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On February 10, 2022, CREW reached a settlement agreement with the EPA. Under the agreement, the EPA will solicit public comment on the aspects of the rule challenged in our lawsuit, which was the primary relief sought. Click here to read the settlement.

The EPA announced a new rule that authorizes political appointees to act as gatekeepers for Freedom of Information Act (FOIA) requests and illegally adopted it without giving the public notice and an opportunity to comment in violation of the Administrative Procedure Act, according to a lawsuit filed by CREW. The lawsuit asks the court to declare that the EPA violated federal law and vacate the 2019 rule.

When EPA last amended its FOIA regulations in 2002, it followed legally mandated rulemaking procedures, including a notice-and-comment period. But the agency dodged those procedures in adopting the 2019 FOIA rule. EPA instead invoked the “good cause” and “procedural rule” exceptions to the rulemaking procedures. But neither of those exceptions applies to the rule, which EPA appears to have rushed through in order to avoid addressing the inevitable public interest and backlash it has already generated.

EPA’s hastily-adopted rule serves as further proof of the agency’s increased politicization by the Trump Administration. Under the new rule, political appointees are authorized to make “final determinations” on FOIA requests, rather than career officials with the experience and qualifications necessary to make critical FOIA determinations. This move comes after senior EPA officials, including disgraced former EPA Administrator Scott Pruitt, adopted internal policies and practices designed to delay responses to “politically charged” requests, and empower political appointees to review and approve responses to such requests.

EPA’s FOIA rule violates basic rulemaking procedures under the law, not to mention the letter and spirit of FOIA. EPA’s actions will significantly impede current pending and future FOIA requests that implicate high-level political appointees and significant policy decisions at EPA. The rule should be invalidated.

Lawsuit Documents

  • Complaint
    July 23, 2019
    Read here
  • Defendant's Partial Obj. to Notice of Rel. Case
    Defendant's Partial Objection to Notice of Related Cases - October 2, 2019
    Read here
  • Plaintiff's Response to Defendant's Partial Obj.
    Plaintiff's Response to Defendant's Partial Objection to Notice of Related Case - October 18, 2019
    Read here
  • Motion to Dismiss the First Amended Complaint
    October 23, 2019
    Read here
  • Memo in Support of Plaintiff's Cross-Motion
    Memorandum in Support of Plaintiff's Cross-Motion for Partial Summary Judgement - November 15, 2019
    Read here
  • Declaration of Adam Rappaport & Exhibits
    November 15, 2019
    Read here
  • Reply in Support of Motion to Dismiss Complaint
    Reply in Support of Motion to Dismiss the First Amended Complaint - December 13, 2019
    Read here
  • Declaration of Timothy Epp
    December 13, 2o19
    Read here
  • Declaration of Joan G. Kaminer
    December 13, 2019
    Read here
  • Plaintiff's Reply in Support of Cross-Motion
    Plaintiff's Reply in Support of Cross-Motion for Partial Summary Judgement - January 16, 2020
    Read here
  • Memorandum in Support of Plaintiff's Cross-Motion
    Memorandum in Support of Plaintiff's Cross-Motion for Partial Summary Judgement - May 11, 2020
    Read here
  • Opposition to Plaintiff's Motion for Sum. Jdmt.
    Opposition to Plaintiff's Motion for Summary Judgement - May 11, 2020
    Read here
  • Defendant's Sur-reply in Opposition to CREW
    Defendant's Sur-reply in Opposition to CREW's Cross-motion for Summary Judgement & Declarations - June 12, 2020
    Read here
  • Opposition to Defendant's Sur-reply Motion
    Opposition to Defendant's Motion for Leave to File Sur-reply - June 22, 2020
    Read here
  • Reply in Support of Motion for Leave Sur-reply
    June 29, 2020
    Read here
  • Motion to Leave to File Sur-Reply
    August 5, 2020
    Read here
  • Opposition to Motion to Leave
    August 18, 2020
    Read here
  • Notice of Agreement
    November 16, 2021
    Read here
  • Stipulation of Dismissal
    February 10, 2022
    Read here
    Read Exhibit here
  • Defendant Memorandum
    March 17, 2022
    Read here
  • Transcript
    March 18, 2022
    Read here
  • Notice of Appeal
    September 23, 2022
    Read here

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