Se. Legal Found., Inc. v. U.S. Envtl. Prot. Div.

181 F.Supp.3d 1063

Southeastern Legal Foundation, Inc., Plaintiff,

v.United States Environmental Protection Division, Defendant.

CIVIL ACTION NO. 1:15-cv-0386-AT

United States District Court, N.D. Georgia, Atlanta Division.

Signed March 30, 2016.

Kimberly Stewart Hermann, Shannon Lee Goessling, Southeastern Legal Foundation, Inc., for Plaintiff.

Matthew A. Josephson, United States Department of Justice, for Defendant

ORDER

Amy Totenberg, United States District Judge

This suit brought by the Southeastern Legal Foundation ("SLF") under the Freedom of Information Act ("FOIA") seeks judicial review of the Environmental Protection Agency's ("EPA") processing of three separate FOIA requests, dated December 18, 2009, April 22, 2010, and November 22, 2013. It is before the Court on the parties' Cross-Motions for Summary Judgment [Docs. 14, 15, 19, 24].

I. BACKGROUND

Plaintiff Southeastern Legal Foundation, Inc. ("SLF") is a self-described "non-profit public interest law firm specializing in the practice of constitutional law" and "undertakes research on policy issues of interest to the public." (SLF Ex. B-1/Tab 22.) "Fundamental to [SLF's] core mission is research into the activities of the Federal Government." (SLF Ex. B-4/Tab 25 at 1.) According to its Complaint, SLF also operates as "a policy center that advocates constitutional individual liberties, limited government and free enterprise in the courts of law and public opinion," and its work includes "advancing responsible regulation and [ ] challenging regulations based on flawed science and political agendas." (Compl. ¶ 7.) SLF's "programs include analysis, publication and a transparency initiative seeking public records relating to environmental and energy policy and how policymakers use public resources." (Id. )

"SLF's primary mission is to disseminate information to the public through research into the functioning of all levels of government and, where appropriate, effect public policy through litigation." (SLF Ex. B-4/Tab 25 at 2.) In furtherance of that mission, SLF disseminates information through a number of means, including: (i) its publicly available website and ancillary websites set up to disseminate information about ongoing litigation projects, e.g., www.epalawsuit.com; (ii) through mailing lists; (iii) press releases; and (iv) published "op-eds" in local and national newspapers and other media. (Id. ) According to SLF, "[a]s a non-profit SLF has no commercial interests in the information [SLF] collect[s] from the Federal Government," and SLF's "profit derives from the benefit [SLF] provide[s] the public through [its] research, dissemination and litigation." (Id. )

A. SLF's December 18, 2009 FOIA Request

On December 18, 2009, SLF submitted a request under FOIA to EPA seeking documents related to EPA's "Endangerment Findings,¹ " on climate change/global warming, defined in the FOIA Request as (FOIA Request No. HQ-FOI-00469-10):

a. Endangerment Finding: The Administrator finds that the current and projected concentrations of the six key well-mixed greenhouse gases—carbon dioxide (CO2), methane (CH4), nitrous oxide (N20), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)—in the atmosphere threaten the public health and welfare of current and future generations; and

b. Cause or Contribute Finding: The Administrator finds that the combined emissions of these well-mixed greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution which threatens public health and welfare.

(SLF Ex. A-1/Tab 1.) Specifically, SLF sought records: (1) discussing the timing of the release of the Endangerment Findings, including "discussions about coinciding the Endangerment Findings with the "United Nations Climate Change Conference" held December 7, 2009 through December 18, 2009 in Copenhagen, Denmark;" (2) discussing public comments related to the Endangerment findings and EPA's responses to the public comments; and (3) discussing or analyzing the financial implications or consequences of the Endangerment Findings. (Id. )

SLF requested a waiver of the fees associated with the search, review, and reproduction of documents, which EPA granted following an administrative appeal on February 3, 2010. (Id. ; SLF Exs. A-3, A-4, A-5, A-7, A-8; Declaration of Rona Birnbaum ¶¶ 12-13.)

Seven months after submitting its FOIA request, SLF discovered that EPA had undertaken no search for the requested records. (SLF Exs. A-9 & A-10.) On July 16, 2010, EPA produced four documents in response to the request and agreed to produce the remaining documents on a rolling basis. (SLF Ex. A-11.) Over 15 months passed before EPA produced its second batch of documents on November 29, 2011. (SLF Ex. A-15.) EPA completed its production over the next three months in January and February 2012. (SLF Exs. A-16 through A-21.)

In total, EPA located approximately 8,819 documents that were potentially responsive to SLF's request. (Birnbaum Decl. ¶ 24.) Following its review of the documents for responsiveness and for exempt information, EPA identified approximately 3,166 records responsive to SLF's FOIA request and released 2,327 records, of which 111 records were released in full, 2,216 records were released in part, and 839 records were withheld in full. (Birnbaum Decl. ¶¶ 31, 37.) Records were withheld in full or in part under Exemptions 5 and 6 of the FOIA. (Birnbaum Decl. ¶ 39.) Some records or portions of records were withheld under both exemptions. (Id. ) EPA withheld portions of approximately 2,943 records (839 withheld in full and 2,104 withheld in part) from disclosure under Exemption 5 and the deliberative process privilege. (Birnbaum Decl. ¶ 40.) EPA withheld 70 records from disclosure under Exemption 5's attorney-client privilege of the FOIA. (Birnbaum Decl. ¶ 48.) EPA withheld 22 records from disclosure under Exemption 5's attorney work product privilege of the FOIA. (Birnbaum Decl. ¶ 51.) EPA partially withheld portions of 719 records from disclosure under Exemption 6 of the FOIA which contained personal, medical, and health information of an EPA employee or family member. (Birnbaum Decl. ¶¶ 54-55.) EPA partially withheld non-responsive material from 21 records because the information was outside the scope of the request. (Birnbaum Decl. ¶ 58.)

SLF brought this suit to challenge EPA's withholding and redacting of information responsive to its December 2009 FOIA Request for records relating to EPA's Endangerment Findings under FOIA Exemptions 5 and 6. (See Compl. ¶¶ 142-150.)

B. SLF's April 12, 2010 FOIA Request

On April 12, 2010, SLF submitted a FOIA request to EPA seeking records regarding awards or grants of federal funds for research on global climate change (FOIA Request No. HQ-FOI-1115-10). (SLF Ex. B-1/Tab 22.) Specifically, SLF sought: (a) grant applications seeking federal funds for any and all research on global climate change; (b) awards, grants, or funding notifications made pursuant to applications seeking federal funds for research on global climate change; (c) correspondence between EPA and grant applicants or recipients; (d) denial or deferral of awards, grants, or funding made in response to applications seeking federal funds for research on global climate change; (e) contracts entered by the funding grantee or its principal investigator in furtherance of or in conjunction with federally funded research on global climate change. (Id. )

SLF sought a waiver of the search, review, and reproduction fees under FOIA associated with its request. (SLF Ex. B-1/Tab 22.) On April 20, 2010, EPA requested that SLF provide additional information in support of its request for a fee waiver and to address "in sufficient detail" the following six regulatory factors:

1. The subject matter of the requested records must specifically concern identifiable operations or activities of the government.

2. For the disclosure to be "likely to contribute" to an understanding of specific government operations or activities, the releasable material must be meaningfully informative in relation to the subject matter of the request.

3. The disclosure must contribute to the understanding of the public at large, as opposed to the understanding of the requester or a narrow segment of interested persons.

4. The disclosure must contribute "significantly" to public understanding of government operations or activities.

5. The extent to which disclosure will serve the requester's commercial interest, if any.

6. The extent to which the identified public interest in the disclosure outweighs the requester's commercial interest.

(SLF Ex. B-3/Tab 24.)

On April 27, 2010, SLF supplemented its FOIA fee waiver request, relying primarily on EPA's prior grant of a fee waiver (after an appeal to the Office of General Counsel) in connection with SLF's December 2009 FOIA Request for documents relating to EPA's December 7, 2009 Endangerment and Cause or Contribute Findings on greenhouse gases/climate change/global warming. (SLF Ex. B-4/Tab 25; Ex. B to Ex. B-4.) SLF characterized the December 2009 and April 2010 requests as similar because "[b]oth requests seek information regarding different aspects of the same issue: EPA determinations and decision-making processes involving anthropogenic global warming or climate change." (SLF Ex. B-4/Tab 25 at 2.) SLF further explained that (a) "the Request centers on EPA decision-making processes involving the awarding of scientific grants to various persons or institutions;" (b) "these grants and denials of grants involve U.S. taxpayer dollars and how EPA chooses to disperse those dollars for research involves a specific activity of the government;" (c) "the disclosure would elaborate on ... how and under what criteria ... EPA award[s] or den[ies] scientific grants to persons and institutions [and] any insight into this process would be meaningfully informative to the general public;" (d) SLF would "disseminate the information gathered...