Envtl. Integrity Project v. U.S. Envtl. Prot. Agency

• Decision Date: 29 March 2016
• Docket Number: Civil Action No. 14-1282 (JEB)
• Citation: 177 F.Supp.3d 36
• Parties: Environmental Integrity Project, et al., Plaintiffs, v. The United States Environmental Protection Agency, Defendant.
• Court: U.S. District Court — District of Columbia

177 F.Supp.3d 36

Environmental Integrity Project, et al., Plaintiffs,

v.The United States Environmental Protection Agency, Defendant.

Civil Action No. 14-1282 (JEB)

United States District Court, District of Columbia.

Signed March 29, 2016

Abel J. Russ, Environmental Integrity Project, Washington, DC, Thomas Cmar, Earthjustice, Oak Park, IL, for Plaintiffs.

Marina Utgoff Braswell, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG

, United States District Judge

Although this suit purports to be about effluents, it is, at its core, a case about the interplay of the Freedom of Information Act and the Clean Water Act. In 2010, as part of its effort to craft new pollution-control regulations, the Environmental Protection Agency took two actions relevant here: it sent a questionnaire to over 700 steam-driven power plants, and it gathered information from vendors who sold equipment and services to those plants. These surveys were designed to collect data about pollution and gain insight into plant-specific business practices. EPA stockpiled a mountain of data from this effort, ranging from the specific cost a plant pays to remove pollutants from its wastewater to the concentrations and quantities of those pollutants. The agency then used the data to prepare new regulations—colloquially known as “effluent guidelines”—which it proposed and then promulgated under the Clean Water Act.

In the midst of all this, Plaintiffs Environmental Integrity Project, Earthjustice, and Sierra Club filed a Freedom of Information Act request seeking certain data obtained by EPA from its surveyees. Dissatisfied with the agency's partial response, Plaintiffs brought this suit to compel disclosure of the remainder of the data. On Cross-Motions for Summary Judgment, the parties agree that the data may be withheld under FOIA as confidential business information. Plaintiffs nevertheless maintain that the Clean Water Act independently requires disclosure of the information, thereby removing EPA's discretion to invoke FOIA as a basis for withholding. The Court disagrees, concluding that the CWA does not expressly preempt the agency's ability to withhold the material. It will therefore grant EPA's Motion, deny Plaintiff's, and enter judgment for the agency.

I. Background

This dispute arises out of EPA's decision, announced in September 2009, to revise its decades-old regulations limiting pollution by steam-electric power plants. See Def. MSJ at 6. To assist in that process, the agency designed an “industry survey to obtain technical information related to wastewater generation and treatment, and economic information such as costs of wastewater treatment technologies and financial characteristics of potentially affected companies.” 78 Fed. Reg. 34432, 34432 (June 7, 2013)

. It distributed the survey in June 2010 to 733 power plants and received responses from all of them. Id. at 34442. These responses served as “[a] principal source of information used in developing” proposed rules, which were published in the Federal Register in June 2013. Id. EPA also “gathered data from technology vendors through presentations, conferences, meetings, and email and phone contacts to gain information on the technologies used in the industry.” Id. at 34445. That work “informed the development of the industry survey” and also contributed to EPA's understanding of “technology costs” and “pollutant loadings estimates.” Id.

In July 2013, shortly after EPA issued its notice of proposed rulemaking, but well before those rules were finalized in November 2015, see 80 Fed. Reg. 67838 (Nov. 3, 2015)

, Plaintiffs submitted a FOIA request seeking data and other information that the agency had obtained from its industry questionnaire and vendor outreach. In particular, they sought “the amount of pollutants that individual power plants discharge to water bodies, data on the cost of wastewater treatment technologies, and data on how well those technologies perform in reducing pollutants that power plants discharge.” Pl. Reply at 15; see Def. MSJ, Attach. 1 (Declaration of Robert K. Wood), ¶ 17. EPA responded by “provid[ing] some but not all of the requested data to Plaintiffs.” Pl. MSJ/Opp. at 3. As to the withheld material challenged by Plaintiffs here, it asserted that power plants and vendors had claimed the data was “confidential business information”—making it presumptively exempt from disclosure under FOIA Exemption 4. See Wood Decl., ¶ 18; 5 U.S.C. § 552(b)(4)

. Plaintiffs appealed EPA's initial determination, and the agency initiated the process of conducting a more in-depth analysis—including contacting the parties that had submitted the data to EPA—to substantiate whether the withheld material was properly categorized as confidential business information. See Wood Decl., ¶¶ 20-25, 34.

A year after submitting its FOIA request, and having not yet received a response from EPA, Plaintiffs in July 2014 brought suit in this Court, seeking to compel disclosure of the data they had requested under FOIA. See Complaint at 16. The parties agreed to a schedule by which EPA would finalize its confidentiality determinations and release any data deemed not confidential. See ECF No. 11 (Meet and Confer Statement); ECF No. 12 (Motion to Amend Schedule), ECF No. 13 (Motion for Extension of Time to Complete CBI Determinations). Complying with that schedule, EPA completed its determinations in February 2015, issuing its final response to Plaintiffs shortly thereafter along with nonexempt documents. See Wood Decl., ¶¶ 34-35. Plaintiffs maintained their challenge, and the parties proceeded to brief their respective Motions for Summary Judgment, which are now before the Court.

II. Legal Standard

Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a)

; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C.Cir.2011)

. In a FOIA case, a court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009)

(citation omitted). Such affidavits or declarations “are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) (internal quotation marks omitted). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden 'on the agency to sustain its action' and directs the district courts to 'determine the matter de novo.”' Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting 5 U.S.C. § 552(a)(4)(B) ).

III. Analysis

In moving for summary judgment, EPA relies entirely on Exemption 4, which protects trade secrets and confidential business information. Plaintiffs do not dispute the notion that if Exemption 4 governs, they are out of luck; instead, they believe the CWA trumps Exemption 4. The issue before the Court is thus a narrow one: should a court compel disclosure of documents exempt under FOIA where a separate statute, passed several years after FOIA was enacted, suggests that the agency must disclose them? The Court concludes that, at least as to the relevant section of the Clean Water Act, 33 U.S.C. § 1318

, the answer is no. The analysis begins with FOIA and then moves to the CWA.

A. FOIA

A logical starting point is the text and structure of FOIA itself. Enacted in 1966 “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny,” Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)

(citation omitted), FOIA provides that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ... shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A).

Even though “the basic objective of the Act is disclosure,” Chrysler Corp. v. Brown, 441 U.S. 281, 290, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979)

, not all requests for records must be honored, as FOIA also provides “exemptions from compelled disclosure. They are nine in number and are set forth in...