Ecological Rts. Found. v. EPA, No. 20-06898, 2022 WL 2161605 (N.D. Cal. June 15, 2022) (Illston, J.)

Ecological Rts. Found. v. EPA, No. 20-06898, 2022 WL 2161605 (N.D. Cal. June 15, 2022) (Illston, J.)

Re:  Request for records regarding Supplemental Environmental Projects ("SEP")

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

• Exemption 5, Deliberative Process Privilege; Attorney Work-Product Privilege; Attorney-Client Privilege:  " The Court relies on [defendant's] eight-part categorical organization of the contested records."  "Category 1 includes internal discussions between [defendant] and DOJ attorneys on how to calculate and adjust penalties based on the merits of a given enforcement case."  "[Defendant] asserts the records in Category 1 are properly withheld pursuant to the deliberative process, attorney-client, and attorney work-product privileges of Exemption 5."  "[Plaintiff] challenges [defendant's] withholding of the 'final SEP amounts' reached in enforcement cases."  "Having reviewed the entries in the Vaughn Index . . . and the accompanying declaration, the Court concludes that none of the withheld records in Category 1 contain final SEP amounts, such that there is no genuine dispute whether the Category 1 documents were properly withheld." 
  
  "Category 2 includes documents containing case-specific settlement approval and briefing memoranda, and emails discussing the same, prepared by regional attorneys and enforcement personnel for purposes of seeking . . . management approval to enter into settlement agreements on particular terms."  "[Defendant] withheld documents in Category 2 pursuant to [the] deliberative process, attorney-client, and attorney work-product privileges . . . ."  "[Plaintiff] only challenges the withholding of records that pertain to resolved enforcement litigation, i.e., 'recommendations that were accepted concerning whether to approve the SEPs at issue.'"  "The Court accepts [defendant's] characterization of the records and finds the deliberative process privilege logically applies."  "[Plaintiff] is correct that the deliberative process privilege only applies to documents that (1) 'were generated before the agency's final decision on the matter,' and (2) 'were prepared to help the agency formulate its position.'"  "But even if the recommendations at issue were later incorporated into the final consent decrees produced by EPA, the recommendations, when drafted, did not reflect 'a final agency decision and the reasons supporting it,' or reflect 'the consummation' of the agency's decisionmaking process."  "Recommendations drafted before the issuance of consent decrees in order to assist [defendant in] formulat[ing] its settlement plans reflect a 'merely tentative position' on which [defendant] decisionmakers are 'free to change their minds.'"  "The contested records in Category 2 thus plausibly fall within the deliberative process privilege . . . ."
  
  "Category 3 consists of 29 documents that contain internal meeting materials, including emails and attachments, prepared by [defendant] in preparation for meetings between [defendant] and DOJ in which the two agencies discussed ongoing environmental enforcement cases and [defendant's] concerns and recommendations on the impacts of potential changes to SEPs policy."  "[Defendant] asserts the deliberative process, attorney-client, and attorney work-product privileges apply to the documents in Category 3 because (1) the documents contain predecisional deliberations that predated the issuance of and were associated with the 2019 SEP Memo, (2) that the documents contain attorney analysis of ongoing environmental enforcement litigation and the impact that contemplated policy would have on those cases, and (3) the documents constitute communications between attorneys at various agencies."  "[Plaintiff] insists [defendant] created the withheld documents to discuss with DOJ:  (1) the then-already-issued 2018 Sessions Memo and its effects on SEPs in general, (2) [defendant's] 2015 SEP Policy, and (3) examples of past SEPs."  "The Court is not persuaded that the [evidence] offered by [plaintiff] adequately rebuts the presumption of good faith afforded to [defendant's] declaration that the withheld records contain predecisional deliberations that ultimately culminated in the 2019 SEP Memo."  "[Plaintiff] is correct that the deliberative process privilege only protects documents 'prepared to assist an agency decision-maker in arriving at a future particular decision,' not documents prepared in the course of a perpetual 'process of agency self-examination.'"  "However, the principle expressed in Lahr only held that 'the agency must identify a specific decision to which the document is predecisional.'"  "[Defendant] has carried that burden here by attesting that the withheld documents were predecisional to the 2019 SEP Memo[.]"  "The Court has reviewed the additional Vaughn entries challenged by [plaintiff] . . . and concludes [that defendant] has provided sufficient detail in the Vaughn Index and Porter Declaration to establish the plausibl[e] application of Exemption 5 and the foreseeable harm associated with disclosure." 
  
  "[T]he records in Category 4 do not reference ongoing enforcement litigation, but only reference the proposed changes to SEP practice and the broader interagency discussion concerning enforcement policy prior to the issuance of the 2019 SEP Memo."  "For the same reasons as Category 3, the Court finds Category 4 documents subject to the deliberative process privilege."
  
  "Category 5 consists of 210 documents that contain communications within [defendant] and between [defendant] and DOJ that discuss the agencies' SEP policies and practices and the application of SEP policies and practices to specific EPA enforcement cases ongoing at the time."  "[Defendant] asserts the records in Category 5 are protected by the deliberative process, attorney-client, and attorney work-product privileges."  "[Plaintiff] . . . seeks the production of information relating to: (1) the effects of the 2018 Sessions Memo and 2019 SEP Memo on SEPs generally, (2) application of these withdrawn memos to specific completed cases, and (3) communications conveying a final decision on whether and why an SEP was allowed in a given case."  "[T]he Court concludes [defendant] has met its burden to establish a logical justification for the specific withholdings."  "[Plaintiff's] repeated assertions of what the withheld or redacted materials 'appear' to contain . . . does not amount to 'contrary' record evidence sufficient to rebut the veracity of the Vaughn Index."  "Further, [Plaintiff's] allegations that several contested Category 5 Vaughn entries are 'inaccurate' because they 'describe only the last email in the chain' or 'do not identify all of the recipients of the emails,' . . . even if true, do not establish agency 'bad faith' or a failure to describe the withheld contents with reasonable specificity."  "As to Vaughn numbers 397 through 400 . . . the Court finds [defendant] has carried its burden to articulate why these withheld documents are subject to the deliberative process privilege. According to the Vaughn Index, Vaughn Nos. 397-400 pertain to an email exchange entitled 'SEP follow up' in which [defendant] and DOJ attorneys discuss 'how DOJ's August 2019 SEPs policy will be applied to active enforcement matters that EPA had open against defendants at the time.'"  "These emails are thus plausibly predecisional to the actions [Defendant] intends to take in pending enforcement maters."  "[Defendant] has met its burden to establish the applicability of Exemption 5 to Category 5." 
  
  "Category 6 consists of 129 documents that [defendant] alleges contain advice from [defendant] and DOJ attorneys regarding SEP policy generally, rather than SEP policy in connection with specific enforcement cases."  "[Defendant] asserts that the records are . . . protected by the deliberative process privilege . . . [and] also asserts the records are attorney-client privileged."  "The only record evidence offered by [plaintiff] to rebut [defendant's] affidavits is Exhibit 35, containing the redacted document described in Vaughn No. 471."  "The Court surmises that [plaintiff] offers Exhibit 35 to demonstrate that Vaughn Nos. 470-73 were communications pertaining to the 2018 Sessions Memo, rather than the 2019 SEP Memo to be issued later that year."  "But even if it were true that EPA staff were discussing the 2018 Sessions Memo, this does not preclude the application of the deliberative process privilege to Vaughn Nos. 470–73, as discussions pertaining to past SEP policy may be predecisional to the 'specific decision' of what a subsequent SEP policy will entail."  "As to Vaughn No. 515 . . . the Court finds the Vaughn entry sufficient to support the application of the attorney client privilege."  "The document . . . contains two redactions:  advice from a staff attorney on how to address a question about SEP policy and its impact on enforcement cases, and a response from an OECA administrator regarding that staff attorney's proposed advice."  "The attorney client privilege is plausibly asserted[.]"  "The Court has individually reviewed the remaining Vaughn entries contested by [plaintiff] and concludes that [defendant] has carried its burden to establish that Exemption 5 applies for Category 6."
  
  "The records in Category 7 are communications between [defendant] and DOJ that contain recommendations and advice concerning the application of the Sessions Memoranda to potential settlement terms in specific enforcement matters."  "[Defendant] withheld Category 7 pursuant to the deliberative process, attorney-client, and attorney work-product privileges."  "[Plaintiff] only challenges 'EPA's redaction of information relating to the effects of the Sessions Memoranda on SEPs generally and whether these memoranda mandate dropping or instead allow SEPs in specific cases.'"  "Review of the relevant Vaughn entries . . . indicates the redactions contain staff discussions on how the Sessions Memoranda would apply to specific enforcement decisions which took place before those enforcement decisions became final."  "While it is true that the Vaughn Index does not make clear whether the redactions contain statements that convey 'nondiscretionary instructions,' a remote possibility that a redaction might contain some type of non-exempt material does not suffice to rebut an agency's detailed affidavit and create a disputed issue of fact."  "The Court has also reviewed the three Exhibits [Plaintiff] submitted to contest the propriety of [defendant's] Category 7 withholdings."  "Exhibit 36 indicates that the quoted sentence, and the redaction that followed, are part of a draft letter included within a correspondence between two attorneys."  "[Plaintiff] has thus not offered contrary evidence to rebut the privileges asserted for Vaughn No. 608, as that email solicits legal advice on how to best present facts."  "[Plaintiff's] Exhibit 37 also does not provide contrary evidence that would call into question the justification offered for Vaughn No. 618."  "[B]are assertions of what a redacted record might contain does not constitute contrary evidence to rebut a sufficiently detailed Vaughn entry."  "[Defendant's] burden . . . is only to describe the record with reasonable specificity to permit this Court to evaluate whether an exemption plausibly applies."  "[Defendant] has adequately explained the presentation notes were drafted by a legal intern at the direction of agency attorneys and describe[d] ongoing litigation."  "It is thus logical that the attorney work product privilege applies to the presentation notes."  "Finally, [plaintiff] submits Exhibit 38, which contains the emails referenced in Vaughn No. 603 . . . for which [defendant] asserts deliberative process, attorney-client, and attorney work product privileges, as well as the personal privacy privilege of Exemption 6."  "[Plaintiff] remarks that for Vaughn No. 603, [defendant] asserts the attorney work product privilege but 'does not invoke the attorney work product exemption anywhere' in the Vaughn description."  "[Plaintiff] is correct."  "However, [defendant] adequately asserts that two other Exemption 5 privileges, as well as an Exemption 6 privilege, logically apply to Vaughn No. 603." 
  
  "The records in Category 8 consist of draft letters prepared by [defendant's] Office of Enforcement and Compliance Assurance ("OECA") in response to a Congressional inquiry[.]"  "[Plaintiff] contends that the withheld drafts are subject to the deliberative process privilege because they reflect an exchange of 'views concerning how best to frame responses to anticipated questions on environmental enforcement topics, and those recommendations and views represent the varying opinions on how to address the topics at issue.'"  "[Plaintiff] argues the deliberative process privilege cannot apply because the drafts, created in 2018, discuss the 2017 Sessions Memo, and thus, cannot be predecisional to that 2017 memorandum."  "The Court recognizes the Ninth Circuit's decision in [Transgender Law Center v. ICE] states that '[g]overnment deliberations regarding how best to address public relations matters or possible responses to an inquiry received from an outside entity are not the type of policy decisions the privilege is intended to protect' [33 F.4th 1186, 1198 (9th Cir. 2022)]."  "However, the Ninth Circuit's decision did not address whether deliberations on how to respond to inquiries received from Congress fall outside the intended scope of the deliberative process privilege."  "Accordingly, the Court applies the background principle that in order to withhold a draft communication, an agency must 'adequately explain[ ] how they reveal a deliberative process.'"  "[Defendant] has carried that burden with respect to the draft letters to Senator Collins."  "In the alternative, [plaintiff] argues that the deliberative process privilege 'includes only policy development, not explanation.'"  "The Ninth Circuit, however, rejects the position that a document 'must itself contain recommendations on law or policy to qualify as deliberative.'"  "Here, the substance of the draft letters, according to [defendant], embodied a deliberative process on how to best counsel a member of Congress anticipating questions on environmental enforcement topics."   "Disclosure, according to [defendant], 'would chill . . . staff's ability to confer regarding questions received from Congress on this topic that is of significant interest to the public and to legislators.'"  "The Court thus finds [defendant] properly applied Exemption 5 to Category 8."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court has scrutinized [defendant's] segregability determinations for each entry in the Vaughn Index, and finds each entry sufficiently individualized and specific as to permit the Court to find that all reasonably segregable factual information has been produced."  "As to non-segregable information, [defendant's] Vaughn Index sufficiently sets forth 'clear, precise, and easily reviewable explanations' for why information was withheld pursuant to an articulated privilege."