UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) CENTER FOR BIOLOGICAL ) DIVERSITY, ) ) Plaintiff, ) ) v. ) Civil Action No. 18-0342 (ABJ) ) U.S. FISH AND WILDLIFE ) SERVICE, et al., ) ) Defendants. ) ____________________________________) MEMORANDUM OPINION On June 27, 2017, plaintiff Center for Biological Diversity submitted two Freedom of Information Act (“FOIA”) requests to the United States Environmental Protection Agency (“EPA”) and the United States Fish and Wildlife Service (“FWS”). Compl. [Dkt. # 1]. Plaintiff sought records from both EPA and FWS concerning biological evaluations and biological opinions on certain pesticides under the Endangered Species Act (“ESA”). Id. ¶¶ 27, 31, 37, 42. On February 13, 2018, plaintiff filed this suit, alleging that neither request had received any determination and demanding that the agencies produce the responsive records as required under FOIA, 5 U.S.C. § 552. Compl. ¶¶ 1–2. The agencies processed plaintiff’s requests and completed production by December 30, 2019, see Joint Status Report (Jan. 6, 2020) [Dkt. # 31], and the parties filed cross-motions for summary judgment concerning defendants’ withholding of certain records pursuant to Exemption 5 of FOIA. See Defs.’ Mot. for Summ. J. [Dkt. # 36] (“Defs.’ Mot.”); Pl.’s Cross Mot. for Summ. J. [Dkt. # 42] (“Pl.’s Cross Mot.”). Defendants rely on declarations from Marietta Echeverria, the Director of the Environmental Fate and Effects Division (“EFED”) in EPA’s Office of Pesticide Programs (“OPP”), Brian Anderson, Associate Director of the EFED within the Office of Chemical Safety and Pollution Prevention (“OCSPP”), and Karen Myers, the Branch Chief of National Consultations for FWS. 1 Plaintiff has submitted two declarations from its Government Affairs Director, Brett Hartl. 2 Upon review of the record, controlling precedent, and for the reasons that follow, the Court will grant defendants’ motion in part and enter judgment in their favor with respect to all issues except whether defendant EPA justified its failure to identify any segregable material in two records, and it will deny plaintiff’s cross motion with respect to all issues related to whether the records were properly withheld. BACKGROUND I. The Endangered Species Act Congress enacted the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531, et seq., in order to protect and preserve endangered and threatened species and “to provide a program for the[ir] conservation.” Id. § 1531(b). By enacting the ESA, it was “[t]he plain intent of Congress . . . to halt and reverse the trend toward species extinction, whatever the cost.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978). 1 Decl. of Marietta Echeverria [Dkt. # 36-2] (“Echeverria Decl.”) ¶ 2; Decl. of Brian Anderson [Dkt. # 46-2] (“Anderson Decl.”) ¶ 2; Decl. of Karen Myers [Dkt. # 36-3] (“First Myers Decl.”) ¶ 1; Suppl. Decl. of Karen Myers [Dkt. # 46-3] (“Second Myers Decl.”) ¶ 1. 2 Decl. of Brett Hartl [Dkt. # 42-2] (“First Hartl Decl.”); Second Decl. of Brett Hartl [Dkt. # 51] (“Second Hartl Decl.”). 2 Under the ESA, the United States Department of …
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