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Entergy Gulf States La., L.L.C. v. EPA, No. 15-30397, 2016 WL 1077108 (5th Cir. Mar. 17, 2016) (Benavides, J.)

Thursday, March 17, 2016

Entergy Gulf States La., L.L.C. v. EPA, No. 15-30397, 2016 WL 1077108 (5th Cir. Mar. 17, 2016) (Benavides, J.)

Re: Request for documents provided by energy companies to EPA pursuant to Clean Air Act that relate to three of energy companies' power plants

Disposition: Reversing and remanding district court's denial of requester's motion to intervene of right

  • Reverse FOIA:  The Court of Appeals for the Fifth Circuit holds that "[the requester] is entitled to intervene of right" in the energy companies' reverse-FOIA case.  The court finds that "[b]ecause [the requester's] interests diverge from EPA's interests in manners germane to this case, adversity of interest exists between [the requester] and EPA."  The court explains that "[b]y advocating to stay the case in order to narrow the case, the parties made the stay impact the case beyond just delaying its resolution."  "Although stay and bifurcation in some cases might concern mere litigation tactics, in this unique situation, stay and refusal to bifurcate will result in a significantly delayed and likely narrower ruling."  "Because adversity of interest exists, any same-ultimate-objective presumption of adequate representation is overcome, and the requirement that [the requester's] interests be inadequately represented by EPA is satisfied."  "Accordingly, [the requester] is entitled to intervene of right."  Circuit Judge Jones, writing to dissent, "disagree[s] with the conclusion that [the requester] may intervene."  Judge Jones states that, "[a]s [the requester] acknowledged in its brief, it seeks the same 'ultimate result' as EPA, disclosure of all documents relevant to the [the requester's] FOIA request that are not statutorily protected from disclosure as [the energy companies'] or third-parties' confidential business information."  "[The requester] simply wants disclosure to proceed faster, or even piecemeal."
Court of Appeals
Reverse FOIA
Updated April 28, 2016