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

Background

The Natural Resources Defense Council sued the U.S. Environmental Protection Agency under the Freedom of Information Act, seeking records the agency had withheld under the law’s exemptions. The records concerned a senior manager’s participation in certain agency policymaking activities. The parties filed cross-motions for summary judgment, a procedure that allows a court to decide a dispute based on the evidence when the relevant facts are not genuinely disputed.

The opinion addressed two groups of records. First, the Natural Resources Defense Council challenged the agency’s withholding of five Second Tranche records under the deliberative-process privilege, a Freedom of Information Act protection for certain internal discussions and recommendations used in agency decision-making. Second, it challenged the agency’s claim that it had already disclosed all reasonably segregable, non-exempt information—meaning non-exempt portions that could reasonably be separated from exempt material—in 74 other records.

Deliberative-Process Privilege

The court ruled that Documents 26339 and 10238 were not protected by the deliberative-process privilege because they were sufficiently similar to records that the court had previously found unprotected. Document 26339 contained briefing materials for a meeting between then-EPA Administrator Scott Pruitt and the president and chief executive officer of the Chemours Company. Document 10238 was an email chain about preparing for a congressional budget hearing. Although the court found that neither document was exempt, it stayed the EPA’s obligation to produce them while the EPA’s related interlocutory appeal was pending.

The court also ruled that Document 6761 was not protected. The document concerned information and opinions about a study related to chlorpyrifos, but the EPA’s description did not sufficiently connect it to a specific agency decision or a defined internal consultation process.

The court reached the opposite conclusion for Document 1370. That document included opinions and characterizations of academic literature and advice about which literature would be useful in upcoming chlorpyrifos registration-related decision-making. The court held that the EPA properly withheld this document under the deliberative-process privilege.

The court also held that Document 14043 was not protected by the privilege. The document concerned which materials should be included in the docket for certain rules under the Toxic Substances Control Act. The court concluded that the EPA had not shown that these decisions themselves involved the agency’s essential policymaking role or internal deliberation about substantive policy before public announcement.

Segregability and In Camera Review

The Natural Resources Defense Council asked the court to inspect a subset of the 74 remaining records privately, known as in camera review, to determine whether the EPA had disclosed all reasonably segregable, non-exempt material. The court explained that such review is an exception, not the usual approach, and may be appropriate when an agency’s reasons for withholding are vague, overly broad, or suggest that it withheld entire records merely because some material was exempt.

The court denied that request. It found that the earlier sample of records inspected by the court had been selected because the Natural Resources Defense Council identified those records as especially likely to contain separable factual information, so the sample was not representative of the remaining records. The EPA had also conducted multiple additional reviews and stated that it had found no remaining segregable, non-exempt factual material beyond what it had already disclosed. The court held that the Natural Resources Defense Council had not overcome the presumptions that the EPA disclosed reasonably segregable material and that the EPA’s supporting affidavits were made in good faith.

Disposition

The court granted the Natural Resources Defense Council’s motion and denied the EPA’s motion with respect to Documents 26339, 10238, 6761, and 14043, concluding that none was exempt under the deliberative-process privilege. The court stayed production of Documents 26339 and 10238 pending resolution of the related interlocutory appeal.

The court denied the Natural Resources Defense Council’s motion and granted the EPA’s motion with respect to Document 1370, which the court found was properly withheld. The court also denied the Natural Resources Defense Council’s motion and granted the EPA’s motion concerning the 74 documents for which it challenged the EPA’s segregability determinations. The court directed the parties to file a joint letter within two weeks describing any remaining issues and proposing next steps. Judge Jesse M. Furman directed the clerk to terminate the two summary-judgment motions.