Judge Rules EPA’s Search ‘Inadequate’ In Emissions Suit

Source: By Juan Carlos Rodriguez, Law 360 • Posted: Tuesday, September 26, 2017

Law360, New York (September 25, 2017, 5:58 PM EDT) — A D.C. federal judge on Monday ordered the U.S. Environmental Protection Agency to do a second search for records related to a study that provides some of the foundation for the EPA’s vehicular emissions model and that were requested by green groups.

The Energy Future Coalition and the Urban Air Initiative in 2015 sued the EPA over its alleged failure to release the documents in a timely fashion, and U.S. District Judge Amy Berman Jackson said in an opinion partially granting the groups’ motion for summary judgment that the agency failed to establish that it conducted an adequate search for the records under the Freedom of Information Act.

The groups said the EPA misinterpreted the scope of their request by restricting the search to documents generated prior to March 3, 2009. They said they sought documents “related to the design phase” of the EPAct Study, which they defined as “everything that preceded the emissions testing that resulted directly in the reported results of any phase of the EPAct study.”

That study informed the EPA’s motor vehicle emission simulator, or MOVES model, which estimates emissions for mobile sources at the national, county and project level for criteria pollutants, greenhouse gases and air toxics. It can be used in state implementation plans, or SIPs.

“While plaintiffs did narrow their request to the design phase of the study, they contend that this phase did not end until at least 37 weeks after March 3, when EPA settled on the vehicles to be included in the testing protocols, finalizing the designs of the emissions tests that produced the EPAct Study’s results,” Judge Jackson said in her opinion.

The EPA said that the design phase ended on March 12, 2009, because that’s when some actual emissions tests began, but the judge rejected that argument.

“While plaintiffs clearly narrowed their request to distinguish records related to the design of the tests to be utilized from the results of the tests themselves, the request is broad enough to cover any efforts to fine tune and finalize the design of the study that may have occurred even after some initial testing had begun,” she said.

But the judge also found the EPA properly withheld some documents under FOIA, and so denied the groups’ motion for summary judgment on the issue of whether those particular documents should be turned over. Those documents related to information that the EPA decided fell under the trade secrets and personnel files exemptions.

The lawsuit says the EPA’s gasoline fuel effects study was conducted with the assistance of consultants from Chevron Corp., Southwest Research Instituteand the Coordinating Research Council — a nonprofit organization supported by the American Petroleum Institute and automobile manufacturers.

It says the MOVES model projects that increasing the concentration of ethanol in gasoline contributes to increased emissions of various pollutants, including pollutants governed by EPA’s National Ambient Air Quality Standards, but that in reality, ethanol reduces emissions of those pollutants.

The U.S. Department of Justice, which represents EPA, declined to comment Monday. Counsel for the plaintiffs did not respond to a request for comment Monday.

The plaintiffs are represented by C. Boyden Gray, Adam R.F. Gustafson, Andrew R. Varcoe and James R. Conde of Boyden Gray & Associates PLLC.

The EPA is represented by Assistant U.S. Attorneys for the District of Columbia Daniel F. Van Horn and John C. Truong.

The case is Urban Air Initiative, et al. v. U.S. Environmental Protection Agency, case number 1:15-cv-01333, in the U.S. District Court for the District of Columbia.

–Editing by Joe Phalon.