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

• Decision Date: 27 March 2019
• Docket Number: Civil Action No. 16-175 (BAH)
• Citation: 369 F.Supp.3d 1
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant.
• Court: U.S. District Court — District of Columbia

369 F.Supp.3d 1

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 March 27, 2019

Margaret E. Townsend, Amy R. Atwood, Portland, OR, for Plaintiffs.

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

MEMORANDUM OPINION

BERYL A. HOWELL, Chief JudgeThis is the second round of summary judgment briefing in this lawsuit instituted by the plaintiff, Center for Biological Diversity ("CBD"), under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for the disclosure of records relating to the U.S. Environmental Protection Agency's ("EPA") findings, set out in two addenda issued in 2014, that a new pesticide named Enlist Duo, when used according to the restrictions in its labeling, would have "no effect" on endangered species or their habitats, after the EPA had earlier concluded in 2013 that this pesticide was "toxic to birds, mammals, fish, and aquatic invertebrates" and considered stricter usage restrictions than are reflected in the two addenda. After granting partial summary judgment to each party on their initial cross-motions for summary judgment, the parties continue to dispute whether EPA has conducted an adequate search, sufficiently justified the withholding of 80 records under FOIA's Exemption 5, and segregated non-privileged information for disclosure. Pending before the Court are EPA's Renewed Motion for Summary Judgment ("Def.'s 2d MSJ"), ECF No. 37, and CBD's Renewed Motion for Summary Judgment ("Pl.'s 2d XMSJ"), ECF No. 38. For the reasons set forth below, each party is again granted partial summary judgment, which resolves this case.

I. BACKGROUND

The facts underlying this action have been explained in the Court's prior Memorandum Opinion and need not be repeated in detail here. See Center for Biological Diversity v. EPA ("Ctr. for Biological Diversity") , 279 F.Supp.3d 121, 129-36 (D.D.C. 2017). A brief review of the factual and procedural background provides context for the remaining disputes between the parties.

A. Factual Background

CBD's two FOIA requests at issue in this case seek "all documents and correspondence" related to EPA's addenda, issued in February 2014 and September 2014, assessing the risk of Enlist Duo to endangered species in a total of sixteen states. See Pl.'s Cross-Mot. Summ. J. ("Pl.'s 1st XMSJ"), Exs. J & L, Letters from Brett Hartl, CBD, to EPA (June 26 and Oct. 20, 2014, respectively) ("CBD FOIA Requests"), ECF Nos. 17-14, 17-16; id. , Ex. D, 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 ("Six-State Assessment"), ECF No. 17-8; id. , Ex. G, 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 ("Ten-State Addendum"), ECF No. 17-11 (collectively, "the Addenda"). While EPA's original January 2013 Environmental Risk Assessment for Enlist Duo considered whether a 202 foot spray-drift buffer could be used to reduce the "acute" toxicity risk of the pesticide for birds, mammals and plants, the Addenda concluded that Enlist Duo would have "no effect" on endangered species or their habitats in the sixteen states when used according to the restrictions in its labeling, which restrictions reduced the buffer from 202 feet to 60 feet and then to 30 feet. Compare id. , Ex. B, Memorandum from Meghan Radtke, Biologist, EPA, and Faruque Khan, Senior Scientist, EPA, to Michael Walsh, Risk Manager Reviewer, EPA, et al. (Jan. 15, 2013) (Environmental Risk Assessment) at 2, ECF No. 17-6, with Six-State Assessment at 2 (noting that "spray drift mitigation language that has been added to the label ... requires the use of a 60 ft on-field buffer") and Ten-State Addendum at 2 (noting that "spray drift mitigation language that has been added to the label ... requires use of a 30 ft on-field buffer").

EPA relied upon the Addenda when deciding, in 2015, to approve Enlist Duo for use in fifteen of the sixteen states, pursuant to the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136 et seq. See Pl.'s 1st XMSJ, Ex. F, Final Registration of Enlist Duo Herbicide (Oct. 15, 2014) at 19, ECF No. 17-10; id. , Ex. I, Decision to Amend Enlist Duo Herbicide Label to Include Additional States: Arkansas, Kansas, Louisiana, Minnesota, Missouri, Mississippi, Nebraska, Oklahoma, and North Dakota (Mar. 31, 2015) at 2, ECF No. 17-13.

Separate from Enlist Duo's registration under FIFRA, the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. § 1531 et seq. , requires that "[e]ach Federal agency ... insure that any action authorized, funded, or carried out ... 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," 16 U.S.C. § 1536(a)(2), and in so doing, "each agency shall use the best scientific and commercial data available," id. Although the ESA states that the agency "shall" make its "not likely to jeopardize" determination "in consultation with and the assistance of the Secretary [of the Interior or Commerce]," id. , the practice has long been to allow agencies to make an initial determination on their own accord without consultation. See Final Rule, Interagency Cooperation Under the Endangered Species Act, 2008 WL 5210535, 73 Fed. Reg. 76,272, 76,279 (Dec. 16, 2008) ("[T]he Services have long implemented section 7(a)(2) through regulations that exclude from case-by-case consultation those actions that the action agency determines will have ‘no effect’ on listed species or critical habitat even though the statute makes no express exception for such actions.").¹

By regulation, only if the agency first determines that its action "may affect listed species or critical habitat," 50 C.F.R. § 402.14(a), does the agency then have an obligation to engage in consultations. See Def.'s 2d MSJ, Ex. 3, Decl. of Sujatha Sankula, Branch Chief, Environmental Fate and Effects Division ("EFED"), EPA ("First EPA EFED Decl.") ¶ 9, ECF No. 37-3 ("[U]nder the Services' implementing consultation regulations ... action agencies have the initial obligation to determine whether their actions ‘may affect’ listed species or habitat, in which case consultation is required, or will have ‘no effect’ on listed species or habitat."); see also Ctr. for Biological Diversity v. Dep't of Interior , 563 F.3d 466, 475 (D.C. Cir. 2009) ("If the agency determines that its action will not affect any listed species or critical habitat, ... then it is not required to consult with NMFS or Fish and Wildlife."); Karuk Tribe of California v. U.S. Forest Serv. , 681 F.3d 1006, 1027 (9th Cir. 2012) (en banc) ("An agency may avoid the consultation requirement only if it determines that its action will have ‘no effect’ on a listed species or critical habitat."); California ex rel. Lockyer v. U.S. Dep't of Agriculture , 575 F.3d 999, 1019 (9th Cir. 2009) ("An agency's finding that its action will have no effect on listed species or critical habitat obviates the need for consultation."). With respect to Enlist Duo, the EPA determined, as part of the Addenda used to register Enlist Duo pursuant to FIFRA, that the pesticide would have "no effect" on endangered species, nullifying any requirement for consultation with the Fish and Wildlife Service ("FWS") and the National Marine Fisheries Services under ESA's section 7(a)(2). See Pl.'s Mem. Supp. Cross-Mot. Summ. J. & Opp'n Def.'s Mot. Summ. J. ("Pl.'s 1st Opp'n") at 19, ECF No. 17 (acknowledging that "these records are where EPA chose to make its ‘no effect’ determinations"); Pl.'s Reply Supp. Cross-Mot. Summ. J. ("Pl.'s 1st Reply") at 4, ECF No. 24 ("In the particular circumstances of this case, EPA's Section 7(a)(2) process for each determination culminated in the Addenda."); Def.'s Reply Supp. Mot. Summ. J. ("Def.'s 1st Reply") at 2, ECF No. 22 ("Plaintiff is not challenging the merits of this ‘no effect’ determination here, but rather, is simply challenging the withholding of materials used to make this determination.").

B. Procedural History

In the first round of cross-motions for summary judgment, CBD raised, inter alia , initial challenges to the adequacy of EPA's search for responsive records, justifications for withholdings and segregation of disclosable information. See Pl.'s 1st Opp'n at 2-3.² With respect to the adequacy of EPA's search, summary judgment was granted to CBD because EPA's prior three searches were inadequate to establish "beyond material doubt that its search[es] w[ere] reasonably calculated to uncover all relevant documents." Ctr. for Biological Diversity , 279 F.Supp.3d at 140. Several deficiencies in EPA's searches were described, including that (1) the searches used September 26, 2014 as the cut-off date, but EPA "articulated no compelling justification for using" that date over CBD's objection, id. at 141 ; (2) the searches covered only 13 custodians, despite EPA's records revealing a greater number of individuals involved in communications regarding Enlist Duo, id. at 141-142 ; and (3) EPA was unclear whether the searches covered all forms of communications, such as instant messages, text messages, "or any other kind of chats" that may have been "used by OPP staff to communicate on the drafting and review of documents related to the Endangered Species Assessment," id. at 143.

EPA was therefore "directed to conduct a supplemental search with the following features": (1) use of the new supplemental search date as the cut-off date; (2) use of uniform search terms most reasonably calculated to uncover all relevant documents; (3) expanded search locations of electronic and hard-copy documents of the initial...