Heritage Found. v. EPA, No. 23-748, 2023 WL 2954418 (D.D.C. Apr. 14, 2023) (Boasberg, C.J.)

Heritage Found. v. EPA, No. 23-748, 2023 WL 2954418 (D.D.C. Apr. 14, 2023) (Boasberg, C.J.)

Re:  Request for records concerning Norfolk Southern freight-train derailment in East Palestine, Ohio

Disposition:  Denying plaintiffs’ motion for preliminary injunction

• Litigation Considerations, Preliminary Injunctions:  “[T]he Court will deny Plaintiffs’ Motion for a Preliminary Injunction.”  The court relates that “Plaintiffs contend that their request meets the second definition [for compelling need, “with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity”], which is mirrored in EPA’s regulation governing expedited-process requests.”  First, regarding disseminating information, the court finds that “[the individual] Plaintiff . . . can likely show that he qualifies as a person primarily engaged in disseminating information.”  “As the FOIA request explained, he is ‘an author for the Daily Signal,’ which the request described as ‘a major news outlet.’”  “Major or not, the Daily Signal is indeed a news outlet, and [the individual plaintiff] does indeed serve as a columnist there.”  “[The organization plaintiff] itself presents a trickier call:  the organization is a think tank and the request described it that way, even if its Oversight Project appears more focused on public dissemination of information.”  “No matter, however, because at least one of the FOIA requesters – i.e., [the individual requester] – appears likely to satisfy this requirement.”
  
  As to the three pronged analysis regarding urgency to inform the public, the court notes that “EPA does not dispute that the request concerns federal-government activity and argues only that Plaintiffs have established neither exigency nor that delay would compromise a significant recognized interest.”  The court then finds that, “[a]s to the first, the Court believes that [the organization plaintiff] can likely show that the FOIA request at least in part concerns matters of current exigency.”  “The derailment and EPA’s response are newsworthy topics, as EPA recognizes.”  “Indeed, Plaintiffs cite voluminous media coverage substantiating that the issue is one of genuine and widespread concern.”  “EPA’s response, in its denial letter and briefing, is that Plaintiffs have not identified that the specific requests they make will shed light on currently exigent matters.”  “In other words, they argue that while the general topic of the train derailment is a matter of current exigency, Plaintiffs have not shown that their specific requests within that topic are.”  “On this score, EPA is partly right.”  “Some of Plaintiffs’ queries, such as one seeking information on the derailment and ‘Trump,’ do not concern matters of particular public exigency and can be resolved in the normal course.”  “Yet others, such as those going directly to EPA’s communications with local officials on the ground regarding the ongoing cleanup, plainly do.”  “The Court will save a detailed analysis for any future merits ruling but notes here only that Plaintiffs do make out a strong case on this first element with respect to at least some of their requests.”  “On the second factor, however, [the organization plaintiff] has greater difficulty in showing that the consequences of delay would compromise a significant recognized interest.”  “Plaintiffs offer that delay would jeopardize their ability to shape ongoing public debate, as well as congressional proceedings and executive action on the ground.”  “But they have not shown why that is so.”  “The caselaw on which they rely suggests that a plaintiff seeking to establish that a particular delay would compromise recognized interests must do more than gesture at the general decline in the documents’ value over time.”  “Instead, she may need to identify a specific end point at which the information’s value drops off altogether – i.e., the conclusion of a process such as a legislative vote, impeachment proceeding, national census, court case, or the like.”  “To be clear, the Court does not hold that a definite end-date is necessary to show that delay would compromise a significant recognized interest.”  “It holds only that, because at this stage Plaintiffs have neither provided a convincing counter to that rule nor offered any concrete time frame, the Court is not persuaded that they are likely to succeed on the merits as to this component.”  “Because [the organization plaintiff] has not met its burden of persuading the Court that it can make out every element it needs to prevail on the merits, this factor is at best a wash for Plaintiffs or tips slightly against them.”
  
  Regarding irreparable harm, the court finds that “Plaintiffs do not seek documents that are necessary ahead of such an imminent event.”  “They have identified no specific proceeding – be it a vote on legislation, a proposed administrative action, or a judicial process – after which the sought records would lose substantial value, much less one that will occur before November 2023, when EPA estimates that it will produce the records.”  “Indeed, Plaintiffs essentially concede as much.”  “While [the organization plaintiff] points out that Congress is conducting oversight related to the derailment, it does not explain why the documents it seeks are essential to the integrity of such oversight proceedings.”  “Public critiques of how EPA handled the derailment-cleanup effort have no expiration date; though Plaintiffs may prefer to levy them as expeditiously as possible, they cannot show irreparable harm from delay.”  “Plaintiffs also maintain that they will suffer irreparable harm because ‘[t]ime cannot be wound back,’ and so ‘[t]he time lost to Plaintiffs . . . is thus irreparable.’”  “This argument sweeps far too broadly.”  “Every requester would always rather have her records sooner rather than later.”  “Under Plaintiffs’ logic, any requester who suffers even a one-day delay in any FOIA case could show irreparable harm.”  “That cannot be the standard.”  “Something more is needed, and the Court concludes that it is the presence of ‘an imminent event, after which event the utility of the records would be lessened or lost.’”  “Plaintiffs finally maintain that ‘the residents of East Palestine are irreparably harmed every day they lack information that is vital to making informed decisions.’”  “Unfortunately for Plaintiffs, however, ‘injuries to third parties are not a basis to find irreparable harm.’”
  
  The court finds that “[t]he balance-of-equities and public-interest factors merge here and also substantially favor EPA.”  “Here, issuing the requested injunction would just allow [the organization plaintiff] to jump over other FOIA requesters in line.”  The court finds that “EPA has thus far been a constructive partner to [the organization plaintiff] and other FOIA requesters seeking information about the incident:  it has proactively released information to the public . . . ; compiled more than 14,000 records in an effort to expeditiously comply with requests . . . ; and worked productively with Plaintiffs here to facilitate document production.”  “The Court commends such actions.”  “Because the three stay factors do not favor Plaintiffs, it does not believe a preliminary injunction is warranted at this point.”