NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 5 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ECOLOGICAL RIGHTS FOUNDATION, a No. 22-15936 non-profit corporation, D.C. No. 3:20-cv-06898-SI Plaintiff-Appellant, v. MEMORANDUM * U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee. Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding Argued and Submitted May 10, 2023 San Francisco, California Before: FRIEDLAND and BENNETT, Circuit Judges, and R. BENNETT,** Senior District Judge. Plaintiff-Appellant Ecological Rights Foundation (“EcoRights”) served a ten- part request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, upon * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States Senior District Judge for the District of Maryland, sitting by designation. the Environmental Protection Agency (“EPA”) in October 2019. This FOIA request sought all records relating to recent changes to EPA’s policy of using supplemental environmental projects (“SEPs”) as settlement terms in environmental litigation against state and local governments. Following a protracted search, negotiation, and EcoRights’s initiation of this litigation, EPA produced a total of 1,827 records in full or in part, and withheld or redacted 644 records. The agency explained its withholdings in a 650-page Vaughn index and a sworn declaration that divided the challenged documents into eight categories, only seven of which are at issue in this appeal.1 In this action, EcoRights challenges EPA’s remaining withholdings and seeks declaratory and injunctive relief on the ground that EPA has a pattern or practice of FOIA violations. The district court granted summary judgment to EPA. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. I. Sufficiency of Submissions and Burden of Proof EcoRights argues that the district court improperly shifted the burden of proof to EcoRights by accepting EPA’s justifications for its withholdings without conducting in camera review of the challenged records. Under FOIA, the government bears the burden of proof to justify its withholdings. See Transgender A Vaughn index is an affidavit that summarizes the records the government 1 redacted, the FOIA exemptions claimed, and the justifications for each withholding. See Aguirre v. U.S. Nuclear Regul. Comm’n, 11 F.4th 719, 728 (9th Cir. 2021) (discussing Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)). 2 L. Ctr. v. Immigr. & Customs Enf’t, 46 F.4th 771, 782 (9th Cir. 2022). It may carry this burden with an affidavit or Vaughn index attesting to the content of the records it has withheld and its reasons for nondisclosure. See Islamic Shura Council of S. Cal. v. FBI, 635 F.3d 1160, 1165–66 (9th Cir. 2011). If the government’s submissions are reasonably detailed and particularized, its affidavits “are presumed to be in good faith” and are entitled to “considerable deference.” Hamdan v. DOJ, 797 F.3d 759, 770, 772 (9th Cir. 2015); see also Lane v. Dep’t of Interior, 523 F.3d 1128, 1135–36 (9th Cir. 2008). The district court …
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