S. Envtl. Law Ctr. v. Council on Envtl. Quality, No. 18-00113, 2020 WL 1302517 (W.D. Va. Mar. 18, 2020) (Conrad, J.)

S. Envtl. Law Ctr. v. Council on Envtl. Quality, No. 18-00113, 2020 WL 1302517 (W.D. Va. Mar. 18, 2020) (Conrad, J.)

Re:  Request for records concerning advance notice of proposed rulemaking

Disposition:  Granting in part and denying in part plaintiff's motion for proposed rulemaking

Litigation Considerations, Preliminary Injunctions:  "[The] court concludes that FOIA does not" provide "[an] enforcement mechanism[] if agencies fail to comply with preliminary matters in rulemaking procedures."  As background, the court relates that "[o]n June 20, 2018, the Council published an advance notice of proposed rulemaking titled 'Update to the Regulations for Implementing the Procedural Provisions of [NEPA].'"  "On July 19, 2018, [plaintiff] submitted a FOIA request to the Council seeking 'all records in the possession of [the Council] that in any way relate to' the Advance Notice."  "[Plaintiff] filed a motion for summary judgment, which asks that the Court compel the Council to comply with [plaintiff's] 'time-sensitive' FOIA request in an 'expeditious fashion.'"  "In its motion for a preliminary injunction . . . [plaintiff] asks for an accelerated document production schedule with a deadline of March 10, 2020."  "[Plaintiff's] second and third requests ask the court to order the Council to delay the close of the public comment period for the Proposed Rulemaking."  The court finds "that FOIA . . . do[es] not permit the court to enjoin an agency from closing a notice and comment period for a non-final proposed rulemaking, even if that agency has likely violated FOIA by failing to produce documents that are responsive to a timely FOIA request and that are directly relevant to the proposed rulemaking at issue."  "[T]he [Supreme] Court [has] declined to rule that FOIA was intended to disrupt other statutory schemes."  "However, the court believes that [plaintiff] is entitled to an order requiring accelerated document production."  "The Council shall complete its response to [plaintiff's] FOIA request by the agreed-upon date of May 5, 2020."