Enviro Tech Int'l v. EPA

In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-2215

ENVIRO TECH INTERNATIONAL, INC.,

Plaintiff-Appellant,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 C 4650—Amy J. St. Eve, Judge.

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ARGUED NOVEMBER 6, 2003—DECIDED JUNE 10, 2004

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Before CUDAHY, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Enviro Tech International, Inc.

(“Enviro Tech”), filed this action seeking judicial review of

the United States Environmental Protection Agency’s

(“EPA’s”) refusal to produce certain documents in response

to Enviro Tech’s request under the Freedom of Information

Act, 5 U.S.C. § 552 (“FOIA”). The EPA asserted, and the

district court agreed, that the withheld documents were

exempt from disclosure under section 552(b)(5) pursuant to

the so-called deliberative process privilege. Enviro Tech

2 No. 03-2215

appeals, asserting that the withheld documents relate to

actions that are beyond the scope of the EPA’s statutory

authority and that the deliberative process privilege does

not exempt from disclosure materials relating to such ultra

vires conduct. We affirm.

I.

As a party to the 1987 Montreal Protocol on Substances

that Deplete the Ozone Layer, the United States undertook

to freeze and ultimately to reduce the production and use of

chlorofluorocarbons and other chemicals that have a

deleterious effect on the stratospheric ozone layer. In 1990

amendments to the Clean Air Act, Congress established

timetables for phasing out the production and use of ozone-

depleting substances (“ODS”). See 42 U.S.C. § 7671c-e.

However, concerned with the safety of the alternatives to

ODS, Congress also provided that “[t]o the maximum extent

practicable, [ODS] shall be replaced by chemicals, product

substitutes, or alternative manufacturing processes that

reduce overall risks to human health and the environment.”

§ 7671k(a). In furtherance of that objective, Congress

ordered the EPA to take a series of steps. First, the EPA

was to take the lead in establishing programs, initiatives,

and other activities aimed at identifying, evaluating, and

developing alternatives to ODS. § 7671k(b). Second, the

EPA was to promulgate rules prohibiting the replacement

of any ODS with an alternative that itself poses a danger to

human health or the environment, so long as the EPA has

identified another substitute that reduces the potential risk

to human health and the environment and is currently or

potentially available. § 7671k(c). Finally, the EPA was to

develop a list of substances that are “safe alternatives” for

specific uses and a separate list of substitutes that are

prohibited for specific uses. Id. The legislation also allows

any person to petition the EPA either to add a substance to

No. 03-2215 3

or remove it from one of these lists. § 7671k(d). In 1994, the

EPA established the Significant New Alternatives Policy

(“SNAP”) program to carry out these directives.

Enviro Tech, a company based in Melrose Park, Illinois,

markets a line of industrial solvents based on the chemical

compound n-propyl bromide (“nPB”). In 1996, Enviro Tech

filed a petition with the EPA seeking to have nPB identified

as an acceptable alternative for ODS under the SNAP

program. As part of its evaluation process, the SNAP pro-

gram engaged a private contractor to review the scientific

literature on the toxicity of nPB and to recommend a work-

place exposure limit for this chemical. In January 2002,

before the EPA had issued a proposed rule on the accept-

ability of nPB as an ODS substitute, Enviro Tech served a

FOIA request on the EPA seeking any documents related to

the potential toxicity of nPB and the agency’s evaluation of

that toxicity. EPA released a number of documents in

response to Enviro Tech’s request, but ultimately withheld

37 documents on the ground that these fell within the

deliberative process exception to FOIA. That exception, as

we explain more fully below, permits an agency to withhold

from public disclosure records relating to the agency’s

internal evaluation and formulation of policy.

After exhausting its administrative remedies, Enviro

Tech filed suit in the district court seeking judicial review

of the EPA’s decision. See 5 U.S.C. § 552(a)(4)(B). On cross-

motions for summary judgment, the district court concluded

in relevant part that because the withheld documents were

protected by the deliberative process privilege, FOIA

Exemption 5 relieved the EPA of the obligation to produce

them. Enviro Tech Int’l, Inc. v. U.S.E.P.A., No. 02 C 4650,

Memorandum Opinion and Order at 10-15 (N.D. Ill. Mar.

11, 2003) (“Mem. Op.”). The court found that the documents

in question satisfied the two criteria for the privilege in that

they were both “predecisional and deliberative” in nature.

See Mem. Op. at 11, citing Becker v. I.R.S., 34 F.3d 398, 403

(7th Cir. 1994):

4 No. 03-2215

. . . The documents are predecisional because they were

prepared to assist the [EPA] in preparing the recom-

mendation for a workplace exposure limit for nPB and

the documents were generated before the EPA made

available to the public for review and comments the

final draft report containing that recommendation.

Further, the documents are deliberative because they

relate to the process by which the EPA arrived at the

final draft report. The documents reflect internal dis-

cussions of proposals, suggestions, and recommenda-

tions as well as early versions of the final draft report

eventually made available to the public. Such materials

are routinely shielded from disclosure by the delibera-

tive process privilege under FOIA Exemption 5.

Mem. Op. at 12 (citations omitted). The court went on to

reject Enviro Tech’s contention that the EPA could not

invoke the deliberative process privilege as to these doc-

uments because it lacks statutory authority to regulate

workplace exposure limits for nPB. The court distinguished

Weissman v. C.I.A., 565 F.2d 692, 694-96 (D.C. Cir. 1977),

which held that the Central Intelligence Agency (“CIA”)

could not invoke the “law enforcement purpose” exemption

under FOIA, see § 552(b)(7), because the CIA was statuto-

rily barred from engaging in any law enforcement activity.

“Exemption 5 itself contains no language restricting its

application to only those agency activities specifically

authorized by Congress.” Mem. Op. at 14. The court also

noted that subsequent cases had declined to extend

Weissman’s ultra vires rationale to other FOIA exemptions.

Id.

Subsequent to the district court’s decision in the EPA’s

favor, the EPA in June 2003 issued a Notice of Proposed

Rulemaking that proposed to list nPB as acceptable for use,

inter alia, as a solvent. 68 Fed. Reg. 33284 (June 3, 2003)

(the “Notice”). The text of the Notice explains that upon

No. 03-2215 5

review of a proposed ODS substitute, “the [EPA] may make

a determination that a substitute is acceptable only if

certain conditions of use are met to minimize risks to

human health and the environment.” Id. at 33287. The EPA

has made such a determination with respect to nPB,

concluding that it is an acceptable substitute for certain

types of ODS, subject to use conditions. Id. at 33288. Among

the use conditions specified for nPB is a guideline recom-

mending that workers inhale no more than an average of 25

parts per million (“pph”) of the chemical over the course of

an eight-hour workday. Id. The Notice makes clear that this

is a recommended rather than a mandatory limit on

workplace exposure to nPB and that the authority to

establish a binding limit lies solely with the Occupational

Safety and Health Administration (“OSHA”), which as of

yet has established no such limit. See id. at 33288, 33289-

90, 33300, 33310.

In the future, OSHA may develop a mandatory expo-

sure limit for nPB use in the workplace. The result of

OSHA’s review could result in a permissible exposure

limit (PEL) different from EPA’s recommended ex-

posure limit of 25 ppm. . . . As stated earlier in this pre-

amble, EPA defers to OSHA in regulating workplace

safety. The recommended [acceptable exposure limit

(AEL)] in today’s proposal is an interim measure in the

absence of an OSHA PEL. Thus, any PEL that OSHA

sets would supersede EPA’s recommended AEL.

Id. at 33300. Public comments on the EPA’s proposed rule

as to nPB were solicited with a due date of August 4, 2003.

The agency is expected to issue a final rule sometime this

year.

II.

Typically, we review a district court’s summary judgment

disposition of a FOIA request to determine whether the

6 No. 03-2215

district court had a sufficient factual basis for its ruling

and, if so, whether the court’s decision was clearly errone-

ous. Solar Sources, Inc. v. United States, 142 F.3d 1033,

1038 (7th Cir. 1998). We have acknowledged that use of the

clearly erroneous standard is in tension with the de novo

standard that normally governs our review of summary

judgment decisions. See id. at 1038 n.5 (citing Becker v.

I.R.S., supra, 34 F.3d at 402 n.11). We have also recognized

that the courts of appeals are divided as to the appropriate

standard of review in FOIA cases decided by way of sum-

mary judgment. Id. Indeed, our own case law is not entirely

consistent on this point. See In re Wade, 969 F.2d 241, 245

(7th Cir. 1992), and Kaganove v. E.P.A., 856 F.2d 884, 886

(7th Cir. 1988) (engaging in de novo review). Review for

clear error remains the norm for FOIA cases in this circuit.

Solar Sources, 142 F.3d at 1038 & n.5.

FOIA requires a federal agency upon request to disclose

records in its possession, subject to nine exemptions.

§ 552(a), (b). Disclosure is required unless the requested

record is clearly exempted from disclosure by the statute.

N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95

S. Ct. 1504, 1509 (1975). In view of the mandate for broad

disclosure, those exemptions are to be construed narrowly.

U.S. Dep’t of Justice v. Julian, 486 U.S. 1, 8, 108 S. Ct.

1606, 1611 (1988). The government bears the burden of

proving by a preponderance of the evidence that a with-

held document falls within one of the exemptions.

§ 552(a)(4)(B).

Exemption 5 exempts from mandatory disclosure com-

munications that are “inter-agency or intra-agency mem-

orandums or letters which would not be available by law

to a party other than an agency in litigation with the agen-

cy.” § 552(b)(5). “This language clearly contemplates that

the public is entitled to all such memoranda or letters that

a private party could discover in litigation with the agency.”

E.P.A. v. Mink, 410 U.S. 73, 85-86, 93 S. Ct. 827, 835

No. 03-2215 7

(1973). Conversely, if a private litigant could not obtain

certain records from the agency in discovery, Exemption

5 relieves the agency of the obligation to produce that doc-

ument to a member of the public. Sears, 421 U.S. at 148, 95

S. Ct. at 1515. Civil discovery rules thus inform the inquiry

into what may or may not be withheld pursuant

to Exemption 5, although, in view of the circumstances

distinguishing a FOIA request from run-of-the-mill civil

litigation, those rules can be applied only “by way of rough

analogies.” Mink, 410 U.S. at 86, 93 S. Ct. at 835. One such

rule that Exemption 5 does incorporate is that documents

reflecting the deliberative or policy-making processes of

governmental agencies are privileged from disclosure. Id. at

86-87, 93 S. Ct. at 835-36; see also Sears, 421 U.S. at 149,

95 S. Ct. at 1516.

The deliberative process privilege rests on the obvious

realization that officials will not communicate candidly

among themselves if each remark is a potential item

of discovery and front page news, and its object is to en-

hance the quality of agency decisions by protecting open

and frank discussion among those who make them

within the Government.

Dep’t of Interior v. Klamath Water Users Protective Ass’n,

532 U.S. 1, 8-9, 121 S. Ct. 1060, 1066 (2001) (internal quo-

tation marks and citations omitted); see also United States

v. Nixon, 418 U.S. 683, 705, 94 S. Ct. 3090, 3106 (1974)

(“Human experience teaches that those who expect public

dissemination of their remarks may well temper candor

with a concern for appearances and for their own interests

to the detriment of the decisionmaking process.”). Consis-

tent with its purpose, the deliberative process privilege

typically does not justify the withholding of purely factual

material, Mink, 410 U.S. at 87-88, 93 S. Ct. at 836, nor of

documents reflecting an agency’s final policy decisions,

Sears, 421 U.S. at 151-54, 95 S. Ct. at 1516-18, but it does

apply to predecisional policy discussions, id. at 153, 95 S.

8 No. 03-2215

Ct. at 1517-18, and to factual matters inextricably inter-

twined with such discussions, Mink, 410 U.S. at 91-21, 93

S. Ct. at 838. Thus, in order to qualify for the privilege, a

document must be both predecisional in the sense that it is

“actually [a]ntecedent to the adoption of an agency policy,”

and deliberative in the sense that it is “actually . . . related

to the process by which policies are formulated.” Jordan v.

U.S. Dep’t of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) (en

banc), overruled in part on other grounds by Crooker v.

Bureau of Alcohol, Tobacco, & Firearms, 670 F.2d 1051

(D.C. Cir. 1981) (en banc); see also Becker, 34 F.3d at 403;

United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993);

King v. I.R.S., 684 F.2d 517, 519 (7th Cir. 1982).

As we have noted, the district judge found that the 37

documents at issue in this case meet both of the criteria for

the privilege—they predate public release of the EPA’s

proposed rule establishing, among other things, a recom-

mended workplace exposure limit for nPB, and they reflect

the internal dialogue at the EPA regarding the proposals,

suggestions, recommendations, and early draft versions of

the proposed rule on nPB. Mem. Op. at 12. Enviro Tech

does not quarrel with the district court’s assessment. Again,

Enviro Tech’s sole contention is that the EPA lacks author-

ity to propose a workplace exposure limit for nPB and, as a

result, the deliberations that culminated in the agency’s

proposal of such a limit are beyond the scope of the deliber-

ative process privilege.

Weissman v. C.I.A., supra, 565 F.2d 692, is the principal

authority that Enviro Tech cites in support of its ultra vires

argument. The plaintiff in Weissman, upon learning that

the CIA had been investigating left-of-center political

activists, had asked the CIA to produce any information it

had compiled regarding his own political activities. As it

turned out, the CIA, unbeknownst to the plaintiff, had

identified him as a possible recruit for employment as an

informant and had monitored his activities on and off over

a five-year period. The agency produced some documents in

No. 03-2215 9

response to the plaintiff’s FOIA request, but withheld

others on the basis of, inter alia, Exemption 7, which

shields from disclosure records compiled for law enforce-

ment purposes. § 552(b)(7). The District of Columbia Circuit

accepted the CIA’s representation that it had monitored the

plaintiff’s activities in a genuine effort to ascertain whether

he might be an appropriate candidate for recruitment.

Nonetheless, it rejected the notion that this sufficed as a

basis for withholding the records of that monitoring under

FOIA’s law enforcement exemption. The statute that

created the CIA and authorized it to gather intelligence

related to national security expressly provided that the

agency was to have no law enforcement authority. “This

directive was intended, at the least, to prohibit the CIA

from conducting secret investigations of United States

citizens, in this country, who have no connection with the

Agency.” Id. at 695. “Congress had a realistic fear of secret

police that would move inward rather than outward, and

assume prerogatives never intended.” Id. As a result, to the

extent that the CIA was purporting to have engaged in law

enforcement when it monitored the plaintiff’s political

activities, it was conducting activity that Congress had

expressly forbidden it to conduct.

A full background check within the United States of a

citizen who never had any relationship with the CIA is

not authorized, and the law-enforcement exemption is

accordingly unavailable. The Agency simply has no au-

thority in the guise of law enforcement to make such a

background check of Weissman with a view to his

possible recruitment.

Id. at 696.

Weissman does not put into doubt the EPA’s ability to

invoke the deliberative process privilege. The parties have

cited no case, and we can find none, that applies Weissman

in evaluating an agency’s reliance on the deliberative pro-

cess privilege, and it is not immediately apparent that

Weissman’s ultra vires rationale would translate readily

10 No. 03-2215

into the latter context. The privilege at issue in Weissman

was confined to a particular activity—law enforcement— in

which the CIA was expressly forbidden to engage. The

formulation of policy, by contrast, is not something that is

foreclosed to the EPA or to any other agency; and although

there are obviously limits to each agency’s policymaking

authority, it might well be difficult to delineate when an

agency’s internal, predecisional discussions are ultra vires,

in the sense that they address potential courses of action

that are wholly beyond the legitimate scope of the agency’s

mission, and when they are not. Along the way to formulat-

ing a policy that is within its power to implement, an

agency might legitimately identify and consider a host of

alternatives, some within the agency’s power to effectuate

and some without. The agency might, indeed, consider the

boundaries of its own jurisdiction. Deeming internal dis-

cussions unprotected by the deliberative process privilege

because, in retrospect, it appears that the agency was

considering proposals that were beyond the scope of its

authority to implement might well discourage the kind of

frank and appropriate policymaking discussions that the

privilege was meant to protect and promote.

Nonetheless, we may assume for the sake of argument

that the scope of an agency’s authority places some limits

on the deliberate process privilege, and that internal com-

munications about something not even arguably within the

agency’s domain might not be privileged. Perhaps if EPA

staff members were to begin mapping out policy on some-

thing like school prayer, for example, then the privilege

would not apply. We may likewise assume, looking to

another line of cases that Enviro Tech cites to us, that in-

ternal discussions about a course of agency action that

would be nefarious, if not illegal, likewise would not be

protected by the deliberative process privilege. See Tax

Reform Research Group v. I.R.S., 419 F. Supp. 415, 426

(D.D.C. 1976) (documents relating to White House efforts to

No. 03-2215 11

use Internal Revenue Service against its political enemies

“simply cannot be construed as being part of any proper

governmental process”); see also Dema v. I.R.S., 1979 U.S.

Dist. LEXIS 9025, at *6 (N.D. Ill. Oct. 22, 1979) (noting that

documents in question “do not reflect any governmental

impropriety, but rather are ‘part of the legitimate govern-

mental process intended to be protected by Exemption 5’ ”)

(quoting Tax Reform Research Group, 419 F. Supp. at 426);

Hearnes v. I.R.S., 1979 WL 1428, at *6 (E.D. Mo. July 2,

1979) (“Plaintiff argues correctly that he is entitled to

papers and documents which indicate that political abuses

were committed by the Internal Revenue Service.”) (footnote

omitted) (citing Tax Reform Research Group); see also In re

Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997) (suggesting

in dicta that deliberative process privilege “disappears

altogether when there is any reason to believe that govern-

ment misconduct occurred”).

But we are far from such a case here. Although Enviro

Tech contends that the EPA has no authority to establish a

workplace exposure limit on nPB (a responsibility that,

Enviro Tech emphasizes, lies solely with OSHA), Congress

has charged the EPA with the task of evaluating the safety

of alternatives to ODS and identifying substitutes that are

either safe or prohibited for specific uses. 42 U.S.C.

§ 7671k(b), (c). It is, at the least, arguable that identifying

the exposure limits within which a particular ODS substi-

tute is safe is a task subsumed within that charge. More-

over, as the Notice of the proposed rule on nPB reflects, the

EPA has only promulgated a recommended limit on work-

place exposure; the Notice expressly defers to OSHA’s

authority to establish a binding workplace exposure limit.

We hasten to add that it is not within our own authority to

decide whether the recommended limit, or any other aspect

of the EPA’s proposed rule (once finalized), is within the

EPA’s power; that task belongs to our colleagues on the

District of Columbia Circuit. 42 U.S.C. § 7607(b); see

12 No. 03-2215

Wisconsin Elec. Power Co. v. Reilly, 893 F.2d 901, 914

n.6 (7th Cir. 1990). It is enough for us to say that a rec-

ommended workplace exposure limit for nPB is not so

patently beyond the scope of the EPA’s authority as to pre-

clude the agency from having internal discussions about it

or to invoke the deliberative process privilege.

III.

We find no clear error in the district court’s conclusion

that the 37 documents in issue are protected by the deli-

berative process privilege. There is no dispute that these

documents are both predecisional and deliberative. To the

extent that the privilege might not apply to internal agency

discussions of a proposal that is wholly beyond the agency’s

authority or unrelated to a legitimate governmental

purpose, a question we do not resolve, we are satisfied that

a recommended exposure limit on use of an ODS substitute

does not amount to such a plainly ultra vires course of

action. The EPA was therefore entitled to invoke the

deliberative process privilege as to the consideration of such

a recommended limit.

AFFIRMED

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—6-10-04