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1. Pub. Employees for Env't Resp. v. EPA, No. 18-2219, 2021 WL 2515007 (D.D.C. June 18, 2021) (Howell, J.)

Date

Pub. Employees for Env't Resp. v. EPA, No. 18-2219, 2021 WL 2515007 (D.D.C. June 18, 2021) (Howell, J.)

Re:  Request for public-ready version of formaldehyde assessment referenced by then-Administrator Pruitt in January 2018 testimony before Senate Committee on the Environment and Public Works

Disposition:  Granting defendant's cross-motion for summary judgment; denying plaintiff's cross-motion for summary judgment

  • Exemption 5, Deliberative Process Privilege:  The court holds that "the administrative context in which the 2018 Version-Formaldehyde Assessment was produced, the substance of this document, and the fact that this document predates the still-nonexistent final IRIS formaldehyde assessment, together, indicate that this document 'reflect[s] a preliminary view,' rather than a 'final decision,' about the effects of formaldehyde, . . . and therefore is protected by the deliberative process privilege."  "First is 'the obvious point' that EPA 'identified th[is] document[ ] as [a] '"draft[ ],"' which is 'by definition, a preliminary version of a piece of writing subject to feedback and change.'"  "This possibility for subsequent changes indicates that the 2018 Version-Formaldehyde Assessment is predecisional and deliberative."  "Second, the 2018 Version-Formaldehyde Assessment precedes, and 'contribute[s]' to . . . the eventual final IRIS formaldehyde assessment, and as such was 'generated before the agency's final decision on the' health effects of formaldehyde . . . ."  "That final formaldehyde assessment will, once all seven of the IRIS steps are completed with release to the public, represent the EPA's official statement on the health risks of formaldehyde, and as such will inform not only other EPA programs but also the general public."  "Third, the 2018 Version-Formaldehyde Assessment not only is labeled a draft and subject, pursuant to EPA's IRIS policy, to internal revision before public release, but also contains ordinary indicia of a draft document, bolstering the conclusion that this document is a predecisional, deliberative document protected by the deliberative process privilege."  "Specifically, as noted, the 2018 Version-Formaldehyde Assessment contains redlines, indicating proposed changes, and comment bubbles, reflecting commenters' opinions on and proposals concerning specific portions of the draft."  "Finally, even putting aside the existence of redlines and comments, the 2018 Version-Formaldehyde Assessment is protected by the deliberative process privilege because the document comprises the agency’s tentative selection and synthesis of facts and studies upon which to base its assessment of the health effects of formaldehyde, which are quintessentially deliberative."

    Regarding plaintiff's objections, the court relates that "[f]irst, plaintiff argues that the 2018 Version-Formaldehyde Assessment is not deliberative, because it consists of 'purely factual materials.'"  The court finds that "[t]he determination of which facts, and supporting studies, to rely upon in the formaldehyde assessment is the central deliberative question that the IRIS staff must resolve in drafting the assessment."  "Second, plaintiff argues that the 2018 Version-Formaldehyde Assessment is not predecisional, because 'there was no ultimate policy decision, or even a process of formulating a policy,' to which the 2018 Version-Formaldehyde Assessment contributed and was antecedent."  "The D.C. Circuit has long held that Exemption 5 'covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency,' and the universe of covered agency decisions extends not only to official agency policies but also to agency decisions more generally."  The court finds that "regardless of whether the agency decision toward which the 2018 Version-Formaldehyde Assessment contributes is the eventual Step Four assessment or the eventual final, Step Seven assessment, the 2018 Version-Formaldehyde Assessment is predecisional."

    Regarding the testimony of former Administrator Pruitt in January 2018 testimony before Senate Committee on the Environment and Public Works, the court relates that "[a]s plaintiff characterizes this testimony, Pruitt 'testified to the U.S. Senate that he understood that "the EPA ha[d] finalized its conclusion that formaldehyde causes leukemia and other cancers, and that that completed new assessment [was] ready to be released for public review."'"  The court finds that "[t]his is, at best, an incomplete description of Pruitt's testimony."  "Senator Markey, not Pruitt, stated during the hearing that 'it is [his] understanding that the EPA has finalized its conclusion that formaldehyde causes leukemia and other cancers, and that that completed new assessment is ready to be released for public review[,] [b]ut [the assessment] is still being held up.'"  "In response to that statement, and to Markey's question whether Pruitt could provide an update concerning EPA's handling of the IRIS formaldehyde assessment, Pruitt stated that '[his] understanding is similar to [Senator Markey's], but [he would] confirm that and provide the information to [Senator Markey]."  "Thus, Senator Markey's statement of the situation contained three subsidiary claims:  (1) EPA had finalized its conclusion that formaldehyde causes cancer; (2) the assessment is ready to be released for public review; and (3) the assessment was nevertheless being 'held up.'"  "Which of those three claims, or subset thereof, to which Pruitt was agreeing when he stated that his understanding was 'similar' to Senator Markey's is unclear."  Additionally, the court finds that "[t]his brief testimony by an agency head responsible for the administration of an entire executive branch agency and all of its subsidiary offices, programs, and initiatives, about the status of a particular report within a specific agency program, made in the context of responding to a query at a Senate hearing – and couched with the caveat that the information must be checked – is simply less credible than, and must give way to, EPA's affidavits in this case."
     
  • Litigation Considerations:  Regarding plaintiff's other objections, the court first notes that "plaintiff has voluntarily narrowed the scope of the instant lawsuit to the single issue of whether EPA properly withheld the 2018 Version-Formaldehyde Assessment pursuant to the deliberative process privilege."  "Thus, arguments about whether some other, hypothetical document was properly withheld fall outside the agreed-upon scope of the instant lawsuit."  "In an apparent effort to bypass that agreed-upon scope, plaintiff argues that its FOIA request 'did not seek one specific unfinished version of the Draft IRIS [Assessment], but any version, with a specific aim towards the version that EPA reported years ago was in a final state and ready for public scrutiny.'"  "That may well be an accurate description of what plaintiff originally sought with its FOIA request, but disregards the parties agreed-upon scope to focus the instant lawsuit on the 2018 Version-Formaldehyde Assessment, and therefore misstates the issue before the Court."
     
  • Exemption 5, Foreseeable Harm:  The court holds that "EPA's declarations in this case make a[n] . . . adequate showing."  "EPA has identified particular harms that are linked to 'specific information contained in the material withheld' . . . ."  "First, EPA explains that disclosure of the 2018 Version-Formaldehyde Assessment would chill 'frank analysis and evaluations' because '[i]f the staff working on this Assessment or a similar assessment knew that all of their edits and comments would someday be released . . . they would be less likely to freely discuss . . . scientific analysis.'"  "This is not a hypothetical or speculative harm, since, as noted, fifteen other IRIS assessments are currently in various stages of drafting."  "Second, EPA explains that release of the 2018 Version-Formaldehyde Assessment would cause 'public confusion' because it may reveal 'particular positions that may not represent the agency's decisionmakers' final conclusions of the health effects of formaldehyde,' and would disclose 'staff opinions, which may or may not ripen into the final conclusions' of the agency."  "The agency thus affirmatively concludes that disclosure of the 2018 Version-Formaldehyde Assessment would harm an interested protected by the deliberative process privilege."
     
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "[c]ontrary to plaintiff's claim that EPA 'made no attempt to segregate any purely factual information, or to specify why it could not,' . . . EPA has made the necessary segregability showing here."  "EPA explains that '[f]actual information contained in the [2018 Version-Formaldehyde Assessment] cannot be reasonably segregated from the deliberative content,' since 'any purely factual information contained within the [2018 Version-Formaldehyde Assessment] is so thoroughly integrated with agency deliberations that its disclosure would reveal those deliberations.'"  "More specifically, EPA notes that because the 2018 Version-Formaldehyde Assessment's '[i]ntegration of evidence across studies inherently requires scientific judgment and consideration of the strengths and weaknesses of the available studies,' disclosure 'of even the factual information contained within the [2018 Version-Formaldehyde Assessment] would expose the agency's deliberative process, including exposing the agency's preliminary deliberations, thoughts, and analyses.'"  "Such 'inextricably intertwined' language of similar specificity to that expressed by EPA is routinely found to be sufficient for segregability purposes."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Litigation Considerations, Foreseeable Harm Showing
Litigation Considerations, Supplemental to Main Categories
Litigation Considerations, “Reasonably Segregable” Requirements
Updated November 5, 2021