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Shurtleff v. EPA, No. 10-2030, 2013 WL 5423963 (D.D.C. Sept. 30, 2013) (Sullivan, J.)

Re: Request for all records concerning EPA's "Endangerment Finding, which found that certain greenhouse gases taken in combination endanger the public health and welfare" and the process by which EPA developed the finding Disposition: Adopting magistrate's recommendations in part
  • Adequacy of Search:  The court finds that EPA conducted a reasonable and adequate search with regard to the portion of his request that was segregated into phases.  "A review of the instructions for all three phases reveals that the agency provided specific search parameters, instructing employees to restrict their searches by file type and by date, and to focus on specifically identified people as well as specifically identified data sets, climate change models, and working groups."  The court observes that "[i]t would elevate form over substance to deem a search inadequate because the phrase 'search term' or 'keyword' is not used, particularly in a situation such as this, where the request sought extensive records regarding an enormous scientific and regulatory undertaking, and required the participation of hundreds of people with diverse roles, backgrounds, and expertise within the agency." However, the court finds that EPA has not demonstrated the adequacy of its search with respect to other portions of the request.  The declarations with respect to these portions "lack detail and make no reference to the types of searches, search terms, methods or processes used." The court specifically "rejects plaintiff's argument that defendant's delay in producing documents is evidence of bad faith or an inadequate search."  "Plaintiff requested an extensive search encompassing an enormous amount of material."  "The record shows that the agency began searching for responsive records shortly after receiving the request, and made its first production of documents only three months later."  Accordingly, the court finds that "[a]ny delay in the response is not grounds for denying the EPA's motion for summary judgment." The court also rejects plaintiff's argument that the search was inadequate because certain specific offices were not searched.  The court notes that "EPA did not search only one database – hundreds of employees in well over a dozen different offices and sub-offices searched their files."  "The agency declarations explain in detail why those offices and individuals were likely to have responsive information to Plaintiff's request."  "They also explain in detail why the Office of Science Policy, Office of the Science Advisor, Science Advisory Board, and Regional Offices were unlikely to have responsive materials."  Likewise, "the fact that a few EPA employees who were not instructed to search their files were involved in a total of twenty four email chains (among nearly 13,000 documents produced) is insufficient, without more, to raise a 'substantial doubt' about the adequacy of the search that was performed."
  • Exemption 5 & Deliberative Process Privilege & Attorney Client Privilege:  The court concludes that EPA properly withheld "(1) email deliberations and draft comments on the [Intergovernmental Panel on Climate Change] reports; (2) internal review, e-mails and drafts of the Endangerment Finding; and (3) briefing materials and talking points about issues related to the Endangerment Finding and the University of East Anglia's emails relating to the [Intergovernmental Panel on Climate Change] reports."  The court reasons that "the deliberative process involved is the U.S. Government's official policy position regarding international reports of global climate change."  "Although the EPA may not have initiated the policy development process, there can be no serious dispute that the comments relate to the formulation of climate change policy by the Executive Branch." The court agrees with plaintiff and the magistrate that EPA has not provided sufficient information to support its withholding of certain communications between an EPA attorney and CCD [Climate Change Division] staff under the attorney-client privilege.  "EPA has not provided information which clearly delineates either (1) the individuals who received the communication, or (2) whether those individuals, by virtue of their responsibilities, 'are authorized to act or speak for the organization in relation to the subject matter of the communication.'" The court also agrees with the magistrate that EPA properly withheld documents pursuant to the work product doctrine.  "The agency affidavits set forth, in a detailed, consistent, and non-conclusory manner, the circumstances under which the exemplar document was prepared – specifically, to help the EPA prepare its response to a flood of comments attacking the proposed Endangerment Finding."  "In such a situation, the Agency's response to comments is the type of document that clearly anticipates legal challenges to the Agency's finding and seeks to pre-emptively defend against them by crafting the strongest possible counter arguments in the Response to Comments."
  • Exemption 6: The court finds that the email addresses of the then-EPA Administrator and staff members within the Executive Office of the President were properly withheld pursuant to Exemption 6.  Pointing out that the names of these individuals were disclosed to plaintiff, the court finds that disclosure of the email addresses would not shed light on the operations and activities of government.
  • Publicly Available Records: The court adopts the portion of the magistrate's recommendation finding that EPA properly directed the plaintiff to publicly available documents that were responsive to his request.  "Plaintiff has cited no cases, and the Court is aware of none, that impose the additional requirement that the agency then search through those available records to pinpoint the specific documents of most use to the requestor. The EPA has fulfilled its obligation by directing plaintiff to publicly available records which specifically relate to the Endangerment Finding and are response to four subsections of his request."
  • Vaughn Index: The court rejects plaintiff's contention that EPA's Vaughn Index was inadequate.  "[T]he agency provided a comprehensive sample Vaughn index, which describes with specificity each document or partial document withheld, including its factual content, and explains the reason for asserting the exemption under which it was withheld."
Court Decision Topic(s)
Litigation Considerations, Adequacy of Search
District Court opinions
Exemption 5
Exemption 6
Litigation Considerations, Vaughn Index/Declarations
Updated August 6, 2014