Ecological Rights Found. v. U.S. Envtl. Prot. Agency

• Decision Date: 12 September 2022
• Docket Number: Civil Action 19-2181 (FYP)
• Parties: ECOLOGICAL RIGHTS FOUNDATION and OUR CHILDREN'S EARTH FOUNDATION, Plaintiffs, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

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ECOLOGICAL RIGHTS FOUNDATION and OUR CHILDREN'S EARTH FOUNDATION, Plaintiffs, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

Civil Action No. 19-2181 (FYP)

United States District Court, District of Columbia

September 12, 2022

MEMORANDUM OPINION

FLORENCE Y. PAN, United States District Judge

In 2019, the Environmental Protection Agency (“EPA”) amended its regulations pertaining to the processing of Freedom of Information Act (“FOIA”) requests. In response, several entities that regularly submit FOIA requests to the EPA filed suit to challenge the legality of the amendments. After several rounds of case consolidation briefing, and settlement negotiations, all that remains are four claims brought by Plaintiffs Ecological Rights Foundation and Our Children's Earth Foundation (“EcoRights”). Defendants EPA and its Administrator, Michael Regan,^[1] now move to dismiss, and Plaintiffs cross-move for summary judgment. For the reasons stated below, the Court grants Defendants' Motion to Dismiss as to Claims 1, 2, and 5; and will remand Claim 4 without vacatur. The Court denies EcoRights' Cross-Motion for Partial Summary Judgment.

BACKGROUND

I. Factual Background

On June 26, 2019, the EPA published a Freedom of Information Act Regulations Update (the “2019 Rule”) in the Federal Register. See 84 Fed.Reg 30028.^[2] According to the EPA, the agency was “tak[ing] final action to revise the Agency's regulations under the [FOIA] . . . by updating the process by which the public may access information about EPA actions and activities.” See id. The 2019 Rule modified the EPA's FOIA regulations “to implement statutory updates, correct obsolete information, and reflect internal EPA realignment and processing changes to improve the Agency's FOIA response process.” See id. The amendments were intended to “bring EPA's regulations into compliance with nondiscretionary provisions of the amended [FOIA] statute and reflect changes in the Agency's organization, procedure, or practice.” See id. at 30029. The agency promulgated the new regulations without notice and comment, invoking the procedural and good-cause exceptions to notice-and-comment rulemaking. See id. The 2019 Rule became effective on July 26, 2019, thirty days after it was published in the Federal Register. See id. at 30028. As relevant here, the 2019 Rule made four changes to the EPA's FOIA procedures.

A. Requiring the Submission of All Requests to EPA's National FOIA Office

The 2019 Rule removed the option of submitting FOIA requests directly to regional offices of the EPA. See 40 C.F.R. § 2.101; 84 Fed.Reg. at 30030, 30032-33.^[3] Under the prior regulations, members of the public could mail FOIA requests either to the agency's headquarters, or to one of ten regional EPA offices; people could also send requests by e-mail directly to a regional office. See 40 C.F.R. § 2.101(a) (2018). The 2019 Rule, by contrast, requires all FOIA requests to be submitted to the EPA's National FOIA Office, either electronically (via the agency's FOIA submission website, FOIAonline, or another government submission website, such as FOIA.gov), or via U.S. mail or overnight delivery. See 84 Fed.Reg. at 30030; 40 C.F.R. § 2.101(a). The revised regulation provides that the National FOIA Office will then assign FOIA requests to the appropriate regional or headquarters office for processing. See 40 C.F.R. § 2.103(a). According to the EPA, this revision was designed to “minimize the number of misdirected requests sent to the Agency” and “to address” a provision of the 2007 FOIA statutory amendments that “decreased the amount of time an agency may take to route a request to the appropriate component of the agency to ten-working days or less.” See 84 Fed.Reg. At 30030 (citing 5 U.S.C. 552(a)(6)(A)(ii)).

B. Authorizing EPA Administrator to Make Final FOIA Determinations

The 2019 Rule includes the EPA Administrator on a list of officials who are authorized to “issue final determinations whether to release or withhold a record” under the FOIA. See 40 C.F.R. § 2.103(b)^[4]; 84 Fed.Reg. at 30031. According to the agency, that revision “eliminates a potential conflict in the existing regulations and ensures consistency of responses across the Agency;” and also “simplifies and consolidates section 2.103(b), which empowered the ‘head of an office, or that individual's designee' to grant or deny requests, and section 2.104(h), which empowered division directors or equivalents authority to issue ‘denials.'” See 84 Fed.Reg. At 30031. Notably, the EPA retained and made no changes to a preexisting regulation, 40 C.F.R. § 2.104(j), which established that “[a]n adverse determination by the Administrator on an initial request will serve as the final action of the Agency.” Compare id. § 2.104(j)(2), with id. § 2.104(j)(3) (2018).

C. Authorizing EPA Officials to Withhold a “Portion of a Record on the Basis of Responsiveness”

Revised § 2.103(b) also purports to authorize EPA officials to “issue final determinations whether to release or withhold a record or a portion of a record on the basis of responsiveness or under one or more exemptions under the FOIA, and to issue ‘no records' responses.” See 40 C.F.R. § 2.103(b); 84 Fed.Reg. at 30033. The agency did not explain why it added this language. The parties agree that the Agency does not have authority to withhold records on the basis of responsiveness, under controlling case law. See ECF No. 26 (Defendants' Motion to Dismiss) (“Def. MTD”) at 20 (citing Am. Immigr. Laws. Ass'n v. Exec. Off. for Immigr. Rev., 830 F.3d 667, 677 (D.C. Cir. 2016)); ECF No. 28 (Plaintiffs' Cross Motion for Summary Judgment) (“Pl. MSJ”) at 27.

D. Other Modifications

Finally, the 2019 Rule modifies language related to the EPA's aggregation of FOIA requests, the fees charged for processing requests, expedited processing of requests, and multitrack processing, whereby the EPA manages requests in accordance with perceived complexity. See 40 C.F.R § 2.107(i) (aggregation); id. § 2.107 (schedule of fees); id. § 2.104(f) (expedited processing); id. § 2.104(c) (multi-track processing). Those modifications, for the most part, make grammatical and stylistic changes, while leaving the substance of the regulations untouched. Compare, e.g., id. § 2.104(c) with id. § 2.104(c) (2018). The only substantive change is to the limitations on charging fees the EPA adopts. Id. § 2.107(d)(6).^[5] There, the EPA modified the circumstances under which it charges search fees, implementing a congressional directive in the FOIA Improvement Act of 2016. See 130 Stat. 538, 544 (“[T]he head of each agency . . . shall review the regulations of such agency and shall issue regulations on procedures for the disclosure of records under [the FOIA], in accordance with the amendments made by [the 2016 Act].”).

II. Procedural History

Soon after the EPA implemented the 2019 Rule, EcoRights filed a Complaint challenging the amended regulations in the U.S. District Court for the Northern District of California on July 24, 2019. See Ecological Rts. Found. v. EPA, Case No. 19-cv-3270 (D.D.C.), ECF No. 1 (Complaint). On October 18, 2019, the Northern District of California granted the EPA's motion to transfer the case to the District of Columbia. See id., ECF No. 23. On April 17, 2020, this Court consolidated EcoRights' case with two related cases, Center for Biological Diversity v. EPA, Case No. 19-cv-2198 (D.D.C.), and Citizens for Responsibility and Ethics in Washington v. EPA, Case No. 19-cv-2181 (D.D.C). As discussed, infra, the two other cases have been settled.

EcoRights' Complaint alleges that:

(1) The centralization of the EPA's FOIA processing, as codified in 40 C.F.R. § 2.101(a), violates the FOIA and the APA because it will “inevitably slow” the FOIA process. See Compl., ¶ 48.

(2) Allowing the EPA Administrator to make initial and final FOIA determinations, as provided in 40 C.F.R. § 2.103(b), violates the FOIA and the APA because there would be no avenue to appeal such a determination to the agency head, as required by statute. See id., ¶ 51.

(3) Authorizing EPA officials to withhold portions of records based on responsiveness, as codified in 40 C.F.R. § 2.103(b), violates the FOIA and the APA because agencies may not withhold portions of a record based only on responsiveness under well-settled D.C. Circuit precedent. See id., ¶ 57 (citing Am. Immigr. Laws. Ass'n, 830 F.3d at 676-79).

(4) The promulgation of the 2019 Rule without notice and comment violates the FOIA and the APA because the EPA's invocation of the procedural and good-cause exceptions was inappropriate; and in any event, certain modified provisions independently require notice-and-comment rulemaking under the FOIA. See Compl., ¶ 60.^[6]

EcoRights asks the Court to vacate the 2019 Rule, to enjoin the EPA from relying on any of its provisions, and to direct the agency to “promulgate new FOIA regulations, if any, by first providing a proposed rule followed by at least a 30-day public comment period before adopting a final rule.” See id. at 20. On May 11, 2020, the EPA moved to dismiss Plaintiff's case under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6); EcoRights cross-moved for partial summary judgment. See generally Def. MTD; Pl. MSJ.

On February 10, 2022, the plaintiffs in the two cases consolidated with this one entered a settlement agreement with the EPA. See ECF No. 50 (Stipulation of Dismissal); ECF No. 50-1 (Settlement Agreement).^[7] The Court held a hearing on March 3, 2022 to discuss the impact of the Settlement Agreement on EcoRights' claims. The parties agreed that the Court should rule on the pending motions with respect to Claims 1, 2, and 5; and should remand Claim 4 to the agency. The parties dispute,...