Natural Resources Defense Council v. U.S. Environmental Protection Agency

Background

The National Resources Defense Council (NRDC) brought this case against the U.S. Environmental Protection Agency (EPA) under the Freedom of Information Act, a federal law requiring disclosure of certain government records. On August 30, 2019, the court granted the EPA’s motion for summary judgment in part and denied it in part. Among other rulings, the court held that some “messaging” documents had to be disclosed because the EPA had not shown that they were protected by the deliberative-process privilege. That privilege can protect certain records reflecting internal government discussions before an agency makes a decision.

The EPA moved for partial reconsideration under Federal Rule of Civil Procedure 60(b) and Local Civil Rule 6.3. It argued principally that the court had overlooked a controlling Second Circuit decision, American Civil Liberties Union v. U.S. Department of Justice, when it ordered disclosure of some messaging documents. The EPA also challenged the court’s treatment of specific documents.

Court’s analysis

The court explained that reconsideration is narrowly limited. It generally requires an intervening change in controlling law, new evidence, or a need to correct clear error or prevent manifest injustice. It is not a way to relitigate issues, present new theories, or take another attempt at arguments already rejected.

The court rejected the EPA’s argument concerning the Second Circuit decision. Although the earlier opinion did not specifically cite that decision in its discussion of messaging documents, the court had relied on its own earlier decision in a related case, which had addressed the issue and declined to read the Second Circuit decision as broadly as the EPA requested. The court therefore treated the EPA’s argument as an attempt to relitigate an issue already decided.

The court also rejected the EPA’s arguments concerning specific records. As an example, it discussed Document No. 8309, a chain of emails about responding to a media inquiry concerning the New Chemicals program. The court said the EPA had connected that document only to a messaging decision about responding to the press, rather than to an underlying policy decision. The EPA’s general reference to the document as part of records concerning improvement of the program was not enough to show that disclosure would reveal internal deliberations about substantive policy matters. The court contrasted Document No. 8309 with Document No. 2233, which the earlier opinion found protected because the EPA had connected it to policy options, historical context, recommendations, and proposals.

The court declined to separately analyze the EPA’s arguments concerning the other listed documents, finding them without merit for substantially the same reasons. It also noted that arguments concerning Document Nos. 2048, 5427, 25605, and 25606 were forfeited because the EPA first raised them in a letter submitted after briefing on the reconsideration motion was complete.

Ruling and next steps

Judge Jesse M. Furman denied the EPA’s motion for reconsideration. The court did not alter its earlier rulings concerning the documents. Under a prior court order, the parties had until December 9, 2019, to file a joint letter addressing the next steps in the litigation and whether a conference would be appropriate. The Clerk of Court was directed to terminate ECF No. 62.