Enviro Tech Intern., Inc. v. U.S. E.P.A.

• Decision Date: 10 June 2004
• Docket Number: No. 03-2215.,03-2215.
• Citation: 371 F.3d 370
• Parties: ENVIRO TECH INTERNATIONAL, INC., Plaintiff-Appellant, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 370

371 F.3d 370

ENVIRO TECH INTERNATIONAL, INC., Plaintiff-Appellant, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee.

No. 03-2215.

United States Court of Appeals, Seventh Circuit.

Argued November 6, 2003.

Decided June 10, 2004.

Richard G. Morford (argued), Enviro Tech International, Inc., Melrose Park, IL, for Plaintiff-Appellant.

Robert E. Fabricant, Environmental Protection Agency, Washington, DC, David A. Ullrich, Environmental Protection Agency, Jonathan C. Haile (argued), Office of the United States Attorney, Chicago, IL, for Defendant-Appellee.

Before CUDAHY, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Enviro Tech International, Inc. ("Enviro Tech"), filed this action seeking judicial review of the United States Environmental Protection Agency's ("EPA's") refusal to produce certain documents in response to Enviro Tech's request under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). The EPA asserted, and the district court agreed, that the withheld documents were exempt from disclosure under section 552(b)(5) pursuant to the so-called deliberative process privilege. Enviro Tech appeals, asserting that the withheld documents relate to actions that are beyond the scope of the EPA's statutory authority and that the deliberative process privilege does not exempt from disclosure materials relating to such ultra vires conduct. We affirm.

I.

As a party to the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, the United States undertook to freeze and ultimately to reduce the production and use of chlorofluorocarbons and other chemicals that have a deleterious effect on the stratospheric ozone layer. In 1990 amendments to the Clean Air Act, Congress established timetables for phasing out the production and use of ozone-depleting substances ("ODS"). See 42 U.S.C. § 7671c-e. However, concerned with the safety of the alternatives to ODS, Congress also provided that "[t]o the maximum extent practicable, [ODS] shall be replaced by chemicals, product substitutes, or alternative manufacturing processes that reduce overall risks to human health and the environment." § 7671k(a). In furtherance of that objective, Congress ordered the EPA to take a series of steps. First, the EPA was to take the lead in establishing programs, initiatives, and other activities aimed at identifying, evaluating, and developing alternatives to ODS. § 7671k(b). Second, the EPA was to promulgate rules prohibiting the replacement of any ODS with an alternative that itself poses a danger to human health or the environment, so long as the EPA has identified another substitute that reduces the potential risk to human health and the environment and is currently or potentially available. § 7671k(c). Finally, the EPA was to develop a list of substances that are "safe alternatives" for specific uses and a separate list of substitutes that are prohibited for specific uses. Id. The legislation also allows any person to petition the EPA either to add a substance to or remove it from one of these lists. § 7671k(d). In 1994, the EPA established the Significant New Alternatives Policy ("SNAP") program to carry out these directives.

Enviro Tech, a company based in Melrose Park, Illinois, markets a line of industrial solvents based on the chemical compound n-propyl bromide ("nPB"). In 1996, Enviro Tech filed a petition with the EPA seeking to have nPB identified as an acceptable alternative for ODS under the SNAP program. As part of its evaluation process, the SNAP program engaged a private contractor to review the scientific literature on the toxicity of nPB and to recommend a workplace exposure limit for this chemical. In January 2002, before the EPA had issued a proposed rule on the acceptability of nPB as an ODS substitute, Enviro Tech served a FOIA request on the EPA seeking any documents related to the potential toxicity of nPB and the agency's evaluation of that toxicity. EPA released a number of documents in response to Enviro Tech's request, but ultimately withheld 37 documents on the ground that these fell within the deliberative process exception to FOIA. That exception, as we explain more fully below, permits an agency to withhold from public disclosure records relating to the agency's internal evaluation and formulation of policy.

After exhausting its administrative remedies, Enviro Tech filed suit in the district court seeking judicial review of the EPA's decision. See 5 U.S.C. § 552(a)(4)(B). On cross-motions for summary judgment, the district court concluded in relevant part that because the withheld documents were protected by the deliberative process privilege, FOIA Exemption 5 relieved the EPA of the obligation to produce them. Enviro Tech Int'l, Inc. v. U.S.E.P.A., No. 02 C 4650, Memorandum Opinion and Order at 10-15 (N.D.Ill. Mar. 11, 2003) ("Mem.Op."). The court found that the documents in question satisfied the two criteria for the privilege in that they were both "predecisional and deliberative" in nature. See Mem. Op. at 11, citing Becker v. I.R.S., 34 F.3d 398, 403 (7th Cir.1994):

... The documents are predecisional because they were prepared to assist the [EPA] in preparing the recommendation for a workplace exposure limit for nPB and the documents were generated before the EPA made available to the public for review and comments the final draft report containing that recommendation.

Further, the documents are deliberative because they relate to the process by which the EPA arrived at the final draft report. The documents reflect internal discussions of proposals, suggestions and recommendations as well as early versions of the final draft report eventually made available to the public. Such materials are routinely shielded from disclosure by the deliberative process privilege under FOIA Exemption 5.

Mem. Op. at 12 (citations omitted). The court went on to reject Enviro Tech's contention that the EPA could not invoke the deliberative process privilege as to these documents because it lacks statutory authority to regulate workplace exposure limits for nPB. The court distinguished Weissman v. C.I.A., 565 F.2d 692, 694-96 (D.C.Cir.1977), which held that the Central Intelligence Agency ("CIA") could not invoke the "law enforcement purpose" exemption under FOIA, see § 552(b)(7), because the CIA was statutorily barred from engaging in any law enforcement activity. "Exemption 5 itself contains no language restricting its application to only those agency activities specifically authorized by Congress." Mem. Op. at 14. The court also noted that subsequent cases had declined to extend Weissman's ultra vires rationale to other FOIA exemptions. Id.

Subsequent to the district court's decision in the EPA's favor, the EPA in June 2003 issued a Notice of Proposed Rulemaking that proposed to list nPB as acceptable for use, inter alia, as a solvent. 68 Fed.Reg. 33284 (June 3, 2003) (the "Notice"). The text of the Notice explains that upon review of a proposed ODS substitute, "the [EPA] may make a determination that a substitute is acceptable only if certain conditions of use are met to minimize risks to human health and the environment." Id. at 33287. The EPA has made such a determination with respect to nPB, concluding that it is an acceptable substitute for certain types of ODS, subject to use conditions. Id. at 33288. Among the use conditions specified for nPB is a guideline recommending that workers inhale no more than an average of 25 parts per million ("ppm") of the chemical over the course of an eight-hour workday. Id. The Notice makes clear that this is a recommended rather than a mandatory limit on workplace exposure to nPB and that the authority to establish a binding limit lies solely with the Occupational Safety and Health Administration ("OSHA"), which as of yet has established no such limit. See id. at 33288, 33289-90, 33300, 33310.

In the future, OSHA may develop a mandatory exposure limit for nPB use in the workplace. The result of OSHA's review could result in a permissible exposure limit (PEL) different from EPA's recommended exposure limit of 25 ppm.... As stated earlier in this preamble, EPA defers to OSHA in regulating workplace safety. The recommended [acceptable exposure limit (AEL)] in today's proposal is an interim measure in the absence of an OSHA PEL. Thus, any PEL that OSHA sets would supersede EPA's recommended AEL.

Id. at 33300. Public comments on the EPA's proposed rule as to nPB were solicited with a due date of August 4, 2003. The agency is expected to issue a final rule sometime this year.

II.

Typically, we review a district court's summary judgment disposition of a FOIA request to determine whether the district court had a sufficient factual basis for its ruling and, if so, whether the court's decision was clearly erroneous. Solar Sources, Inc. v. United States, 142 F.3d 1033, 1038 (7th Cir.1998). We have acknowledged that use of the clearly erroneous standard is in tension with the de novo standard that normally governs our review of summary judgment decisions. See id. at 1038 n. 5 (citing Becker v. I.R.S., supra, 34 F.3d at 402 n. 11). We have also recognized that the courts of appeals are divided as to the appropriate standard of review in FOIA cases decided by way of summary judgment. Id. Indeed, our own case law is not entirely consistent on this point. See In re Wade, 969 F.2d 241, 245 (7th Cir.1992), and Kaganove v. E.P.A., 856 F.2d 884, 886 (7th Cir.1988) (engaging in de novo review). Review for clear error remains the norm for FOIA cases in this circuit. Solar Sources, 142 F.3d at 1038 & n. 5.

FOIA requires a federal agency upon request to disclose records in its possession, subject to nine exemptions. § 552(a), (b). Disclosure is required unless the requested record is clearly exempted from disclosure by the statute. N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 1509, 44 L.Ed.2d 29 (1975). In...