UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ECOLOGICAL RIGHTS FOUNDATION and OUR CHILDREN’S EARTH FOUNDATION,

Plaintiffs,

v. Civil Action No. 19-2181 (FYP)

U.S. ENVIRONMENTAL PROTECTION AGENCY, et al.,

Defendants.

MEMORANDUM OPINION

In 2019, the Environmental Protection Agency (“EPA”) amended its regulations

pertaining to the processing of Freedom of Information Act (“FOIA”) requests. In response,

several entities that regularly submit FOIA requests to the EPA filed suit to challenge the legality

of the amendments. After several rounds of case consolidation, briefing, and settlement

negotiations, all that remains are four claims brought by Plaintiffs Ecological Rights Foundation

and Our Children’s Earth Foundation (“EcoRights”). Defendants EPA and its Administrator,

Michael Regan, 1 now move to dismiss, and Plaintiffs cross-move for summary judgment. For

the reasons stated below, the Court grants Defendants’ Motion to Dismiss as to Claims 1, 2, and

5; and will remand Claim 4 without vacatur. The Court denies EcoRights’ Cross-Motion for

Partial Summary Judgment.

1 Michael Regan is automatically substituted for defendant Andrew Wheeler pursuant to Federal Rule of Civil Procedure 25(d). BACKGROUND

I. Factual Background

On June 26, 2019, the EPA published a Freedom of Information Act Regulations Update

(the “2019 Rule”) in the Federal Register. See

. 2 According to the EPA, the

agency was “tak[ing] final action to revise the Agency’s regulations under the [FOIA] . . . by

updating the process by which the public may access information about EPA actions and

activities.” See

The 2019 Rule modified the EPA’s FOIA regulations “to implement

statutory updates, correct obsolete information, and reflect internal EPA realignment and

processing changes to improve the Agency’s FOIA response process.” See

The amendments

were intended to “bring EPA’s regulations into compliance with nondiscretionary provisions of

the amended [FOIA] statute and reflect changes in the Agency’s organization, procedure, or

practice.” See

. The agency promulgated the new regulations without notice and

comment, invoking the procedural and good-cause exceptions to notice-and-comment

rulemaking. See

The 2019 Rule became effective on July 26, 2019, thirty days after it was

published in the Federal Register. See

. As relevant here, the 2019 Rule made four

changes to the EPA’s FOIA procedures.

A. Requiring the Submission of All Requests to EPA’s National FOIA Office

The 2019 Rule removed the option of submitting FOIA requests directly to regional

offices of the EPA. See

; 84 Fed. Reg. at 30030, 30032–33. 3 Under the prior

2 Prior to 2019, the EPA last amended its FOIA regulations by final rule issued on November 5, 2002. See

. 3

(a) provides:

(a) Requesters must submit all requests for records from EPA under the FOIA in writing

2 regulations, members of the public could mail FOIA requests either to the agency’s headquarters,

or to one of ten regional EPA offices; people could also send requests by e-mail directly to a

regional office. See

(a) (2018). The 2019 Rule, by contrast, requires all FOIA

requests to be submitted to the EPA’s National FOIA Office, either electronically (via the

agency’s FOIA submission website, FOIAonline, or another government submission website,

such as FOIA.gov), or via U.S. mail or overnight delivery. See 84 Fed. Reg. at 30030;

(a). The revised regulation provides that the National FOIA Office will then assign FOIA

requests to the appropriate regional or headquarters office for processing. See

(a). According to the EPA, this revision was designed to “minimize the number of

misdirected requests sent to the Agency” and “to address” a provision of the 2007 FOIA

statutory amendments that “decreased the amount of time an agency may take to route a request

and by one of the following methods: (1) EPA’s FOIA submission website at https://www.foiaonline.gov; (2) An electronic government submission website established pursuant to 5 U.S.C. 552(m), such as FOIA.gov; (3) U.S. Mail sent to the following address: National FOIA Office, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW (2310A), Washington, DC 20460; or (4) Overnight delivery service to National FOIA Office, U.S. Environmental Protection Agency, 1200 Pennsylvania NW, Room 5315, Washington, DC 20460. EPA will not treat a request submitted by any other method as a FOIA request, and the Agency will not re-route the request. The requester or requester organization must include the full name of their point of contact and their mailing address for EPA to process the request. For all requests, requesters should provide an email address and daytime telephone number whenever possible. For requests submitted through EPA’s FOIA submission website or as provided by an electronic government submission website established pursuant to 5 U.S.C. 552(m), requesters must include an email address. For requests submitted through U.S. Mail, the requester must mark both the request letter and envelope “Freedom of Information Act Request.” The requester should not provide social security numbers when making a request for information under the FOIA. Requesters submitting requests electronically must do so before 5:00 p.m. Eastern Time for the Agency to consider the request as received on that date. 3 to the appropriate component of the agency to ten-working days or less.” See 84 Fed. Reg. at

30030 (citing 5 U.S.C. 552(a)(6)(A)(ii)).

B. Authorizing EPA Administrator to Make Final FOIA Determinations

The 2019 Rule includes the EPA Administrator on a list of officials who are authorized to

“issue final determinations whether to release or withhold a record” under the FOIA. See

(b) 4; 84 Fed. Reg. at 30031. According to the agency, that revision “eliminates a

potential conflict in the existing regulations and ensures consistency of responses across the

Agency;” and also “simplifies and consolidates section 2.103(b), which empowered the ‘head of

an office, or that individual’s designee’ to grant or deny requests, and section 2.104(h), which

empowered division directors or equivalents authority to issue ‘denials.’” See 84 Fed. Reg. at

30031. Notably, the EPA retained and made no changes to a preexisting regulation,

(j), which established that “[a]n adverse determination by the Administrator on an initial

request will serve as the final action of the Agency.” Compare

§ 2.104(j)(2), with id.

§ 2.104(j)(3) (2018).

C. Authorizing EPA Officials to Withhold a “Portion of a Record on the Basis of Responsiveness”

Revised § 2.103(b) also purports to authorize EPA officials to “issue final determinations

whether to release or withhold a record or a portion of a record on the basis of responsiveness or

4

(b) reads:

(b) Authority to issue final determinations. The Administrator, Deputy Administrators, Assistant Administrators, Deputy Assistant Administrators, Regional Administrators, Deputy Regional Administrators, General Counsel, Deputy General Counsels, Regional Counsels, Deputy Regional Counsels, and Inspector General or those individuals’ delegates, are authorized to make determinations required by 5 U.S.C. 552(a)(6)(A), including to issue final determinations whether to release or withhold a record or a portion of a record on the basis of responsiveness or under one or more exemptions under the FOIA, and to issue “no records” responses. 4 under one or more exemptions under the FOIA, and to issue ‘no records’ responses.” See

(b); 84 Fed. Reg. at 30033. The agency did not explain why it added this

language. The parties agree that the Agency does not have authority to withhold records on the

basis of responsiveness, under controlling case law. See ECF No. 26 (Defendants’ Motion to

Dismiss) (“Def. MTD”) at 20 (citing Am. Immigr. Laws. Ass’n v. Exec. Off. for Immigr. Rev.,

(D.C. Cir. 2016)); ECF No. 28 (Plaintiffs’ Cross Motion for Summary

Judgment) (“Pl. MSJ”) at 27.

D. Other Modifications

Finally, the 2019 Rule modifies language related to the EPA’s aggregation of FOIA

requests, the fees charged for processing requests, expedited processing of requests, and multi-

track processing, whereby the EPA manages requests in accordance with perceived complexity.

See 40 C.F.R § 2.107(i) (aggregation); id. § 2.107 (schedule of fees); id. § 2.104(f) (expedited

processing); id. § 2.104(c) (multi-track processing). Those modifications, for the most part,

make grammatical and stylistic changes, while leaving the substance of the regulations

untouched. Compare, e.g., id. § 2.104(c) with id. § 2.104(c) (2018). The only substantive

change is to the limitations on charging fees the EPA adopts. Id. § 2.107(d)(6). 5 There, the EPA

5 The regulation reads:

(6) If EPA fails to comply with the FOIA’s time limits for responding to a request, EPA will not charge search fees, or, in the instance of requesters described in paragraphs (b)(4) through (6) of this section, duplication fees, except as follows:

(i) If EPA determined that unusual circumstances as defined by the FOIA apply and the Agency provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional 10 working days;

(ii) If EPA determined that unusual circumstances as defined by the FOIA apply and more than 5,000 pages are necessary to respond to the request, EPA may charge

5 modified the circumstances under which it charges search fees, implementing a congressional

directive in the FOIA Improvement Act of 2016. See

, 544 (“[T]he head of each

agency . . . shall review the regulations of such agency and shall issue regulations on procedures

for the disclosure of records under [the FOIA], in accordance with the amendments made by [the

2016 Act].”).

II. Procedural History

Soon after the EPA implemented the 2019 Rule, EcoRights filed a Complaint challenging

the amended regulations in the U.S. District Court for the Northern District of California on July

24, 2019. See Ecological Rts. Found. v. EPA, Case No. 19-cv-3270 (D.D.C.), ECF No. 1

(Complaint). On October 18, 2019, the Northern District of California granted the EPA’s motion

to transfer the case to the District of Columbia. See

ECF No. 23. On April 17, 2020, this

Court consolidated EcoRights’ case with two related cases, Center for Biological Diversity v.

EPA, Case No. 19-cv-2198 (D.D.C.), and Citizens for Responsibility and Ethics in Washington v.

EPA, Case No. 19-cv-2181 (D.D.C). As discussed, infra, the two other cases have been settled.

search fees, or, in the case of requesters described in paragraph paragraphs (b)(4) through (6) of this section, may charge duplication fees, if the following steps are taken: EPA must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and the EPA must have discussed with the requester by written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii), which includes notification to the requester of the availability of the FOIA Public Liaison and the right to seek dispute resolution services from the Office of Government Information Services. If this exception is satisfied, EPA may charge all applicable fees incurred in the processing of the request; or

(iii) If a court determines that exceptional circumstances exist, as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order.

See

(d)(6). 6 EcoRights’ Complaint alleges that:

(1) The centralization of the EPA’s FOIA processing, as codified in

(a),

violates the FOIA and the APA because it will “inevitably slow” the FOIA process. See Compl.,

¶ 48.

(2) Allowing the EPA Administrator to make initial and final FOIA determinations, as

provided in

(b), violates the FOIA and the APA because there would be no

avenue to appeal such a determination to the agency head, as required by statute. See id., ¶ 51.

(3) Authorizing EPA officials to withhold portions of records based on responsiveness, as

codified in

(b), violates the FOIA and the APA because agencies may not

withhold portions of a record based only on responsiveness under well-settled D.C. Circuit

precedent. See

¶ 57 (citing Am. Immigr. Laws. Ass’n, 830 F.3d at 676–79).

(4) The promulgation of the 2019 Rule without notice and comment violates the FOIA

and the APA because the EPA’s invocation of the procedural and good-cause exceptions was

inappropriate; and in any event, certain modified provisions independently require notice-and-

comment rulemaking under the FOIA. See Compl., ¶ 60. 6

EcoRights asks the Court to vacate the 2019 Rule, to enjoin the EPA from relying on any

of its provisions, and to direct the agency to “promulgate new FOIA regulations, if any, by first

providing a proposed rule followed by at least a 30-day public comment period before adopting a

final rule.” See id. at 20. On May 11, 2020, the EPA moved to dismiss Plaintiff’s case under

6 EcoRights initially asserted an additional claim, challenging modifications to

(a), but it is no longer pursuing what it originally styled as “Claim 3.” See Pl. MSJ at 26 (“EcoRights does not oppose dismissal of its third claim for relief.”). 7 Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6); EcoRights cross-moved for partial

summary judgment. See generally Def. MTD; Pl. MSJ.

On February 10, 2022, the plaintiffs in the two cases consolidated with this one entered a

settlement agreement with the EPA. See ECF No. 50 (Stipulation of Dismissal); ECF No. 50-1

(Settlement Agreement). 7 The Court held a hearing on March 3, 2022, to discuss the impact of

the Settlement Agreement on EcoRights’ claims. The parties agreed that the Court should rule

on the pending motions with respect to Claims 1, 2, and 5; and should remand Claim 4 to the

agency. The parties dispute, however, whether Claim 4 should be remanded with or without

vacatur, in light of the Settlement Agreement. The Court held a motion hearing on April 6,

2022. The motions are now ripe for decision.

LEGAL STANDARD

I. Subject-Matter Jurisdiction

When a defendant brings a Rule 12(b)(1) motion to dismiss, the plaintiff must

demonstrate by a preponderance of the evidence that the court has subject-matter jurisdiction to

hear her claims. See Lujan v. Defs. of Wildlife,

(1992); US Ecology, Inc. v.

Dep’t of Interior,

(D.C. Cir. 2000). “Because subject-matter jurisdiction focuses

on the court’s power to hear the plaintiff’s claim, a Rule 12(b)(1) motion imposes on the court an

affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.”

See Grand Lodge of Fraternal Ord. of Police v. Ashcroft,

(D.D.C. 2001)

7 Pursuant to the Settlement Agreement, the EPA agreed, inter alia, to sign and submit a notice of proposed rulemaking in which the agency will propose revising the text of

(b). See Settlement Agreement § 1.a. The NPRM will also solicit public comment on whether the EPA should reinstate any FOIA request submission method that was removed from

(a). See

The EPA agreed to sign and publish a notice of final action, if appropriate, after receiving the public comments. See

§ 1.b. 8 (citation omitted). As a result, “the plaintiff’s factual allegations in the complaint . . . will bear

closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to

state a claim.” See id. at 13–14 (cleaned up). A federal court lacks jurisdiction if the plaintiff

does not establish standing. See Lujan,

(noting that “[t]he party invoking federal

jurisdiction bears the burden of establishing the[] elements” of standing (citation omitted)).

II. Failure to State a Claim

To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a claim upon

which relief can be granted.” See Bell Atl. Corp. v. Twombly,

(2007).

Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)

motion, see

, “a complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” See Ashcroft v. Iqbal,

(2009) (quoting Twombly,

). “[W]hen a district court is reviewing agency

action . . . the legal questions raised by a 12(b)(6) motion and a motion for summary judgment

are the same.” See Marshall Cnty. Health Care Auth. v. Shalala,

, 1222–23 (D.C.

Cir. 1993); see also Nat’l Auto Dealers Ass’n v. FTC,

(D.D.C. 2012)

(noting that motions to dismiss and motions for summary judgment “are normally judged under

different legal standards,” but “the inquiry in [APA] case[s] is the same” (citation omitted)).

“Under the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is

supported by the administrative record,” while “the function of the district court is to determine

whether or not as a matter of law the evidence in the administrative record permitted the agency

to make the decision it did.” See

(quoting Occidental Eng’g Co. v. INS,

, 769–

770 (9th Cir. 1985)).

9 Notably, the APA provides a “default standard” of judicial review of agency actions

when the governing statute does not otherwise provide one: “[a] court must set aside agency

action it finds to be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.’” See Tourus Records, Inc. v. DEA,

(D.C. Cir. 2001) (quoting

(2)(A)). “The ‘arbitrary and capricious’ standard of review as set forth in the APA

is highly deferential,” and the Court must therefore “presume the validity of agency action.” See

Am. Horse Prot. Ass’n v. Yeutter,

(D.C. Cir. 1990) (citation omitted).

Although the “court is not to substitute its judgment for that of the agency[,] . . . the agency

nevertheless must examine the relevant data and articulate a satisfactory explanation for its

action[,] including a rational connection between the facts found and the choice made.” See

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

(1983) (citations

and quotation marks omitted).

ANALYSIS

I. Claim 1: Centralization of the EPA’s FOIA Intake Procedures

EcoRights claims that the EPA’s centralization of intake for FOIA requests at the

agency’s Washington, D.C., headquarters, as codified at

(a), violates Section

706(2)(A) of the APA because the change is “unreasonable, arbitrary, and capricious in light of

[the EPA’s] overwhelming failure to timely process FOIA requests and the fact that this will

inevitably slow that process down further.” See Compl., ¶ 48. EcoRights further claims that the

new procedure violates Section 552(a)(4)(B) of the FOIA because it “represents an improper

withholding of records.” See id., ¶ 49. In response, the EPA argues that EcoRights does not

have standing to challenge Section 2.101(a) because it “[has] failed to plausibly allege any

10 imminent injury arising out of EPA’s decision to centralize FOIA intake at the National FOIA

Office,” see Def. MTD at 9; and that even if EcoRights does have standing, it “fails to plausibly

allege that [the] EPA’s modest changes to its FOIA submission procedures were unreasonable,

arbitrary, or capricious,” see id. at 12.

Standing is a necessary predicate to any exercise of federal jurisdiction. If it is lacking,

the dispute is not a proper case or controversy under Article III, and a federal court does not have

subject matter jurisdiction to decide the case. See Dominguez v. UAL Corp.,

(D.C. Cir. 2012). Thus, “[w]hen there is doubt about a party’s constitutional standing, the

court must resolve the doubt,” before proceeding to the merits. See Lee’s Summit v. Surface

Transp. Bd.,

(D.C. Cir. 2000) (citations omitted); see also Gutrejman v. United

States, No. 20-cv-266,

, at *5 (D.D.C. Mar. 22, 2022) (“It is, of course, a

bedrock principle that Article III courts must, except under unusual circumstances, resolve

jurisdictional defenses before turning to the merits of a dispute.” (citing Steel Co. v. Citizens for

a Better Env’t,

, 94–95 (1998))).

Standing has three elements: injury in fact, causation, and redressability. See Lujan, 504

U.S. at 560–61. First, the plaintiff must show “an invasion of a legally protected interest which

is (a) concrete and particularized,” and “(b) actual or imminent, not conjectural or hypothetical.”

Lujan,

(cleaned up). Second, there must be traceable causation from a

defendant’s alleged action to a plaintiff’s injury. See id.; see also Fla. Audubon Soc., 94 F.3d at

664 (“Causation may thus be said to focus on whether a particular party is appropriate.”). Third,

the plaintiff must establish that it is “likely, as opposed to merely speculative, that the injury will

be redressed by a favorable decision.” See Lujan,

(cleaned up); see also Fla.

11 Audubon Soc., 94 F.3d at 663–64 (“Redressability examines whether the relief sought, assuming

that the court chooses to grant it, will likely alleviate the particularized injury alleged by the

plaintiff.”). A plaintiff must establish injury in fact, causation, and redressability separately for

each defendant. See Garcia v. Stewart,

, 205 (D.D.C. 2021) (citing

DaimlerChrysler Corp. v. Cuno,

(2006)). “[I]n reviewing the standing

question, the court . . . must assume that on the merits the plaintiffs would be successful in their

claims.” Schnitzler v. United States,

(D.C. Cir. 2014) (citation omitted).

EcoRights’ two theories of injury are premised on its “reasonable beliefs” about the

likely effects of the new FOIA procedures: First, EcoRights argues that it “reasonably believes”

that delays in the EPA’s already slow processing of FOIA requests “will be exacerbated by the

2019 Regulations,” see Pl. MSJ at 8; see also Compl., ¶ 9 (“Plaintiffs are harmed by EPA’s

failure to properly implement FOIA, which threatens Plaintiffs’ ability to receive complete and

timely record productions in response to their current and future FOIA requests to EPA.”); see

id., ¶ 11 (“EPA’s FOIA Regulations will delay production of records and result in additional

records being improperly withheld.”); second, EcoRights asserts that it “reasonably anticipates

that its requests will be subjected to political interference” because the new regulations “route all

requests through the office with the highest density of political appointees, increasing

opportunity for political interference with EcoRights’ FOIA requests,” see Pl. MSJ at 9. Thus,

EcoRights relies only on a perceived increase in risk that it will experience problems in the

processing of its FOIA requests due to the implementation of the 2019 Rule. “Although the D.C.

Circuit has recognized that ‘increases in risk can at times be “injuries in fact” sufficient to confer

standing,’ the governing standard is not easily met.” See Public Citizen, Inc. v. Trump,

Supp. 3d 6, 21 (D.D.C. 2018) (quoting Nat. Res. Def. Council v. EPA,

(D.C. Cir.

2006)). The D.C. Circuit “has limited its jurisdiction over cases alleging the possibility of

increased-risk-of-harm to those where the plaintiff can show ‘both (i) a substantially increased

risk of harm and (ii) a substantial probability of harm with that increase taken into account.’”

See Food & Water Watch, Inc. v. Vilsack,

(D.C. Cir. 2015) (citation omitted).

EcoRights has not met that standard. In support of its claim of anticipated delays in the

processing of its FOIA requests, EcoRights argues that “EPA Headquarters, the site of massive

delay even before increasing its workload, will now be carrying out further FOIA work.” See Pl.

MSJ at 13–14 (noting that “at the end of 2018, EPA had 2,761 overdue FOIA requests

pending[,] . . . more than twice as many overdue requests as two years before, indicating an

escalating problem”); see also Pl. Reply at 2 (explaining that as evidence, EcoRights relies on

“numerous personal experiences, scores of lawsuits challenging EPA’s failure to comply, and

other sources of information”). But the EPA took steps to address the expected increase in

workload at its headquarters due to the centralization of intake: The agency hired five additional

staff members for the EPA’s National FOIA Office (“NFO”). See ECF No. 26-1 (Declaration of

Timothy Epp), ¶¶ 4–5. Although EcoRights attempts to downplay the significance of the

agency’s efforts, suggesting that there has been only a “minor staffing increase” that “proves

nothing,” see Pl. MSJ at 15, the staffing increase is certainly relevant in the Court’s assessment

of whether there is a substantially increased risk of delay in the processing of EcoRights’ FOIA

requests.

Moreover, EcoRights overstates the increase in workload at headquarters associated with

the change. Contrary to EcoRights’ contention, the agency has centralized only the

13 “submission” of FOIA requests, not their processing. See 40 C.F.R. 2.101(a); 84 Fed. Reg. at

30030 (describing changes to the “Methods of Submitting FOIA Requests” and stating that the

“EPA makes the [EPA headquarters] the point of entry for all requests”). Whereas FOIA

processing involves searching for records, and then reviewing the records for responsiveness and

exempt material, see ECF No. 26-2 (Declaration of Joan G. Kaminer), Ex. B, Tab 1 at 6–12, the

intake of FOIA requests is substantially less labor-intensive: It includes only an initial review to

determine whether requests comply with statutory and regulatory requirements; granting or

denying applications for expedited processing, see id. at 4–6; and then assigning requests to

appropriate offices within the agency for processing, see

(a). Further, the

change affects only those requests that would have been made directly to regional offices under

the prior rule, whereas the five requests from EcoRights referenced in its Complaint were made

via the FOIAOnline website — an entry point that remains unchanged. See Compl., ¶¶ 43–45;

Kaminer Decl., Ex. A. Thus, EcoRights fails to meet its burden to demonstrate that the new

procedure imposes a “substantially increased risk” of delays in the processing of its own FOIA

requests, and a “substantial probability” of delay. See Food & Water Watch,

. 8

EcoRights relies heavily on McGehee v. CIA,

(D.C. Cir. 1983), to make its

standing argument. See Pl. MSJ at 17; Pl. Reply at 5; see also Compl., ¶ 49. According to

8 In its Reply, EcoRights attempts to establish a concrete injury by describing the EPA’s delay in processing a FOIA request that EcoRights submitted on October 29, 2019. See Pl. Reply at 4 (arguing that “centralization has already begun causing delays”). According to EcoRights, EPA Headquarters “took so long to route the request to EPA Region 9 that it was already 75 days overdue before Region 9 even contacted EcoRights to request an extension.” See

(citing ECF No. 35-1 (Second Declaration of Stuart Wilcox)). But as the EPA showed in its Surreply, the agency communicated several times with EcoRights after the request was submitted. See ECF No. 53 (Defendants’ Surreply) at 1–2 (citing ECF No. 32-3 (Second Declaration of Timothy Epp), ¶¶ 6–12). Indeed, the EPA issued an initial denial of EcoRights’ request for expedited processing on November 1, 2019, before engaging in an extended discussion with EcoRights about its requests for expedited processing and fee waiver. See Second Epp Decl., ¶¶ 6–12. Thus, the cited incident does not show that EcoRights suffered a concrete, particularized, and actual or imminent injury in fact that establishes standing. See Lujan, 504 U.S. at 560–61. 14 Plaintiffs, the D.C. Circuit held that a “system adopted for processing documents ‘constitutes

“withholding” of those documents if its net effect is significantly to impair the requester’s ability

to obtain the records or significantly to increase the amount of time he must wait to obtain

them.’” See Pl. MSJ at 13 (quoting McGehee,

). Here, because the EPA has

adopted a centralization system that EcoRights believes will delay FOIA processing, Plaintiff

claims that the asserted delay constitutes a “withholding” of records under the FOIA and thereby

confers standing. As an initial matter, as discussed supra, EcoRights has failed to demonstrate

that the new policy has caused any meaningful delay in the processing of EcoRights’ FOIA

requests, which forecloses the argument that such delay constitutes a withholding of records.

But in any event, Plaintiff’s reading of McGehee is overbroad. That case did not hold

that any agency procedure that results in a slower processing of FOIA requests may be deemed

an illegal “withholding” of records. Rather, the cited portion of McGehee addresses a challenge

to the CIA’s “referral procedure,” under which the agency failed to process responsive

documents in its possession that originated in other agencies and instead “referred” such requests

to the originating agencies. See McGehee, 697 F.2d at 1109–10. While such a procedure could

amount to an effective “withholding” of records — given that the records in question were, in

fact, in the CIA’s possession — that policy cannot be fairly analogized to the centralization of

intake that is at issue here, where it is undisputed that the EPA is processing the records that it

possesses, and Plaintiff’s complaint is merely that the processing has been slowed down. Thus,

Plaintiff’s reliance on McGehee is misplaced. 9

9 Plaintiffs appear to brush off the EPA’s efforts to distinguish McGehee by stating that the agency’s arguments “lack substance, and, regardless, the Court must assume EcoRights would succeed on the merits of this claim for standing purposes.” See Pl. MSJ at 17 (citing Barker v. Conroy,

(D.C. Cir. 2019)). It

15 EcoRights’ attempt to allege a second injury — an increased risk of political interference

caused by the centralization of FOIA intake — fares no better. EcoRights provides no facts to

substantiate its assertion that the new intake procedures will cause EPA officials to violate the

FOIA by making “indefensible decisions” on EcoRights’ FOIA requests for “political” reasons.

See Pl. MSJ at 16. Instead, EcoRights tries to bolster its political-interference claim by noting

that several of the organization’s recent FOIA requests have been subjected to an “awareness

review process” for “politically charged” requests. See Pl. Reply at 11 (citing Wilcox Decl. ¶ 3,

Ex. 2 at 5, Ex. 3 at 14). But such “awareness review” does not affect the processing of FOIA

requests and has no connection to the centralization of intake. As the EPA explains, the

“awareness review process” is a notification process, through which “senior officials” are

informed when the agency releases information through the FOIA “that may be of particular

interest to the press, the public and/or Congress;” it is intended to allow agency leadership to

“respond efficiently to inquiries about such releases.” See Def. Surreply at 3 (awareness review

is “not an approval process, nor does it alter or eliminate any part of the agency’s existing

procedures for collecting, reviewing or redacting documents, or preparing responses to FOIA

requests.” (citing Wilcox Decl., Ex. 4 at 1)). “Awareness review” thus does not support an

inference of political interference in the processing of FOIA requests; and EcoRights fails to

explain how “awareness review” is relevant to whether the centralization of intake will result in a

is true that in Barker, the D.C. Circuit explained that “[f]or purposes of the standing inquiry, we assume [the plaintiff] would succeed on the merits of [his or her] claim.” See Barker,

(citing Schnitzler,

). But even if the Court assumes the validity of Plaintiffs’ claim that the centralization policy is arbitrary and capricious, Plaintiff must still make a “colorable legal argument[]” that shows an injury caused by the policy that is likely to be redressed by the remedy it seeks. See Ass’n of Am. R.R. v. Dep’t of Transp.,

, 585–86 (D.C. Cir. 1994). As discussed, supra, EcoRights has failed to show that the centralization of intake injures it within the meaning of Article III, even if that centralization is arbitrary and capricious. 16 “substantially increased risk” and “substantial probability” of such political interference. See

Food & Water Watch,

. 10

For the foregoing reasons, EcoRights has not established a substantially increased risk of

harm to its interests as a result of the EPA’s centralization of FOIA intake, and it therefore has

not demonstrated an injury that gives it standing to challenge

(a). The Court

therefore grants the EPA’s Motion to Dismiss Claim 1.

II. Claim 2: Unappealable Determinations by the Administrator

EcoRights’ second claim challenges the “EPA’s decision to allow the Administrator to

make initial determinations on FOIA requests and to bar requesters from appealing those

determinations.” See Compl., ¶ 51. According to EcoRights, this is problematic because the

FOIA “requires that all determinations provide notification of ‘the right of such person to appeal

to the head of the agency,’” see Compl., ¶ 51 (citing

(a)(6)(A)(i)(III)(aa)).

Because the Administrator is the head of the agency, EcoRights argues that a regulation that

allows the Administrator to make the initial determination is invalid because it effectively

removes the appeal right that is guaranteed by FOIA.

The 2019 Rule amended

(b) to include the Administrator on a list of

officials with authority to issue final determinations, as follows:

10 Both of EcoRights’ alleged injuries are also appropriately categorized as “speculative,” which also proves fatal to standing. See Clapper v. Amnesty Int’l USA,

, 409–10 (2013) (standing may not be based on a speculative chain of possibilities). EcoRights’ theories of injury are premised largely on its own conjecture about the effects of the new procedures, namely that delays and political interference will increase. See Pl. MSJ at 9. To finding standing on these grounds, the Court would need to accept a number of unsupported inferences: i.e., that centralization of submissions, as opposed to processing, will result in noticeable delays; that EPA’s hiring of additional staff will not offset those potential delays; and that EPA employees will choose to make “indefensible decisions” on FOIA requests for “political” reasons. See Pl. MSJ at 16. Such speculation is “ordinarily fatal to standing.” See Elec. Priv. Info. Ctr. v. DOC (“EPIC”),

(D.C. Cir. 2019) (citation omitted); see also

(explaining that standing does not exist where plaintiffs “cannot allege imminent [] harm without assuming the independent violation of other laws” by a federal agency). 17 (II) Authority to issue final determinations. The Administrator, Deputy Administrators, Assistant Administrators, Deputy Assistant Administrators, Regional Administrators, Deputy Regional Administrators, General Counsel, Deputy General Counsels, Regional Counsels, Deputy Regional Counsels, and Inspector General or those individuals’ delegates, are authorized to make determinations required by 5 U.S.C. 552(a)(6)(A), including to issue final determinations whether to release or withhold a record or a portion of a record on the basis of responsiveness or under one or more exemptions under the FOIA, and to issue “no records” responses.

See

(b). 11 The Administrator’s authority to issue initial determinations is

addressed in another provision that was not modified by the 2019 Rule,

(j)(2).

That regulation provides: “An adverse determination by the Administrator on an initial request

[serves] as the final action of the Agency.” See

§ 2.104(j)(2); see also 40 C.F.R. 2.104(j)(3)

(2018). 12 The EPA argues that Plaintiff is not injured by the changes made in the 2019 Rule and

thus lack standing to challenge the new regulation; that even if Plaintiff had standing, its claim

regarding initial determinations is barred by the statute of limitations for challenging agency

11 The 2019 Rule’s amendments to

(b) are as follows, with deletions in strikeout text and additions in bold text:

(b) Authority to grant or deny requests issue final determinations. The head of an office Administrator, Deputy Administrators, Assistant Administrators, Deputy Assistant Administrators, Regional Administrators, Deputy Regional Administrators, General Counsel, Deputy General Counsels, Regional Counsels, Deputy Regional Counsels, and Inspector General or that individual’s designee, is those individuals’ delegates, are authorized to grant or deny any request for make determinations required by 5 U.S.C. 552(a)(6)(A), including to issue final determinations whether to release or withhold a record or a portion of that office or other Agency records when appropriate a record on the basis of responsiveness or under one or more exemptions under the FOIA, and to issue “no records” responses.

Compare

(b), with

§ 2.103(b) (2018). 12 Under the FOIA, only final agency actions may be appealed in federal court; anything less than final agency action must be appealed through administrative processes. See Pinson v. DOJ,

(D.D.C. 2014) (“A FOIA requester must exhaust his administrative remedies before filing suit in federal court.” (citing Wilbur v. CIA,

(D.C. Cir. 2004)). 18 action; and that, in any event, the FOIA does not confer an absolute right of appeal to an agency

head. See Def. MTD at 13–19. The Court agrees with the EPA on all three grounds.

A. Standing

As with Claim 1, the Court begins with standing. See Dominguez,

; see

also Gutrejman,

, at *5 (citation omitted). To challenge the amendment to

Section 2.103(b), EcoRights must satisfy the three elements of standing: injury in fact,

causation, and redressability. See Lujan, 504 U.S. at 560–61.

EcoRights’ claim appears to rest on a misunderstanding of when the Administrator was

first empowered to make unappealable initial determinations. Although EcoRights claims that

the 2019 Rule conferred such authority on the Administrator, it appears that the Administrator

has been able to make initial FOIA determinations since at least 2002, under

(j)(3). See

, 67310 (Nov. 5, 2002);

(j)(3) (2018)

(“An adverse determination by the Administrator on an initial request will serve as the final

action of the Agency.”). 13 In addition, the Administrator’s authority to issue unappealable initial

FOIA determinations was acknowledged by

(h) — also promulgated in 2002

— under which the Administrator delegated his authority to make initial determinations to a

series of EPA officials: The act of delegating that authority proves that the Administrator

possessed the authority to begin with. See

(h) (2018) 14; see also

Although EcoRights argues that Section 2.104(j)(3) merely reflects that “an appeal decision of the Administrator is the final EPA agency action,” see Pl. MSJ at 24, that interpretation defies the plain meaning of the words. The regulation speaks to an “adverse determination by the Administrator on an initial request,” not a “decision by the Administrator on appeal.” See

(j)(3) (2018). 14 The regulations read:

Initial denials of requests. The Deputy Administrator, Assistant Administrators, Regional Administrators, the General Counsel, the Inspector General, Associate Administrators, and

19 67303, 67307 (Nov. 5, 2002); ECF No. 29-1 (Second Declaration of Joan Kaminer), Ex. B

(delegations manual explaining that delegations allow subordinate agency officials to carry out

responsibilities on the Administrator’s behalf).

Because the Administrator has had the power to issue unappealable initial FOIA

determinations since at least 2002, EcoRights fails to establish that the harm it alleges — i.e., the

loss of appeal rights — is caused by the challenged 2019 Rule, and that voiding the amended

regulation would redress the asserted injury. See Lujan,

. EcoRights’ challenge

to the amended Section 2.103(b) focuses on the inclusion of the Administrator on a list of

officials who can “issue final determinations” on FOIA requests. See

(b). But

the added reference to the EPA Administrator does not substantively change the Administrator’s

authority, as discussed supra. See

(j)(3);

(h). The EPA

adopted the new language in the 2019 Rule merely to “simplif[y] and consolidate[] section

2.103(b) . . . and section 2.104(h).” See 84 Fed. Reg. at 30031. 15 Because the 2019 Rule

challenged by EcoRights is not the cause of the asserted loss of appellate rights, invalidating the

new regulation would not redress that alleged harm. See Ass’n of Am. Physicians & Surgeons v.

Sebelius,

(D.D.C. 2012) (holding that injuries “caused by statutes and

regulations that pre-date the agency actions plaintiffs’ challenge” suffered from “a causation

problem” and the harms were “not redressable”); Atl. Urological Assoc., P.A. v. Leavitt, 549 F.

heads of headquarters staff offices are delegated the authority to issue initial determinations. However, the authority to issue initial denials of requests for existing, located records (other than initial denials based solely on § 2.204(d)(1)) may be redelegated only to persons occupying positions not lower than division director or equivalent.

See

(h) (2018) (emphasis added). 15 Section 2.103(b) “empowered the ‘head of an office, or that individual’s designee’ to grant or deny requests,” and section 2.104(h) “empowered division directors or equivalents authority to issue ‘denials.’” See 84 Fed. Reg. at 30031. 20 Supp. 2d 20, 28 (D.D.C. 2008) (finding that a rule that “did not change anything” was not

causally linked to the alleged injury and “invalidating it would not afford” any relief).

EcoRights also fails to adequately show that EcoRights itself will be injured by the

alleged procedural change. According to EcoRights, now that the Administrator claims the

authority to make FOIA determinations, it is likely that he will choose to make determinations on

EcoRights’ requests; and those determinations will be motivated by “political, personal, and

other reasons” that will injure EcoRights. See Pl. MSJ at 24–25; Pl. Reply at 11; see also ECF

No. 11-1 (Declaration of Edward Scher), ¶ 11 (explaining that Plaintiff “believe[s] that this

[alleged] change could lead to interference with EcoRights’ FOIA requests where they are

considered ‘politically charged’”); id., ¶ 24 (expressing concern that “decisions on EcoRights’

FOIA requests could be more politicized. . . . could be subject to awareness review, political

appointee determinations, and other political meddling with FOIA”). Such a claim of future

injury “may suffice [for purposes of establishing standing] if the threatened injury is certainly

impending, or there is a substantial risk that the harm will occur.” Susan B. Anthony List v.

Driehaus,

, 158 (2014) (cleaned up). Neither is the case here.

It is pure speculation that the Administrator will imminently decide one of EcoRights’

FOIA requests, or that there is a substantial risk that he will do so. Indeed, despite having the

authority to issue initial decisions since at least 2002, no EPA Administrator has ever made an

initial determination for any of EcoRights’ FOIA requests. See Def. Reply at 13; Def. MTD at

15. And even assuming, arguendo, that the 2019 Rule confers a new power on the Administrator

to issue initial determinations, it is highly unlikely that the head of an agency would engage in

the mundane tasks associated with processing FOIA requests. Moreover, even if the

21 Administrator decided to resolve one of EcoRights’ FOIA requests, there is no support for the

claim that the Administrator would injure EcoRights by acting “for personal, reputational, and

political reasons.” See Pl. MSJ at 25. Simply asserting that “many of EcoRights’ FOIA requests

are ‘politically charged,’”

is insufficient to establish “certainly impending” political

interference by the Administrator, or even a “substantial risk” of such injury. See Susan B.

Anthony List, 573 U.S. at 158; see also EPIC,

(explaining that “pure

speculation” that a federal agency will not comply with its legal obligations “is ordinarily fatal to

standing” (citation omitted)). The Supreme Court has held that where the challenged statute or

regulation “at most authorizes — but does not mandate or direct — the [injury] that [plaintiffs]

fear,” any “allegations are necessarily conjectural” and there can be no substantial risk of injury

based on those facts. See Clapper,

. Such is the case here. Thus, EcoRights

lacks standing to bring Claim 2.

B. Statute of Limitations

Even if EcoRights did have standing to bring Claim 2, its challenge is also barred by the

applicable statute of limitations. A challenge to an agency’s regulation constitutes a “civil action

commenced against the United States” that is “barred unless the complaint is filed within six

years after the right of action first accrues.” See

(a); P&V Enters. v. Army

Corps of Eng’rs,

(D.C. Cir. 2008) (considering challenge to rulemaking as

pursuant to

(a)); Daingerfield Island Protective Soc’y v. Babbitt,

(D.C. Cir. 1994) (applying six-year limitations period to challenge of agency action); see

also Jackson v. Modly,

, 776–78 (D.C. Cir. 2020).

22 Here, EcoRights is challenging the EPA’s decision to “vest the Administrator with

authority to make initial FOIA determinations that are not appealable.” See Pl. MSJ at 17. But,

as noted supra, the EPA promulgated the regulation providing that “[a]n adverse determination

by the Administrator on an initial request will serve as the final action of the Agency” in 2002.

See

, 67310 (Nov. 5, 2002);

(j)(3) (2018). EcoRights filed

its Complaint challenging the Administrator’s authority to make unappealable initial

determinations in 2019, well outside of the six-year statute of limitations. Thus, Claim 2 is

barred by the statute of limitations and must be dismissed on this alternative ground. 16

C. Failure to State a Claim

Finally, even assuming that EcoRights has standing and that its challenge is timely,

EcoRights fails to state a claim. EcoRights contends that FOIA confers a right “to appeal a

FOIA determination to the head of the agency,” and that the 2019 Rule is invalid because it

eliminates that statutory right. See Compl., ¶ 51 (citing

(a)(6)(A)(i)(III)(aa)); see

also Pl. MSJ at 18 (“EPA cannot eliminate the right to appeal initial FOIA determinations.”);

at 20–22 (explaining that the Administrator may not make initial FOIA determinations because

“Congress conferred only appeal authority to the Administrator”). But the asserted statutory

right does not bear the significance that EcoRights attempts to attribute to it.

The relevant statute,

(a)(6)(A)(i)(III)(aa), provides:

(III) [I]n the case of an adverse determination —

16 EcoRights attempts to refute this argument by offering a different reading of the EPA’s 2002 regulations. See Pl. MSJ at 22–24; Pl. Reply at 8–10. In Plaintiff’s view,

(j)(2) should be read to provide that “an Administrator determination on an appeal will preclude contrary initial determinations by subordinates on requests for duplicate records” because section 2.104(j)(2) is in the “appeals section” of the regulation. See Pl. Reply at 8. That reading, however, is tortured, to say the least. The plain language of the provision indicates that the Administrator may make “[a]n adverse determination . . . on an initial request.” See

(j)(2). 23 (aa) the right of such person to appeal to the head of the agency, within a period determined by the head of the agency that is not less than 90 days after the date of such adverse determination; . . . . See

(a)(6)(A)(i)(III)(aa). The Court agrees that the statute refers to “the right . . .

to appeal to the head of the agency,” see

and that allowing the EPA Administrator to make

initial determinations obviates the appeal right. But under such circumstances, the

Administrator’s initial determination simply serves as the final action of the agency, which may

be appealed in a court of law. See

(j)(2) (An “adverse determination by the

Administrator on an initial request will serve as the final action of the Agency.”).

That conclusion is consistent with the interpretation by courts in this jurisdiction of

Subsection (a)(6)(A)(i), which courts have held “relates only to the requester’s ability to get into

court.” See Elec. Priv. Info. Ctr. v. DOJ,

(D.D.C. 2014) (citing Citizens

for Responsibility and Ethics in Washington v. FEC,

(D.C. Cir. 2013)

(“CREW v. FEC”)). For example, in National Security Counselors v. Central Intelligence

Agency,

(D.C. Cir. 2020), the D.C. Circuit upheld a CIA policy that did not permit

FOIA requesters to administratively appeal decisions on FOIA requests that the agency had

deemed improper. See Nat’l Sec. Couns. v. CIA,

(D.D.C. 2012), aff’d

sub nom. Nat’l Sec. Couns., 969 F.3d at 412. In that case, the CIA entirely eliminated the

opportunity for administrative appeals but, as the court explained, “the unavailability of an

administrative appeal would not preclude a requester from seeking judicial review of an agency’s

decision that a request is improper.” See id. at 280. Instead, the court explained that the lack of

administrative appeal meant only that the agency’s initial decision served as a final agency action

that could be immediately appealed in federal court. See id. at 280 (“[S]uch an agency decision

24 would be presumptively reviewable under the APA, if not the FOIA itself.”); see also id. at 281

(“A party appearing before an administrative body cannot be punished for the agency’s choice to

shoot itself in the foot by refusing to review its own decisions.”).

Similarly, when the D.C. Circuit has considered other subsections of Section (a)(6)(A),

the court has tied the purpose of those provisions to the ability of a party to reach a federal court.

In CREW v. FEC, the court considered when “a FOIA requester [must] exhaust administrative

appeal remedies before suing in federal district court to challenge an agency’s failure to produce

requested documents.” See

. The D.C. Circuit explained that the requirements

enumerated in Section 552 (a)(6)(A) are tied directly to administrative exhaustion. See

(“If the agency does not adhere to FOIA’s explicit timelines, the ‘penalty’ is that the agency

cannot rely on the administrative exhaustion requirement to keep cases from getting into court.”).

The court acknowledged that the Section provides “incentive[s] for agencies” to comply with

certain requirements, but “recognizes that agencies may not always be able to adhere to” those

requirements. See

Reading the relevant precedents together, the Court concludes that Section (a)(6)(A)

relates “to the requester’s ability to get into court”; and if an agency chooses to waive any of the

requirements in the statute, then the remedy for the FOIA requester is that the agency action is

deemed final, and the requester may appeal the agency action in federal court. It follows that

any decision by the EPA to eliminate the right of a FOIA requester to file an administrative

appeal to the agency head would be permissible; and that such a decision would serve only as a

waiver of the administrative exhaustion requirement that would otherwise apply. 17 Thus, the

17 EcoRights protests that even if its right to appeal in federal court is preserved, “[a]llowing EPA to bypass

25 Court rejects Plaintiffs’ argument that the Court should strike down any regulation that results in

the elimination of the statutorily provided appeal right. Defendants’ Motion to Dismiss Claim 2

is also granted for failure to state a claim.

III. Claim 4: Withholding Portions of Responsive Records

In Claim 4, EcoRights challenges

(b) to the extent that the regulation

purports to allow agency officials to withhold portions of responsive records on the ground that

those portions are non-responsive to the FOIA request. See Compl., ¶ 57. The parties agree that

“[a]n agency cannot withhold a portion of a record by claiming that portion is not responsive to

the request.” See id.; see also ECF No. 51 (Joint Status Report) at 2; ECF No. 55 (Defendants’

Memorandum) at 7 (stating that the “EPA does not claim the authority to withhold portions of

responsive records on the grounds that portions are non-responsive”); see also Am. Immigr.

Laws. Ass’n,

(“[O]nce the government concludes that a particular record is

responsive to a disclosure request, the sole basis on which it may withhold particular information

within that record is if the information falls within one of the statutory exemptions from FOIA’s

disclosure mandate.”). The parties also agree that Claim 4 should be remanded to the agency for

proposed modifications to section 2.103(b). See ECF No. 59 (Defendants’ Reply Memorandum)

at 1 (“The parties agree that the Court should remand Claim Four in this case.”); ECF No. 57

(Plaintiffs’ Memorandum) at 9 (“remand . . . is not disputed”); id. at 10 (“EcoRights . . . does not

this mandatory [administrative appeal] process would undermine the ‘administrative scheme’ and the ‘purposes of exhaustion.’” See Pl. MSJ at 19 (quoting Nat’l Sec. Couns. v. CIA,

, 98–100 (D.D.C. 2013)). In particular, it highlights that elimination of an administrative appeal “prevents requesters from convincing EPA to ‘correct its own mistakes,’” requires requesters to “forego the more efficient, quicker, and more economical remedy of an appeal,” and “prevent[s] further development [of] the record on appeal.” See

Plaintiffs’ policy arguments carry little weight against the binding D.C. Circuit precedents interpreting Section (a)(6)(A). Under those precedents, agencies may choose to forego the benefits of administrative exhaustion in this context. 26 oppose remand”). The parties dispute, however, whether the remand should be accompanied by

a vacatur of the challenged regulation.

Judicial authority to vacate rules is derived from the APA, which provides that a court

may “set aside agency action” if it determines that the action is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” See

(2)(A). As a result,

courts cannot vacate agency regulations “without judicial consideration of the merits.” See Nat’l

Parks Conservation Ass’n v. Salazar,

(D.D.C. 2009); see also WildEarth

Guardians v. Bernhardt, No. 20-cv-56,

, at *1 (D.D.C. Oct. 23, 2020)

(remanding without vacatur because court had not reviewed the information underlying the

agency decisions and “therefore, it has no basis to vacate the agency action”); Carpenters Indus.

Council v. Salazar,

(D.D.C. 2010) (court lacked authority to order

“vacatur without a determination of the merits”). The Court, therefore, has two options at this

time: either to “remand without vacatur or to . . . proceed to the merits.” Am. Forest Res.

Council v. Ashe,

(D.D.C. 2013), aff’d,

(D.C. Cir. 2015).

Here, the Court has an “interest[] in avoiding unnecessary adjudication,” and in

permitting the “crystalliz[ation of agency] policy before that policy is subjected to judicial

review.” Sec. Indus. & Fin. Markets Ass’n v. CFTC,

(D.D.C. 2014)

(quoting Am. Petrol. Inst. v. EPA,

(D.C. Cir. 2012)). The EPA’s Settlement

Agreement obligates the agency to “propose revising the text of

(b),” to “solicit

public comment on EPA’s proposed revisions,” and to “sign a notice of final action” regarding

the revisions within a specified time frame. See Settlement Agreement, §§ 1.a & b. Resolving

the merits of a challenge to a regulation that may soon be revised makes little sense. Thus, the

27 Court will decline to reach the merits of Claim 4 and will remand that claim to the EPA without

vacatur. See

; Carpenters Indus. Council,

.

IV. Claim 5: Lack of Notice and Comment

EcoRights’ final argument takes aim at the entirety of the 2019 Rule, which the EPA

promulgated without notice and comment. See 84 Fed. Reg. at 30029. EcoRights argues that the

agency’s promulgation of the 2019 Rule without notice-and-comment rulemaking violates

§ 706(2)(D) of the APA because: (1) The FOIA independently requires notice-and-comment

rulemaking and the EPA may not use APA exceptions to avoid those requirements, see Compl.,

¶ 60; Pl. MSJ at 35–39; and (2) even if the EPA could rely on the procedural and good-cause

exceptions consistent with the FOIA, neither exception applies in this case, see Pl. MSJ at 39–40.

EcoRights specifically challenges the changes made to

(c), 2.104(c), 2.104(f),

and 2.107. See id. at 37; Compl., ¶ 60. 18

Before proceeding to the merits of EcoRights’ claim, the Court must first address the

EPA’s argument that Plaintiffs lack procedural standing, i.e., standing to challenge only the

alleged procedural deficiencies in the EPA’s adoption of the 2019 Rule. See Gutrejman,

, at *5 (“It is, of course, a bedrock principle that Article III courts must, except under

unusual circumstances, resolve jurisdictional defenses before turning to the merits of a dispute.”

18 EcoRights also challenges the EPA’s failure to allow for notice and comment on changes made to

(a) and 2.103(b). See Pl. MSJ at 39–43. But in order to show standing to challenge procedural deficiencies related to either provision, EcoRights must establish that it was substantively harmed by the changes to the regulation. See California v. Trump, No. 19-cv-

, at *7 (D.D.C. Apr. 2, 2020) (“There is no doubt . . . that a plaintiff that is able to establish that an agency failed to comply with the notice and comment procedures of the APA would, nonetheless, have no recourse in an Article III court absent a showing that it suffered or will suffer a concrete injury as a result of policy produced through the allegedly flawed process.” (citing Swanson Grp. Mfg. LLC v. Jewell,

, 244–46 (D.C. Cir. 2015))). EcoRights’ procedural standing to challenge changes to

(a) and 2.103(b), therefore, depends on its standing to challenge the underlying provisions. Because EcoRights lacks standing to challenge the provisions themselves, see supra, it may not challenge the provisions on procedural grounds. 28 (citation omitted)). “Standing alone, procedural injuries are not enough to establish an injury in

fact.” See Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of Am. v. Dep’t of

Agric., No. 20-cv-2552,

, at *7 (D.D.C. Sept. 29, 2021). As the Supreme

Court explained in Summers v. Earth Island Institute,

(2009), the “deprivation of a

procedural right without some concrete interest that is affected by the deprivation — a

procedural right in vacuo — is insufficient to create Article III standing.” See

. That

includes the deprivation of the right to participate in notice-and-comment rulemaking, which “in

and of itself, does not establish an actual injury.” See Int’l Bhd. of Teamsters v. TSA,

(D.C. Cir. 2005). “In order to make out a constitutionally cognizable injury,

plaintiffs must demonstrate that the allegedly deficient procedures implicate distinct substantive

interests as to which Article III standing requirements are independently satisfied.” See Freedom

Republicans, Inc. v. FEC,

(D.C. Cir. 1994). EcoRights must establish

procedural standing to challenge the lack of notice and comment under both the FOIA and the

APA.

To demonstrate standing, EcoRights must show that the changes that the EPA made to its

regulations without notice and comment implicate a concrete interest of the organization. See

Summers,

. EcoRights cannot do so for its challenges to

(c),

104(c), and 104(f) because the changes to those provisions were non-substantive. A comparison

of the pre-2019 language and the post-2019 language for each of those provisions reveals that the

agency made grammatical and stylistic changes while leaving the substance of the regulations

29 untouched. Compare, e.g.,

(c), with

(c) (2018). 19 EcoRights

has not shown “that it suffered or will suffer a concrete injury as a result of [the] policy produced

through the allegedly flawed process,” because the policy has not meaningfully changed as a

result of the process. See California v. Trump,

, at *7. Plaintiff is correct

“that in a procedural rights case the burden to show imminence and redressability of injury may

be lessened,” see Int’l Bhd. of Teamsters,

; Pl. MSJ at 43–45, but it still bears

the burden of demonstrating “actual injury to [its] concrete interests,” see Ctr. for Law & Educ.

v. Dep’t of Educ.,

(D.C. Cir. 2005). EcoRights understandably struggles to

show how the minor modifications made by the EPA in any way implicate Plaintiffs’ interests

other than generally arguing that the EPA would have had to address its comments, which is

insufficient to establish standing. See Pl. Reply at 24–25.

The only substantive change to the regulations challenged in Claim 5 are the additions

that the EPA made to

(d)(6). There, the agency modified the circumstances

under which it will charge search fees, implementing the FOIA Improvement Act of 2016. See

. In 2016, Congress amended the FOIA to “ensure that [it] remains the nation’s

premier transparency law” by reducing the “growing backlog” and clarifying a number of

19 The 2019 Rule’s amendments to

(c) are as follows, with deletions in strikeout text and additions in bold text:

Multitrack processing. The Agency uses three or more processing tracks by distinguishing between simple and complex requests based on the amount of work and/or , time needed to process the request, or both, including limits based on the number of pages involved. The Agency will advise you the requester of the processing track in which your request has been placed the Agency placed the request and of the limits of the different processing tracks. The Agency may place your the request in its a slower track(s) while providing you the requester with the opportunity to limit the scope of your the request in order to qualify for faster processing within the specified limits of the a faster track(s). If your request is placed the Agency places the request in a slower track, the Agency will contact you either by telephone or by letter, whichever is most efficient in each case the requester.

30 exemptions. See S. Rep. No. 114-4, at 3–4 (2015). As part of that reform, Congress amended

the language of

(a)(4)(A)(viii) to provide that agencies shall not assess fees if the

agency has failed to comply with statutory deadlines, subject to various exceptions. See 130

Stat. at 538–39 (“[A]n agency shall not assess any search fees . . . if the agency has failed to

comply with any time limit.”); see also

(a)(4)(A)(viii). When Congress made

those changes, it permitted the head of each agency to “issue regulations . . . in accordance with

the amendments made by [the 2016 Act]” within 180 days; but it made clear that the

amendments “shall take effect on the date of enactment . . . and shall apply to any request for

records under [the FOIA] made after the date of enactment.” See 130 Stat. at 544–45.

Although the fee provision was meaningfully changed and such changes could cause real

injury, EcoRights falters on another requirement of standing: redressability. See Lujan,

(“[I]t must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be

‘redressed by a favorable decision.’” (citation omitted)). The EPA modified

(d)(6) to incorporate exactly the 2016 Act that already governed all FOIA requests made

after the date of its enactment. See 130 Stat. at 544–45; 84 Fed. Reg. at 30030–31. Indeed, the

EPA followed Congress’s instructions to the letter by copying the required language in the 2016

FOIA amendments and pasting it into the Code of Federal Regulations. Compare 5 U.S.C.

552(a)(4)(viii), with

(d)(6). Because the statute was self-executing, the

amendment to the the regulations that duplicated the statutory language had no actual effect on

Plaintiff’s rights. Any injury to EcoRights in the form of increased fees was essentially “caused

by [a] statute[] . . . that pre-date[d] the agency action [in amending the regulations, which]

plaintiffs’ challenge.” See Ass’n of Am. Physicians & Surgeons,

; see also

31 Atl. Urological Assoc., P.A., 549 F. Supp. 2d at 28 (where the rule “did not change anything for

these Plaintiffs,” “invalidating it would not afford them any relief”). Whether the Court

invalidates

(d)(6) or not, the fee provisions in the 2016 Amendments became

effective “on the date of enactment” and will continue to “apply to any request for records under

[the FOIA] made after the date of enactment.” See 130 Stat. at 544–45. 20

For those reasons, the Court will grant the EPA’s Motion to Dismiss Claim 5 on standing

grounds.

CONCLUSION

For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss as to Claims

1, 2, and 5; remand Claim 4 without vacatur; and deny EcoRights’ Cross Motion for Summary

Judgment. A separate Order will issue this day.

_____________________________ FLORENCE Y. PAN United States District Judge

Date: September 12, 2022

20 EcoRights contends that the 2016 Act set a ceiling on when agencies may charge fees but that the EPA could choose to charge fees in more limited circumstances. Thus, EcoRights argues, it has standing because it could have advocated for a “more constrained” regulation during notice and comment. See Pl. Reply at 25 n.12. Plaintiff misapprehends both the statutory structure of the 2016 Act and the action taken by the EPA. As the Court discusses, supra, the 2016 Act’s fee amendments were self-executing — they apply regardless of whether the EPA incorporated them into the C.F.R. See 130 Stat. at 544–45. By adopting Congress’s language verbatim, the EPA did not alter Plaintiff’s situation: if the EPA had taken no action, Plaintiff would still be subject to the same fees. This fact goes to the heart of redressability and destroys Plaintiff’s claim to standing. 32