Natural Resources Defense Council v. EPA

After the Second Circuit issued the mandate to implement its April 1 ruling that EPA was required to disclose a component of a computer model used by EPA to evaluate greenhouse gas vehicle standards, the federal district court for the Southern District of New York ordered EPA to produce the model to Natural Resources Defense Council and Environmental Defense Fund by June 7, 2020. The environmental organizations had sought unsuccessfully to expedite issuance of the mandate to give them more time to review the model in order to make a decision regarding whether to file a petition for administrative reconsideration of the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule promulgated by EPA and the National Highway Traffic Safety Administration in late April. (Litigation challenging the SAFE Vehicles Rules is discussed below.) Although the Second Circuit did not expedite the mandate, the district court granted their request that EPA be given 10 days after issuance of mandate to produce the model.

The federal district court for the Southern District of New York ruled that EPA properly withheld the “core model” component of a tool for evaluating greenhouse gas emissions vehicle standards under the Freedom of Information Act’s (FOIA’s) “deliberative process privilege.” The court described the core model of the “Optimization Model for Reducing Emissions of Greenhouse Gasses from Automobiles” (OMEGA) as “a computer program … , which applies a series of algorithms to the input data to yield the output data.” In concluding that the FOIA exemption applied, the court first found that the deliberative process privilege did not apply solely to letters and memoranda. The court then found both that the OMEGA model was “predecisional” even though EPA did not rely on it in developing the greenhouse gas vehicle standards proposed in August 2018 and also that the OMEGA model was “deliberative” because “its disclosure ‘would inaccurately reflect or prematurely disclose the views of the agency’ regarding [] how to analyze input data and the role of certain analytical tools … in determining [greenhouse gas] emissions standards.” The court further concluded that EPA had satisfied FOIA’s “foreseeable harm” requirement by describing how disclosure of the OMEGA model would chill internal discussion. The court also found that EPA had provided a “detailed justification” for its determination that non-exempt material was not segregable.

–

The environmental organizations sought unsuccessfully to expedite issuance of the mandate to give them more time to review the model in order to make a decision regarding whether to file a petition for administrative reconsideration of the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule promulgated by EPA and the National Highway Traffic Safety Administration in late April. (Litigation challenging the SAFE Vehicles Rules is discussed below.)