Citizens for Responsibility and Ethics in Washington v. Environmental Protection Agency

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ECOLOGICAL RIGHTS FOUNDATION and OUR CHILDREN’S EARTH FOUNDATION, Plaintiffs, v. Civil Action No. 19-2181 (FYP) U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants. MEMORANDUM OPINION In 2019, the Environmental Protection Agency (“EPA”) amended its regulations pertaining to the processing of Freedom of Information Act (“FOIA”) requests. In response, several entities that regularly submit FOIA requests to the EPA filed suit to challenge the legality of the amendments. After several rounds of case consolidation, briefing, and settlement negotiations, all that remains are four claims brought by Plaintiffs Ecological Rights Foundation and Our Children’s Earth Foundation (“EcoRights”). Defendants EPA and its Administrator, Michael Regan, 1 now move to dismiss, and Plaintiffs cross-move for summary judgment. For the reasons stated below, the Court grants Defendants’ Motion to Dismiss as to Claims 1, 2, and 5; and will remand Claim 4 without vacatur. The Court denies EcoRights’ Cross-Motion for Partial Summary Judgment. 1 Michael Regan is automatically substituted for defendant Andrew Wheeler pursuant to Federal Rule of Civil Procedure 25(d). BACKGROUND I. Factual Background On June 26, 2019, the EPA published a Freedom of Information Act Regulations Update (the “2019 Rule”) in the Federal Register. See 84 Fed. Reg. 30028. 2 According to the EPA, the agency was “tak[ing] final action to revise the Agency’s regulations under the [FOIA] . . . by updating the process by which the public may access information about EPA actions and activities.” See id. The 2019 Rule modified the EPA’s FOIA regulations “to implement statutory updates, correct obsolete information, and reflect internal EPA realignment and processing changes to improve the Agency’s FOIA response process.” See id. The amendments were intended to “bring EPA’s regulations into compliance with nondiscretionary provisions of the amended [FOIA] statute and reflect changes in the Agency’s organization, procedure, or practice.” See id. at 30029. The agency promulgated the new regulations without notice and comment, invoking the procedural and good-cause exceptions to notice-and-comment rulemaking. See id. The 2019 Rule became effective on July 26, 2019, thirty days after it was published in the Federal Register. See id. at 30028. As relevant here, the 2019 Rule made four changes to the EPA’s FOIA procedures. A. Requiring the Submission of All Requests to EPA’s National FOIA Office The 2019 Rule removed the option of submitting FOIA requests directly to regional offices of the EPA. See 40 C.F.R. § 2.101; 84 Fed. Reg. at 30030, 30032–33. 3 Under the prior 2 Prior to 2019, the EPA last amended its FOIA regulations by final rule issued on November 5, 2002. See 67 Fed. Reg. 67303. 3 40 C.F.R. § 2.101(a) provides: (a) Requesters must submit all requests for records from EPA under the FOIA in writing 2 regulations, members of the public could mail FOIA requests either to the agency’s headquarters, or to one of ten regional EPA offices; people could also send requests by e-mail directly to a regional office. See 40 C.F.R. § 2.101(a) (2018). The 2019 Rule, by …

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