This Post was authored by Christopher Rodrigues, a MGKF summer associate.

In a unanimous decision penned by Circuit Judge Kavanaugh, the United States Court of Appeals for the D.C. Circuit affirmed a lower court decision holding that the EPA properly withheld information from its response to several environmental groups' Freedom of Information Act (“FOIA”) requests. Envtl. Integrity Project v. EPA, No. 16-5109, 2017 U.S. App. LEXIS 9332, at *4 (D.C. Cir. May 30, 2017).  The court held that Section 308 of the Clean Water Act (“CWA”) does not supersede Exemption 4 of FOIA. Id.  In relevant part, Section 308 of the CWA states that effluent data shall be made available to the public, unless releasing the information would divulge trade secrets.  33 U.S.C. § 1318(b) (1987).  Exemption 4 under FOIA, however, allows the government to withhold information that would reveal a company’s trade secrets or commercial or financial information.  5 U.S.C. § 552(b)(4) (2016).  Thus, the inconsistent exemptions have created tension in the lower courts that the D.C. Circuit has attempted to alleviate for future decisions in Environmental Integrity.

Environmental Integrity stems from a survey conducted by the EPA in 2010, in which 733 power plants disclosed “technical information related to wastewater generation and treatment, and economic information such as costs of wastewater treatment technologies and financial characteristics of potentially affected companies.” Envtl. Integrity Project v. EPA, 177 F. Supp. 3d 36, 38 (D.C. 2016), aff’d, 2017 U.S. App. LEXIS 9332 (D.C. Cir. May 30, 2017).  Using the data collected from the power plants, the EPA revised its regulations on steam-electric power plant pollution and promulgated proposed rules in the Federal Register in June 2013. Id.  Environmental groups subsequently submitted FOIA requests to obtain “the amount of pollutants that individual power plants discharge[d] to water bodies, data on the cost of wastewater treatment technologies, and data on how well those technologies perform[ed] in reducing pollutants that power plants discharge[d].” Id. at 38-39.  Although the EPA complied with some of the FOIA requests, it withheld some requested information on the basis that it was “confidential business information,” which is exempt under FOIA. Id.  Disagreeing with the decision of the EPA, the environmental groups filed suit in July 2014 to compel the disclosure of the withheld information under the theory that the CWA governs what material is protected in this case. Id. at 39.

The D.C. Circuit found the true issue in this case was the conflicting exemptions under FOIA and the CWA. Envtl. Integrity Project, 2017 U.S. App. LEXIS 9332, at *1.  The Plaintiffs and the EPA agreed that the information did not qualify as trade secrets, but in fact did qualify as “‘commercial or financial information’ under Exemption 4 of FOIA.” Id. at *2.  The agreement of the parties as to the nature of the information required the court to answer only one strictly legal question: does Section 308 of the CWA supersede Exemption 4 of FOIA. Id.  The court assuredly held that it does not. Id. at *4.  In coming to this conclusion, the court turned to 5 U.S.C. § 559 (“Administrative Procedure Act”) which states that “FOIA exemptions apply, unless a later statute expressly supersedes or modifies the exemptions.” Id.  (emphasis added).  Although the CWA became law four years after FOIA, Congress failed to add express language that the CWA’s exemptions supersede FOIA’s exemptions. Id. at *3.  The court compared the language of Section 308 of the CWA to both the Toxic Substances Control Act and the Chemical Safety for the 21st Century Act, which both expressly supersede Exemption 4 under FOIA, and found “[i]f Congress had wanted Section 308 to supersede Exemption 4, Congress could have drafted express language to that effect, as it has in other statutes.” Id.  As no such language was included in the CWA, the Court affirmed that the FOIA exemption controls.

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