Nat. Res. Def. Council v. EPA¸ 954 F.3d 150 (2d Cir. 2020) (Lynch, J.)

Nat. Res. Def. Council v. EPA¸ 954 F.3d 150 (2d Cir. 2020) (Lynch, J.)

Re:  Request for current version of the OMEGA model, an EPA computer program used to forecast the likely responses of automakers to proposed EPA greenhouse gas emissions standards

Disposition:  Reversing and remanding district court's grant of defendant's motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The Court of Appeals for the Second Circuit holds that "[u]pon [its] review of OMEGA in general and the core model in particular, [the court is] persuaded that the core model is not deliberative."  The court finds that "[h]ere, the record shows that to the extent the full OMEGA model reflects any subjective agency views, it does so in the input files, not the core model."  "It is the inputs that determine the constraints, predictions, and goals for each run of OMEGA."  "Once the input files set the parameters of the simulation, the only task remaining for the core model is to run 'thousands of calculations' on the given data so as to find the most cost-effective technology combinations for that particular scenario."  "The core model is thus akin to a specialized calculator, driven by the same algorithms to make the same calculations on every run of OMEGA."  "And the release of 'materials relating to standard or routine computations or measurements over which the agency has no significant discretion[ ] is unlikely to diminish officials' candor or otherwise injure the quality of agency decisions.'"  In response to EPA's argument "that the deliberative process privilege may properly be applied to records that are ostensibly objective or fact-based insofar as such records might reveal the agency's decisionmaking process," the court finds that "[t]he release of the core model could, at most, reveal the various analytical tools EPA has at its disposal."  "It would not explain the factors that prompted development of a tool, nor would it expose rationales cutting against or in favor of its use."