Natural Resources Defense Council v. EPA

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.)

Reversing a district court decision, the Second Circuit Court of Appeals held that the deliberative process privilege and Exemption 5 of the Freedom of Information Act did not apply to a “core model” component of OMEGA, a computer model used by the U.S. Environmental Protection Agency (EPA) to evaluate greenhouse gas vehicle standards. Exemption 5 shields from disclosure “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” The Second Circuit found that the model was not deliberative because the record showed “that to the extent the full OMEGA model reflects any subjective agency views, it does so in the input files, not the core model.” The appellate court found that release of the core model would not “contain or expose the types of internal agency communications that courts typically recognize as posing a risk to the candor of agency discussion such as advice, opinions, or recommendations.”