Nat. Res. Def. Council v. EPA, No. 18-11227, 2019 WL 3959992 (S.D.N.Y. Aug. 22, 2019) (Castel, J.)

Nat. Res. Def. Council v. EPA, No. 18-11227, 2019 WL 3959992 (S.D.N.Y. Aug. 22, 2019) (Castel, J.)

Re:  Request for computer program known as the "Optimization Model for Reducing Emissions of Greenhouse Gasses from Automobiles" ("OMEGA")

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

• Exemption 5, Deliberative Process Privilege:  First, "the Court rejects plaintiffs' argument that OMEGA v.1.4.59 does not fall within the exemption because it is not a 'letter' or 'memorandum.'"  The court finds that "Plaintiffs have cited no cases applying Exemption 5 in such a limited manner and the caselaw does not support plaintiffs' interpretation."  Second, the court finds that "[t]he parties do not dispute that the EPA developed OMEGA v.1.4.59 to assist EPA decisionmakers in establishing standards for GHG emissions from new automobiles pursuant to the EPA's duty under the Clean Air Act."  "Though the EPA ultimately relied on the Department of Transportation's [Corporate Average Fuel Economy] model instead of OMEGA v.1.4.59 in developing the proposed Safe Vehicles Rule, OMEGA v.1.4.59 nonetheless qualifies as 'predecisional' because it was 'intended to contribute' to EPA policy decisions regarding GHG emissions standards for new vehicles."  "It is inconsequential that the EPA did not ultimately rely on OMEGA v.1.4.59 in creating the SAFE Vehicles Rule."  Third, "[t]he Court concludes that the EPA's declarations demonstrate that OMEGA v.1.4.59 is deliberative because its disclosure 'would inaccurately reflect or prematurely disclose the views of the agency' regarding the how to analyze input data and the role of certain analytical tools (such as the consumer choice tool) in determining [greenhouse gas] emissions standards."  The court explains that "[t]he EPA's declarations adequately explain how OMEGA v.1.4.59 'bear[s] on the formulation or exercise of agency policy-oriented judgment.'"  The court relates that defendant "explains the EPA's decisionmaking process and why OMEGA's role in that process renders disclosure of the core model susceptible to revealing EPA deliberations."  "Specifically, [defendant] states that '[t]he regulatory development process and the process of making upgrades to the OMEGA model have traditionally proceeded in parallel' such that 'the policy choices made throughout the regulatory development process are inextricably tied to the analytical choices internal to the OMEGA model itself.'"  "[Defendant] continues, '[a]s a regulation develops, EPA's high level policymakers may realize that they need a different or more substantial type of analysis in a certain area to determine the available policy options that are supported by a robust technical record.'"  Responding to plaintiff's objection "that OMEGA v.1.4.59 is not deliberative because it is an 'accounting program' that reads the inputs and performs a pre-set series of mathematical computations and thus constitutes 'factual, investigative material[,]'" the court finds that "the deliberative process privilege 'was intended to protect not simply deliberative material, but also the deliberative process of agencies.'"  The court finds that "one of OMEGA v.1.4.59's functions is to estimate costs."  "[I]t is a manifestation of that 'complex set of judgments' itself."
   
• Regarding the foreseeable harm requirement, the court finds that "EPA describes in reasonable detail the foreseeable Exemption-5 related interests that would be harmed upon disclosure of OMEGA v.1.4.59."  "Specifically, [defendant] declares that the release of OMEGA v.1.4.59 would be harmful to the EPA because 'it would chill free and open discussions of EPA staff regarding their opinions on the appropriate analytical tools to be included in the model . . . [such that] they would be less likely to test or experiment with new calibrations or tools that could help create a more effective and robust version of the OMEGA model.'"  "[Defendant] states further that this 'chilling effect would impact EPA's decisionmaking processes and ability to have internal discussions and consultations while designing and updating complex models like OMEGA and may harm the agency's decisionmaking capabilities in the future regulatory development process.'"  "He also asserts that the release of OMEGA would 'cause public confusion' because the current version 'was not relied on in developing the SAFE [Vehicles Rule],' 'does not represent the final form that the model would take if it were tied to a regulatory action,' and 'does [not] reflect [the EPA's] final decisions about how the model should be calibrated or run, or which analytical tools it should contain.'"  "These assertions adequately 'explain how [disclosure] would harm the agency's deliberative process.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "Based on [defendant's] declaration, the Court agrees that the executable file is not reasonably segregable from the source code because it is 'inextricably intertwined' with the source code 'such that disclosure would compromise the confidentiality of [the source code].'"  "Assuming that the executable file on its own is not exempt from disclosure under Exemption 5, [defendant] explains in his declaration that the executable file is nonetheless not segregable from the source code because there are numerous free 'decompiler' programs available online that can convert the compiled code back into the original source code."  "[Defendant] declares that [its] staff ran such a decompiler program on OMEGA v.1.4.59, which yielded a 'functionally identical version of the OMEGA version 1.4.59 source code.'"