Ecological Rights Foundation v. U.S. Environmental Protection Agency

Background

Ecological Rights Foundation, which the opinion calls EcoRights, submitted a ten-part Freedom of Information Act request to the U.S. Environmental Protection Agency concerning a 2019 Department of Justice memorandum limiting the use of Supplemental Environmental Projects in certain settlements. Supplemental Environmental Projects are environmentally beneficial projects that environmental violators voluntarily undertake as part of settlements with the agency.

The request sought communications and other records involving the memorandum, the agencies’ policies on Supplemental Environmental Projects, the policies’ application to enforcement cases, communications with state and local governments, and related legal issues. The agency initially told EcoRights that the request was too broad and did not reasonably describe the records in a way that would allow employees to identify and locate them. The parties then discussed narrowing and organizing the search.

The agency made several productions. By the end of those productions, it had produced 1,827 records in full or with redactions, withheld 447 records in full under two exemptions, and referred 142 records to the Department of Justice for an independent response. The agency later re-reviewed its productions and made additional rolling releases with updated redactions and withholdings. The parties continued to dispute many withholdings under Exemption 5.

EcoRights filed this case and later moved for summary judgment. It asked the court to require the agency to produce records it had allegedly withheld unlawfully, comply with the Freedom of Information Act’s deadlines and disclosure requirements in the future, and issue declarations that the agency violated those requirements and had a pattern or practice of violating them. The agency also moved for summary judgment, arguing that its search and responses satisfied its obligations and that the disputed records were properly withheld under Exemption 5.

Legal framework

The Freedom of Information Act generally requires federal agencies to disclose agency records unless an exemption applies. Exemption 5 covers certain interagency or intra-agency communications that would be protected from discovery in litigation, including material protected by the deliberative-process, attorney-client, and attorney-work-product privileges.

The deliberative-process privilege protects communications that are both predecisional and deliberative. A predecisional communication comes before a specific agency decision and helps officials formulate that decision. A deliberative communication reflects recommendations, opinions, analysis, or discussion in the decision-making process. The agency also had to show that disclosure would foreseeably harm an interest protected by the exemption.

The attorney-client privilege protects qualifying confidential communications involving legal advice. The attorney-work-product privilege protects materials prepared in anticipation of litigation or for trial by or for a party or its representative. The agency also had to release reasonably separable portions of records that were not exempt.

In deciding summary judgment, the court reviewed the agency’s declarations and its Vaughn Index, a document-by-document or category-by-category explanation of withheld records and claimed exemptions. The court stated that agency declarations are presumed to be made in good faith and can support summary judgment when they describe the records and reasons for withholding them with sufficient detail.

Exemption 5 analysis

The court accepted the agency’s Vaughn Index at face value because it found the entries sufficiently detailed. It also found substantial evidence that the agency acted in good faith, including its re-review of materials for possible release.

Category 1: EPA penalties. These records involved internal discussions between agency and Department of Justice attorneys about calculating and adjusting penalties in particular enforcement cases. EcoRights did not dispute withholding penalty recommendations that the agency did not ultimately adopt; it challenged withholding of what it called final Supplemental Environmental Project amounts. The court found that none of the withheld Category 1 records contained final Supplemental Environmental Project amounts and concluded there was no genuine dispute that the records were properly withheld.

Category 2: Case-specific settlement discussions. These records included settlement-approval and briefing memoranda and related emails prepared to obtain agency management approval for particular settlement terms. The court accepted the agency’s description that the records contained recommendations made before the relevant consent decrees were approved. The recommendations therefore reflected a tentative position used to help formulate settlement plans, rather than a final agency decision. The court also found that the agency adequately showed a foreseeable harm from disclosure, including the risk of chilling internal discussion and revealing government decision-making in environmental cases.

Categories 3 and 4: EPA-Department of Justice discussions. Category 3 included materials prepared for meetings about ongoing environmental enforcement cases, potential changes to Supplemental Environmental Project policy, and the 2019 memorandum. Category 4 included materials about proposed changes to the practice and broader interagency policy discussions before the memorandum issued. The court found that the agency sufficiently connected the records to the specific future decision reflected in the 2019 memorandum and adequately explained the foreseeable harm from disclosure. It rejected EcoRights’ argument that references to earlier policies prevented the records from being predecisional to a later policy decision.

Category 5: Applying policy to specific cases. These records involved agency communications about Supplemental Environmental Project policies and practices and their application to particular enforcement matters. EcoRights challenged records it believed might discuss the effects of earlier or later memoranda, completed cases, or final decisions about whether a project would be allowed. After reviewing the challenged entries, the court concluded that the agency had provided a logical justification for the withholdings. The court stated that EcoRights’ assertions about what the records “appear” to contain did not constitute contrary evidence sufficient to overcome the agency’s index and declarations. The court specifically found that entries 397 through 400 plausibly concerned predecisional recommendations about settlement terms and litigation strategy in active enforcement matters.

Category 6: Attorney communications about policy. These records contained advice from agency and Department of Justice attorneys concerning Supplemental Environmental Project policy generally. EcoRights argued that some records came after earlier policy decisions or the 2019 memorandum, and that other records were merely draft press statements. The court found that the agency had shown the exemption logically applied to each challenged withholding. It also found that discussions of earlier policy could still be predecisional to a later, specific policy decision. For one record, the court found that the agency adequately described a confidential communication seeking and conveying legal advice.

Category 7: Communications about earlier Department of Justice memoranda. These records contained recommendations and advice about applying the memoranda to settlement terms in specific enforcement matters. The court found that the records consisted of draft materials and back-and-forth discussions concerning proposed terms before the relevant enforcement decisions became final. It rejected EcoRights’ request for in-camera review, meaning private judicial inspection of the records, because the possibility that a redaction might contain nonexempt material did not overcome the agency’s detailed explanation.

The court also rejected EcoRights’ challenges to particular examples in this category. It found that one draft letter sought legal feedback about how to present facts and therefore was not shown to be merely factual. It also found that a presentation and speaker notes prepared by a legal intern at agency attorneys’ direction were logically covered by attorney-work-product protection. Although the agency had not identified work-product protection in one Vaughn entry’s description, the court found that two other Exemption 5 privileges, along with a separate privacy exemption, logically applied to that entry.

Category 8: Draft congressional communications. These records consisted of draft letters prepared in response to a congressional inquiry about environmental enforcement, consent decrees, and agency and Department of Justice policies. The court found that the drafts reflected back-and-forth discussion about how to frame legal issues and respond to anticipated questions. It concluded that the agency adequately explained how the drafts revealed a deliberative process and properly applied Exemption 5.

Segregability

The court reviewed the agency’s segregability determinations and found that the Vaughn Index entries were sufficiently individualized and specific. It concluded that all reasonably separable factual information had been produced and that the index adequately explained why factual material expressly withheld was so intertwined with deliberative material that it could not be separated.

Requests for equitable relief

Because the court found that the withholdings were proper under Exemption 5, it declined to order the agency to produce the withheld records. It also declined to issue an injunction requiring the agency to comply with the Freedom of Information Act’s deadlines and disclosure requirements in this case. Although the public retained an interest in records concerning the development and rescission of the 2019 policy, the court found that the agency had acted in good faith, communicated with EcoRights, and kept it updated during the search and rolling productions. The court also found that the timeline, considering the breadth of the request and EcoRights’ participation in shaping the search, did not amount to an unreasonable delay justifying an injunction.

The court likewise declined to issue a declaratory judgment stating that the agency violated the statute or had a pattern or practice of violating it. Although EcoRights submitted declarations describing delays involving its requests and requests by other environmental organizations, the court noted that the agency’s backlog had decreased over the two fiscal years for which data was available and that the agency had taken concrete steps to reduce it. The court therefore found declaratory relief inappropriate.

Disposition

Judge Susan Illston granted the Environmental Protection Agency’s motion for summary judgment and denied EcoRights’ motion for summary judgment. The opinion did not add a “with prejudice” or “without prejudice” qualification to those rulings.