Clean Air Council v. U.S. Dep't of the Interior

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CLEAN AIR COUNCIL, Plaintiff, v. U.S. DEPARTMENT OF THE INTERIOR et al., Defendants.

Civil Action No. 22-2741

United States District Court, E.D. Pennsylvania

September 6, 2024

MEMORANDUM

HODGE KELLEY B., J.

I. Introduction

This is a dispute between the environmental non-profit Clean Air Council, the National Park Service, and natural gas utility Philadelphia Gas Works and its subcontractor Constellation Energy Solutions, LLC, a subsidiary of Constellation NewEnergy, Inc. over the application of the Freedom of Information Act (“FOIA”) to certain documents submitted to the National Park Service as part of a project to replace the HVAC systems in approximately a dozen historical buildings in Independence National Historic Park. Before the Court are several dueling motions for summary judgment, which primarily focus on two issues: (1) whether a previous proceeding before a state administrative agency bars this lawsuit under the doctrine of collateral estoppel; and (2) whether the National Park Service properly withheld the disputed documents as commercial or financial information^[1] of the natural gas utility and its subcontractor that is confidential under FOIA Exemption 4.

II. Background

The events underlying this FOIA lawsuit began on June 23, 2021, when Clean Air Council^[2](“the Council”) wrote a letter to Secretary Debra Haaland of the Department of the Interior (“DOI”) regarding the installation of natural gas-fueled boilers in more than a dozen historic buildings in and around Independence National Historic Park in Philadelphia, Pennsylvania. Secretary Haaland forwarded the letter to the National Park Service (“NPS”), and NPS Supervisor Cynthia MacLeod responded to the Council via letter on July 7, 2021. In this letter, Ms. MacLeod informed the Council that NPS had hired Philadelphia Gas Works^[3] (“PGW”), along with its subcontractor, Constellation Energy Solutions, LLC (“Constellation”), to conduct engineering or feasibility studies on replacing the aging heating systems in these historic buildings. According to Ms. Macleod, those studies concluded that a natural gas-system would “reduce its contribution to CO2 emissions by 1,685 tons per year,” and recommended replacing the steam-loop heat systems with natural gas-fired boilers. The feasibility studies (in their various iterations) reportedly provided the following information:

a. An executive summary of the suggested [Energy Conservation Measures] at [Independence Historic National Park], including HVAC upgrades, as well as the investment and savings associated with implementation of the proposed [Energy Conservation Measures];

b. Site information and analysis regarding [Independence Historic National Park], including an audit of buildings (including historical buildings) for [Energy Conservation Measures]; rearranges the text of Exemption 4 to create a phrase that does not appear in the statute: ‘confidential commercial information.' It suggests that this synthetic term mirrors a preexisting common law term of art that covers only information whose release would lead to substantial competitive harm, but points to no treatise or case decided before Exemption 4's adoption that assigned any such meaning to the terms actually before the Court.”) c. An energy analysis of NPS' utility data (electric, steam, natural gas, and water) provided by NPS to PGW and Constellation;

d. Proposed [Energy Conservation Measures] (including but not limited to details of specific HVAC and utility equipment currently in federal and historical buildings and suggested repairs and upgrades);

e. A description of the unique approach to be taken by Constellation as an [Energy Services Company] of PGW with respect to the proposed [Energy Conservation Measures] at [Independence Historic National Park];

f. A detailed analysis of the energy investment and savings of the proposed [Energy Conservation Measures], including Task Order Schedules for various proposed project scenarios; and

g. Project investment information, including Task Order Schedules, [Energy Conservation Measure] pricing details, allocated fixed implementation costs details, performance period expenses, and rebates and incentives.

(ECF No. 25-2 ¶¶ 15(a)-(g)).

On August 1, 2021, the Council expressed in another letter to the NPS serious concerns about the environmental impact these gas boilers would have and argued that a conversion to gas boilers is inconsistent with the environmental initiatives outlined in Executive Order 14008.^[4] The Council sent this second letter to Secretary Haaland on August 2, 2021.

The Council received no response to either letter, so on October 4, 2021, the Council submitted a FOIA request to NPS seeking all information regarding PGW's work for NPS since January 1, 2017,^[5] including the feasibility studies referenced in Ms. MacLeod's letter. NPS acknowledged receipt on October 7, 2021 and docketed the FOIA request as NPS-2022-000051, but did not produce any responsive documents. After following up with NPS three times, the Council filed a FOIA appeal to DOI on March 2, 2022. DOI did not acknowledge the appeal. The Council then sent the same appeal to DOI's Office of the Solicitor on March 12, 2022 but received no reply. On March 21, 2022, the Council attempted to obtain the information another way by submitting a request under the Pennsylvania Right to Know Law directly to PGW for records pertaining to PGW's work at Independence National Historic Park. On April 27, 2022, PGW granted the request in part, but withheld the preliminary assessment and feasibility studies as confidential and proprietary. The Council appealed PGW's response to the Pennsylvania Office of Open Records, arguing that the records were not confidential and should be publicly disclosed under the Right to Know Law. On July 26, 2022, the Pennsylvania Office of Open records issued a Final Determination denying Clean Air Council's appeal on the grounds that PGW and Constellation had adequately demonstrated that the records were confidential and commercial in nature and therefore exempt from public disclosure under the Right to Know Law. The Council did not appeal this final determination.

The Council initiated this lawsuit in the Eastern District of Pennsylvania on July 14, 2022. Shortly thereafter, the parties agreed to hold the case in abeyance pursuant to the Court's Order that NPS produce non-exempt records on an ongoing basis and that NPS complete its FOIA response by October 24, 2022.

NPS completed its response on November 29, 2022, ultimately providing approximately 2,325 pages of partially redacted material. The redactions were made pursuant to FOIA Exemptions 3, 4, 5, 6, and 7.^[6] NPS also produced an index of responsive records fully withheld under Exemption 4, which protects confidential commercial information-the feasibility studies were among those documents. The Council filed an Amended Complaint on December 23, 2022, alleging that the feasibility studies and supporting documents were improperly withheld as confidential commercial information pursuant to an unsupported assertion of FOIA Exemption 4. See Am. Compl. ¶¶ 5-6, ECF No. 2. NPS and DOI filed an answer with affirmative defenses, and shortly thereafter, PGW and Constellation successfully moved to intervene in the litigation. On September 8, 2023, the parties and Intervenors filed cross-motions for summary judgment, and on January 25, 2024, the Court held oral argument.^[7]

In its motion (in which Intervenor Constellation joins), Intervenor PGW presents two primary arguments: (1) the Council's Amended Complaint should be dismissed in its entirety because, according to PGW, the Council already litigated the central issue in this matter-the confidentiality and non-public nature of the disputed records-before the Pennsylvania Office of Open Records, and therefore collateral estoppel should apply; and (2) summary judgment should be granted in PGW's favor because the federal government properly withheld and redacted the disputed records consistent with FOIA Exemption 4, which protects privileged or confidential commercial or financial information. The NPS and DOI likewise maintain that assertion of Exemption 4 was proper because the materials at issue qualify as confidential under the standard set by the U.S. Supreme Court in Food Marketing Institute v. Argus Leader Media, 588 U.S. 427 (2019).

The Council argues that fully withholding the feasibility studies and supporting documents is an over-application of Exemption 4 because not all the requested information therein fits within the definitions of confidentiality established in Argus Leader. Specifically, the Council asserts that: (1) there is no indication that NPS provided assurances to PGW or Constellation that the disputed records would be kept wholly confidential; and (2) there is no evidence that these records are customarily kept private. According to the Council, FOIA's primary purpose of promoting government transparency “should override Defendants' nondisclosure decision . . . especially [] when the basis to withhold all records per Exemption 4 is inadequate.” Pl.'s MSJ at 1, ECF No. 28-1.

These motions are now ripe for resolution. For the reasons set forth below, the Court grants Clean Air Council's motion and denies Defendants' and Intervenors' motions.

III. Legal Standards

a. Summary Judgment Standard

A party is entitled to summary judgment if it 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). A genuine dispute is not simply “the mere existence of some alleged factual dispute.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis added). Rather, “[a] genuine issue...