Ctr. for Biological Diversity v. EPA, No. 16-175, 2019 WL 1382903 (D.D.C. Mar. 27, 2019) (Howell, J.)
Re: Request for records concerning new pesticide that EPA determined would have no effect on endangered species or their habitats when used according to restrictions on labeling
Disposition: Granting in part and denying in part defendant's renewed motion for summary judgment; granting in part and denying in part plaintiff's renewed motion for summary judgment
- Litigation Considerations, Adequacy of Search: "Having 'demonstrate[d] beyond material doubt that its search was reasonably calculated to uncover all relevant documents,' . . . EPA is entitled to summary judgment as to the adequacy of the search." The court finds that, "[c]ontrary to CBD's contention, EPA has provided detailed information regarding the search terms selected and used, and explained why those terms and the locations, or custodians, searched 'were reasonably calculated to locate any communications concerning the two refined risk assessments at issue in Plaintiff's FOIA requests.'" Additionally, the court finds that "EPA has therefore satisfied both its obligation to search the ten additional custodians and to explain why the additional individuals copied on the released records are unlikely to be custodians of additional records responsive to CBD’s requests."
- Exemption 5, Attorney-Client Privilege: The court holds that "EPA is entitled to summary judgment on withholding . . . three records . . . pursuant to Exemption 5's attorney-client privilege." The court relates that "EPA explains that '[i]n the redacted portion of [some] of the emails, . . . employees directly discussed advice provided to them by OGC attorneys on the potential legal vulnerabilities of possible policy options OPP was considering at the time.'" Also, the court relates that defendant states that another email "'is entirely comprised of a legal analysis of a specific portion of the draft six-state risk assessment.'"
- Exemption 5, Deliberative Process Privilege: First, the court holds that "multiple decisions contribute to formulating what data to collect and how, and the relevant analytical tests to conduct and under what conditions, to reach a decision under [the Endangered Species Act ("ESA")]'s section 7(a)(2)." "Consequently, EPA's 'may affect' determination under the ESA is properly considered 'deliberative' both because determining what information to include and how to assess that information is itself deliberative, and because, as here, EPA's decisionmaking about whether, and under what conditions, to register [a new pesticide] is intertwined with discussions of how to limit the terms of its registration such that the pesticide will not affect endangered species." Second, the court finds that "EPA's explanations for its withholdings under the deliberative process privilege adequately show that draft documents, emails, and internal briefing documents at issue reveal internal discussion as part of an 'iterative' process 'where the premises for the risk assessment, the accuracy of assumptions, and the availability of all lines of evidence are critically evaluated.'" "Such internal discussions are protected by the deliberative process privilege."
- Procedural Requirements, "Reasonably Segregable" Obligation: "Upon in camera review, the Court determined that the introductory slides of the PowerPoint presentations generally reflect non-deliberative, factual information that should be disclosed." "[T]he Court conducted an in camera review of the non-PowerPoint briefing documents, which range from one to four pages in length." "Factual information in these documents is inextricable from the remainder of the documents, and therefore the agency's non-segregability determination was proper."