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. Read More »

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