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