Greenpeace, Inc. v. Dep't of Homeland Sec., Civil Action No. 17–479 (TJK)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtTIMOTHY J. KELLY, United States District Judge
Citation311 F.Supp.3d 110
Parties GREENPEACE, INC., Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY et al., Defendants.
Decision Date01 May 2018
Docket NumberCivil Action No. 17–479 (TJK)

311 F.Supp.3d 110

GREENPEACE, INC., Plaintiff,
v.
DEPARTMENT OF HOMELAND SECURITY et al., Defendants.

Civil Action No. 17–479 (TJK)

United States District Court, District of Columbia.

Signed May 1, 2018


311 F.Supp.3d 115

Sean M. Sherman, Scott Lawrence Nelson, Public Citizen Litigation Group, Washington, DC, for Plaintiff.

Joshua L. Rogers, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge

The Department of Homeland Security ("DHS") runs a government program known as Chemical Facility Anti–Terrorism Standards ("CFATS"). The purpose of CFATS is to identify chemical facilities that might be targeted by terrorists, and to promulgate and enforce standards for reducing the risks arising from potential terrorist attacks on those facilities. DHS requires facilities to submit information about certain chemicals they possess and, based on those submissions and other information (including information received from the broader intelligence community), determines which facilities pose a "high risk" of significant terrorism-related harm. Those high-risk facilities are required to implement various security measures. Alternatively, facilities may reduce their chemical holdings to levels that do not qualify them as high risk.

Plaintiff Greenpeace, Inc. ("Greenpeace") made a request pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, that DHS provide information regarding previously high-risk facilities that have reduced their chemical holdings. After a lengthy administrative process, DHS produced two heavily-redacted lists of facility names, withholding those names that might serve to identify a particular facility. DHS argues that the redacted information falls under FOIA's law-enforcement exemption, because releasing it would threaten public safety by increasing the risks to human life and health from terrorist attacks. Greenpeace disagrees, claiming that FOIA and DHS's own procedures require DHS to produce the records without redactions. Greenpeace has therefore brought suit against DHS and one of its components, the National Protection and Programs Directorate ("NPPD," and together with DHS, "Defendants"). Greenpeace asserts claims under FOIA and the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. , and petitions the Court for a writ of mandamus.

Defendants have filed a motion to dismiss or, in the alternative, for summary judgment. ECF No. 11. Greenpeace has cross-moved for summary judgment. ECF No. 14.1 For the reasons explained below, Defendants' motion will be granted and Greenpeace's will be denied. Greenpeace's claims under the APA and for a writ of

311 F.Supp.3d 116

mandamus will be dismissed. In addition, the Court will enter summary judgment for Defendants on Greenpeace's FOIA claim.

I. Factual and Procedural Background

A. The CFATS Program

Congress initially created the CFATS program in 2006. Falcon Reply Decl. ¶ 4; see Nat'l Propane Gas Ass'n v. DHS , 534 F.Supp.2d 16, 18 (D.D.C. 2008) (describing history of program). The relevant act instructed DHS to issue "regulations establishing risk-based performance standards for security of chemical facilities and requiring vulnerability assessments and the development and implementation of site security plans for chemical facilities." Nat'l Propane , 534 F.Supp.2d at 18 (quoting Department of Homeland Security Appropriations Act, 2007, § 550(a), Pub. L. No. 109–295, 120 Stat. 1355, 1388 (2006) ). DHS did so. See 6 C.F.R. pt. 27. In 2014, Congress enacted a formal statutory framework for the CFATS program. See Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014, 6 U.S.C. § 621 et seq. The Infrastructure Security Compliance Division ("ISCD"), a component of DHS located within NPPD, operates CFATS. Pl.'s Resp. SoMF ¶ 4.

Under CFATS, DHS determines whether chemical facilities present "a high level of security risk," which means that there is "the potential that a terrorist attack involving the facility could result in significant adverse consequences for human life or health, national security or critical economic assets." 6 C.F.R. § 27.205(a). The first step in making this determination is to identify which chemical facilities possess a "screening threshold quantity," or "STQ," of one or more "chemicals of interest." See 6 C.F.R. §§ 27.105, 27.200(b)(2). The chemicals of interest and their respective STQs are listed in Appendix A to the CFATS regulations. See 6 C.F.R. pt. 27 app. A. DHS requires chemical facilities to submit "Top–Screens," reports listing each chemical of interest that the facilities possess at or above the STQ for that chemical. See Pl.'s Resp. SoMF ¶ 3; 6 C.F.R. § 27.200(b)(2).

Based on the Top–Screens and other information, including information received from the broader intelligence community about the threat of attack, DHS makes a preliminary determination of which facilities are high risk and places those high-risk facilities into one of four tiers. See Pl.'s Resp. SoMF ¶ 3; 6 C.F.R. § 27.220. DHS makes a final "tiering" decision for each facility after a "security vulnerability assessment." 6 C.F.R. §§ 27.215, 27.220(b). High-risk facilities must then implement security measures intended to reduce the risks associated with terrorist attacks. Pl.'s Resp. SoMF ¶ 3.

Facilities designated as high risk can also request a redetermination of their status if they alter their operations—for example, by reducing their holdings of chemicals of interest. See 6 C.F.R. § 27.205(b). Such facilities are informally referred to as "de-tiered," because they are no longer considered high risk and thus are not placed in one of the four tiers. See Falcon Reply Decl. ¶ 11. In testimony before Congress in February 2012, an NPPD official explained that, since CFATS' inception, "more than 1,600 facilities [had] completely removed their chemicals of interest, and more than 700 other facilities [had] reduced their holdings of chemicals of interest to levels resulting in the facilities no longer being considered high-risk." Defs.' Resp. SoMF ¶ 1. In February 2014, another NPPD official testified before Congress that "more than 3,000 facilities [had] eliminated, reduced or modified their holdings of chemicals of interest." Id. ¶ 3.

311 F.Supp.3d 117

B. Greenpeace's FOIA Request and DHS's Response

On May 18, 2012, Greenpeace sent a letter to NPPD's FOIA office requesting "copies of all releasable documents and records that contain the most complete listing of chemical facilities that have reduced their holdings of threshold quantities of ‘chemicals of interest’ (COI) rendering them no longer ‘high risk’ facilities under [CFATS]." Fuentes Decl. Ex. B, at 1; Hind Decl. Ex. C, at 1.2 Almost ten months later, on March 13, 2013, NPPD issued an "interim response" stating that it had conducted a search and found 123 pages of responsive records, which would be withheld in full. Fuentes Decl. Ex. C, at 1; Hind Decl. Ex. D, at 1. The asserted grounds for withholding the documents were FOIA Exemption 5, and specifically, the deliberative process privilege; Exemption 7(E), an exemption for law-enforcement techniques, procedures and guidelines; and Exemption 7(F), an exemption for law-enforcement information whose release might endanger the safety of any individual. Fuentes Decl. Ex. C, at 1–2; Hind Decl. Ex. D, at 1–2.

On May 12, 2013, Greenpeace appealed the interim response to DHS's Associate General Counsel. Fuentes Decl. Ex. E; Hind Decl. Ex. E. Greenpeace argued that the claimed exemptions did not apply. Fuentes Decl. Ex. E; Hind Decl. Ex. E. In particular, citing Second Circuit case law, Greenpeace argued that Exemption 7(F) did not apply because DHS had not identified any particular individual who would be harmed by release of the information. Fuentes Decl. Ex. E, at 3 (citing ACLU v. Dep't of Def. , 543 F.3d 59, 71 (2d Cir. 2008), vacated on other grounds , 558 U.S. 1042, 130 S.Ct. 777, 175 L.Ed.2d 508 (2009) ); Hind Decl. Ex. E, at 3. On September 27, 2013, while Greenpeace awaited a decision on its administrative appeal, NPPD finalized its earlier, "interim" response, standing by its decision to withhold the records but relying only on FOIA Exemptions 5 and 7(F), not 7(E). Fuentes Decl. Ex. D.

On June 27, 2014, Greenpeace received a response on its appeal from an attorney advisor at the U.S. Coast Guard Office of the Chief Administrative Law Judge. Fuentes Decl. Ex. H; Hind Decl. Ex. G. The attorney advisor explained that DHS's General Counsel had assigned FOIA appeals arising within DHS to that office. Fuentes Decl. Ex. H; Hind Decl. Ex. G; see also Hind Decl. Ex. F (2011 DHS memorandum assigning authority to Coast Guard). The attorney advisor ruled as follows: "NPPD's decision to withhold the records in their entirety pursuant [sic] is being reversed. The Agency has not provided adequate explanation as to why the requested records should be withheld pursuant to FOIA Exemptions (b)(5), (b)(7)(E), or (b)(7)(F)." Fuentes Decl. Ex. H, at 2; Hind Decl. Ex. G, at 2. The attorney advisor further explained that his decision was DHS's "final action," and that Greenpeace could seek review in...

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  • Hansten v. Drug Enf't Admin., Civil Action 21-2043 (RC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 22 Julio 2022
    ...function, the “nexus” between it and the DEA's mission is plainly “rational.” Id.; cf. Greenpeace, Inc. v. Dep't of Homeland Sec., 311 F.Supp.3d 110, 128 (D.D.C. 2018) (finding DHS's records collection of chemical facilities regulated by law served law enforcement purpose under Exemption 7 ......
  • Chaverra v. U.S. Immigration & Customs Enforcement, Civil Action No. 18-289 (JEB)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 2 Octubre 2018
    ..."might fare worse" under FOIA does not entitle her to bring a claim under the APA. See Greenpeace, Inc. v. Dep't of Homeland Sec., 311 F. Supp. 3d 110, 126 (D.D.C. 2018). Second, Chaverra points the Court toward the agency's own action. He notes that ICE created an online portal permitting ......
  • S. Envtl. Law Ctr. v. Council on Envtl. Quality, Civil Action No. 3:18CV00113
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • 16 Septiembre 2019
    ...However,Page 6 "the agency suffers no prejudice on the merits of its defense" to the case. Greenpeace, Inc. v. Dep't of Homeland Sec., 311 F. Supp. 3d 110, 125 (D.D.C. 2018). As other courts have recognized, "[t]his scheme provides an incentive for agencies to move quickly but recognizes th......
3 cases
  • Hansten v. Drug Enf't Admin., Civil Action 21-2043 (RC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 22 Julio 2022
    ...function, the “nexus” between it and the DEA's mission is plainly “rational.” Id.; cf. Greenpeace, Inc. v. Dep't of Homeland Sec., 311 F.Supp.3d 110, 128 (D.D.C. 2018) (finding DHS's records collection of chemical facilities regulated by law served law enforcement purpose under Exemption 7 ......
  • Chaverra v. U.S. Immigration & Customs Enforcement, Civil Action No. 18-289 (JEB)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 2 Octubre 2018
    ..."might fare worse" under FOIA does not entitle her to bring a claim under the APA. See Greenpeace, Inc. v. Dep't of Homeland Sec., 311 F. Supp. 3d 110, 126 (D.D.C. 2018). Second, Chaverra points the Court toward the agency's own action. He notes that ICE created an online portal permitting ......
  • S. Envtl. Law Ctr. v. Council on Envtl. Quality, Civil Action No. 3:18CV00113
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • 16 Septiembre 2019
    ...However,Page 6 "the agency suffers no prejudice on the merits of its defense" to the case. Greenpeace, Inc. v. Dep't of Homeland Sec., 311 F. Supp. 3d 110, 125 (D.D.C. 2018). As other courts have recognized, "[t]his scheme provides an incentive for agencies to move quickly but recognizes th......

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