Center for Biological Diversity, Inc. v. U.S. Environmental Protection Agency
Civil Action No. 2016-0175
| D.D.C. | Sep 28, 2017Background
- CBD filed FOIA/APA suit seeking EPA records underlying its "no effect" Endangered Species Act determinations for the pesticide Enlist Duo and alleged inadequate search, improper withholdings, and FOIA deadline/estimated-completion violations.
- EPA had prepared Environmental Risk Assessment and multiple Addenda (Six-State and Ten-State) concluding Enlist Duo would have "no effect" on listed species in several states and registered the product for use; EPA did not formally consult with FWS/NMFS because of the "no effect" determinations.
- CBD submitted two FOIA requests (June 26 and October 20, 2014); EPA searched custodians and produced some documents but withheld many under FOIA Exemption 5 (deliberative process and some attorney-client) and Exemption 6 (one personal phone number).
- EPA conducted three searches (initial, Feb 9, 2016 electronic, and a Feb 9, 2017 supplemental paper search), identified limited custodians, and produced Vaughn indices describing withheld documents; CBD challenged search scope, cut-off dates, custodians omitted, failure to search certain communications, and overly broad withholdings.
- Court found EPA’s search inadequate (Count V) and ordered a supplemental search with date-of-search cut-off, expanded custodians, uniform terms, and searches for non-email communications; court denied EPA summary judgment on most withholdings pending a revised Vaughn index and declarations, but granted EPA summary judgment on procedural pattern/practice claims and some other counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of search (Count V) | EPA used improper cut-off dates, missed custodians, failed to search certain record types (IMs/texts/state or third-party communications) | EPA asserted searches were reasonably calculated, used agreed parameters and centralized eDiscovery; no IMs/texts existed | Court: Search inadequate; ordered supplemental search using date-of-search cut-off, expanded custodians, uniform terms, and search of non-email communications where feasible |
| Withholdings under Exemption 5 — deliberative process | Many withheld documents are factual/scientific "no effect" analyses not policy deliberations; EPA failed to particularize privilege claims or show non-segregability | EPA claimed drafts, emails, and internal materials are predecisional and deliberative, reflecting iterative policy-like judgment | Court: EPA failed to justify deliberative-process withholdings with document-specific context, chain-of-command, and segregability; denial of summary judgment without prejudice and directed EPA to submit a detailed Vaughn index or disclose materials |
| Withholdings under attorney-client privilege | Privilege overclaimed; plaintiff urged disclosure | EPA said five documents reflect confidential legal communications seeking or giving legal advice | Court: EPA’s showing insufficiently particularized (nature of legal issue, confidentiality); required supplemental Vaughn/declaration or disclosure |
| Procedural claims re: estimated completion dates and 20-day FOIA deadlines (Counts I–IV) | EPA failed to provide estimated completion dates and violated statutory response deadlines and engaged in unlawful policy/practice | EPA argued it communicated with CBD, provided interim estimates, and delays do not show the egregious pattern at issue | Court: EPA communicated and provided estimated timelines though missed deadlines; plaintiff failed to show policy/practice like Payne Enterprises; summary judgment for EPA on Counts I–IV |
Key Cases Cited
- Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504 (D.C. Cir.) (standard for adequacy of FOIA search)
- DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir.) (FOIA’s disclosure purpose and agency good-faith search standard)
- Public Citizen v. Dep’t of State, 276 F.3d 634 (D.C. Cir.) (date-of-request cut-off disfavored; need for compelling justification)
- Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir.) (policy/practice claims require clear, egregious agency misconduct)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.) (Vaughn index requirement to justify withholdings)
- Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (U.S.) (scope and purpose of deliberative process privilege)
- Milner v. U.S. Dep’t of Navy, 562 U.S. 562 (U.S.) (FOIA exemptions are exclusive and construed narrowly)