Case Detail

FOIA Project Annotation: Judge James Boasberg has ruled that the Clean Water Act does not provide a disclosure requirement broader than that in Exemption 4 (confidential business information). The Environmental Integrity Project requested records the EPA received from vendors of steam-powered plants as part of its revision of pollution-control regulations. Because all the information provided by the vendors had been claimed as confidential business information, the EPA withheld the records. Largely because the process of pre-notification review under FOIA would take so long, the Environmental Integrity Project decided to abandon any Exemption 4 challenge and instead argue that the 33 U.S.C. § 1318 of the Clean Water Act required EPA to disclose the records regardless of whether they constituted confidential business information under Exemption 4. EIP argued that Section 1318 authorized the agency to collect the data and then required it to make the data public except for information that qualified as trade secrets. EPA responded that it considered trade secrets in the CWA provision to include confidential business information that was not subject to disclosure. Boasberg, instead, looked to the Administrative Procedure Act to resolve the conflict. He noted that "because Plaintiffs rely exclusively on FOIA to supply both a cause of action and a source of relief, and because there is no dispute that the data is properly classified as confidential business information under Exemption 4, the only way Plaintiffs may succeed is if the CWA somehow modifies FOIA to preclude EPA's ability to invoke its exemptions." He pointed to language in the APA that indicated that a "subsequent statute may not be held to supersede or modify this subchapter. . .except to the extent it does so expressly." He indicated that "Plaintiffs cannot identify Congress's express intent to exempt the CWA from the general provisions of FOIA." He noted that another EPA-specific statuteâ€"the Toxic Substances Control Actâ€"did have such express language. Reviewing the CWA provision more closely, Boasberg noted that "it functions not as an exemption from disclosure that EPA may invoke at will, but rather as a statutory bar against disclosure that may be invoked by information providersâ€"here, power plants and vendorsâ€"if certain conditions are satisfied. . .[A] power plant may enjoin EPA from disclosing trade-secret information even if the agency would prefer its release."
Issues: Exemption 4 - Confidential business information

Date Filed	Doc #	Docket Text
2014-07-28	1	COMPLAINT against US ENVIRONMENTAL PROTECTION AGENCY ( Filing fee $ 400 receipt number 0090-3790827) filed by ENVIRONMENTAL INTEGRITY PROJECT, SIERRA CLUB, EARTHJUSTICE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Civil Cover Sheet, # 12 Summons, # 13 Summons, # 14 Summons)(Duggan, Jennifer) (Entered: 07/28/2014)
2014-07-28	2	Corporate Disclosure Statement by EARTHJUSTICE, ENVIRONMENTAL INTEGRITY PROJECT, SIERRA CLUB. (Duggan, Jennifer) (Entered: 07/28/2014)
2014-07-28	3	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Thomas Cmar, :Firm- Earthjustice, :Address- 5042 N Leavitt Street, Suite 1, Chicago, IL 60625. Phone No. - (312) 257-9338. Filing fee $ 100, receipt number 0090-3790852. Fee Status: Fee Paid. by EARTHJUSTICE, ENVIRONMENTAL INTEGRITY PROJECT, SIERRA CLUB (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Duggan, Jennifer) (Entered: 07/28/2014)
2014-07-28		Case Assigned to Judge James E. Boasberg. (md, ) (Entered: 07/28/2014)
2014-07-28	4	SUMMONS (3) Issued Electronically as to US ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons 2nd, # 2 Summons 3rd, # 3 Notice of Consent, # 4 Consent Form) (zmd, ) (Entered: 07/28/2014)
2014-07-29		MINUTE ORDER GRANTING 3 Motion for Leave to Appear Pro Hac Vice of THOMAS CMAR. Signed by Judge James E. Boasberg on 7/29/2014. (lcjeb3) (Entered: 07/29/2014)
2014-08-14	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/1/2014. Answer due for ALL FEDERAL DEFENDANTS by 8/31/2014. (Duggan, Jennifer) (Entered: 08/14/2014)
2014-08-14	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 8/1/2014. (Duggan, Jennifer) (Entered: 08/14/2014)
2014-08-14	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. US ENVIRONMENTAL PROTECTION AGENCY served on 7/31/2014 (Duggan, Jennifer) (Entered: 08/14/2014)
2014-08-21	8	NOTICE of Appearance by Marina Utgoff Braswell on behalf of US ENVIRONMENTAL PROTECTION AGENCY (Braswell, Marina) (Entered: 08/21/2014)
2014-08-29	9	ANSWER to Complaint by US ENVIRONMENTAL PROTECTION AGENCY.(Braswell, Marina) (Entered: 08/29/2014)
2014-09-02	10	ORDER: The Court ORDERS that the parties shall consult and file a joint proposed briefing schedule on or before September 12, 2014. Signed by Judge James E. Boasberg on 9/2/14. (lcjeb2) (Entered: 09/02/2014)
2014-09-02		Set/Reset Deadline: The parties shall consult and file a joint proposed briefing schedule on or before 9/12/2014. (ad) (Entered: 09/02/2014)
2014-09-12	11	MEET AND CONFER STATEMENT. (Braswell, Marina) (Entered: 09/12/2014)
2014-09-15		MINUTE ORDER: Per the 11 Joint Proposed Schedule, the Court ORDERS that: (1) on or before December 31, 2014, EPA shall complete making all of its final confidentiality business determinations associated with plaintiffs FOIA request; and (2) on or before January 15, 2015, the parties will submit a new proposal for further proceedings in this case. Signed by Judge James E. Boasberg on 9/15/14. (lcjeb2) (Entered: 09/15/2014)
2014-09-15		Set/Reset Deadlines: On or before 12/31/2014, EPA shall complete making all of its final confidentiality business determinations associated with plaintiffs FOIA request; and on or before 1/15/2015, the parties will submit a new proposal for further proceedings in this case. (ad) (Entered: 09/15/2014)
2014-12-01	12	Unopposed MOTION to Amend/Correct Order, by US ENVIRONMENTAL PROTECTION AGENCY (Braswell, Marina) (Entered: 12/01/2014)
2014-12-02		MINUTE ORDER granting Defendant's 12 Motion to Amend the Schedule. The Court ORDERS that: 1) On or before February 11, 2015, the EPA shall complete making its final confidentiality business determinations associated with Plaintiffs' FOIA request; and 2) On or before February 26, 2015, the parties will submit a new proposal for further proceedings in this case. Signed by Judge James E. Boasberg on 12/02/14. (lcjeb3) (Entered: 12/02/2014)
2014-12-02		Set/Reset Deadlines: EPA's final confidentiality business determinations regarding Plaintiffs' FOIA request due by 2/11/2015. Joint new proposal for further proceedings in this case due by 2/26/2015. (tg ) (Entered: 12/02/2014)
2015-02-11	13	Unopposed MOTION for Extension of Time to Complete CBI Determinations by US ENVIRONMENTAL PROTECTION AGENCY (Braswell, Marina) (Entered: 02/11/2015)
2015-02-11		MINUTE ORDER GRANTING Defendant's 13 Motion for Extension of Time. The Court ORDERS that Defendant shall have until February 17, 2015, to complete its review of its confidentiality determinations. Signed by Judge James E. Boasberg on 02/11/15. (lcjeb3) (Entered: 02/11/2015)
2015-02-12		Set/Reset Deadline: Defendant shall have until 2/17/2015, to complete its review of its confidentiality determinations. (ad) (Entered: 02/12/2015)
2015-02-25	14	Unopposed MOTION for Extension of Time to Submit New Proposal for Further Proceedings by EARTHJUSTICE, ENVIRONMENTAL INTEGRITY PROJECT, SIERRA CLUB (Cmar, Thomas) (Entered: 02/25/2015)
2015-02-26		MINUTE ORDER GRANTING Plaintiff's 14 Unopposed Motion for Extension of Time. The Court ORDERS that the parties shall have until March 12, 2015, to submit a proposal for further proceedings in this case. Signed by Judge James E. Boasberg on 02/26/15. (lcjeb3) (Entered: 02/26/2015)
2015-02-26		Set/Reset Deadline: The parties shall have until 3/12/2015, to submit a proposal for further proceedings in this case. (ad) (Entered: 02/26/2015)
2015-03-11	15	Unopposed MOTION for Extension of Time to Submit New Proposal for Further Proceedings by EARTHJUSTICE, ENVIRONMENTAL INTEGRITY PROJECT, SIERRA CLUB (Cmar, Thomas) (Entered: 03/11/2015)
2015-03-11		MINUTE ORDER GRANTING Plaintiff's 15 Unopposed Motion for Extension of Time. The Court ORDERS that the parties shall have until April 2, 2015, to submit a proposal for further proceedings in this case. Signed by Judge James E. Boasberg on 03/11/15. (lcjeb3) (Entered: 03/11/2015)
2015-03-11		Set/Reset Deadline: The parties shall have until 4/02/2015, to submit a proposal for further proceedings in this case. (ad) (Entered: 03/11/2015)
2015-03-24	16	NOTICE OF SUBSTITUTION OF COUNSEL by Abel J. Russ on behalf of ENVIRONMENTAL INTEGRITY PROJECT Substituting for attorney Jennifer S. Duggan (Russ, Abel) (Entered: 03/24/2015)
2015-04-02	17	Unopposed MOTION for Extension of Time to Submit New Proposal for Further Proceedings by EARTHJUSTICE, ENVIRONMENTAL INTEGRITY PROJECT, SIERRA CLUB (Cmar, Thomas) (Entered: 04/02/2015)
2015-04-03		MINUTE ORDER GRANTING Plaintiff's 17 Unopposed Motion for Extension of Time. The Court ORDERS that the parties shall have until April 16, 2015, to submit a proposal for further proceedings in this case. Signed by Judge James E. Boasberg on 04/03/15. (lcjeb3) (Entered: 04/03/2015)
2015-04-03		Set/Reset Deadline: The parties shall have until 4/16/2015, to submit a proposal for further proceedings in this case. (ad) (Entered: 04/03/2015)
2015-04-16	18	Unopposed MOTION for Extension of Time to Submit New Proposal for Further Proceedings by EARTHJUSTICE, ENVIRONMENTAL INTEGRITY PROJECT, SIERRA CLUB (Cmar, Thomas) (Entered: 04/16/2015)
2015-04-16		MINUTE ORDER GRANTING Plaintiffs' 18 Unopposed Motion for Extension of Time. The Court ORDERS that the parties shall have until April 23, 2015, to submit a new proposal for further proceedings in this case. Signed by Judge James E. Boasberg on 04/16/15. (lcjeb3) (Entered: 04/16/2015)
2015-04-17		Set/Reset Deadline: The parties shall have until 4/23/2015, to submit a new proposal for further proceedings in this case. (ad) (Entered: 04/17/2015)
2015-04-23	19	MEET AND CONFER STATEMENT. (Cmar, Thomas) (Entered: 04/23/2015)
2015-04-24		MINUTE ORDER: The Court hereby adopts the parties' 19 Joint Proposed Schedule for Further Proceedings. Accordingly, the Court ORDERS that: 1) Defendant shall provide a Vaughn Index to Plaintiffs on or before June 8, 2015; 2) Plaintiffs shall notify EPA as to which entries in the Vaughn Index they wish to challenge on or before June 22, 2015; 3) Defendant shall file its Motion for Summary Judgment on or before July 30, 2015; 4) Plaintiffs shall file their Opposition and any Cross-Motion for Summary Judgment on or before August 27, 2015; 5) Defendant shall file any Reply and Opposition to any Cross-Motion on or before September 29, 2015; and 6) Plaintiffs shall file any Reply in support of its Cross-Motion on or before October 22, 2015. The Court FURTHER ORDERS that the Vaughn Index to be prepared by Defendant shall be based on a sample of 43 withheld records that Plaintiffs have selected and identified for Defendant. Signed by Judge James E. Boasberg on 04/24/15. (lcjeb3) (Entered: 04/24/2015)
2015-04-24		Set/Reset Deadlines: Defendant shall provide a Vaughn Index to Plaintiffs on or before 6/08/15; Plaintiffs shall notify EPA as to which entries in the Vaughn Index they wish to challenge on or before 6/22/2015; Defendant shall file its Motion for Summary Judgment on or before 7/30/2015; Plaintiffs shall file their Opposition and any Cross-Motion for Summary Judgment on or before 8/27/2015; Defendant shall file any Reply and Opposition to any Cross-Motion on or before 9/29/2015; and Plaintiffs shall file any Reply in support of its Cross-Motion on or before 10/22/2015. (ad) (Entered: 04/24/2015)
2015-07-28	20	Unopposed MOTION for Extension of Time to File Dispositive Motion by US ENVIRONMENTAL PROTECTION AGENCY (Braswell, Marina) (Entered: 07/28/2015)
2015-07-29		MINUTE ORDER granting Defendant's 20 Unopposed Motion for Extension of Time to File its Motion for Summary Judgment. The Court ORDERS that: 1) Defendant shall file its Motion for Summary Judgment on or before August 5, 2015; 2) Plaintiffs shall file their Opposition and any Cross-Motion for Summary Judgment on or before September 4, 2015; 3) Defendant shall file any Reply and Opposition to any Cross-Motion on or before October 5, 2015; and 4) Plaintiffs shall file any Reply in support of its Cross-Motion on or before October 28, 2015. Signed by Judge James E. Boasberg on 7/29/15. (lcjeb1) (Entered: 07/29/2015)
2015-07-29		Set/Reset Deadlines: Defendant shall file its Motion for Summary Judgment on or before 8/05/2015; Plaintiffs shall file their Opposition and any Cross-Motion for Summary Judgment on or before 9/04/2015; Defendant shall file any Reply and Opposition to any Cross-Motion on or before 10/05/2015; and Plaintiffs shall file any Reply in support of its Cross-Motion on or before 10/28/2015. (ad) (Entered: 07/29/2015)
2015-08-03	21	Unopposed MOTION for Extension of Time to File Dispositive Motion by US ENVIRONMENTAL PROTECTION AGENCY (Braswell, Marina) (Entered: 08/03/2015)
2015-08-04		MINUTE ORDER granting Defendant's Unopposed 21 Motion for Extension of Time to File. Defendant shall file its motion for summary judgment on or before August 28, 2015. Plaintiffs shall file their opposition to Defendants' motion for summary judgment and any cross-motion for summary judgment by October 5, 2015. Defendant shall file a reply in support of its motion for summary judgment and its opposition to any cross-motion for summary judgment by November 2, 2015. Plaintiffs shall file a reply in support of any cross-motion for summary judgment by November 24, 2015. Signed by Judge James E. Boasberg on 8/4/2015. (lcjeb3) Modified on 8/10/2015 to include all deadlines (ad). (Entered: 08/04/2015)
2015-08-04		ENTERED IN ERROR.....Set/Reset Deadline: Defendant shall file its motion for summary judgment on or before 8/28/2015. (ad) Modified on 8/11/2015 (ad). (Entered: 08/04/2015)
2015-08-11		Set/Reset Deadlines: Defendant shall file its motion for summary judgment on or before 8/28/2015; Plaintiffs shall file their opposition to Defendants' motion for summary judgment and any cross-motion for summary judgment by 10/05/2015; Defendant shall file a reply in support of its motion for summary judgment and its opposition to any cross-motion for summary judgment by 11/02/2015; Plaintiffs shall file a reply in support of any cross-motion for summary judgment by 11/24/2015. (ad) (Entered: 08/11/2015)
2015-08-28	22	MOTION for Summary Judgment by US ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Declaration (Declaration of Robert K. Wood), # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V (A), # 24 Exhibit V (B), # 25 Exhibit W, # 26 Exhibit X, # 27 Exhibit Y, # 28 Exhibit Z, # 29 Exhibit AA, # 30 Exhibit BB, # 31 Exhibit CC, # 32 Text of Proposed Order)(Braswell, Marina) (Entered: 08/28/2015)
2015-09-29	23	Unopposed MOTION for Extension of Time to File Response/Reply as to 22 MOTION for Summary Judgment by EARTHJUSTICE, ENVIRONMENTAL INTEGRITY PROJECT, SIERRA CLUB (Cmar, Thomas) (Entered: 09/29/2015)
2015-09-30		MINUTE ORDER granting Plaintiffs' Unopposed 23 Motion for Extension of Time to File Response/Reply as to 22 Motion for Summary Judgment. Plaintiffs shall file their opposition to Defendant's Motion for Summary Judgment and any cross-motion for summary judgment on or before October 19, 2015; Defendant shall file its reply to Plaintiffs' opposition and its opposition to any cross-motion for summary judgment on or before November 16, 2015; and Plaintiffs shall file their reply in support of any cross-motion for summary judgment on or before December 8, 2015. Signed by Judge James E. Boasberg on 9/30/15. (lcjeb3) (Entered: 09/30/2015)
2015-09-30		Set/Reset Deadlines: Plaintiffs shall file their opposition to Defendant's Motion for Summary Judgment and any cross-motion for summary judgment on or before 10/19/2015; Defendant shall file its reply to Plaintiffs' opposition and its opposition to any cross-motion for summary judgment on or before 11/16/2015; and Plaintiffs shall file their reply in support of any cross-motion for summary judgment on or before 12/08/2015. (ad) (Entered: 09/30/2015)
2015-10-13	24	Unopposed MOTION for Extension of Time to File Response/Reply as to 22 MOTION for Summary Judgment by EARTHJUSTICE, ENVIRONMENTAL INTEGRITY PROJECT, SIERRA CLUB (Cmar, Thomas) (Entered: 10/13/2015)
2015-10-14		MINUTE ORDER granting Unopposed 24 Motion for Extension of Time to File Response/Reply. Plaintiffs shall file their opposition to Defendant's 22 Motion for Summary Judgment and any cross-motion for summary judgment by November 16, 2015; Defendant shall file its reply in support of its Motion and opposition to any cross-motion for summary judgment by December 14, 2015; and Plaintiffs shall file their reply in support of any cross-motion for summary judgment by January 5, 2016. Signed by Judge James E. Boasberg on 10/14/15. (lcjeb3) (Entered: 10/14/2015)
2015-10-14		Set/Reset Deadlines: Cross-Motion and Opposition to Motion for Summary Judgment due by 11/16/2015; Opposition to Cross-Motion and Reply to Motion for Summary Judgment due by 12/14/2015; Reply to Cross Motions due by 1/5/2016. (tg) (Entered: 10/14/2015)
2015-11-12	25	Unopposed MOTION for Extension of Time to File Response/Reply as to 22 MOTION for Summary Judgment by EARTHJUSTICE, ENVIRONMENTAL INTEGRITY PROJECT, SIERRA CLUB (Cmar, Thomas) (Entered: 11/12/2015)
2015-11-13		MINUTE ORDER granting Unopposed 25 Motion for Extension of Time to File. The Court ORDERS that Plaintiffs shall file their opposition to Defendant's 22 Motion for Summary Judgment and any cross-motion for summary judgment on or before November 23, 2015; Defendant shall file its reply in support of its Motion and its opposition to any cross motion on or before December 30, 2015; and Plaintiffs shall file their reply in support of any cross motion on or before January 21, 2016. Signed by Judge James E. Boasberg on 11/13/15. (lcjeb3) (Entered: 11/13/2015)
2015-11-13		Set/Reset Deadlines: Plaintiffs' Opposition/Cross-Motion to Motion for Summary Judgment due by 11/23/2015; Opposition to Cross-Motion/Reply to Motion for Summary Judgment due by 12/30/2015; Reply in support of Cross-Motion due by 1/21/2016. (tg) (Entered: 11/13/2015)
2015-11-23	26	Memorandum in opposition to re 22 MOTION for Summary Judgment filed by EARTHJUSTICE, ENVIRONMENTAL INTEGRITY PROJECT, SIERRA CLUB. (Attachments: # 1 Declaration of Thomas Cmar, # 2 Text of Proposed Order)(Cmar, Thomas) (Entered: 11/23/2015)
2015-11-23	27	Cross MOTION for Summary Judgment by EARTHJUSTICE, ENVIRONMENTAL INTEGRITY PROJECT, SIERRA CLUB (Attachments: # 1 Declaration of Thomas Cmar, # 2 Text of Proposed Order)(Cmar, Thomas) (Entered: 11/23/2015)
2015-12-30	28	Unopposed MOTION for Extension of Time to File Response/Reply as to 22 MOTION for Summary Judgment , 27 Cross MOTION for Summary Judgment by US ENVIRONMENTAL PROTECTION AGENCY (Braswell, Marina) (Entered: 12/30/2015)
2015-12-30		MINUTE ORDER granting Defendant's 28 Unopposed Motion for Extension of Time to File Response/Reply. The Court ORDERS that Defendant shall file its response by no later than February 18, 2016. Signed by Judge James E. Boasberg on 12/30/2015. (lcjeb2) (Entered: 12/30/2015)
2015-12-30		Set/Reset Deadlines: Defendant's Response due by 2/18/2016. (tg) (Entered: 12/30/2015)
2016-01-28		MINUTE ORDER: The Court ORDERS that Plaintiffs' Reply shall be due on March 11, 2016. Given the length of time these motions have been pending and the number of prior continuances, the Court will not be able to grant further continuances to either side. Signed by Judge James E. Boasberg on 1/28/16. (lcjeb3) (Entered: 01/28/2016)
2016-01-28		Set/Reset Deadline: Plaintiffs' reply shall be due on 3/11/2016. (ad) (Entered: 01/28/2016)
2016-02-18	29	Memorandum in opposition to re 27 Cross MOTION for Summary Judgment filed by US ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Statement of Facts Response)(Braswell, Marina) (Entered: 02/18/2016)
2016-02-18	30	REPLY to opposition to motion re 22 MOTION for Summary Judgment filed by US ENVIRONMENTAL PROTECTION AGENCY. (Braswell, Marina) (Entered: 02/18/2016)
2016-03-11	31	REPLY to opposition to motion re 27 Cross MOTION for Summary Judgment filed by EARTHJUSTICE, ENVIRONMENTAL INTEGRITY PROJECT, SIERRA CLUB. (Cmar, Thomas) (Entered: 03/11/2016)
2016-03-29	32	ORDER: For the reasons set forth in the accompanying Memorandum Opinion, the Court ORDERS that: 1) Defendant's 22 Motion for Summary Judgment is GRANTED; 2) Plaintiffs' 27 Cross-Motion for Summary Judgment is DENIED; and 3) Judgment is ENTERED in favor of Defendant. Signed by Judge James E. Boasberg on 3/29/16. (lcjeb1) (Entered: 03/29/2016)
2016-03-29	33	MEMORANDUM OPINION re 32 Order granting Defendant's 22 Motion for Summary Judgment and denying Plaintiffs' 27 Cross-Motion for Summary Judgment. Signed by Judge James E. Boasberg on 3/29/16. (lcjeb1) (Entered: 03/29/2016)
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