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D.C. Circuit Finds Clean Water Act Does Not Expressly Preempt EPA’s Ability to Withhold Data in the Face of a FOIA Request

Within the context of the U.S. Environmental Protection Agency’s (EPA) September 2009 decision to revise its decades-old regulations limiting pollution by steam-electric power plants—EPA obtained survey data from 700 steam-driven power plants as well as from vendors who sold equipment and services to these plants. EPA designed these surveys to collect data about pollution and to gain insight into the plant-specific business operations, data that EPA would then use to prepare new federal Clean Water Act (CWA) regulations known as “effluent guidelines.” In the midst of this process, plaintiffs filed a Freedom of Information (FOIA) request seeking certain data EPA obtained from its surveys. EPA did not provide this data on grounds that it could be withheld under FOIA as confidential business information. Plaintiffs agreed but filed suit on grounds that the CWA independently requires the disclosure of such information, “thereby removing EPA’s discretion to invoke FOIA as a basis for withholding.” The D.C. Circuit Court of Appeals disagreed, holding that the CWA “does not expressly preempt EPA’s ability to withhold this data. [Environmental Integrity Project v. U.S. Environmental Protection Agency, ___F.3d___, Case No. 14-1282 (D.C. Cir. Mar 30, 2017).]

In June of 2010, EPA distributed its survey to 733 power plants, receiving response from all of them. These responses served as the “principal source of information used in developing” proposed rules, which were published in the Federal Register in June 2013. EPA also gathered data from vendors through presentations, conferences, and meetings, to gather information regarding the technologies used in the steam-driven power plant industry.

In July 2013, a bit before EPA issued its notice of proposed rulemaking, plaintiffs submitted a FOIA request seeking data and other information EPA obtained from its industry questionnaire.

EPA provided some but not all of the requested data. As to what EPA withheld, it asserted that the power plants and vendors claimed that their data was “confidential business information”—which is presumptively exempt from FOIA disclosure. Plaintiffs appealed EPA’s determination to which EPA conducted a more in-depth analysis, including contacting the parties that produced the data to substantiate whether the withheld materials were properly characterized as confidential business information.

A year after submitting its FOIA request, plaintiffs still had no response from EPA regarding its analysis. In July 2014, plaintiffs filed this lawsuit seeking to force EPA to disclose the requested data. The parties agreed upon a schedule by which EPA would finalize its determination as to its confidentiality determination and release data not confidential. Complying with this schedule, in February 2015, EPA issued its final response to plaintiffs along with the production of nonexempt documents. The parties brought this matter to conclusion through cross motions for summary judgment.

Freedom of Information Act cases are typically decided on motions for summary judgment.

Does the Clean Water Act Offer a Basis for Compelling Disclosure?

The Court of Appeals did not find the need to resolve this argument instead taking the simpler path of addressing the issue of whether the CWA “offers any basis for compelling disclosure here.” As plaintiffs relied entirely on FOIA and admit that the data is properly classified as confidential business information, the court found that plaintiffs could only succeed if the CWA somehow modifies FOIA to preclude EPA’s ability to rely on its exemptions.

The court found that the Clean Water Act did not offer a basis for compelling disclosure.

Despite a novel theory to compel EPA disclosure via the Clean Water Act, plaintiffs could not demonstrate to the court’s satisfaction that Congress’ express intent was to exempt the CWA from the general provisions of Freedom of Information Act.

(Thierry Montoya)