Pub. Emps. for Envtl. Responsibility v. U.S. Envtl. Prot. Agency

314 F. Supp. 3d 68
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 1, 2018
DocketCivil Action No. 17–652 (BAH)
StatusPublished
Cited by6 cases

This text of 314 F. Supp. 3d 68 (Pub. Emps. for Envtl. Responsibility v. U.S. Envtl. Prot. Agency) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pub. Emps. for Envtl. Responsibility v. U.S. Envtl. Prot. Agency, 314 F. Supp. 3d 68 (D.C. Cir. 2018).

Opinion

BERYL A. HOWELL, Chief Judge

On March 9, 2017, Scott Pruitt, the Administrator of the Environmental Protection Agency ("EPA"), appeared on the CNBC program "Squawk Box" and stated, regarding carbon dioxide created by human activity, that "I would not agree that it's a primary contributor to the global warming that we see," and "there's a tremendous disagreement about of [sic] the impact" of "human activity on the climate." Compl., ¶ 18-19, ECF No. 1. Noting that these public statements by the EPA Administrator "stand in contrast to published research and conclusions of the EPA," id. ¶ 20, the plaintiff, Public Employees for Environmental Responsibility ("PEER"), a "non-profit organization dedicated to research and public education concerning the activities and operation of [the] federal ...

*72government[ ]," id. ¶ 2, submitted a request to EPA, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for agency records "relied upon by Administrator Pruitt in making these statements and any EPA documents that support the conclusions that human activity is not the largest factor driving global climate change," Compl. ¶ 21. EPA has performed no search for and produced no records in response to the plaintiff's FOIA request. See generally , Def.'s Mot. Summ. J. ("Def.'s MSJ"), Ex. C, Decl. of Brian Hope, Deputy Director, Office of Executive Secretariat, Office of the EPA Administrator (Nov. 8, 2017) ("EPA Decl."), ECF No. 13-5. Nonetheless, on this record, EPA now seeks summary judgment, Def.'s MSJ, ECF No. 13, and the plaintiff has cross-moved for summary judgment, Pl.'s Cross-Mot. Summ. J. & Opp'n Def.'s MSJ ("Pl.'s Cross-Mot."), ECF No. 14. For the reasons set forth below, the plaintiff's cross-motion is granted, and EPA's motion is denied.

I. BACKGROUND

The day after Administrator Pruitt made on-air public statements to the effect that "carbon dioxide created by human activity is not the primary driver of global climate change," Pl.'s Mem. Supp. Pl.'s Cross-Mot. & Opp'n Def.'s MSJ ("Pl.'s Opp'n") at 1, ECF No. 14-3, the plaintiff filed the FOIA request at issue, Compl. ¶ 21; EPA Decl. ¶ 3. As the plaintiff points out, in contrast to Administrator Pruitt's statements on March 9, 2017, EPA states, on its "Causes of Climate Change" web page, that " '[c]arbon dioxide is the primary greenhouse gas that is contributing to recent climate change' and that '[t]he primary human activity affecting the amount and rate of climate change is greenhouse gas emissions from the burning of fossil fuels.' " Compl. ¶ 20 (alterations in original).

The plaintiff's FOIA request sought "(1) [t]he documents that Administrator Pruitt relied upon in making these statements; and (2) [a]ny EPA documents that support the conclusion that human activity is not the largest factor driving global climate change." Def.'s MSJ, Attach. 2, Def.'s Statement of Material Facts Not In Genuine Dispute ("Def.'s SMF") ¶ 2, ECF No. 13-2. About one month after submission of the request, the plaintiff filed the instant complaint, which EPA answered in late July 2017. Def.'s Answer, ECF No. 10. When the parties failed timely to file a Joint Meet and Confer statement, as required by the Court's Standing Order, ¶ 3.a, ECF No. 4, the plaintiff was directed to show cause why the action should not be dismissed for failure to prosecute, with a deadline of September 12, 2017, to remedy the failure to file the requisite Joint Meet and Confer statement. Minute Order (Aug. 30, 2017). That same day, the parties conferred about narrowing the request, and the plaintiff modified the request in a manner "intended to meet EPA's objections." Jt. Meet & Confer Rpt. (Sept. 8, 2017), ¶ 3, ECF No. 11. Specifically, the plaintiff "agreed to modify the request" as indicated by the following italicized language: "(1) [t]he agency records that Administrator Pruitt relied upon to support his statements in his CNBC interview," and "(2) [a]ny EPA documents, studies, reports, or guidance material that support the conclusion that human activity is not the largest factor driving global climate change." Def.'s SMF ¶ 6; see Def.'s MSJ, Ex. B, Email from PEER's Adam Carlesco to Assistant U.S. Attorney Daniel Schaefer (Aug. 30, 2017), ECF No. 13-4 at 1.

A month later, EPA advised the Court that, in response to the first part of the FOIA request regarding agency records relied upon by Administrator Pruitt for his public statement on March 9, 2017, "the *73EPA is prepared to search for any briefing materials that were prepared by Administrator Pruitt or certain members of his staff, in the days leading up to the interview," and, to this end, was "preparing a proposal with specific search parameters to assist PEER in clarifying its request." Second Jt. Meet and Confer Report (Oct. 10, 2017) ("2d Jt. Rpt.") at 1, ECF No. 12. EPA noted that "[i]f the parties can negotiate acceptable search parameters, EPA intends to process the first portion of the request in accordance with those parameters." Id. at 2. At the same time, EPA dismissed the second part of the FOIA request, regarding agency records supporting the conclusion publicly stated by Administrator Pruitt on March 9, 2017, as "not a proper request under FOIA," id. , a characterization disputed by the plaintiff, id. at 3. The plaintiff declined to make additional changes to either part of the FOIA request and sought a briefing schedule to resolve the parties' "impasse." Id. ; see also Pl.'s Opp'n at 5 (noting that plaintiff "had already sufficiently clarified the request and that EPA was unreasonably stalling its response"). In contrast, EPA sought "to defer setting a summary judgment schedule until after EPA finishes processing any responsive records as to part one of the request, so that any and all remaining disputed issues can be dealt with together." 2d Jt. Rpt. at 2.

Although more than one year has elapsed since the plaintiff submitted the FOIA request, EPA has conducted no search for any responsive records, nor produced any records to the plaintiff. See Def.'s Reply Supp. Def.'s MSJ & Opp'n Pl.'s Cross-Mot. ("Def.'s Reply"), Attach. 1, Def.'s Resp. Pl.'s Statement of Material Facts Not In Genuine Dispute ¶ 6, ECF No. 19-1 ("EPA does not dispute that it had not conducted a search for responsive documents."); id. ¶ 8

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314 F. Supp. 3d 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pub-emps-for-envtl-responsibility-v-us-envtl-prot-agency-cadc-2018.