S. Envtl. Law Ctr. v. Council On Envtl. Quality

Decision Date18 March 2020
Docket NumberCivil Action No. 3:18CV00113
Citation446 F.Supp.3d 107
CourtU.S. District Court — Western District of Virginia

Kimberley Claire Hunter, Pro Hac Vice, Chapel Hill, NC, Morgan Wyatt Butler, Charlottesville, VA, Southern Environmental Law Center, for Plaintiff

Jeffrey Bossert Clark, Environment & Natural Resources Division, Washington, DC, Justin Michael Lugar, Laura Day Rottenborn, United States Attorneys Office-Roanoke Western, Roanoke, VA, for Defendants


Glen E. Conrad Senior United States District Judge

This matter is before the court on Plaintiff Southern Environmental Law Center's ("SELC's") Motion for a Preliminary Injunction in this Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, action against the Council on Environmental Quality (the "Council").


The court begins its opinion by discussing both the facts at issue and the history of several relevant pieces of legislation. Much of the court's holding rests on the interplay of those statutes. Additional information provides context for SELC's requests.

The Administrative Procedure Act

The Administrative Procedure Act, Pub. L. 79–404, 60 Stat. 237–244 (1946), governs federal agency procedures. When enacted, Section 3 of the Act was titled "Public Information," and required agencies to make certain information available to the public. Section 4 sets forth the process through which federal agencies engage in rulemaking; often that means issuing regulations. See 5 U.S.C. § 553.


In 1966, "Congress enacted FOIA to overhaul the public-disclosure section"section 3"of the Administrative Procedure Act .... That section ... was plagued with vague phrases and gradually became more a withholding statute than a disclosure statute." Milner v. Dep't of Navy, 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (internal quotation marks omitted); Pub. L. No. 89-487, 80 Stat. 250 (1966) (amending section 3 of the Administrative Procedure Act). FOIA reflects "a general philosophy of full agency disclosure" unless the government can prove that the requested information is exempt under the statute. Dep't of Air Force v. Rose, 425 U.S. 352, 360–61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ; 5 U.S.C. § 552(a)(4)(B). FOIA "shines a light on government operations to check against corruption and to hold the governors accountable to the governed." Coleman v. Drug Enf't Admin., 714 F.3d 816, 818–19 (4th Cir. 2013) (internal quotation marks omitted).

Congress has amended FOIA several times, often due to concerns with agencies' slow responses to FOIA requests. For example, Congress amended FOIA in 1974 due to concerns with "bureaucratic delay" in FOIA processing, and "[t]he lack of priority given" to FOIA compliance "by top-level administrators." S. Rep. No. 93-854, at 155, 175–178 (1974). Congress again amended FOIA in 1996, noting that "[c]hronic delays in receiving responses to FOIA requests [were] the largest single complaint" of FOIA requesters. S. Rep. No. 104-272, at 10, 28–29 (1996).

NEPA and the Council

The National Environmental Policy Act of 1969, codified at 42 U.S.C. §§ 4331 et seq. ("NEPA"), requires "that [an] agency has taken a hard look at [the] environmental consequences" of certain agency actions affecting the environment. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). NEPA itself does not require that the agency reach a particular substantive result. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Instead, NEPA imposes procedural, information-gathering requirements. These requirements are meant to "ensure[ ] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts." Id. at 349, 109 S.Ct. 1835.

To that end, NEPA has two primary goals. First, the statute makes sure that agencies "consider every significant aspect of the environmental impact of a proposed action ...." Baltimore Gas and Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (internal quotation marks omitted). Second, NEPA serves an accountability function: the statute provides assurance to the public that an agency has actually considered the information that it should. Id.

As is relevant to this case, NEPA also established the Council as an agency1 within the Executive Office of the President to help implement NEPA's goals. 42 U.S.C. §§ 4342, 4344. In 1978, the Council enacted regulations on the procedural aspects of NEPA. 43 Fed. Reg. 55978 (Nov. 29, 1978) (codified at 40 C.F.R. 1500 et seq. ); Andrus v. Sierra Club, 442 U.S. 347, 356–58, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979). These regulations have been substantively changed just once before, in 1986. See 40 C.F.R. 1502.22 ; ECF No. 32 at 2–4 (describing additional regulatory history).

The Council's Advanced Notice of Proposed Rulemaking

On June 20, 2018, the Council published an advance notice of proposed rulemaking titled " Update to the Regulations for Implementing the Procedural Provisions of [NEPA]." 83 Fed. Reg. 28591 (June 20, 2018) (the "Advance Notice"). The Advance Notice stated that the Council was "considering updating its implementing regulations." The Council requested public comments on this proposal, and listed twenty specific questions for the public to answer. Id. at 28591–92. The Council received more than 12,500 public comments in response. ECF No. 32 at 4. SELC submitted several comments itself, and also joined in other comments. See ECF Nos. 28-1, 28-2.

SELC's Pending FOIA Requests and the Instant Action

SELC is a 50l(c)(3) non-profit organization that works to "protect the natural resources" of the Southeastern United States and, "in particular, to gather, analyze, and disseminate public information about activities affecting human health and the environment" in the region. ECF No. 28-17 ¶ 4. NEPA, which in part serves to educate the public about the environmental consequences of government actions, "is vitally important to SELC's work," and SELC engages in NEPA-related litigation. Id.; see also Compl. ¶ 8–10.

On July 19, 2018, SELC submitted a FOIA request to the Council seeking "all records in the possession of [the Council] that in any way relate to" the Advance Notice. Compl. ¶ 17 & Ex. 1; Answer ¶ 17.

On September 5, 2018, SELC submitted a revised FOIA request to the Council. Compl. ¶ 19 & Ex. 2; Answer ¶ 19. This request sought "all records in the possession of" the Council "that in any way relate to [its] proposed rulemaking to update [the Council's] implementing regulations for the procedural provisions of [NEPA], including but not limited to all records that relate to" the Advance Notice. Id.

The Council confirmed that it had received SELC's request on September 7, 2018. Compl. ¶ 22; Answer ¶ 22. On November 14, 2018, SELC emailed the Council to inquire about the status of the request—the Council had not yet responded with a determination. Compl. ¶ 23; Answer ¶ 23. As of November 30, 2018, the Council had failed to issue a determination in response to SELC's FOIA request and had failed to produce any documents. Compl. ¶ 24; Answer ¶ 24. Thereafter, SELC filed this declaratory judgment action asking the court to force the Council to comply with SELC's FOIA requests.

On September 16, 2019, the court denied SELC's motion for judgment on the pleadings. ECF Nos. 18–19. On December 13, 2019, pursuant to the court's briefing order, SELC filed a motion for summary judgment, which asks that the Court compel the Council to comply with SELC's "time-sensitive" FOIA request in an "expeditious fashion." ECF Nos. 21–23. Specifically, SELC requested that the court order the Council to complete document production by March 31, 2020. ECF No. 23 at 3. Under the same briefing order, the Council opposed summary judgment and cross-moved for summary judgment on January 13, 2020. ECF No. 24. The Council argued, in substance, that it is a small agency with a small budget, and is responding to SELC's FOIA request in good faith, and with reasonable promptness under the circumstances. Id. The parties filed their replies on January 28, 2020 and February 12, 2020. ECF Nos. 25 & 26.

SELC filed the instant motion on February 13, 2020. ECF No. 27. In opposing SELC's motion, the Council submitted a sworn declaration from Howard C. Sun, an Attorney Advisor at the Council. Sun stated that the Council has identified 7,066 records that could be responsive to SELC's FOIA request. ECF No. 32-2. According to Sun, this amounts to roughly 15% of the e-discovery work that the Council has done on all FOIA cases since SELC's September 2018 request. Id. To date, the Council has sent five batches of documents totaling around 3,600 pages in response to SELC's FOIA requests: about 11% of the Council's review since September 2018. Id. Sun stated that agency would carry forward with monthly, rolling document productions of roughly 600 pages per month until July 2020, and estimated that the Council would complete production of responsive documents to SELC by November 2020. Id. About 27,000 pages are left to be reviewed, but Sun stated that more than 20,000 of those pages consist of public comments that are imbedded in the Council's records. Id. In sum, less than 7,000 pages remain that would require substantive review. Those documents that have been produced are extensively redacted, but reveal that the Council used interns for screening public comments. ECF No. 28-6.

Sun also described certain challenges that have slowed the Council's document production efforts. ECF No. 32-2. For example, the Council has a small budget and 13 full-time staff members. Id. Another office in the Executive Office of the President, the Office of Administration, must also help the Council gather and...

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