United States: Greens Seek Rehearing On EPA Withholding Power Plant Data

On July 14, 2017, three environmental groups (Environmental Integrity Project, Sierra Club, and Earth Justice) petitioned the Court of Appeals for the D.C. Circuit for a full review of its May decision that the EPA properly withheld testing data in response to a Freedom of Information Act ("FOIA") request.  The petition for rehearing en banc asks that the full Court of Appeals for the D.C. Circuit reconsider the environmental groups' arguments as opposed to the three judge panel that originally heard the case.

The underlying issue concerns the EPA's Clean Water Act rule establishing new Effluent Limitation Guidelines for steam electric power plants proposed in 2013.  Shortly after the Clean Water Act rule was proposed, the environmental groups requested technical information from the EPA that the EPA relied on to develop the proposed rule.  While the EPA provided some technical information, it also partially denied the environmental groups' request on the grounds that the information was protected from disclosure under FOIA's exemption for confidential business information submitted to an agency from a third party.

The environmental groups argue that this case concerns whether another federal statute such as the Clean Water Act can require disclosure of more information than FOIA would otherwise require.  At the District Court, the environmental groups argued that the information should be released under the Clean Water Act's disclosure provision that provides that the EPA shall make any records, reports, or information obtained by the agency using its statutory authority available to the public except if that information would divulge methods or processes entitled to protection as trade secrets.  The District Court rejected that argument and held that the Clean Water Act's disclosure provisions did not "expressly preempt" FOIA's exemptions and FOIA allowed the EPA to refuse disclosure.  The panel for the Court of Appeals for the D.C. circuit affirmed the District Court's holding on May 30, 2017.  In its petition for a rehearing, the environmental groups argue that FOIA and the Clean Water Act "can and must" be read consistently to require disclosure under FOIA.

The environmental groups argue that if this case is not reheard, then any disclosure provisions in statutes like the Clean Air Act, the Safe Drinking Water Act, and the Clean Water Act would have no independent effect outside of FOIA.  The environmental groups go on to state that the amount of environmental, health, and safety information that the EPA and other agencies are required to disclose to the public under FOIA and other environmental statutes could be "significantly curtailed" because the amount of information that an agency is required to disclose would be "significantly restricted."

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