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Case TitleNatural Resources Defense Council et al v. United States Environmental Protection Agency
DistrictSouthern District of New York
CityFoley Square
Case Number1:2018cv11227
Date Filed2018-12-03
Date Closed2019-08-23
JudgeJudge P. Kevin Castel
PlaintiffNatural Resources Defense Council
PlaintiffEnvironmental Defense Fund
Case DescriptionThe Natural Resources Defense Council submitted a FOIA request to the EPA for records concerning its OMEGA computer model pertaining to calculating costs for automobile manufacturers to comply with fleet-wide levels of greenhouse gas emissions. The agency acknowledged receipt of the request, but after hearing nothing further from the agency, NRDC filed suit.
Complaint issues: Failure to respond within statutory time limit, Public Interest Fee Waiver, Litigation - Attorney's fees

DefendantUnited States Environmental Protection Agency
AppealSecond Circuit 19-2896
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Opinion/Order [59]
FOIA Project Annotation: A federal court in New York has ruled that the EPA properly withheld its most recent version of the Optimization Model for Reducing Emissions of Greenhouse Gases from Automobiles (OMEGA) under Exemption 5 (privileges). The Natural Resources Defense Council and the Environmental Defense Fund submitted a FOIA request to the EPA asking for any versions of OMEGA that had not previously been made public. Although four other versions of OMEGA had been made public, the most recent version was not publicly available. The agency withheld the current version, citing the deliberative process privilege. NRDC and EDF argued that the current model did not qualify as either a letter or a memo under Exemption 5's threshold standard. After noting that a number of circuits, including the D.C. Circuit, had found that documents that were neither letters nor memos qualified for Exemption 5 protection, District Court Judge P. Kevin Castel rejected the claim. Castel then noted that the model was pre-decisional. He explained that "though the EPA ultimately relied on the Department of Transportation's CAFE model instead of OMEGA v.1.4.59 in developing the proposed Safe Vehicles Rule, OMEGA v.1.4.59 nonetheless qualifies as 'predecisional' because it was 'intended to contribute' to EPA's policy decisions regarding GHG emission standards for new vehicles. The fact that, historically, the EPA has used prior iterations of OMEGA to generate data to inform its decisions on GHG emission standards for vehicles corroborates the EPA's claim that this iteration was developed to inform future standards." NRDC and EDF also argued that the model was not deliberative because it was essentially an accounting program that reads inputs and performs a pre-set series of mathematical computations. Castel cited Quarles v. Dept of Navy, 893 F.2d 390 (D.C. Cir. 1990), in which the D.C. Circuit found that cost estimate calculations were deliberative even though they were primarily factual, as supporting the agency's claim that the model here was deliberative. He pointed out that "OMEGA has evolved over time and its 'calibration' reflects the mental processes of OMEGA's authors. Specifically, in developing the core model, OMEGA's authors had to make choices regarding which algorithms to use and which 'analytical tools' to include " these choices constitute judgments about how to manipulate the data in OMEGA's input files in a meaningful way." The EPA also addressed the issue of foreseeable harm. Castel agreed that its description of a chilling effect on agency discussions as well as the possibility of public confusion by disclosing the model was sufficient to meet the agency's burden on that issue.
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Deliberative process privilege - Deliberative
Opinion/Order [65]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-12-031COMPLAINT against United States Environmental Protection Agency. (Filing Fee $ 400.00, Receipt Number ANYSDC-15994770)Document filed by Natural Resources Defense Council, Environmental Defense Fund. (Attachments: # 1 Exhibit Exhibit A - FOIA Request to EPA dated 2018.07.25, # 2 Exhibit Exhibit B - EPA letter dated 2018.08.21, # 3 Exhibit Exhibit C - Letter to EPA dated 2018.09.20)(Huffman, Peter) (Entered: 12/03/2018)
2018-12-032FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to United States Environmental Protection Agency, re: 1 Complaint,. Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Huffman, Peter) Modified on 12/4/2018 (pne). (Entered: 12/03/2018)
2018-12-033CIVIL COVER SHEET filed. (Huffman, Peter) (Entered: 12/03/2018)
2018-12-034RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Environmental Defense Fund, Natural Resources Defense Council.(Huffman, Peter) (Entered: 12/03/2018)
2018-12-035MOTION for Erin Murphy to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-15994995. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Environmental Defense Fund. (Attachments: # 1 Text of Proposed Order Proposed Order for Admission Pro Hac Vice, # 2 Affidavit Affidavit in Support of Motion for Pro Hac Admission, # 3 Certificate of Good Standing)(Murphy, Erin) (Entered: 12/03/2018)
2018-12-04>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 5 MOTION for Erin Murphy to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-15994995. Motion and supporting papers to be reviewed by Clerk's Office staff. . The document has been reviewed and there are no deficiencies. (ma) (Entered: 12/04/2018)
2018-12-04CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Robert W. Sweet. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php . (pne) (Entered: 12/04/2018)
2018-12-04Magistrate Judge Debra C. Freeman is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php . (pne) (Entered: 12/04/2018)
2018-12-04Case Designated ECF. (pne) (Entered: 12/04/2018)
2018-12-04***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Peter Daniel Huffman to RE-FILE Document No. 2 Request for Issuance of Summons. The filing is deficient for the following reason(s): caption entered on summons requests does not match pleading caption; defendant name error; do not use abbreviations. Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (pne) (Entered: 12/04/2018)
2018-12-046REQUEST FOR ISSUANCE OF SUMMONS as to United States Environmental Protection Agency, re: 1 Complaint,. Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Huffman, Peter) (Entered: 12/04/2018)
2018-12-047ELECTRONIC SUMMONS ISSUED as to United States Environmental Protection Agency. (pne) (Entered: 12/04/2018)
2018-12-178ORDER FOR ADMISSION PRO HAC VICE granting 5 Motion for Erin Murphy to Appear Pro Hac Vice. (Signed by Judge Robert W. Sweet on 12/13/2018) (rro) (Entered: 12/17/2018)
2018-12-2718STANDING ORDER M10-468: The United States Attorney's Office shall notify the Court immediately upon the restoration of Department of Justice funding. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 12/27/2018) (jca) (Entered: 01/02/2019)
2018-12-2720STANDING ORDER M10-468: The United States Attorney's Office shall notify the Court immediately upon the restoration of Department of Justice funding. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 12/27/2018) (ne) (Entered: 01/07/2019)
2018-12-27Case Stayed (ne) (Entered: 01/23/2019)
2018-12-289NOTICE OF APPEARANCE by Samuel Hilliard Dolinger on behalf of United States Environmental Protection Agency. (Dolinger, Samuel) (Entered: 12/28/2018)
2018-12-2810LETTER MOTION to Stay the case and to toll deadlines pending lapse in appropriations addressed to Judge Robert W. Sweet from Samuel Dolinger dated 12/28/2018. Document filed by United States Environmental Protection Agency. (Attachments: # 1 Exhibit A - Standing Order)(Dolinger, Samuel) (Entered: 12/28/2018)
2018-12-2811LETTER addressed to Judge Robert W. Sweet from Samuel Dolinger dated 12/28/2018 re: correction to initial letter dated December 28, 2018. Document filed by United States Environmental Protection Agency.(Dolinger, Samuel) (Entered: 12/28/2018)
2018-12-2812MOTION to Expedite ., MOTION for Partial Summary Judgment .( Responses due by 1/11/2019) Document filed by Environmental Defense Fund, Natural Resources Defense Council. Return Date set for 1/16/2019 at 12:00 PM.(Huffman, Peter) (Entered: 12/28/2018)
2018-12-2813MEMORANDUM OF LAW in Support re: 12 MOTION to Expedite . MOTION for Partial Summary Judgment . . Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Huffman, Peter) (Entered: 12/28/2018)
2018-12-2814NOTICE of Rule 56.1 Statement re: 12 MOTION to Expedite . MOTION for Partial Summary Judgment .. Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Huffman, Peter) (Entered: 12/28/2018)
2018-12-2815DECLARATION of Peter Huffman in Support re: 12 MOTION to Expedite . MOTION for Partial Summary Judgment .. Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Attachments: # 1 Exhibit March 2018 Letter to EPA, # 2 Exhibit FOIA Submission Receipt, # 3 Exhibit EPA OMEGA Webpage, # 4 Exhibit OIRA Agenda Webpage, # 5 Exhibit OIRA Agenda - EPA Timetable)(Huffman, Peter) (Entered: 12/28/2018)
2018-12-2816LETTER addressed to Judge Robert W. Sweet from Plaintiffs dated 12/28/2018 re: Motion to Expedite. Document filed by Environmental Defense Fund, Natural Resources Defense Council.(Huffman, Peter) (Entered: 12/28/2018)
2018-12-3117AFFIDAVIT OF SERVICE. United States Environmental Protection Agency served on 12/10/2018. Service was made by MAIL. Document filed by Natural Resources Defense Council; Environmental Defense Fund. (Attachments: # 1 Exhibit A - Service Receipt (EPA), # 2 Exhibit B - Service Receipt (AG), # 3 Exhibit C - Service Receipt (USAO))(Huffman, Peter) (Entered: 12/31/2018)
2019-01-0319ORDER granting 10 Letter Motion to Stay. The stay is granted. Upon the funding of the defendant and it's counsel, the parties will meet and confer on the schedule for resolution of all pending matters. So ordered. (Signed by Judge Robert W. Sweet on 1/3/2019) (rro) (Entered: 01/03/2019)
2019-01-3021PROPOSED SCHEDULING ORDER. Document filed by Natural Resources Defense Council. (Huffman, Peter) (Entered: 01/30/2019)
2019-02-0622STIPULATION AND SCHEDULING ORDER: NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and among the parties, and subject to approval of the Court, that the following schedule applies to pending matters in this action: Oral argument 2/20/2019. United States Environmental Protection Agency answer due 2/13/2019.(Responses due by 2/11/2019, Replies due by 2/15/2019.). So Ordered. (Signed by Judge Robert W. Sweet on 2/4/2019) (js) Modified on 7/10/2019 (js). (Entered: 02/06/2019)
2019-02-0623MOTION to Amend/Correct 12 MOTION to Expedite . MOTION for Partial Summary Judgment . . Document filed by Environmental Defense Fund, Natural Resources Defense Council. Return Date set for 2/20/2019 at 12:00 PM.(Huffman, Peter) (Entered: 02/06/2019)
2019-02-1124MEMORANDUM OF LAW in Opposition re: 23 MOTION to Amend/Correct 12 MOTION to Expedite . MOTION for Partial Summary Judgment . ., 12 MOTION to Expedite . MOTION for Partial Summary Judgment . . Document filed by United States Environmental Protection Agency. (Dolinger, Samuel) (Entered: 02/11/2019)
2019-02-1125DECLARATION of Jonathan Lubetsky in Opposition re: 23 MOTION to Amend/Correct 12 MOTION to Expedite . MOTION for Partial Summary Judgment . ., 12 MOTION to Expedite . MOTION for Partial Summary Judgment .. Document filed by United States Environmental Protection Agency. (Dolinger, Samuel) (Entered: 02/11/2019)
2019-02-1326ANSWER to 1 Complaint,. Document filed by United States Environmental Protection Agency.(Dolinger, Samuel) (Entered: 02/13/2019)
2019-02-1527REPLY MEMORANDUM OF LAW in Support re: 23 MOTION to Amend/Correct 12 MOTION to Expedite . MOTION for Partial Summary Judgment . ., 12 MOTION to Expedite . MOTION for Partial Summary Judgment . . Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Huffman, Peter) (Entered: 02/15/2019)
2019-02-1528DECLARATION of Peter Huffman in Support re: 23 MOTION to Amend/Correct 12 MOTION to Expedite . MOTION for Partial Summary Judgment . ., 12 MOTION to Expedite . MOTION for Partial Summary Judgment .. Document filed by Natural Resources Defense Council. (Attachments: # 1 Exhibit A - Email Receipt re Expedited Processing)(Huffman, Peter) (Entered: 02/15/2019)
2019-02-2229LETTER addressed to Judge Robert W. Sweet from Samuel Dolinger dated 2/22/2019 re: correction to EPA's opposition brief, Dkt. No. 24. Document filed by United States Environmental Protection Agency.(Dolinger, Samuel) (Entered: 02/22/2019)
2019-03-0530LETTER addressed to Judge Robert W. Sweet from Samuel Dolinger dated 3/5/2019 re: EPA's March 4, 2019, response to Plaintiffs' priority request; mootness of Plaintiffs' motion. Document filed by United States Environmental Protection Agency.(Dolinger, Samuel) (Entered: 03/05/2019)
2019-03-0731LETTER addressed to Judge Robert W. Sweet from Plaintiffs dated March 7, 2019 re: Pending Motion. Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Attachments: # 1 Exhibit A - Partial FOIA response)(Huffman, Peter) (Entered: 03/07/2019)
2019-03-1132LETTER addressed to Judge Robert W. Sweet from Samuel Dolinger dated 3/11/2019 re: Response to Plaintiffs' letter dated March 7, 2019; request to stay EPA's deadline to respond to any motion challenging exemptions until EPA has responded to Plaintiffs' complete FOIA request. Document filed by United States Environmental Protection Agency.(Dolinger, Samuel) (Entered: 03/11/2019)
2019-03-1333LETTER addressed to Judge Robert W. Sweet from Plaintiffs dated March 13, 2019 re: Priority Records. Document filed by Environmental Defense Fund, Natural Resources Defense Council.(Huffman, Peter) (Entered: 03/13/2019)
2019-03-1934LETTER addressed to Judge Robert W. Sweet from Samuel Dolinger dated 3/19/2019 re: Response to Plaintiffs' letter dated March 13, 2019. Document filed by United States Environmental Protection Agency.(Dolinger, Samuel) (Entered: 03/19/2019)
2019-03-2735NOTICE OF APPEARANCE by Matthew Littleton on behalf of Environmental Defense Fund. (Littleton, Matthew) (Entered: 03/27/2019)
2019-03-2836ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non-dispositive pretrial motions, and settlement). Referred to Magistrate Judge Debra C. Freeman. (Signed by Judge Colleen McMahon on 3/27/2019) (ks) (Entered: 03/28/2019)
2019-03-2937STATUS REPORT. JOINT Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Attachments: # 1 Exhibit Excerpt from EPA's OMEGA website)(Littleton, Matthew) (Entered: 03/29/2019)
2019-04-08NOTICE OF CASE REASSIGNMENT to Judge P. Kevin Castel. Judge Robert W. Sweet is no longer assigned to the case. (sjo) (Entered: 04/08/2019)
2019-04-0838MEMO ENDORSEMENT on re: 37 Status Report filed by Natural Resources Defense Council, Environmental Defense Fund. ENDORSEMENT: Proposed briefing schedule is approved. (Motions due by 4/8/2019. Cross Motions due by 5/3/2019. Responses due by 5/13/2019. Replies due by 5/23/2019.) (Signed by Judge P. Kevin Castel on 4/8/2019) (jwh) (Entered: 04/08/2019)
2019-04-0839MOTION for Summary Judgment .( Responses due by 5/3/2019), MOTION to Expedite . Document filed by Environmental Defense Fund, Natural Resources Defense Council.(Littleton, Matthew) (Entered: 04/08/2019)
2019-04-0840MEMORANDUM OF LAW in Support re: 39 MOTION for Summary Judgment . MOTION to Expedite . . Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Attachments: # 1 Exhibit A -- EPA OMEGA webpage, # 2 Exhibit B -- EPA OMEGA schematic, # 3 Exhibit C -- 04/01/19 EPA letter to Plaintiffs, # 4 Exhibit D -- 03/04/19 EPA letter to Plaintiffs, # 5 Exhibit E -- 03/20/18 EDF letter to EPA, # 6 Exhibit F -- Plaintiffs' FOIA request, # 7 Exhibit G -- 08/21/18 EPA letter to Plaintiffs, # 8 Exhibit H -- 09/20/18 EDF letter to EPA, # 9 Exhibit I -- 09/11/18 CARB letter to EPA, # 10 Exhibit J -- 10/23/18 EPA letter to CARB, # 11 Exhibit K -- EPA OMEGA v.1.4.56 core model excerpt, # 12 Exhibit L -- 04/05/19 Reuters article)(Littleton, Matthew) (Entered: 04/08/2019)
2019-04-0841DECLARATION of Peter Huffman in Support re: 39 MOTION for Summary Judgment . MOTION to Expedite .. Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Littleton, Matthew) (Entered: 04/08/2019)
2019-04-0842DECLARATION of Margo Oge in Support re: 39 MOTION for Summary Judgment . MOTION to Expedite .. Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Littleton, Matthew) (Entered: 04/08/2019)
2019-04-0843DECLARATION of Dr. Nicholas Lutsey in Support re: 39 MOTION for Summary Judgment . MOTION to Expedite .. Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Attachments: # 1 Exhibit List of publications, # 2 Exhibit Excerpt from Apr. 2018 EPA presentation to OMB)(Littleton, Matthew) (Entered: 04/08/2019)
2019-04-0844PROPOSED ORDER. Document filed by Environmental Defense Fund, Natural Resources Defense Council. Related Document Number: 39 . (Littleton, Matthew) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 04/08/2019)
2019-04-0845AFFIRMATION of Peter Huffman in Support re: 39 MOTION for Summary Judgment . MOTION to Expedite .. Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Littleton, Matthew) (Entered: 04/08/2019)
2019-04-09***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 44 Proposed Order was reviewed and approved as to form. (dt) (Entered: 04/09/2019)
2019-05-0346CROSS MOTION for Summary Judgment . Document filed by United States Environmental Protection Agency. Responses due by 5/13/2019(Dolinger, Samuel) (Entered: 05/03/2019)
2019-05-0347MEMORANDUM OF LAW in Support re: 46 CROSS MOTION for Summary Judgment . . Document filed by United States Environmental Protection Agency. (Dolinger, Samuel) (Entered: 05/03/2019)
2019-05-0348DECLARATION of William L. Wehrum in Support re: 46 CROSS MOTION for Summary Judgment .. Document filed by United States Environmental Protection Agency. (Dolinger, Samuel) (Entered: 05/03/2019)
2019-05-0349DECLARATION of William Charmley in Support re: 46 CROSS MOTION for Summary Judgment .. Document filed by United States Environmental Protection Agency. (Attachments: # 1 Exhibit A - FOIA Request, # 2 Exhibit B - EPA letter dated Mar. 4, 2019, # 3 Exhibit C - EPA letter dated Apr. 1, 2019)(Dolinger, Samuel) (Entered: 05/03/2019)
2019-05-1350MEMORANDUM OF LAW in Opposition re: 46 CROSS MOTION for Summary Judgment . JOINT . Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Littleton, Matthew) (Entered: 05/13/2019)
2019-05-1351REPLY MEMORANDUM OF LAW in Support re: 39 MOTION for Summary Judgment . MOTION to Expedite . JOINT . Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Littleton, Matthew) (Entered: 05/13/2019)
2019-05-1352DECLARATION of Margo Oge in Opposition re: 46 CROSS MOTION for Summary Judgment .. Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Attachments: # 1 Exhibit Records of Emails between EPA Staff and Stakeholders about the OMEGA Model, # 2 Exhibit Presentation of Michael Olechiw, 05/25/18)(Littleton, Matthew) (Entered: 05/13/2019)
2019-05-1353DECLARATION of Dr. Dave Cooke in Opposition re: 46 CROSS MOTION for Summary Judgment .. Document filed by Environmental Defense Fund, Natural Resources Defense Council. (Attachments: # 1 Exhibit Screen Capture of the User Interface of Version 1.4.56 of the OMEGA Model)(Littleton, Matthew) (Entered: 05/13/2019)
2019-05-2354REPLY MEMORANDUM OF LAW in Support re: 46 CROSS MOTION for Summary Judgment . . Document filed by United States Environmental Protection Agency. (Dolinger, Samuel) (Entered: 05/23/2019)
2019-05-2355DECLARATION of William Charmley (Supplemental) in Support re: 46 CROSS MOTION for Summary Judgment .. Document filed by United States Environmental Protection Agency. (Dolinger, Samuel) (Entered: 05/23/2019)
2019-07-1656ORDER: In light of the plaintiffs' withdrawal and the filing of superseding motions, the Clerk is directed to terminate plaintiffs' original Motion to Expedite and Motion for Partial Summary Judgment (Doc. 12) and plaintiffs' Motion to Amend (Doc. 23). (Signed by Judge P. Kevin Castel on 7/16/2019) (ne) (Entered: 07/16/2019)
2019-08-0557MOTION for Erin Murphy to Withdraw as Attorney . Document filed by Environmental Defense Fund.(Murphy, Erin) (Entered: 08/05/2019)
2019-08-0658LETTER addressed to Judge P. Kevin Castel from Plaintiffs dated August 6, 2019 re: Notice of OMB Review. Document filed by Environmental Defense Fund, Natural Resources Defense Council.(Huffman, Peter) (Entered: 08/06/2019)
2019-08-2259OPINION AND ORDER re: 46 CROSS MOTION for Summary Judgment; 39 MOTION for Summary Judgment: For the reasons discussed above, the Court holds that the EPA's declarations are facially adequate to justify withholding OMEGA v.1.4.59 pursuant to Exemption 5. Thus, summary judgment in favor of plaintiffs is not warranted. See Osen, 375 F. Supp. 3d at 418. Moreover, discovery is not warranted because plaintiffs have not made a showing of bad faith or presented tangible evidence contrary to the EPA's declarations to overcome the EPA's presumption of good faith. See Carney, 19 F.3d at 812 ("In order to justify discovery once the agency has satisfied its burden, the plaintiff must make a showing of bad faith... or provide some tangible evidence that an exemption claimed by the agency should not apply or summary judgment is otherwise inappropriate."); Wilner, 592 F.3d at 73 (requiring that agency declarations "are not controverted by either contrary evidence in the record nor by evidence of agency bad faith."). The Court accordingly holds that the EPA properly withheld OMEGA v.1.4.59 under FOIA Exemption 5. Defendant's cross-motion for summary judgment (Doc. 46) is GRANTED and plaintiffs' motion for summary judgment (Doc. 39) is DENIED. (Signed by Judge P. Kevin Castel on 8/22/2019) (jwh) Transmission to Orders and Judgments Clerk for processing. (Entered: 08/22/2019)
2019-08-2360CLERK'S JUDGMENT re: 59 Memorandum & Opinion. in favor of United States Environmental Protection Agency against Environmental Defense Fund, Natural Resources Defense Council. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated August 22, 2019, Defendant's cross-motion for summary judgment is granted and plaintiffs' motion for summary judgment is denied. (Signed by Clerk of Court Ruby Krajick on 08/23/2019) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 08/23/2019)
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