Greens Denied Pollutant Policy Review Records

     (CN) – Disputed records about debate over Environmental Protection Agency pollutant limits are secret because they reveal the government’s deliberative process, a federal judge ruled.
     The Environmental Integrity Project, Earthjustice and the Sierra Club filed a Freedom of Information Act request for records about coal plant discharge limitations.
     Specifically, the groups wanted documents about the executive branch Office of Management and Budget’s review of a proposed EPA update on those limitations.
     The request was filed with the Small Business Administration and the OMB. The proposed update that was the subject of the request related to effluent limitation guidelines, federal requirements limiting toxins that may be discharged from coal power plants.
     The agencies provided hundreds of documents but withheld others under a the Freedom of Information Act’s deliberative process exemption, according to court records.
     EIP, Earthjustice and the Sierra Club sued in 2013, challenging the government’s assertion of the deliberative process privilege and its withholding of certain information in some of the released records.
     The groups also claimed that the of Management and Budget cannot claim deliberative process privilege at all because of a 1993 executive order directing the office to disclose all documents exchanged during a regulatory review process.
     On Wednesday, U.S. District Judge Christopher Cooper ruled in favor of the agencies, holding that information contained in the disputed documents is protected by the exemption. The judge cited staff communications preceding a decision on the EPA rule to support his ruling.
     “These are the sort of opinions, assessments, and recommendations that the agency needs its staff to share without reservation,” Cooper wrote. “They are therefore properly protected by the deliberative process privilege, embodied in FOIA Exemption 5.”
     He also ruled that redacted factual information in the documents cannot be released because it may be intertwined with opinions and recommendations. For example, email attachments with data supporting a staff member’s position are privileged because they reflect opinions and priorities, according to the ruling.
     The judge held that the 1993 executive order requiring disclosure of OMB inter-agency review documents does not apply to staff-level communications.
     “Plaintiffs do not contest that OMB has consistently treated staff-level communications with the agencies as falling outside the scope of the order,” Cooper wrote. “In light of this policy, the court has little trouble concluding that the OMB staffers who engaged in the withheld communications here did so with the settled expectation that their communications with agency staff would not be made public.”
     Cooper reserved judgment on dismissal motions as they relate to the SBA, requiring the administration to submit 11 documents for court review because its original descriptions of withheld documents did not sufficiently explain why it was invoking the deliberative process privilege.
     EIP attorney Abel Russ said in a statement provided to Courthouse News that the group is looking at the bigger environmental picture.
     “We are always trying to shed more light on the rulemaking process, and today’s decision gave us some of what we were looking for in that regard. At the moment, though, we’re also focused on the end result – next month EPA will finalize a rule that could dramatically reduce pollution from the nation’s largest source of industrial wastewater, with huge benefits to human health and the environment,” Russ said. “We’re optimistic that the process, though it hasn’t always been smooth, will lead to a good outcome.”
     The Sierra Club and another environmental group, the Defenders of Wildlife, sued the EPA in 2010, claiming the federal agency was not properly regulating the discharge of toxic metals from power plants. That lawsuit sought revised regulations.

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