Ecological Rights Foundation v. U.S. Environmental Protection Agency
- Susan Illston
- 3:20-cv-06898
- U.S. District Court · Northern District of California
- 1
In Ecological Rights Foundation v. U.S. Environmental Protection Agency, Judge Illston requested briefing on withheld documents and deliberative-process privilege after a Ninth Circuit decision.
Ecological Rights Foundation and the U.S. Environmental Protection Agency, which were required to submit additional briefing about withheld documents and the deliberative-process privilege.
What happened
In Ecological Rights Foundation v. U.S. Environmental Protection Agency, the court asked the parties for more information about documents withheld by the agency and about whether a privilege protecting certain internal government discussions applied.
The court directed the parties to identify withheld documents similar to a draft mortality review discussed in a recent Ninth Circuit decision. It also requested briefing about fifteen draft letters and how they differed from documents the Ninth Circuit found were wrongfully withheld. The Foundation's brief was due May 20, 2022, and the agency's response was due May 27, 2002, as written in the opinion; each brief was limited to ten pages.
Judge Susan Illston issued the order on May 12, 2022. The order requested additional briefing and did not decide whether the documents were protected by the deliberative-process privilege.
The detailed version
- Ecological Rights Foundation v. U.S. Environmental Protection Agency · No. 3:20-cv-06898
- Susan Illston
- May 12, 2022
Nature of the order
The court issued an order requesting additional briefing. It did not grant or deny a motion, enter judgment, or resolve the parties' dispute over withheld documents.
Requested briefing
The court relied on the Ninth Circuit's recent decision in Transgender Law Center, et al. v. ICE, et al., No. 20-17416, 2022 WL 1494722 (9th Cir. May 12, 2022). It instructed the parties to address two subjects:
1. They must identify specific withheld documents analogous to the “draft mortality review” discussed in the Ninth Circuit's decision and explain whether the deliberative-process privilege applies to those documents. That privilege can protect certain internal government communications used in developing agency decisions, but this order did not decide whether the privilege applies here.
2. They must discuss whether the deliberative-process privilege applies to the fifteen draft letters identified in Category 8. They must also distinguish those drafts from the draft press release and mortality review that the Ninth Circuit deemed wrongfully withheld.
Deadlines and disposition
Ecological Rights Foundation was ordered to submit its briefing by May 20, 2022. The U.S. Environmental Protection Agency was ordered to submit responsive briefing by May 27, 2002, as the opinion text states. Each brief could not exceed ten pages.
Judge Susan Illston signed the order dated May 12, 2022. The opinion does not state a final ruling on the applicability of the privilege or on whether any particular documents must be disclosed.
Read the full 1-page opinion on CourtListener, the free public archive maintained by the Free Law Project.