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Energy Pol’y Advocs. v. EPA, No. 22-298, 2023 WL 6388879 (D.D.C. Sept. 29, 2023) (Kelly, J.)


Energy Pol’y Advocs. v. EPA, No. 22-298, 2023 WL 6388879 (D.D.C. Sept. 29, 2023) (Kelly, J.)

Re:  Request for records concerning EPA’s work regarding air-quality standards

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s motion to file surreply

  • Exemption 5, “Inter-Agency or Intra-Agency” Threshold Requirement, Deliberative Process Privilege, Foreseeable Harm and Other Considerations:  The court relates that “Plaintiff’s challenge focuses on the third document.”  “That document is an eleven-slide PowerPoint presentation dated February 4, 2021, and titled ‘Power Sector Strategy:  Climate, Public Health, Environmental Justice: The Building Blocks.’”  “EPA officials created the presentation and used it to brief White House officials about potential strategies the EPA was considering for regulating power-plant pollution.”  “Part of the purpose of that presentation was to allow White House officials to ask EPA officials questions and to comment on the plans being considered.”  “The EPA thus withheld some of the presentation’s text, asserting the deliberative-process privilege under FOIA Exemption 5.”

    Regarding the threshold, the court notes that “Plaintiff does not seem to contest the first element – that the slides are inter- or intra-agency records.”  The court finds that, “[h]ere, senior EPA officials – no doubt members of an ‘executive department,’ . . . –prepared the slides.”  “And they prepared those slides for a presentation to the White House Office of Domestic Climate Policy.”  “To the extent the slides were used for ‘wholly internal’ discussions at the EPA about ‘potential policies and strategies under consideration by Agency decision-makers,’ . . . they qualify as intra-agency records.”  “To the extent they were used to communicate between the EPA and the White House, they qualify as inter-agency records.”

    Next, the court finds that “EPA has shown that the slides [are predecisional].”  “Its declarant details how the slides explore potential regulatory actions.”  “None of those contemplations, the EPA says, reflects its final decisions on those matters.”  “That representation’s credibility is bolstered by the timing of the presentation – just a few weeks into a new presidential administration – and the fact that its title references ‘Building Blocks’ of a power-sector strategy.”  “Plaintiff’s contrary argument lacks legal foundation.”  “It claims the EPA has not identified a particular ‘“decision” that was being contemplated or that was thereafter made.’”  “No matter – a ‘writer does not know at the time of writing whether the draft will evolve into a final document.’”  “‘But the writer needs to know at the time of writing that the privilege will apply and that the draft will remain confidential, in order for the writer to feel free to provide candid analysis.’”  “Instead, the EPA’s burden is to establish ‘the role played by the documents at issue in the course of [its decisionmaking] process.’”  “The EPA has done that.”  “It says the redacted material was used ‘to brief the White House on potential policies and strategies under consideration by Agency decision-makers for regulating power plant pollution, and to provide the White House with an opportunity to share questions and comments on the Agency’s potential regulatory strategies for the power sector.’”  “That ‘account of the relevant decisionmaking process’ establishes the documents’ ‘role’ and ‘plainly establishes their predecisional nature.’” 

    “The story is similar for the slides’ deliberative nature.”  “The EPA explains that it sought to ‘develop’ ‘several potential strategies and paths forward for regulating power sector pollution’ and to ‘obtain feedback’ from the White House about those matters.”  “It also details the role each slide played in that process.”  “In service of its goal of getting feedback, the presentation ‘contains internal analysis of the relative strengths and weaknesses of each approach.’”  “And the context here is critical – again, the presentation happened a few weeks into a new presidential administration, . . . a time of heightened need for actors in the Executive Branch to establish policy priorities and discern whether they are on the same page.” 

    Responding to plaintiff’s objections, the court finds that, “[a]s the EPA acknowledges, there is ‘no direct hierarchical relationship’ between the EPA official and the White House officials to whom he presented the material.”  “Plaintiff seizes [on] that concession, noting that the EPA ‘admits that the PowerPoint was not created by a subordinate making recommendations to a superior, but was instead created to “brief” employees of a different agency with no direct supervisory authority.’”  “It thus seems to contend that a subordinate relationship between the author of material and its recipient is necessary for the material to be considered deliberative.”  “Not so.”  “True, records sent from a ‘subordinate’ to a ‘superior’ are ‘more likely to be deliberative . . . than documents traveling in the opposite direction.’”  “But there is no ‘directional precondition to protection under the deliberative process privilege.’”  “As a last-ditch effort, Plaintiff suggests that documents used to ‘brief the White House’ cannot be deliberative because briefing is different from ‘weigh[ing], internally or with some other agency, the merits and demerits of a particular decision.’”  “Plaintiff cites no legal or other authority for this half-baked assertion.”

    Regarding foreseeable harm, the court finds that “EPA has shown that it reasonably foresees harm from disclosing the slides.”  “The EPA has satisfied its burden to show foreseeable harm in two ways.”  “First, it explains that disclosure of the eight slides would hinder EPA officials’ candor in future policy discussions.”  “Second, the EPA describes the public confusion that would likely result from disclosing the slides.”  “If disclosed, the public could mistake those proposals for ‘future commitments, past actions, or provisions already in place.’”  “The consequences of such public confusion would be pronounced here, the EPA explains, given the complex, controversial, and sensitive nature of its regulation of power-plant emissions.”  “The Court agrees.”
  • Litigation Considerations:  The court relates that “Plaintiff also moves for leave to file a surreply to the EPA’s reply supporting its motion for summary judgment.”  “Without citing any legal authority, Plaintiff says it should be permitted to do so for two reasons.”  “First, it thinks the EPA made new arguments in reply that it should be permitted to address.”  “Second, it says the main author of the slides recently testified before Congress, a development it says is relevant to the foreseeable-harm element the Court discussed above.”  The court finds that “[n]either claim holds up, so the Court will not consider the material it presented after its opposition . . . .”  The court finds that “it simply is not true that the EPA raised new arguments in its reply.”  “Thus, there is no ‘fairness’ interest in allowing Plaintiff to further respond.”  “Plaintiff’s supposed development [regarding the testimony] is a red herring.”  “[T]he Court cannot glean what relevance Plaintiff thinks the testimony has here.”
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Exemption 5, Inter-Agency or Intra-Agency Threshold Requirement
Litigation Considerations, Foreseeable Harm Showing
Litigation Considerations, Supplemental to Main Categories
Updated November 3, 2023