Center for Biological Diversity, Inc. v. U.S. Environmental Protection Agency

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, Civil Action No. 16-175 (BAH) v. Chief Judge Beryl A. Howell U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant. MEMORANDUM OPINION The plaintiff, the Center for Biological Diversity (“CBD”), initiated this action, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706, against the defendant, the U.S. Environmental Protection Agency (“EPA”), seeking an order requiring both an adequate search and disclosure of all responsive records withheld in response to CBD’s two FOIA requests. Pl.’s Mem. Supp. Cross- Mot. Summ. J. & Opp’n Def.’s Mot. Summ. J. (“Pl.’s Mem.”) at 13, ECF No. 18. 1 CBD also asks the Court “to find EPA in violation of the FOIA’s requirement to provide estimated dates of completion to requesters,” and to enjoin the agency from failing to do so in response to future FOIA requests. Id. at 3. In particular, CBD alleges in nine claims that EPA: (1) failed to provide an estimated completion date and comply with FOIA’s deadline mandates (Counts I and III); (2) engaged in a pattern, practice, and policy of violating FOIA’s estimated completion date requirement and 1 CBD “is a nonprofit environmental conservation organization that works to protect native wildlife species and their habitats, including from exposure to toxic chemicals.” Pl.’s Mem. Opp’n Def.’s Mot. Summ. J. (“Pl.’s Opp’n”), at 1 n.1, ECF No. 18. 1 response and determination deadlines (Counts II and IV); (3) failed to conduct an adequate search (Count V); (4) unlawfully withheld records responsive to CBD’s requests (Count VI); (5) failed to provide reasonably segregable portions of any lawfully exempt records (Count VII); and (6) engaged in FOIA violations constituting agency action unlawful under the Administrative Procedure Act (“APA”) (Counts VIII and IX). Pending before the Court are the parties’ cross motions for summary judgment. Def.’s Mot. Summ. J. (“Def.’s MSJ”), ECF No. 16; Pl.’s Cross-Mot. Summ. J. (“Pl.’s XMSJ), ECF No. 17. Defendant’s motion is granted with respect to Counts I through IV and VIII through IX; denied with respect to Count V; granted in part and denied in part, without prejudice, with respect to Count VI; and denied, without prejudice, with respect to Count VII. Plaintiff’s motion is granted with respect to Count V and denied otherwise. For the following reasons, EPA must conduct a supplemental search, disclose any non-exempt materials, and, if it continues to withhold any materials, submit a supplemental declaration and Vaughn Index that sufficiently justifies these withholdings in accordance with, and in the format prescribed in, this Memorandum Opinion. I. BACKGROUND The FOIA requests in this case concern EPA’s determination that a new pesticide product, Enlist Duo, manufactured by Dow AgriSciences (“Dow”), would have “no effect” on species protected under the Endangered Species Act of 1973 (“ESA”), 16 U.S.C. §§ 1531–44 et seq. Enlist Duo is an herbicide “developed for use on corn and soybean crops that are genetically engineered (‘GE’) to be resistant to ...

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