Natural Res. Def. Council v. U.S. Envtl. Prot. Agency
| Decision Date | 22 August 2019 |
| Docket Number | 18-cv-11227 (PKC) |
| Citation | 403 F.Supp.3d 270 |
| Parties | NATURAL RESOURCES DEFENSE COUNCIL and Environmental Defense Fund, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Peter Daniel Huffman, Natural Resources Defense Council, Washington, DC, for Plaintiff Natural Resources Defense Council.
Matthew Littleton, Donahue, Goldberg & Weaver, LLP, Erin Murphy, Environmental Defense Fund, Washington, DC, for Plaintiff Environmental Defense Fund.
Samuel Hilliard Dolinger, U.S. Attorney's Office, New York, NY, for Defendant.
Plaintiffs Natural Resources Defense Council ("NRDC") and Environmental Defense Fund ("EDF") commenced this Freedom of Information Act ("FOIA") action against the United States Environmental Protection Agency ("EPA"), seeking the disclosure of a computer program known as the "Optimization Model for Reducing Emissions of Greenhouse Gasses from Automobiles" ("OMEGA"). Currently before the Court are the parties' cross-motions for summary judgment. The sole issue is whether the EPA may withhold a component of the latest version of OMEGA called the "core model" under FOIA Exemption 5, the "deliberative process privilege." For the reasons that follow, the Court holds that the EPA properly withheld OMEGA's latest "core model" pursuant to FOIA Exemption 5. Accordingly, defendant's cross-motion for summary judgment is granted and plaintiffs' motion for summary judgment is denied.
Pursuant to its duty under the Clean Air Act, the EPA establishes federal standards for greenhouse gas ("GHG") emissions from new motor vehicles. (Charmley Decl. ¶ 8; Oge Decl. ¶ 5); see 42 U.S.C. § 7521(a)(1). Vehicle manufacturers can comply with these standards by choosing to incorporate certain emissions-reducing technologies into the design of their vehicle fleets. (See Charmley Decl. ¶ 9). Emissions-reducing technologies can include, for instance, "engine technologies, tires, transmission options, and hybrid and electric vehicle options." (Lutsey Decl. ¶ 18). For any given emissions standard, there are "an almost infinite number of technology combinations" that a vehicle manufacturer could use to comply with the standard. (Lutsey Decl. ¶ 9; Oge Decl ¶ 7). Different technologies vary in terms of cost and effectiveness. (Id. ).
The Clean Air Act provides that any emissions standard "shall take effect after such period as ... necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period." 5 U.S.C. § 7521(a)(2). The EPA developed OMEGA as a modeling tool to assist itself in establishing emissions standards. . OMEGA operates by evaluating the cost and effectiveness of certain technologies, predicting the various ways that manufacturers could combine technologies to achieve compliance, and estimating the cost of complying with various emissions standards. (Id. ).
Broadly speaking, OMEGA models consist of five components: the inputs, the pre-processors, the core model (the subject of this FOIA action), the post-processors, and the outputs. (Charmley Decl. ¶ 10; Pl. Br., Ex. B). The "inputs" consist of excel spreadsheets containing quantitative data, such as the specific vehicle models on the market, available emission-reduction technologies and corresponding costs, hypothetical emission targets, and fuel costs. (Charmley Decl. ¶ 10; Lutsey Decl. ¶¶ 11, 13, 20, 22). The "pre-processors" translate the inputs into a form that can be processed by the core model, while the "post-processors" translate the outputs into readable and usable datasets. (Id. ). The "core model" is a computer program written in C# (a programming language), which applies a series of algorithms to the input data to yield the output data. (Lutsey Decl. ¶¶ 11, 20; Wehrum Decl. ¶ 5; see, e.g., Pl. Br., Ex. K). The "outputs" consist of excel spreadsheets of quantitative data, including which combinations of technologies a manufacturer could use to meet a given emissions target and the cost to each manufacturer, per vehicle, of implementing those technologies. (Id. ).
Five versions of OMEGA have been released in the past, the latest being OMEGA version 1.4.56. . The OMEGA model that is the subject of this action is OMEGA version 1.4.59, which has been updated by EPA program staff in various ways since version 1.4.56 was released in 2016. (Charmley Decl. ¶ 16). Generally, the program is updated monthly and even weekly by EPA staff at the Office of Transportation and Air Quality. (Charmley Decl. ¶ 14; Wehrum Decl. ¶ 11).
On August 24, 2018, the EPA and the National Highway Traffic Safety Administration ("NHTSA") jointly proposed the Safer Affordable Fuel-Efficient ("SAFE") Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks (the "SAFE Vehicles Rule"). (Charmley Decl. ¶ 17; Wehrum Decl. ¶ 3); see 83 Fed. Reg. 42,986 (proposed Aug. 24, 2018). If finalized, the rule would amend existing Corporate Average Fuel Economy ("CAFE") and tailpipe carbon dioxide emissions standards for passenger cars and light trucks and establish new standards, covering model years 2021-2026. ( Id. ). The EPA and NHTSA determined that it was "reasonable and appropriate" to rely on the U.S. Department of Transportation's CAFE model to analyze regulatory alternatives for the SAFE Vehicles Rule, rather than OMEGA version 1.4.59. (Charmley Decl. ¶ 18; Wehrum Decl. ¶¶ 4, 8); SAFE Vehicles Rule, 83 Fed. Reg. at 43,000. Although the EPA has relied on previous versions of OMEGA in creating proposed rules in the past, the EPA "did not actually rely on the OMEGA model for analysis or otherwise in the rulemaking process" for the SAFE Vehicles Rule. . As a result, the EPA did not release an updated version of OMEGA when the SAFE Vehicles Rule was proposed, nor has it done so since then. (Wehrum Decl. ¶ 8). The EPA asserts that it may use OMEGA to inform rulemakings related to vehicle emissions in the future. (Id. ¶ 9).
In July 2018, NRDC submitted a FOIA request to the EPA, requesting disclosure of, among other things, "[a]ny and all versions of [OMEGA], not previously made public." (Pl. Br., Ex. F). The request encompassed the latest full version of OMEGA, which includes the OMEGA core model version 1.4.59 ("OMEGA v.1.4.59" or "the core model"). (Pl. Br., Exs. D, F; Doc. 37 at 1). The EPA has already released to plaintiffs the inputs, pre-processors, and post-processors associated with OMEGA version 1.4.59. (Charmley Decl. ¶ 10). However, in April 2019, the EPA issued a final response to plaintiffs' FOIA request, in which it decided to withhold the core model pursuant to 5 U.S.C. § 552(b)(5), the "Deliberative Process Privilege." (Pl. Br., Ex. C). Plaintiffs commenced this action on December 3, 2018. (Doc. 1).
"FOIA represents Congress's balance ‘between the right of the public to know and the need of the Government to keep information in confidence.’ " New York Times Co. v. U.S. Dep't of Justice, 872 F. Supp. 2d 309, 314 (S.D.N.Y. 2012) (quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) ). Therefore, while FOIA "strongly favor[s] public disclosure of information in the possession of federal agencies," Halpern v. F.B.I., 181 F.3d 279, 286 (2d Cir. 1999), the statute recognizes "that public disclosure is not always in the public interest and thus provide[s] that agency records may be withheld from disclosure under any of the nine exemptions defined in [the statute]," C.I.A. v. Sims, 471 U.S. 159, 166–67, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985). "These exemptions are explicitly made exclusive ... and must be narrowly construed." Milner v. Dep't of Navy, 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (citations and internal quotation marks omitted).
"Summary judgment is the preferred procedural vehicle for resolving FOIA disputes." Nat'l Immigration Project of Nat'l Lawyers Guild v. U.S. Dep't of Homeland Sec., 868 F.Supp.2d 284, 290 (S.D.N.Y. 2012). "[A] district court must review de novo an agency's determination to withhold information requested under the FOIA." Florez v. Cent. Intelligence Agency, 829 F.3d 178, 182 (2d Cir. 2016). "The government bears the burden of demonstrating that [a FOIA] exemption applies to each item of information it seeks to withhold, and all doubts as to the applicability of the exemption must be resolved in favor of disclosure." Id. A court may grant summary judgment to an agency based on affidavits or declarations that "[1] describe the justifications for nondisclosure with reasonably specific detail, [2] demonstrate that the information withheld logically falls within the claimed exemption, and [3] are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009) (citation omitted). Declarations that are "conclusory," "merely recite statutory standards," or are "overly vague or sweeping" are not sufficient, but the declarations need not contain "factual descriptions that if made public would compromise the secret nature of the information." N.Y. Times Co., 872 F. Supp. 2d at 314 ; Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009). These agency declarations are "accorded a presumption of good faith." Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (citation omitted). "Ultimately, an agency may invoke a FOIA exemption if its justification ‘appears logical or plausible.’ " Am. Civil Liberties Union v. Dep't of Justice, 681 F.3d 61, 69 (2d Cir. 2012).
"[W]here the agency's submissions are ‘adequate on their face,' district courts ‘may forgo discovery and...
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