Renewable Fuels Ass'n & Growth Energy v. EPA, No. 18-2031, 2021 WL 394841 (D.D.C. Feb. 4, 2021) (Boasberg, J.)
Renewable Fuels Ass'n & Growth Energy v. EPA, No. 18-2031, 2021 WL 394841 (D.D.C. Feb. 4, 2021) (Boasberg, J.)
Re: Requests for records concerning specific refineries that had sought exemptions from Environmental Protection Agency's Renewable Fuel Standard ("RFS") program requirement that covered oil refineries must introduce a certain volume of renewable fuel into transportation fuel supply each year
Disposition: Granting in part and denying in part plaintiffs' motion for partial summary judgment
- Exemption 4: The court holds that "[w]ith the exception of [certain] decision documents . . . , EPA has sufficiently demonstrated that its challenged redactions of the refinery names and/or locations are necessary to avoid revealing information – to wit, the fact that those refineries applied for RFS relief – that is (1) commercial; (2) obtained from a person; and (3) privileged or confidential." The court first finds that "[c]ommon sense counsels that an oil refinery has a 'business interest' in the facts that it applied for, and either received or did not receive, a small-refinery exemption." "Even the bare fact that a refinery has claimed disproportionate economic hardship could, as the agency explained, 'provide competitors and other market participants with key insights into the refinery's financial and competitive position.'" Second, while the court notes that "Plaintiffs make a compelling argument that the fact that a petition was granted or denied is not information obtained from a person, since the grant or denial was EPA's decision," the court finds that "disclosing the name and location of the refinery at issue in an EPA decision document would also necessarily reveal a separate piece of commercial information – namely, that the refinery had petitioned for an exemption in the first place." "Although the Court can find no precedent on which to rely, it seems clear that this sort of information is obtained from the petitioning entity." "The upshot, accordingly, is that a refinery's status as a petitioner for an exemption, if not the result of that petition, qualifies as both (1) commercial information and (2) information obtained from a person." Third, "the Court agrees in most cases that the petitioning refinery identified in the exemption decision document 'customarily and actually treated as private' the fact that it had applied for an exemption." "As to seven decision documents, however, the Court does not agree with EPA's determinations or, at a minimum, finds them unpersuasive on the current record." "Each of these documents involves a refinery that kept confidential the fact of its petition in the specific year at issue, but did not keep confidential the fact of its petition(s) for another year or years." "In other words, EPA's confidentiality determinations consider each year’s petition in a vacuum." "The Court is skeptical that such an approach is permissible." "While a refinery that, for instance, kept its 2015 petition secret while disclosing its 2016 petition 'actually' treated its 2015 petition as confidential, it is difficult to say that it 'customarily' treated its seeking of relief so." "For this reason, the Court finds that EPA has not adequately 'sustain[ed]' its decision to withhold the name and location of the refineries identified in these seven decision documents." "It will, accordingly, partially remand this matter to EPA for it to reexamine, in light of this guidance, whether the refineries mentioned in the seven decision documents customarily treat as private their status as small-refinery-exemption petitioners." Regarding any requirement for a government assurance of privacy, the court finds that "[t]his Court will not, and indeed cannot, be the first [to hold that "this potential second prong must be met."]." "The current law of the D.C. Circuit, which remains binding authority, is that information is confidential under Exemption 4 'if it is of a kind that would customarily not be released to the public by the person [or entity] from whom it was obtained.'" "Under that test, the refinery information at issue here qualifies as confidential (with the possible exception of those refineries discussed above)." "Even if this Court were free to reach a result at odds with Critical Mass Energy, it would not read the word 'confidential' to impose a blanket requirement that the government provide an assurance of privacy in every case in which it asserts Exemption 4." "Down that path, it seems, lie many fairly arbitrary disputes over whether such an assurance can be implied."