MEMORANDUM OPINION
BERYL
A. HOWELL CHIEF JUDGE
Since
this case began in August 2017, the plaintiff Food &
Water Watch has been prodding the defendants-the U.S.
Department of Agriculture, the Farm Service Agency
(“FSA”), and Deanna Dunning, an FSA Farm Loan
Officer-to provide a complete administrative record
(“AR”). Finally, in December 2018, that happened.
The completed AR included a version of the final
environmental assessment (“EA”) that the FSA
completed in July 2015 in connection with the agency's
guarantee of a loan to One More Haul Farm for the
construction and operation of a concentrated animal feeding
operation (“CAFO”). With that addition to the AR,
the plaintiff now seeks leave to amend its complaint to add
two new claims and modify a third. For the reasons discussed
below, the plaintiff's motion is granted.
I.
BACKGROUND
This
case relates to the FSA's 2015 guarantee of a loan to One
More Haul Farm. The underlying allegations, as well as the
relevant statutory and administrative framework, were
detailed in the Court's prior opinion denying the
defendants' motion to dismiss the complaint and granting
the plaintiff's motion to compel the complete AR. See
Food & Water Watch v. U.S. Dep't of Agric., 325
F.Supp.3d 39, 42-47 (D.D.C. 2018). Only the background
relevant to the pending motion is described here.
The FSA
is a component of the Department of Agriculture responsible
for overseeing agricultural support programs including, as
relevant here, the Guaranteed Farm Loan Program. See
7 C.F.R. § 762.101, et seq. Under this program,
a borrower can apply for the FSA to guarantee a percentage of
a loan made by a qualified agricultural lender if the loan is
for certain purposes. Id. § 762.121(b)(1)-(5).
One More Haul Farm sought such a loan guarantee from the FSA
in early 2015 to “purchase land and construct and
operate a poultry CAFO.” Proposed 1st Am. Compl.
(“Am. Compl.”) ¶ 54, ECF No. 42-1.
Under
the National Environmental Policy Act (“NEPA”),
42 U.S.C. § 4321, et seq., the FSA, as any
federal agency, is required “to the fullest extent
possible, ” to prepare an Environmental Impact
Statement (“EIS”) before taking any
“actions significantly affecting the quality of the
human environment, ” id. § 4332(2)(C). An
EIS accounts for various factors, including “the
environmental impact of the proposed action, ”
“any adverse environmental effects which cannot be
avoided should the proposal be implemented, ” and
“alternatives to the proposed action, ”
id. § 4332(2)(C)(i)-(iii). “The Council
of Environmental Quality (CEQ), established by NEPA with
authority to issue regulations interpreting it, has
promulgated regulations to guide federal agencies in
determining what actions are subject to” the EIS
requirement. Dep't of Transp. v. Pub. Citizen,
541 U.S. 752, 757 (2004) (citing 40 C.F.R. § 1500.3).
These regulations permit an agency to prepare “a more
limited document, an Environmental Assessment (EA), if the
agency's proposed action neither is categorically
excluded from the requirement to produce an EIS nor would
clearly require the production of an EIS.” Id.
(citing 40 C.F.R. § 1501.4(a)- (b)). An EA is a
“‘concise public document' that
‘[b]riefly provide[s] sufficient evidence and analysis
for determining whether to prepare an [EIS].'”
Id. (quoting 40 C.F.R. § 1508.9(a)). If, after
conducting an EA, the “agency determines that an EIS is
not required under applicable CEQ regulations, it must issue
a ‘finding of no significant impact' (FONSI), which
briefly presents the reasons why the proposed agency action
will not have a significant impact on the human
environment.” Id. at 757-58 (citing 40 C.F.R.
§§ 1501.4(e), 1508.13). During this process, the
agency “must insure that environmental information is
available to public officials and citizens before decisions
are made and before actions are taken.” 40 C.F.R.
§ 1500.1(b); see also Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 349 (1989) (noting that
this disclosure requirement “guarantees that the
relevant information will be made available to the larger
audience that may also play a role in both the decisionmaking
process and the implementation of that decision”).
A
federal loan guarantee for One More Haul Farm's CAFO
qualified as an action for which an EA was required.
See 40 C.F.R. § 1940.312(c)(9)-(10) (2015);
Defs.' Mem. Supp. Mot. J. Pleadings at 2, ECF No. 17-1
(“FSA is required to complete an environmental review
prior to making a commitment to issue a loan
guarantee.”).[1] Accordingly, as the proposed complaint
alleges, in April 2015, the FSA published for notice and
comment a draft EA for One More Haul Farm's application.
Am. Compl. ¶ 55. After receiving several comments on the
initial draft, the FSA, in May 2015, published a second
document, “labeled as an ‘EA/FONSI.'”
Id. ¶ 56. That version also received comments,
including one the plaintiff submitted on July 20, 2015.
Id. Sometime after the FSA published the May 2015 EA
for comment, the agency “contracted with an
environmental consulting firm to review the comments and the
Agency's analysis.” Defs.' Opp'n Pl.'s
Mot. Amend (“Defs.' Opp'n”) at 4, ECF No.
46. On July 22, 2015, two days after the plaintiff submitted
its comment, the FSA issued a third version of the EA. Am.
Compl. ¶ 58. The July 2015 EA was “significantly
different than the May EA/FONSI” and did not include a
FONSI. Id. ¶ 59. The FSA then informed the
lender that the loan to One More Haul Farm would be
guaranteed. Id. ¶ 60. The loan guarantee was
executed on August 3, 2015. Id. ¶ 61.
In
August 2017, the plaintiff instituted this action.
See Compl., ECF No. 1. Generally, the
plaintiff's complaint alleged that the FSA's
guarantee of One More Haul Farm's loan violated
procedural and substantive requirements of the APA, NEPA, and
NEPA's implementing regulations. Id.
¶¶ 3, 60-121. The initial complaint contained nine
claims. Id. ¶¶ 60-121.
The
defendants subsequently provided the AR to the plaintiff in
December 2017. See Notice of Lodging of AR Index
(Dec. 6, 2017), ECF No. 14. A version of the July 2015 EA,
which the FSA described as the “Final Environmental
Assessment package” was included. AR Index at 4 (Dec.
6, 2017), ECF No. 14-2. Shortly after, the plaintiff wrote
the defendants with concerns about whether the AR was
complete, Defs.' Opp'n, Ex. 3, Pl.'s Dec. 22,
2017 Ltr., ECF No. 46-3, and then sent a follow-up letter the
next month, Defs.' Opp'n, Ex. 3, Pl.'s Jan. 24,
2018 Ltr., ECF No. 46-3. Neither letter expressed any concern
about the July 2015 EA included in the AR, but the
plaintiff's letters were explicit that the
“Plaintiff's review of the AR continues and
additional issues may arise.” Pl.'s Dec. 22, 2017
Ltr. at 1; accord Pl.'s Jan. 24, 2018 Ltr. at 1.
Next,
in March 2018, the defendants moved, under Federal Rule of
Civil Procedure 12(c), for judgment on the pleadings as to
each claim, arguing that the plaintiff's claims were moot
and that the plaintiff lacked standing. See
generally Defs.' Mot. J. Pleadings, ECF No. 17. Two
weeks later, the plaintiff moved to compel the complete AR.
See generally Pl.'s Mot. Compel AR, ECF No. 18.
Briefing
on the two motions followed, and then, in May 2018, the
defendants supplemented the AR. Notice of Lodging of AR Index
(May 22, 2018), ECF No. 25. Additionally, the defendants
agreed to “create a separate volume of documents for
the [AR] for the financial documents related to the lending
decision.” Id. at 1.
In
September 2018, the defendants' motion for judgment on
the pleadings was denied, and the plaintiff's motion to
compel the complete AR was granted. Food & Water
Watch, 325 F.Supp.3d at 59. As to the AR, the defendants
were ordered to “supplement the [AR] with the final
loan guarantee and any other loan and loan-guarantee-related
documents” and to “produce a privilege log
identifying and justifying any claims of privilege for
materials that continue to be withheld and for any redactions
to materials that are included in the [AR].” Order
(Sept. 7, 2018) at 1-2, ECF No. 26.
The
plaintiff received Volume II of the AR-the financial
documents-in October 2018, see Joint Status Report
(Oct. 31, 2018) at 2, ECF No. 32, but flagged concerns with
its adequacy almost immediately, see Defs.'
Opp'n, Ex. 3, Pl.'s Nov. 2, 2018 Ltr., ECF No. 46-3;
Defs.' Opp'n, Ex. 3, Pl.'s Nov. 5, 2018 Ltr., ECF
No. 46-3. The defendants produced an updated Volume I-the EA
documents-at the beginning of November 2018. See
Joint Status Report (Nov. 7, 2018) at 2, ECF No. 33.
Disagreements
about the AR persisted. On November 14, 2018, the plaintiff
wrote the defendants with lingering concerns about the
completeness of the AR. Defs.' Opp'n, Ex. 3,
Pl.'s Nov. 14, 2018 Ltr., ECF No. 46-3. That letter,
which asserted that the “Plaintiff's review of the
AR continues and additional issues may arise, ” did
not, however, express concern about the July 2015 EA.
Id. Independent of the November 14, 2018 letter, the
defendants updated the AR once more on November 16, 2018.
Joint Status Report (Dec. 3, 2018) at 1, ECF No. 36.
In response to the newest modification to the AR, the
plaintiff, on November 27, 2018, sent the defendants a letter
articulating additional concerns. Defs.' Opp'n, Ex.
3, Pl.'s Nov. 27, 2018 Ltr., ECF No. 46-3. In
that letter, the plaintiff raised for the first time that
“Plaintiff has now seen two different versions of the
July 22, 2015 EA-one was produced through FOIA in September
2016 . . . and the other was produced in the AR.”
Id. at 5. The FOIA version, unlike the AR version,
“contained checkmarks at the end of the EA indicating
environmental determinations Defendants had made, ”
Pl.'s Mot. Amend at 1-2, although “the box
indicating whether agency personnel made a FONSI
recommendation based on the July EA remained unchecked,
” id. at 4.
The
defendants committed to considering the plaintiff's
concerns and making any further update to the AR by December
21, 2018. Joint Status Report (Dec. 3, 2019) at 2. A month
after receiving the plaintiff's letter, the defendants
responded that the FOIA version of the July 2015 EA was in
fact the FSA's final EA and should have been included in
the AR and that the version included in the AR did not
display the checkmarks due to a scanning error. Pl.'s
Mot. Amend, Ex. 3, Decl. of Tarah Heinzen, Ex. A., ...