Case Detail

FOIA Project Annotation: Judge Beryl Howell has ruled that the EPA properly withheld records under Exemption 5 (privileges) in response to a FOIA request from PEER for records concerning the 2018 Version-Formaldehyde Assessment. When then EPA Administrator Scott Pruitt testified before the Senate Committee on the Environment and Public Works, he seemed to agree with comments from Sen. Ed Markey (D-MA) that the agency had determined that formaldehyde caused leukemia. As a result, PEER submitted a FOIA request for records concerning the agency's conclusion that formaldehyde caused cancer. In three interim responses, the agency disclosed 138 pages in full, 174 redacted pages, and withheld 99 records entirely. By the time Howell ruled, the only remaining disputed record was the 2018 Version-Formaldehyde Assessment, which the agency withheld under the deliberative process privilege. The EPA uses the Integrated Risk Information System, a multi-step analysis for analyzing select chemicals found in the environment to assess their impact on human health. The 2018 Version-Formaldehyde Assessment was a Step One draft document. Noting that the recent Supreme Court decision in U.S. Fish and Wildlife Service v. Sierra Club, 141 S. Ct. 777 (2021), supported the agency's claim, Howell observed that "specifically, an assessment at IRS Step One must still proceed through IRS Steps Two and Three â€" Agency Review and Interagency Science Consultation â€" during which the draft is substantively reviewed and, crucially, subject to revision as needed. Thus, the agency's view of the 2018 Version-Formaldehyde Assessment being at Step One of the IRIS program 'specifically contemplates further review by the agency after receipt of the draft, and with it, the possibility of changes to the [assessment] after' IRS Step One is completed. This possibility for subsequent changes indicates that the 2018 Version-Formaldehyde Assessment is pre-decisional and deliberative." Howell pointed out that "the 2018 Version-Formaldehyde Assessment not only is labeled a draft and subject pursuant to EPA's IRS policy, to internal revision before public release, but also contains ordinary indicia of a draft document, bolstering the conclusion that this document is pre-decisional, deliberative document protected by the deliberative process privilege. Specifically, the 2018 Version-Formaldehyde Assessment contains redlines, indicating proposed changes, and comment bubbles, reflecting commenters' opinions on and proposals concerning specific portions of the draft." PEER argued that Pruitt's testimony implied that a final assessment on whether formaldehyde caused cancer had been completed and existed. But Howell observed that the agency's affidavits "make clear that Pruitt's understanding, as stated at the hearing, was incorrect, and no such version of the formaldehyde assessment, ready for public release, existed. Furthermore, Pruitt's agreement with Senator Markey's understanding was tentative, and he expressly stated that he would need to confirm the status of the formaldehyde assessment and would need to follow up with Markey's office as needed. Follow-up communications from EPA to Senator Markey did not confirm Pruitt's testimony and instead stated that EPA was still 'working to fully implement the recommendations in all IRIS assessments released moving forward.'"
Issues: Exemption 5 - Privileges

Date Filed	Doc #	Docket Text
2018-09-25	1	COMPLAINT against PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, ENVIRONMENTAL PROTECTION AGENCY ( Filing fee $ 400 receipt number 0090-5704787), CIVIL COVER SHEET by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Attachments: # 1 Exhibit Ex A - FOIA Request, # 2 Exhibit Ex B - Request for Clarification, # 3 Civil Cover Sheet, # 4 Summons, # 5 Summons, # 6 Summons)(Dinerstein, Paula) (Entered: 09/25/2018)
2018-09-27		Case Assigned to Chief Judge Beryl A. Howell. (zsb) (Entered: 09/27/2018)
2018-09-27	2	SUMMONS (3) Issued Electronically as to U.S. ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zsb) (Entered: 09/27/2018)
2018-09-27	3	STANDING ORDER. Signed by Chief Judge Beryl A. Howell on September 27, 2018. (lcbah1) (Entered: 09/27/2018)
2018-10-26	4	Consent MOTION for Extension of Time to File Answer by U.S. ENVIRONMENTAL PROTECTION AGENCY (Seabrook, April) (Entered: 10/26/2018)
2018-10-26		MINUTE ORDER (paperless) GRANTING the defendant's 4 Consent Motion for Extension of Time to File Answer, and Memorandum in Support Thereof and DIRECTING the defendant to file any responsive pleading by November 15, 2018. Signed by Chief Judge Beryl A. Howell on October 26, 2018. (lcbah1) (Entered: 10/26/2018)
2018-10-26		Set/Reset Deadlines: Defendant's Answer due by 11/15/2018. (tg) (Entered: 10/26/2018)
2018-10-29	5	NOTICE OF SUBSTITUTION OF COUNSEL by Jason Todd Cohen on behalf of U.S. ENVIRONMENTAL PROTECTION AGENCY Substituting for attorney April Denise Seabrook (Cohen, Jason) (Entered: 10/29/2018)
2018-11-15	6	ANSWER to Complaint by U.S. ENVIRONMENTAL PROTECTION AGENCY.(Cohen, Jason) (Entered: 11/15/2018)
2018-11-29	7	Joint STATUS REPORT by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Cohen, Jason) (Entered: 11/29/2018)
2018-11-29		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 7 Joint Status Report, the parties to submit a joint status report by January 7, 2019. Signed by Chief Judge Beryl A. Howell on November 29, 2018. (lcbah1) (Entered: 11/29/2018)
2018-11-29		Set/Reset Deadlines: Joint Status Report due by 1/7/2019. (tg) (Entered: 11/29/2018)
2019-01-04	8	MOTION to Stay by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Coles-Huff, Doris) (Entered: 01/04/2019)
2019-01-04	9	NOTICE of Consent to Motion to Stay by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY (Dinerstein, Paula) (Entered: 01/04/2019)
2019-01-07		MINUTE ORDER (paperless) STAYING, upon consideration of the defendant's 8 Motion for a Stay of All Proceedings in Light of Lapse of Appropriations and the plaintiff's 9 Notice of Consent to Motion for Stay of All Proceedings in Light of Lapse of Appropriations, this case and ORDERING the parties to file, within two business days of Congress appropriating funds for the defendant, a joint status report. Signed by Chief Judge Beryl A. Howell on January 7, 2019. (lcbah1) (Entered: 01/07/2019)
2019-01-29	10	Joint STATUS REPORT by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Cohen, Jason) (Entered: 01/29/2019)
2019-01-29		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 10 Joint Status Report, the parties to submit a joint status report by March 1, 2019. Signed by Chief Judge Beryl A. Howell on January 29, 2019. (lcbah1) (Entered: 01/29/2019)
2019-01-30		Set/Reset Deadlines: Joint Status Report due by 3/1/2019. (tg) (Entered: 01/30/2019)
2019-03-01	11	Joint STATUS REPORT by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Cohen, Jason) (Entered: 03/01/2019)
2019-03-01		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 11 Joint Status Report, the parties to file a joint status report by April 1, 2019. Signed by Chief Judge Beryl A. Howell on March 1, 2019. (lcbah1) (Entered: 03/01/2019)
2019-03-04		Set/Reset Deadlines: Joint Status Report due by 4/1/2019. (tg) (Entered: 03/04/2019)
2019-04-01	12	Joint STATUS REPORT by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Cohen, Jason) (Entered: 04/01/2019)
2019-04-01		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 12 Joint Status Report, the parties to file a joint status report by May 1, 2019 proposing a production schedule of records responsive to the plaintiff's FOIA request. Signed by Chief Judge Beryl A. Howell on April 1, 2019. (lcbah1) (Entered: 04/01/2019)
2019-04-02		Set/Reset Deadlines: Joint Status Report due by 5/1/2019. (tg) (Entered: 04/02/2019)
2019-05-01	13	Joint STATUS REPORT by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Cohen, Jason) (Entered: 05/01/2019)
2019-05-01		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' agreed-upon production schedule, as reflected in the 13 Joint Status Report, the parties to file, by August 1, 2019, a joint status report advising the Court of the status of the defendant's response to the plaintiff's FOIA request and proposing a schedule for any further proceedings. Signed by Chief Judge Beryl A. Howell on May 1, 2019. (lcbah1) (Entered: 05/01/2019)
2019-05-01		Set/Reset Deadlines: Joint Status Report due by 8/1/2019. (tg) (Entered: 05/01/2019)
2019-08-01	14	Joint STATUS REPORT by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Cohen, Jason) (Entered: 08/01/2019)
2019-08-01		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 14 Joint Status Report, the parties to file, by September 30, 2019, a joint status report advising the Court of any issues in dispute and proposing a schedule for dispositive briefing. Signed by Chief Judge Beryl A. Howell on August 1, 2019. (lcbah1) (Entered: 08/01/2019)
2019-08-01		Set/Reset Deadlines: Joint Status Report due by 9/30/2019. (tg) (Entered: 08/01/2019)
2019-09-23	15	Joint STATUS REPORT by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Cohen, Jason) (Entered: 09/23/2019)
2019-09-23		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 15 Joint Status Report, the parties to file, by November 14, 2019, a joint status report advising the Court of any issues in dispute and proposing a schedule for dispositive briefing. Signed by Chief Judge Beryl A. Howell on September 23, 2019. (lcbah1) (Entered: 09/23/2019)
2019-09-24		Set/Reset Deadlines: Joint Status Report due by 11/14/2019. (tg) (Entered: 09/24/2019)
2019-11-14	16	Joint STATUS REPORT by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Cohen, Jason) (Entered: 11/14/2019)
2019-11-14		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 16 Joint Status Report, the parties to file, by January 13, 2020, a joint status report advising the Court of any issues in dispute and proposing a schedule for dispositive briefing. Signed by Chief Judge Beryl A. Howell on November 14, 2019. (lcbah1) (Entered: 11/14/2019)
2019-11-14		Set/Reset Deadlines: Joint Status Report due by 1/13/2020. (tg) (Entered: 11/14/2019)
2019-12-30	17	NOTICE OF SUBSTITUTION OF COUNSEL by Sean Michael Tepe on behalf of U.S. ENVIRONMENTAL PROTECTION AGENCY Substituting for attorney Jason Cohen (Tepe, Sean) (Entered: 12/30/2019)
2020-01-13	18	Joint STATUS REPORT by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Tepe, Sean) (Entered: 01/13/2020)
2020-01-13		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 18 Joint Status Report, the parties to file, by March 13, 2020, a joint status report advising the Court of any issues in dispute and proposing a schedule for dispositive briefing. Signed by Chief Judge Beryl A. Howell on January 13, 2020. (lcbah1) (Entered: 01/13/2020)
2020-01-14		Set/Reset Deadlines: Joint Status Report due by 3/13/2020. (hmc) (Entered: 01/14/2020)
2020-03-13	19	Joint STATUS REPORT by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Tepe, Sean) (Entered: 03/13/2020)
2020-03-16		MINUTE ORDER (paperless) ISSUING, upon consideration of the parties' 19 Joint Status Report & Proposed Briefing Schedule, the following SCHEDULING ORDER: (1) by May 6, 2020, the defendant shall file its motion for summary judgment; (2) by June 5, 2020, the plaintiff shall file a combined opposition to the defendant's motion for summary judgment and cross-motion for summary judgment; (3) by July 6, 2020, the defendant shall file a combined opposition to the plaintiff's cross-motion for summary judgment and reply in support of its motion for summary judgment; (4) by August 5, 2020, the plaintiff shall file its reply in support of its cross-motion for summary judgment. Signed by Chief Judge Beryl A. Howell on March 16, 2020. (lcbah1) (Entered: 03/16/2020)
2020-03-16		Set/Reset Deadlines: Summary judgment motion due by 5/6/2020; cross-motion and opposition to motion for summary judgment due by 6/5/2020; opposition to cross-motion and reply to opposition to motion for summary judgment due by 7/6/2020; reply to opposition to cross-motion due by 8/5/2020. (tg) (Entered: 03/16/2020)
2020-04-28	20	Consent MOTION to Revise Briefing Schedule by U.S. ENVIRONMENTAL PROTECTION AGENCY (Tepe, Sean) Modified event on 4/29/2020 (znmw). (Entered: 04/28/2020)
2020-04-28		MINUTE ORDER (paperless) GRANTING the defendant's 20 Consent Motion to Revise Briefing Schedule and ISSUING the following SCHEDULING ORDER: (1) by May 29, 2020, the defendant shall file its motion for summary judgment; (2) by June 29, 2020, the plaintiff shall file a combined opposition to the defendant's motion for summary judgment and cross-motion for summary judgment; (3) by July 29, 2020, the defendant shall file a combined opposition to the plaintiff's cross-motion for summary judgment and reply in support of its motion for summary judgment; (4) by August 21, 2020, the plaintiff shall file its reply in support of its cross-motion for summary judgment. Signed by Chief Judge Beryl A. Howell on April 28, 2020. (lcbah1) (Entered: 04/28/2020)
2020-04-29		Set/Reset Deadlines: Summary judgment motion due by 5/29/2020; cross-motion and opposition to motion for summary judgment due by 6/29/2020; opposition to cross-motion and reply to opposition to motion for summary judgment due by 7/29/2020; reply to opposition to cross-motion by 8/21/2020. (tg) (Entered: 04/29/2020)
2020-05-29	21	MOTION for Summary Judgment by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Statement of Facts, # 2 Declaration of Orme-Zavaleta, # 3 Text of Proposed Order)(Tepe, Sean) (Entered: 05/29/2020)
2020-06-29	22	Consent MOTION for Briefing Schedule by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY (Dinerstein, Paula) (Entered: 06/29/2020)
2020-06-30		MINUTE ORDER (paperless) GRANTING the plaintiff's 22 Consent Motion to Revise Briefing Schedule and ISSUING the following SCHEDULING ORDER: (1) by July 6, 2020, the plaintiff shall file a combined opposition to the defendant's motion for summary judgment and cross-motion for summary judgment; (2) by August 6, 2020, the defendant shall file a combined opposition to the plaintiff's cross-motion for summary judgment and reply in support of its motion for summary judgment; (3) by August 28, 2020, the plaintiff shall file its reply in support of its cross-motion for summary judgment. Signed by Chief Judge Beryl A. Howell on June 30, 2020. (lcbah1) (Entered: 06/30/2020)
2020-06-30		Set/Reset Deadlines: Cross-motion and opposition to motion for summary judgment due by 7/6/2020; opposition to cross-motion and reply to opposition to motion for summary judgment due by 8/6/2020; reply to opposition to cross-motion due by 8/28/2020. (ztg) (Entered: 06/30/2020)
2020-07-06	23	Cross MOTION for Summary Judgment by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY (Attachments: # 1 Declaration of Kevin Bell, # 2 Statement of Facts and Genuine Issues, # 3 Text of Proposed Order)(Dinerstein, Paula) (Entered: 07/06/2020)
2020-07-06	24	Memorandum in opposition to re 21 MOTION for Summary Judgment and Cross Motion filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Attachments: # 1 Declaration of Kevin Bell, # 2 Statement of Facts and Genuine Issues, # 3 Text of Proposed Order)(Dinerstein, Paula) (Entered: 07/06/2020)
2020-07-29	25	Consent MOTION for Briefing Schedule Revision by U.S. ENVIRONMENTAL PROTECTION AGENCY (Tepe, Sean) (Entered: 07/29/2020)
2020-07-30		MINUTE ORDER (paperless) GRANTING the defendant's 25 Consent Motion to Revise Briefing Schedule and ISSUING the following SCHEDULING ORDER: (1) by August 13, 2020, the defendant shall file a combined opposition to the plaintiff's cross-motion for summary judgment and reply in support of its motion for summary judgment; and (2) by September 4, 2020, the plaintiff shall file its reply in support of its cross-motion for summary judgment. Signed by Chief Judge Beryl A. Howell on July 30, 2020. (lcbah1) (Entered: 07/30/2020)
2020-07-30		Set/Reset Deadlines: Defendant's combined opposition to plaintiff's cross-motion for summary judgment and reply in support of its motion for summary judgment due by 8/13/2020. Plaintiff's reply in support of its cross-motion for summary judgment due by 9/4/2020. (hmc) (Entered: 07/30/2020)
2020-08-04	26	Consent MOTION for Briefing Schedule Revision by U.S. ENVIRONMENTAL PROTECTION AGENCY (Tepe, Sean) (Entered: 08/04/2020)
2020-08-04		MINUTE ORDER (paperless) GRANTING the defendant's 26 Consent Motion to Revise Briefing Schedule and ISSUING the following SCHEDULING ORDER: (1) by September 3, 2020, the defendant shall file a combined opposition to the plaintiff's cross-motion for summary judgment and reply in support of its motion for summary judgment; and (2) by September 25, 2020, the plaintiff shall file its reply in support of its cross-motion for summary judgment. Signed by Chief Judge Beryl A. Howell on August 4, 2020. (lcbah1) (Entered: 08/04/2020)
2020-08-05		Set/Reset Deadlines: Defendant's combined opposition to the plaintiff's cross-motion for summary judgment and reply in support of its motion for summary judgment due by 9/3/2020. Plaintiff's reply in support of its cross-motion for summary judgment due by 9/25/2020. (hmc) (Entered: 08/05/2020)
2020-09-03	27	REPLY to opposition to motion re 21 MOTION for Summary Judgment filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Statement of Facts, # 2 2d Orme-Zavaleta Decl)(Tepe, Sean) (Entered: 09/03/2020)
2020-09-03	28	Memorandum in opposition to re 23 Cross MOTION for Summary Judgment filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Statement of Facts, # 2 2d Orme-Zavaleta Decl)(Tepe, Sean) (Entered: 09/03/2020)
2020-09-25	29	REPLY to opposition to motion re 23 Cross MOTION for Summary Judgment filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Dinerstein, Paula) (Entered: 09/25/2020)
2021-04-16		MINUTE ORDER (paperless) DIRECTING the parties to submit, by April 21, 2021, supplemental briefing addressing (1) the effect on the parties' cross-motions for summary judgment of the Supreme Court's decision in U.S. Fish & Wildlife Service v. Sierra Club , 141 S. Ct. 777 (2021), issued more than six weeks ago; and (2) whether the instant case is or likely soon will be moot, in light of defendant's recent announcement that it is "resuming its years-delayed analysis of formaldehyde's health effects," Pat Rizzuto, "Vanished" EPA Formaldehyde Health Effects Probe Reemerges , Bloomberg Law (Mar. 11, 2021), https://www.bloomberglaw.com/bloomberglawnews/environment-and-energy/X4C0LD20000000. If the parties wish to respond to the other's supplemental brief, such response shall be submitted by April 26, 2021. Signed by Chief Judge Beryl A. Howell on April 16, 2021. (lcbah1) (Entered: 04/16/2021)
2021-04-19		Set/Reset Deadlines: Supplemental Brief due by 4/21/2021; responses due by 4/26/2021. (ztg) (Entered: 04/19/2021)
2021-04-19	30	Joint MOTION for Extension of Time to Submit Supplemental Briefs by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Tepe, Sean) (Entered: 04/19/2021)
2021-04-19	31	NOTICE OF WITHDRAWAL OF APPEARANCE as to U.S. ENVIRONMENTAL PROTECTION AGENCY. Attorney Doris Denise Coles-Huff terminated. (Tepe, Sean) (Entered: 04/19/2021)
2021-04-19		MINUTE ORDER (paperless) GRANTING the parties' 30 Joint Motion to Extend Supplemental Briefing Dates, DIRECTING the parties to file their responses to the Court's April 16, 2021 minute order by April 28, 2021, and DIRECTING that if the parties wish to respond to the other's supplemental brief, such responses shall be due by May 3, 2021. Signed by Chief Judge Beryl A. Howell on April 19, 2021. (lcbah1) (Entered: 04/19/2021)
2021-04-20		Set/Reset Deadlines: Responses to the Court's April 16, 2021 minute order due by 4/28/2021; response to other's supplemental brief due by 5/3/2021. (ztg) (Entered: 04/20/2021)
2021-04-28	32	SUPPLEMENTAL MEMORANDUM to re 23 Cross MOTION for Summary Judgment , 21 MOTION for Summary Judgment filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Dinerstein, Paula) (Entered: 04/28/2021)
2021-04-28	33	SUPPLEMENTAL MEMORANDUM re Order,,, Defendant's Supplemental Summary Judgment Brief filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Third Orme-Zavaleta Declaration)(Tepe, Sean) Modified event title on 4/29/2021 (znmw). (Entered: 04/28/2021)
2021-04-30	34	ERRATA Third Orme-Zavaleta Declaration with Ex. A by U.S. ENVIRONMENTAL PROTECTION AGENCY re 33 Response to Order of the Court, filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Tepe, Sean) (Entered: 04/30/2021)
2021-05-03	35	RESPONSE re 32 Supplemental Memorandum filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Tepe, Sean) (Entered: 05/03/2021)
2021-05-03	36	RESPONSE re 33 Response to Order of the Court, Supp Brief re Cross-Motions for Summary Judgment filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Dinerstein, Paula) (Entered: 05/03/2021)
2021-06-18	37	ORDER GRANTING defendant's 21 Motion for Summary Judgment and DENYING plaintiff's 23 Cross-Motion for Summary Judgment. See Order for further details. Signed by Chief Judge Beryl A. Howell on June 18, 2021. (lcbah1) (Entered: 06/18/2021)
2021-06-18	38	MEMORANDUM OPINION regarding defendant's 21 Motion for Summary Judgment and plaintiff's 23 Cross-Motion for Summary Judgment. Signed by Chief Judge Beryl A. Howell on June 18, 2021. (lcbah1) (Entered: 06/18/2021)
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