Ctr. for Biological Diversity v. U.S. Envtl. Prot. Agency

• Decision Date: 28 September 2017
• Docket Number: Civil Action No. 16–175 (BAH)
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant.
• Court: U.S. District Court — District of Columbia

279 F.Supp.3d 121

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff,

v.U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant.

Civil Action No. 16–175 (BAH)

United States District Court, District of Columbia.

Signed September 28, 2017

Margaret E. Townsend, Amy R. Atwood, Center for Biological Diversity, Portland, OR, Tanya Sanerib, Center for Biological Diversity, Seattle, WA, for Plaintiff.

Jeremy S. Simon, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

Chief Judge Beryl A. Howell

The plaintiff, the Center for Biological Diversity ("CBD"), initiated this action, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 – 706, against the defendant, the U.S. Environmental Protection Agency ("EPA"), seeking an order requiring both an adequate search and disclosure of all responsive records withheld in response to CBD's two FOIA requests. Pl.'s Mem. Supp. Cross–Mot. Summ. J. & Opp'n Def.'s Mot. Summ. J. ("Pl.'s Mem.") at 13, ECF No. 18.¹ CBD also asks the Court "to find EPA in violation of the FOIA's requirement to provide estimated dates of completion to requesters," and to enjoin the agency from failing to do so in response to future FOIA requests. Id. at 3.

In particular, CBD alleges in nine claims that EPA: (1) failed to provide an estimated completion date and comply with FOIA's deadline mandates (Counts I and III); (2) engaged in a pattern, practice, and policy of violating FOIA's estimated completion date requirement and response and determination deadlines (Counts II and IV); (3) failed to conduct an adequate search (Count V); (4) unlawfully withheld records responsive to CBD's requests (Count VI); (5) failed to provide reasonably segregable portions of any lawfully exempt records (Count VII); and (6) engaged in FOIA violations constituting agency action unlawful under the Administrative Procedure Act ("APA") (Counts VIII and IX).

Pending before the Court are the parties' cross motions for summary judgment. Def.'s Mot. Summ. J. ("Def.'s MSJ"), ECF No. 16; Pl.'s Cross–Mot. Summ. J. ("Pl.'s XMSJ), ECF No. 17. Defendant's motion is granted with respect to Counts I through IV and VIII through IX; denied with respect to Count V; granted in part and denied in part, without prejudice, with respect to Count VI; and denied, without prejudice, with respect to Count VII. Plaintiff's motion is granted with respect to Count V and denied otherwise. For the following reasons, EPA must conduct a supplemental search, disclose any non-exempt materials, and, if it continues to withhold any materials, submit a supplemental declaration and Vaughn Index that sufficiently justifies these withholdings in accordance with, and in the format prescribed in, this Memorandum Opinion.

I. BACKGROUND

The FOIA requests in this case concern EPA's determination that a new pesticide product, Enlist Duo, manufactured by Dow AgriSciences ("Dow"), would have "no effect" on species protected under the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. §§ 1531 – 44 et seq . Enlist Duo is an herbicide "developed for use on corn and soybean crops that are genetically engineered (‘GE’) to be resistant to the active ingredients in Enlist Duo: glyphosate (also known as ‘Round Up’) and 2,4–dichlorophenoxyacetic acid choline salt (‘2,4–D’)." Def.'s MSJ, Attach. 2, Declaration of Earl G. Ingram, Jr., Chief, Public Information and Records Integrity Branch, Information Technology and Resources Management Division, Office of Pesticide Programs, EPA ("EPA Decl.") ¶ 4, ECF No. 16–2. "Both 2,4–D and glyphosate are chemicals that have been registered for use in the United States since the mid–1940s and 1974, respectively," but not previously registered for use together. Id.

EPA "registers" pesticides under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136 et seq. , if EPA determines a pesticide "will not generally cause unreasonable adverse effects on the environment," id. § 136a(c)(5)(D), "taking into account the economic, social, and environmental costs and benefits of the use of [a] pesticide," id. § 136(bb). Separate from this cost-benefit analysis, under § 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), EPA is directed to "insure" that any pesticide "is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." To comply with this section of the ESA, the statute directs agencies to "use the best scientific and commercial data available." Id. Section 7(a)(2) and its implementing regulations, 50 C.F.R. §§ 402 et seq. , require EPA to consult, formally or informally, with the U.S. Fish and Wildlife Service ("FWS") for effects on terrestrial species, and with the National Marine Fisheries Service ("NMFS") for effects on marine species, if EPA determines a pesticide "may affect" any endangered or threatened species or their critical habitat. 50 C.F.R. § 402.14(a) ("Each Federal agency shall review its actions at the earliest possible time to determine whether [they] may affect listed species or critical habitat"). If EPA determines that a given pesticide will have "no effect" on any endangered or threatened species or their critical habitat, however, then no consultation is required. Nat'l Parks Conservation Ass'n v. Jewell , 62 F.Supp.3d 7, 12 (D.D.C. 2014) ("[A]n agency avoids the consultation requirement for a proposed discretionary action only if it determines that its action will have ‘no effect’ on threatened or ‘endangered’ species or critical habitat"). "The ‘may affect’ threshold for triggering the consultation duty under 7(a)(2) is low." Id. .

A. The ESA Effects Determination and Addenda

In January 2013, EPA conducted an "Environmental Risk Assessment," which assessed the risks of Enlist Duo. Pl.'s Cross–Mot Summ. J. ("Pl.'s XMSJ"), Attach. 6, Memorandum from Meghan Radtke and Faruque Khan to Michael Walsh, et al. , (Jan. 15, 2013) ("Environmental Risk Assessment"), Ex. B, ECF No. 17–6. This assessment recommends that Enlist Duo be labeled as "toxic to birds, mammals, fish, and aquatic invertebrates," id. at 4, but nevertheless found "insufficient information" to determine whether use of the pesticide would have "direct effects" on any endangered or threatened species, id. at 11. To address the toxicity risks of Enlist Duo, the assessment determined that a 202 foot spray-drift buffer—an area of unsprayed land surrounding sprayed fields—would "reduce risk quotients for birds (acute), mammals (acute and chronic), and terrestrial plants below [EPA's] levels of concern." Id. at 2.

About six months later, in June 2013, EPA issued an Addendum to the Environmental Risk Assessment for Enlist Duo, which "re-evaluated the spray drift buffers." Id. , Attach. 7, Memorandum from Meghan Radtke and Faruque Khan to Michael Walsh, et al . (June 13, 2013) ("First Addendum"), Ex. C, at 1, ECF No. 17–7. In the First Addendum, EPA reduced the spray-drift buffers needed from 202 feet to "from < 25 ft to 30 ft." Id. at 2.

Eight months later, in February 2014, EPA issued another Addendum that "refined" its risk assessment of Enlist Duo to endangered species, studying the effects on 53 endangered or threatened species in six states for which EPA proposed registering the use of the pesticide: Illinois, Indiana, Iowa, Ohio, South Dakota, and Wisconsin. Id. , Attach. 8, Addendum to 2,4–D Choline Salt Section 3 Risk Assessment: Refined Endangered Species Assessment for Proposed New Uses on Herbicide–Tolerant Corn and Soybean (Docket #: EPA–HQ–OPP–2014–0195–0009) ("Six State Addendum"), Ex. D, at 2–3, ECF No. 17–8. This second addendum, called the "Six State Addendum" by the parties, again addressed the toxicity of Enlist Duo on plants and animals, concluding that "[p]otential direct risk concerns could not be excluded for mammals (acute and chronic); birds, reptiles, and terrestrial-phase amphibians (acute); and terrestrial plants," id. at 1–2, but nonetheless that the herbicide would have "no effect" on any endangered or threatened species in the six states. Id. at 2, 3–5, 13, 17–40. Although EPA recognized that 53 endangered or threatened species "were identified as potentially at risk (direct or indirect effects) in the six states," id. at 3, EPA concluded that 49 of the 53 species could be given a "no effect" determination with use of a spray drift buffer as those species were unlikely to occur on treated fields. Id. Four species were recognized as "reasonably expected to occur on treated corn and soybean fields," but EPA concluded, based on species-specific data, that Enlist Duo would have "no effect" on these species. Id. at 3–13. As EPA determined Enlist Duo would have "no effect" on endangered or threatened species, no consultation with NMFS or FWS, informally or formally, was required by regulation. See Nat'l Parks Conservation Ass'n v. Jewell , 62 F.Supp.3d at 12. Two months later, on April 30, 2014, EPA proposed to register Enlist Duo in the six states. See Id. , Attach. 9, Proposed Registration of Enlist DUO™ Herbicide (Apr. 30, 2014), Ex. E, ECF No. 17–9. On October 15, 2014, EPA issued its final registration authorizing the use of Enlist Duo in the six states. Id. , Attach. 10, Final Registration of Enlist DUO™ Herbicide (Oct. 15, 2014), Ex. F, ECF No. 17–10.

On September 26, 2014, EPA issued an additional "refined endangered species assessment" of Enlist Duo for ten states: Arkansas, Kansas, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, and Tennessee. Id. , Attach. 11, Addendum to 2,4–D Choline Salt Section 3 Risk assessment: Refined Endangered Species Assessment for Proposed New Uses on Herbicide–Tolerant Corn and Soybean for AR, KS, LA, MN, MS, MO, NE, ND, OK, TN (Docket #: EPA–HQ–OPP–2014–0195–2419) ("Ten State Addendum"), Ex. G, ECF No. 17–11. This "Ten State Addendum" assessed the...