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Niskanen Center v. Federal Energy Regulatory Commission

United States District Court, District of Columbia

January 15, 2020




         This case involves a natural-gas pipeline slated to run hundreds of miles across three Mid-Atlantic states. Plaintiff Niskanen Center, which claims an interest in protecting private property rights, submitted a Freedom of Information Act request to the Federal Energy Regulatory Commission - the agency charged with regulating these interstate pipelines - seeking “any and all” information regarding the identity of landowners affected by the pipeline. Plaintiff maintains that this information will advance the public's interest in knowing whether FERC, consistent with its regulations, is ensuring that companies are notifying all affected landowners. The agency turned over a number of landowner lists but, citing privacy concerns, withheld the names and addresses of private citizens. Dissatisfied with these withholdings, Plaintiff filed suit, and the parties have now moved for summary judgment.

         Following a status hearing at which the Court attempted to broker a compromise, Defendant offered to disclose the landowners' initials and street names (but not precise addresses). Finding that this latest proposal strikes the appropriate balance between the competing public and private interests at issue here, the Court will deny Plaintiff's Motion and will grant Defendant's Motion as amended by this concession.

         I. Background

         The backdrop for this case begins with the Natural Gas Act. Under that statute, companies seeking to construct new interstate gas transportation must obtain a certificate of public convenience and necessity from FERC. See 15 U.S.C. § 717f(c)(1)(A). Notably, a certificate holder may exercise eminent-domain authority to acquire property rights to construct and operate its pipeline. Id. § 717f(h). To obtain such a certificate, a pipeline company must first comply with a number of federal regulations. See 18 C.F.R. § 157.6. As part of this directive, companies are required to “make a good faith effort to notify all affected landowners.” Id. § 157.6(d). They are obligated, moreover, to submit a list of relevant landowners to the agency. Id. FERC, in turn, issues a notice of the certificate application and publishes it in the Federal Register. See, e.g., id. § 157.9.

         In October 2015, Atlantic Coast Pipeline secured a certificate to construct and operate a natural-gas pipeline across West Virginia, Virginia, and North Carolina. See ECF No. 12 (Pl. MSJ), Statement of Material Facts ¶ 2. The pipeline, according to Defendant, affects over 3, 500 landowners. See ECF No. 18-1 (Def. Resp. to Pl. SMF), ¶ 12. Seventy-seven of them have homes within 50 feet of the pipeline right-of-way. See Pl. MSJ, SMF at 3.

         On October 29, 2018, Niskanen submitted a FOIA request to FERC seeking “any and all records and information” relating to the private landowners that ACP had identified. See ECF No. 11 (Def. MSJ), Exh. A (October 29 Letter). It also explicitly requested four landowner lists. Id. (lists 20160629-5197, 20160412-5248, 20151112-5341, 20151016-5227). A few weeks later, on November 14, the agency released eight lists - three of the four lists that Plaintiff had requested as well as five others. See Def. MSJ, Exh. B (FERC Nov. 14 E-mails); Pl. MSJ, SMF at 5. Although FERC disclosed the information of commercial and government entities in full, it treated that of private citizens differently. See Pl. MSJ at 7. In particular, Defendant, citing privacy concerns and FOIA Exemption 6, redacted the names and addresses of individuals. See ECF No. 11-1 (Def. Statement of Material Facts) at 1.

         In response, Plaintiff filed an administrative appeal on December 18, attacking the use of the exemption. See Def. MSJ, Exh. C (Niskanen's Administrative Appeal). Specifically, it downplayed the privacy concerns that the agency had raised and maintained that full disclosure of the mailing lists would “shed light” on whether ACP was sending notice to all affected landowners. Id. at 3-4. Plaintiff, moreover, pointed out that Defendant had failed to release one of the lists that it had previously requested. Id. at 2 n.1 (noting missing list 20160629-2197).

         FERC, in Plaintiff's telling, did not provide an adequate response to its appeal by FOIA's statutory deadline. See 5 U.S.C. § 552(a)(6)(A) (setting forth deadlines); ECF No. 1 (Complaint), ¶¶ 28-30. So, on January 18, 2019, Niskanen brought this suit. It was not until February 1 that FERC finally responded to Plaintiff's appeal and upheld the decision to redact the information of private citizens. See Def. MSJ, Exh. D (Response to Pl. Appeal) at 1. The agency also acknowledged that it had inadvertently neglected to disclose one of the lists Plaintiff had requested. Id. Shortly after, FERC produced a limited version of this list, again redacting the names and addresses of individuals. Id. Each party then filed a Motion for Summary Judgment regarding the propriety of Exemption 6.

         Seeking to engineer a compromise between the parties for a limited disclosure of the property-owner lists, the Court convened a status conference. See Minute Order of Dec. 3, 2019. This tree, however, bore no fruit. After the hearing, Niskanen proposed that the Agency produce: (1) the “correct initials of each individual property owner and corresponding street address”; and (2) “any and all information related to ‘unavailable' affected landowner[s].” ECF No. 22 (Joint Status Report of Dec. 17, 2019) at 1-2. FERC, for its part, agreed only “to release the initials of landowners and street names (but not individual addresses).” Id. With the parties at an impasse, the Court is now primed to resolve this dispute.

         II. Legal Standard

         Summary judgment may 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). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to construe the conflicting evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. See Neal v. Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992).

         “FOIA cases typically and appropriately are decided on motions for summary judgment.” Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); see Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency bears the ultimate burden of proof to demonstrate the adequacy of its search and that it properly withheld any records. See Defs. of Wildlife, 623 F.Supp.2d at 88, 91. The Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they “describe the documents and 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 of other documents.'” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

         III. ...

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