Ecological Rts. Found. v. EPA, No. 19-2181, 2022 WL 4130818 (D.D.C. Sept. 12, 2022) (Pan, J.)

Ecological Rts. Found. v. EPA, No. 19-2181, 2022 WL 4130818 (D.D.C. Sept. 12, 2022) (Pan, J.)

Re:  Challenge to legality of amendments to EPA regulations pertaining to processing of FOIA requests

Disposition:  Granting defendant’s motion to dismiss; denying plaintiff’s cross-motion for partial summary judgment

• Procedural Requirements:  The court relates that “[o]n June 26, 2019, the EPA published a Freedom of Information Act Regulations Update (the ‘2019 Rule’) in the Federal Register.”  “As relevant here, the 2019 Rule made four changes to the EPA’s FOIA procedures.”  First, “[t]he 2019 Rule removed the option of submitting FOIA requests directly to regional offices of the EPA.”  Second, “[t]he 2019 Rule includes the EPA Administrator on a list of officials who are authorized to ‘issue final determinations whether to release or withhold a record’ under the FOIA.”  Third, “[r]evised § 2.103(b) also purports to authorize EPA officials to ‘issue final determinations whether to release or withhold a record or a portion of a record on the basis of responsiveness or under one or more exemptions under the FOIA, and to issue “no records” responses.’”  “Finally, the 2019 Rule modifies language related to the EPA’s aggregation of FOIA requests, the fees charged for processing requests, expedited processing of requests, and multi-track processing, whereby the EPA manages requests in accordance with perceived complexity.”  “Those modifications, for the most part, make grammatical and stylistic changes, while leaving the substance of the regulations untouched.”  “The only substantive change is to the limitations on charging fees the EPA adopts.”
  
  Plaintiff first claims “that the EPA’s centralization of intake for FOIA requests at the agency’s Washington, D.C., headquarters . . . violates Section 706(2)(A) of the APA because the change is ‘unreasonable, arbitrary, and capricious in light of [the EPA’s] overwhelming failure to timely process FOIA requests and the fact that this will inevitably slow that process down further.’”  The court finds that “[plaintiff] has not met [the] standard [for injury in fact].”  “In support of its claim of anticipated delays in the processing of its FOIA requests, [plaintiff] argues that ‘EPA Headquarters, the site of massive delay even before increasing its workload, will now be carrying out further FOIA work.’”  “But the EPA took steps to address the expected increase in workload at its headquarters due to the centralization of intake . . . .”  “Moreover, [plaintiff] overstates the increase in workload at headquarters associated with the change.”  “Contrary to [plaintiff’s] contention, the agency has centralized only the ‘submission’ of FOIA requests, not their processing.”  “[Plaintiff’s] attempt to allege a second injury — an increased risk of political interference caused by the centralization of FOIA intake — fares no better.”  “[Plaintiff] provides no facts to substantiate its assertion that the new intake procedures will cause EPA officials to violate the FOIA by making ‘indefensible decisions’ on [plaintiff’s] FOIA requests for ‘political’ reasons.”
  
  “[Plaintiff’s] second claim challenges the ‘EPA’s decision to allow the Administrator to make initial determinations on FOIA requests and to bar requesters from appealing those determinations.’”  “According to [plaintiff], this is problematic because the FOIA ‘requires that all determinations provide notification of “the right of such person to appeal to the head of the agency”’ . . . .”  “Because the Administrator is the head of the agency, [plaintiff] argues that a regulation that allows the Administrator to make the initial determination is invalid because it effectively removes the appeal right that is guaranteed by FOIA.”  The court finds that “[plaintiff’s] claim appears to rest on a misunderstanding of when the Administrator was first empowered to make unappealable initial determinations.”  “Although [plaintiff] claims that the 2019 Rule conferred such authority on the Administrator, it appears that the Administrator has been able to make initial FOIA determinations since at least 2002.”  “Because the Administrator has had the power to issue unappealable initial FOIA determinations since at least 2002, [plaintiff] fails to establish that the harm it alleges – i.e., the loss of appeal rights – is caused by the challenged 2019 Rule, and that voiding the amended regulation would redress the asserted injury.”  Additionally, the court finds that “[plaintiff] also fails to adequately show that [plaintiff] itself will be injured by the alleged procedural change.”  “According to [plaintiff], now that the Administrator claims the authority to make FOIA determinations, it is likely that he will choose to make determinations on [plaintiff’s] requests; and those determinations will be motivated by ‘political, personal, and other reasons’ that will injure [plaintiff].”  The court finds that “[i]t is pure speculation that the Administrator will imminently decide one of [plaintiff’s] FOIA requests, or that there is a substantial risk that he will do so.”  Also, the court finds that “[e]ven if [plaintiff] did have standing to bring Claim 2, its challenge is also barred by the applicable statute of limitations.”  “Here, [plaintiff] is challenging the EPA’s decision to ‘vest the Administrator with authority to make initial FOIA determinations that are not appealable.’”  “But, as noted [earlier], the EPA promulgated the regulation providing that ‘[a]n adverse determination by the Administrator on an initial request will serve as the final action of the Agency’ in 2002.”  “[Plaintiff] filed its Complaint challenging the Administrator’s authority to make unappealable initial determinations in 2019, well outside of the six-year statute of limitations.”  “Finally, [the court finds that] even assuming that [plaintiff] has standing and that its challenge is timely, [plaintiff] fails to state a claim.”  “[T]he Court concludes that Section (a)(6)(A) relates ‘to the requester's ability to get into court’; and if an agency chooses to waive any of the requirements in the statute, then the remedy for the FOIA requester is that the agency action is deemed final, and the requester may appeal the agency action in federal court.”  “It follows that any decision by the EPA to eliminate the right of a FOIA requester to file an administrative appeal to the agency head would be permissible; and that such a decision would serve only as a waiver of the administrative exhaustion requirement that would otherwise apply.”
  
  Regarding plaintiff’s next claim, the court relates that “[plaintiff] challenges 40 C.F.R. § 2.103(b) to the extent that the regulation purports to allow agency officials to withhold portions of responsive records on the ground that those portions are non-responsive to the FOIA request.”  “The parties agree that ‘[a]n agency cannot withhold a portion of a record by claiming that portion is not responsive to the request.’”  “The parties also agree that Claim 4 should be remanded to the agency for proposed modifications to section 2.103(b).”  “The parties dispute, however, whether the remand should be accompanied by a vacatur of the challenged regulation.”  “Here, the Court has an ‘interest[ ] in avoiding unnecessary adjudication,’ and in permitting the ‘crystalliz[ation of agency] policy before that policy is subjected to judicial review.’”  “Resolving the merits of a challenge to a regulation that may soon be revised makes little sense.”  “Thus, the Court will decline to reach the merits of Claim 4 and will remand that claim to the EPA without vacatur.”
  
  The court relates that “[plaintiff’s] final argument takes aim at the entirety of the 2019 Rule, which the EPA promulgated without notice and comment.”  “To demonstrate standing, [plaintiff] must show that the changes that the EPA made to its regulations without notice and comment implicate a concrete interest of the organization.”  “[Plaintiff] cannot do so for its challenges to 40 C.F.R. §§ 102(c), 104(c), and 104(f) because the changes to those provisions were non-substantive.”  “A comparison of the pre-2019 language and the post-2019 language for each of those provisions reveals that the agency made grammatical and stylistic changes while leaving the substance of the regulations untouched.”  The court finds that “[plaintiff] has not shown ‘that it suffered or will suffer a concrete injury as a result of [the] policy produced through the allegedly flawed process,’ because the policy has not meaningfully changed as a result of the process.”  “The only substantive change to the regulations challenged in Claim 5 are the additions that the EPA made to 40 C.F.R. § 2.107(d)(6).”  “There, the agency modified the circumstances under which it will charge search fees, implementing the FOIA Improvement Act of 2016.”  “Although the fee provision was meaningfully changed and such changes could cause real injury, [plaintiff] falters on another requirement of standing: redressability.”  “The EPA modified 40 C.F.R. § 2.107(d)(6) to incorporate exactly the 2016 Act that already governed all FOIA requests made after the date of its enactment.”  “Indeed, the EPA followed Congress’s instructions to the letter by copying the required language in the 2016 FOIA amendments and pasting it into the Code of Federal Regulations.”  “Because the statute was self-executing, the amendment to . . . the regulations that duplicated the statutory language had no actual effect on Plaintiff's rights.”  “Whether the Court invalidates 40 C.F.R. § 2.107(d)(6) or not, the fee provisions in the 2016 Amendments became effective ‘on the date of enactment’ and will continue to ‘apply to any request for records under [the FOIA] made after the date of enactment.’”