Natural Res. Def. Council v. EPA, No. 17-1243, 2019 WL 1755976 (D.D.C. Apr. 19, 2019) (Moss, J.)

Natural Res. Def. Council v. EPA, No. 17-1243, 2019 WL 1755976 (D.D.C. Apr. 19, 2019) (Moss, J.)

Re:  Request for records concerning removal of information, documents, or webpages from EPA's website

Disposition:  Denying defendant's motion for summary judgment; denying defendant's motion to dismiss; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations:  "[T]he Court first concludes that [plaintiff] has Article III standing to bring its policy or practice claim."  The court finds that "[t]he dispositive question . . . is whether compelling the [plaintiff] to respond to a request for clarification within ten days, on pain of 'voluntary withdrawal' of its FOIA request and the attendant uncertainty that comes with that, is sufficient to satisfy the injury-in-fact requirement."  "[T]he Court concludes that [plaintiff] has satisfied Article III's injury-in-fact requirement."  "The 'crux' of [plaintiff's] alleged injury is 'the burden of diverting resources to meet [the] EPA's deadlines.'"  "And, with respect to that asserted injury, it has offered evidence that (1) it has responded more quickly than it would have done otherwise because of the ten-day requirement, and (2) this unreasonably short timeline has caused it to reallocate its time and recourses, diverting attention to what it might otherwise treat as more urgent matters."  Additionally, "because [plaintiff] is seeking prospective relief, it must – having cleared the initial hurdle of showing that it has been injured in the past by the EPA's policy – make a 'showing of [a] real or immediate threat that [it] will be wronged again' by that practice in order to make out a case or controversy under Article III."  The court finds that "[plaintiff's] pending requests, along with [plaintiff's] intent to continue filing similar requests . . . establish a sufficient likelihood of future injury for [plaintiff] to challenge the EPA's practice."
  
  However, the court also finds that "[a]lthough [plaintiff] has offered sufficient basis to clear the hurdle of Article III standing, the Court is unpersuaded, at least on the current record, that it has shown enough to establish statutory standing or to obtain injunctive or similar relief."  "Because neither party has addressed either of these essential issues, however, the Court will deny both the EPA's motion to dismiss for failure to state a claim and [plaintiff's] cross-motion for summary judgment without prejudice and will allow both parties to renew their motions, as appropriate."  The court explains that "[plaintiff] has not offered evidence that the EPA's 'voluntarily withdrawn' practice has, or is likely to, delay or deny [plaintiff] access to the records that it has sought or will seek."  "[U]nlike every policy or practice case that the D.C. Circuit has considered to date, [plaintiff] does not seek relief relating to the improper withholding or delay in releasing agency records."  "The NRDC may have answers to some, or all, of these concerns."  "It may decide to rely instead on its APA claim and its request for declaratory relief, neither of which it has pressed to date."  "But until the parties have had the opportunity to address these questions – including the questions whether the Court has statutory jurisdiction to entertain [plaintiff's] policy or practice claim and whether injunctive or similar relief is appropriate in these circumstances – the Court cannot resolve this case."