Pollution-Policy Records Won’t Come to Light

WASHINGTON (CN) - A government agency properly withheld documents environmentalists sought regarding power-plant pollution guidelines, a federal judge ruled.

Abel Russ, an attorney with the Environmental Integrity Project, called the decision disappointing.

"Next month, EPA will finalize a rule that could dramatically reduce pollution from power plants, the nation's largest source of toxic industrial wastewater," Russ said in an email, abbreviating the Environmental Protection Agency.

"We were hoping to shed some light on how the rule was developed," Russ added.

The Environmental Integrity Project had gone to court over the issue along with Earthjustice and the Sierra Club, seeking records from various government agencies that reviewed changes the EPA has proposed to "effluent limitation guidelines," which regulate the discharge of pollutants from coal plants.

Though the agencies handed over hundreds of documents, they redacted some and withheld others under deliberative-process exemption to the Freedom of Information Act.

U.S. District Judge Christopher Cooper sided with the Office of Management and Budget at summary judgment earlier this month, but he wanted to take a closer look at the Small Business Administration's claim to exemption.

The court found the agency's descriptions of the withheld documents too brief to invoke the deliberative-process exemption, which allows an agency to keep information related to their decision and policy-making processes secret.

After reviewing the Small Business Administration's withheld records in chambers, Cooper found Friday that 10 of them met deliberative process privilege.

"Each of these documents relates directly to the decisionmaking process and either includes or describes SBA's "recommendations, draft documents, proposals [or] suggestions" and "reflect[s] the personal opinions of the writer,"" Cooper wrote.

The documents in question reflected SBA's comments about the EPA's methodologies, timing and other factors for EPA consideration, the court found.

They "are classic examples of communications that the deliberative process privilege is designed to protect," Cooper wrote.

If disclosure of the records "would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions," they can be withheld, Cooper wrote.

An 11th document need not face release either because Cooper found that the email contained only "friendly banter" that had no relation to the FOIA request.

The government did not return a request for comment.

Russ, the attorney for Environmental Integrity Project, noted that his clients "are optimistic that we are finally about to see a good outcome: a strong final water toxics rule for power plants that would mean huge benefits to human health and the environment."

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