                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
___________________________________
                                    )
SEAN D. REYES,                      )
Attorney General, State of Utah,1 )
                                    )
               Plaintiff,           )
                                    )
v.                                  ) Civil No. 10-2030 (EGS/DAR)
                                    )
UNITED STATES ENVIRONMENTAL         )
PROTECTION AGENCY,                  )
                                    )
               Defendant.           )
___________________________________)

                                                               MEMORANDUM OPINION

              Pending before the Court is [46] the U.S. Environmental

Protection Agency’s (“EPA”) Renewed Motion for Summary Judgment.

Upon consideration of the motion, response, reply, the relevant

caselaw and the record as a whole, and for the reasons that

follow, the Renewed Motion is GRANTED.

       I.             BACKGROUND

              This matter arises from Plaintiff’s Freedom of Information

Act (“FOIA”) request to EPA seeking information on the EPA’s

Endangerment Finding, which found that certain greenhouse gases

taken in combination endanger the public health and welfare. The

request was lengthy, consisting of fourteen pages and thirty-

seven subparts, and broad, seeking a tremendous amount of


                                                            
1
  By operation of Federal Rule of Civil Procedure 25(d), Sean D.
Reyes, the Attorney General of the State of Utah, has been
automatically substituted for Mark Shurtleff.
information about the finding.   See Compl., Ex. A.   The EPA

ultimately located about 13,000 responsive records, of which

approximately 8,200 were released in part, 4,445 were released

in full, and 342 were withheld in full.   See Decl. of Elizabeth

Craig (“Craig Decl.”) ¶ 61.

     In September 2013, the Court issued a Memorandum Opinion

granting in part and denying in part the EPA’s Motion for

Summary Judgment.   Shurtleff v. EPA, No. 10-2030, 2013 U.S.

Dist. LEXIS 140433 (D.D.C. Sept. 30, 2013) (“2013 Opinion”).

Familiarity with the 2013 Opinion is assumed.   With regard to

the partial denial of the motion, the Court directed EPA (1)

either to disclose documents withheld under the attorney-client

privilege or file supplemental submissions indicating in

sufficient detail why withholding is proper; and (2) either to

conduct another search for documents responsive to subparts

A(4)(b),(c), A(5)(a),(b),(c),(d),(e), B(1)(a), D(1)(a),(b),

E(2)(a),(b), and F(1)(a) of Plaintiff’s FOIA request, or, in the

alternative, prove that its prior searches meet the adequacy

standard. Id. at *45.

     Subsequently, EPA filed the instant Renewed Motion for

Summary Judgment.   In support of its Renewed Motion, the EPA

relies upon the Second Supplemental Declaration of Elizabeth

Craig (“Second Supp. Craig Decl.”).   Craig is the Director of

the Climate Protection Partnership Division of the Office of

                                 2
 
Atmospheric Programs in the EPA’s Office of Air and Radiation,

and former Acting Director of the Office of Atmospheric

Programs.    Second Supp. Craig Decl. ¶ 1.   The EPA’s Renewed

Motion is ripe for review.

    II.   LEGAL STANDARD

      The court may grant a motion for summary judgment if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits or declarations,

show that there is no genuine issue of material fact and that

the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c).     In a FOIA case, the burden of proof is

on the agency to demonstrate that it has fully discharged its

obligations under the FOIA.     See U.S. Dep’t of Justice v. Tax

Analysts, 492 U.S. 136, 142 n.3 (1989) (citations omitted).

    III. DISCUSSION

    A. Attorney-Client Privilege

      FOIA exempts from disclosure “inter-agency or intra-agency

memorandums or letters which would not be available by law to a

party other than an agency in litigation with the agency.”       5

U.S.C. § 552(b)(5).

      The attorney-client privilege protects confidential
      communications from clients to their attorneys made for the
      purpose of securing legal advice or services. The
      privilege also protects communications from attorneys to
      their clients if the communications “rest on confidential
      information obtained from the client.” In the governmental

                                   3
 
     context, the “client” may be the agency and the attorney
     may be an agency lawyer.

Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997)(citing

Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d

242, 254 (D.C. Cir. 1977)).     The agency bears the burden to show

that information exchanged between an agency and its attorneys

is confidential.   Privilege only extends to “those members of

the organization who are authorized to act or speak for the

organization in relation to the subject matter of the

communication.”    Mead Data, 566 F.2d at 253 n.24.

     The Court denied EPA’s first Motion for Summary Judgment as

to records withheld pursuant to the attorney client privilege

for two reasons: (1) EPA failed to specify who received the

documents, thus it did not establish the communications were

confidential; and (2) EPA failed to explain the recipients’

responsibilities, thus, it did not establish that the recipients

were authorized to act or speak for the government in relation

to the subject matter of the communication.     Shurtleff, 2013

U.S. Dist. LEXIS 140433, at *34-35.    It directed EPA to either

disclose the records, or indicate in sufficient detail why

withholding is proper.    Id.

     Elizabeth Craig’s Second Supplemental Declaration addresses

each of the nine documents withheld or partially withheld




                                   4
 
pursuant to attorney-client privilege.2                                        See Second Supp. Craig

Decl. ¶¶ 5, 11-18.                                        Additionally, Ms. Craig provides the

redacted documents as Exhibit A to her Declaration.                                         Id. Ex. A.

The documents are email chains between agency counsel and other

agency staff.

              Plaintiff claims the EPA fails to establish that the

documents contained legal advice.                                         Opp’n to Renewed Mot. at 9-

10.              The Court disagrees.                            While “[t]he privilege does not

allow the withholding of documents simply because they are the

product of an attorney-client relationship,” Mead Data, 566 F.2d

at 553, it does apply to communications “made for the purpose of

securing primarily . . . an opinion on law.”                                         In re Lindsey, 158

F.3d 1263, 1270 (D.C. Cir. 1998) (citation omitted).                                        As the

most recent Declaration explains, each document pertains to an


                                                            
2
  EPA asserted attorney client privilege as to fourteen
documents; however, as it pointed out in its Renewed Motion,
five of the fourteen were also withheld on the basis of either
deliberative process or attorney work product privilege. See
Renewed Mot. at 4 n.1. Because the Court upheld EPA’s
application of the deliberative process and work product
privilege in the 2013 Opinion, EPA argues, these five documents
have already been deemed properly withheld. Id. Plaintiff
concedes this issue by failing to address it in his opposition
brief. “It is well established that if a [party] fails to
respond to an argument raised in a motion for summary judgment,
it is proper to treat that argument as conceded.” Wilkins v.
Jackson, 750 F. Supp. 2d 160, 162 (D.D.C. 2010) (citations
omitted). Accordingly, since the Court already concluded these
records were properly withheld under FOIA, it need not
separately determine whether they could also be withheld on an
alternative basis. See, e.g., Martin v. U.S. Dep’t of Justice,
488 F.3d 446, 456 (D.C. Cir. 2007).
                                                                      5
 
issue for which EPA sought the legal advice of its lawyers: (1)

reviewing the EPA’s draft response to public comments on the

Endangerment Finding in order to provide legal advice on how to

respond to certain comments; see EPA2-6968, EPA2-2413, EPA-105;

(2) requesting information from the client in order to provide

legal interpretation and defense of the Endangerment Finding in

response to questions from the White House, petitions for

reconsideration, and congressional inquiries, see EPA2-3150,

EPA2-4349, EPA2-7374, EPA2-7384; (3) reviewing agency

solicitations and providing guidance on legal compliance before

publication, see EPA2-6158; and (4) providing legal advice

regarding then-unreleased air quality standards, resting on

confidential information from client regarding then-ongoing

development of standards, see EPA2-1076.   See generally Second

Supp. Craig Decl. ¶¶ 5, 11-18, Ex. A.

     Plaintiff also claims that the EPA has not met its burden

to demonstrate that the documents remained confidential.     Opp’n

to Renewed Mot. at 9.   Again, the Court disagrees.    The

declaration and attachment provide the name, job title and

responsibilities of the sender and recipient of each document.

See Second Supp. Craig Decl. ¶¶ 5, 11-18, Ex. A.      The senders

and recipients were limited to EPA attorneys, scientists,

analysts, support staff, or senior executives who were

responsible for developing EPA’s position on the underlying

                                 6
 
                                                               3
environmental issues. Id.                                          These representations satisfy EPA’s

burden to show the documents were limited to people “authorized

to act or speak for the organization in relation to the subject

matter of the communication.”                                        Mead Data, 566 F.2d at 253, n.24.

              Under FOIA, “[i]f a document contains exempt information,

the agency must still release any reasonably segregable portion

after deletion of the nondisclosable portions.”                                        Oglesby v. U.S.

Dep’t of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (internal

quotation marks and citation omitted).                                        Though not specifically

raised by Plaintiff, the Court has “an affirmative duty to

consider the segregability issue sua sponte.”                                        Trans-Pacific

Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028

(D.C. Cir. 1999).                                       The Court is satisfied that EPA has fulfilled

this burden based on Ms. Craig’s most recent Declaration.                                        She

provides the redacted documents as attachments to her

Declaration, and, more importantly, describes the information

that was redacted or withheld in detail.


                                                            
3
  One of the withheld documents involved a communication between
EPA counsel and Counselor for Energy and Climate Change in the
White House. See Second Supp. Craig. Decl., Ex. A, EPA2-4349
(inquiry from White House to EPA attorney seeking legal guidance
related to Endangerment Finding). The Court agrees with EPA --
and plaintiff does not dispute -- that because the White House
official “was seeking advice on a matter within the scope of her
official duties and was authorized to act or speak for the
Federal Government in relation to the subject matter of her
communication with [the EPA attorney], the EPA’s application of
the attorney-client privilege to redact EPA 2-4349 was proper.”
Renewed Mot. at 5-6.
                                                                      7
 
    B. Adequacy of the Search

      In response to a challenge to the adequacy of its search

for requested records, “the agency may meet its burden by

providing ‘a reasonably detailed affidavit, setting forth the

search terms and the type of search performed, and averring that

all files likely to contain responsive materials . . . were

searched.’”    Iturralde v. Comptroller of the Currency, 315 F.3d

311, 313-14 (D.C. Cir. 2003) (citations omitted).      In addition,

“[a]ny factual assertions contained in affidavits and other

attachments in support of motions for summary judgment are

accepted as true unless the nonmoving party submits affidavits

or other documentary evidence contradicting those assertions.”

Wilson v. U.S. Dep’t of Transp., 730 F. Supp. 2d 140, 148

(D.D.C. 2010) (citations omitted).

      In the 2013 Opinion, the Court denied EPA’s motion for

summary judgment as to the adequacy of the search for documents

responsive to the subparts of Plaintiff’s FOIA request that did

not appear to be included in EPA’s three search phases:

A(4)(b),(c), A(5)(a),(b),(c),(d),(e), B(1)(a), D(1)(a),(b),

E(2)(a),(b), and F(1)(a).       Shurtleff, 2013 U.S. Dist. LEXIS

140433, at *16-18 (noting that the Agency provided almost no

details about searches for documents responsive to these

subparts).    Accordingly, the Court directed EPA to conduct new



                                     8
 
searches or prove that its prior searches meet the adequacy

standard.     Id.

     In a previous declaration by Elizabeth Craig, she explained

that EPA held several planning meetings immediately after

receiving plaintiff’s FOIA request “to clarify and interpret the

broad and ambiguous aspects of the 37-part FOIA request,

identify relevant individuals throughout the Agency who may have

responsive documents, and develop instructions for conducting

the search.”       Supplemental Craig Decl. ¶ 17.   During these

planning meetings, it was determined that the Climate Change

Division (“CCD”) was the only office likely to have documents

responsive to the subparts at issue in the Renewed Motion for

Summary Judgment, because these subparts requested records

pertaining to work being performed by CCD on the Endangerment

Finding.     Id.

         In support of its Renewed Motion for Summary Judgment, the

EPA submitted the Second Supplemental Declaration of Elizabeth

Craig.    The Declaration describes the specific steps taken in

response to plaintiff’s requests for the remaining subparts.

EPA determined that it possessed no responsive documents with

respect to several of plaintiff’s requests, or that responsive

documents were publicly available. Second Supp. Craig Decl. ¶¶

20-27.    With respect to other requests, the agency conducted



                                     9
 
searches but found no responsive documents. Id. ¶¶ 28. Finally,

EPA produced records as to other requests.                                            Id. ¶¶ 29-33.

              Plaintiff raises two arguments in response.                                   First, he

argues that EPA’s decision not to conduct searches responsive to

certain requests was inadequate.                                            Opp’n to Renewed Mot. at 4.

Second, he argues that the searches conducted failed to

adequately explain the methodology of the search and were

unreasonably limited to certain offices and individuals.                                              Id.

The Court considers each in turn.

              1) No Search Conducted: Subparts A(4)(b),(c), A(5)(a)-(e),
                B(1)(a), and D(1)

              The EPA argues that it reasonably concluded it possessed no

documents responsive to subparts A4(b),(c) and D(1) of

plaintiff’s request.4                                          Subparts A4(b) and (c) sought information

pertaining to any EPA “investigation” of the scientific

credibility of reports prepared by the Intergovernmental Panel

on Climate Change (“IPCC”).                                          Second Supp. Craig Decl., Ex. B,

FOIA Request at 5.                                        The EPA’s Climate Change Division considered

the request and concluded it had no responsive records because
                                                            
4
  In its Renewed Motion and supporting Declaration, EPA also
explains the basis for its determination that it possessed no
responsive information with respect to subparts A(5)(a)-(e) and
B(1)(a). See Second Supp. Craig Decl. ¶¶ 22-25. Plaintiff
failed to contest these arguments in his response. See Reply in
Support of Renewed Mot. at 5. The Court will therefore treat
any challenges to the adequacy of Defendant’s search as to these
subsections as conceded. See Judicial Watch, Inc. v. U.S. Dep’t
of Hous. And Urban Dev., Case No. 12-1785, 2014 U.S. Dist. LEXIS
25882, at *14 n.5 (D.D.C. Feb. 28, 2014) (citations omitted).
                                                                       10
 
EPA did not conduct an investigation of the scientific

credibility of the reports.     Second Supp. Craig Decl. ¶¶ 20-21.

Subpart D(1)(a) sought raw temperature data developed by the

United Kingdom’s Hadley Centre.     Because the EPA did not create,

possess, or control the raw temperature data, it determined that

it had no records responsive to subpart D(1)(a). Id. ¶¶ 26-27.

        In his opposition, plaintiff argues that the Agency’s

interpretation of 4(b) and (c) was too narrow, and led to “the

self-serving result that no search was even attempted.”        Opp’n

to Renewed Mot. at 5.     Plaintiff does not, however, explain the

basis for his argument, or offer an alternative interpretation

of his request.     He also argues, perplexingly, that EPA’s

“decision to limit the FOIA request to what it created or

currently possesses” was unreasonable with respect to subpart

D(1).     Id.   Again, he does not explain the basis for his

argument or indicate how EPA could produce documents it did not

possess.

        “The adequacy of an agency’s search for responsive records

‘is measured by the reasonableness of the effort in light of the

specific request.’”      McKinley v. FDIC, 807 F. Supp. 2d 1, 4

(D.D.C. 2011) (quoting Larson v. Dep’t of State, 565 F.3d 857,

869 (D.C. Cir. 2009)).      An agency is not required to expend its

limited resources on searches for which it is clear at the

outset that no search will produce the records sought.         Sack v.

                                   11
 
U.S. Dep’t of Def., No. 12-1754, 2013 U.S. Dist. LEXIS 173317,

at *22 (D.D.C. Dec. 9, 2013).    The Court finds that the EPA’s

explanation, derived from multiple planning meetings by EPA and

CCD staff to determine how to respond to Plaintiff’s broad and

complex request, demonstrates that EPA appropriately approached

Plaintiff’s requests, and that searches for documents that it

never had or no longer possessed would be futile.   “Where . . .

the Government’s declarations establish that a search would be

futile . . . the reasonable search required by FOIA may be no

search at all.”    Amnesty Int’l USA v. CIA, No. 07-Civ.-5435,

2008 U.S. Dist. LEXIS 47882, at *34 n.17 (S.D.N.Y. June 19,

2008).

     2) Search Methodology, Offices and Individuals: Subparts
        D(1)(b), E(2)(a),(b), and F(1)(a)

     Ms. Craig’s Second Supplemental Declaration explains that

EPA searched for documents responsive to subparts D(1)(b) and

E(2)(a)-(b).   In subpart D(1)(b), Plaintiff requested documents

showing how raw temperature data developed by the United

Kingdom’s Hadley Centre “were adjusted to create the HadCRUT

data set . . . [including] specific calculations that were made

in adjusting the data.” Second Supp. Craig Decl., Ex. B, FOIA

Request at 10.    In subparts E(2)(a) and (b), Plaintiff requested

documents regarding EPA’s analysis of a study relating to

temperature records (“Easterling and Wehner study”). Id. at 11.


                                 12
 
     During the agency’s multiple planning meetings to determine

how to respond to Plaintiff’s FOIA request, only two individuals

were identified who might possess any responsive records to

D(1)(b), E(2)(a) or E(2)(b): CCD Climate Change Analysts Marcus

Sarofim and James Samenow, the two employees responsible for the

temperature record portions of the Endangerment Finding.       Second

Supp. Craig Decl. ¶¶ 28, 30.   Dr. Sarofim and Mr. Samenow

attended the planning meetings.     Id. ¶ 30.     Upon discussion with

these individuals, it was determined that they had done no work

with the raw Hadley Centre data or made any calculations to

adjust them; they worked only with the fully processed data.

Id. ¶ 28.   Nevertheless, they searched their emails, calendar

files, electronic files in their personal drives and on network

drives, and paper files, using the search term “HadCRUT.”       They

found no responsive records. Id.        With respect to the Easterling

and Wehner study, Sarofim and Samenow searched the same

electronic and paper files using the search terms “Easterling”

and “Wehner” and submitted responsive documents to the

collection database.   Id. ¶ 30.

     Finally, in subpart F(1)(a), Plaintiff requested all

communications between EPA employees and twelve federal experts

who conducted peer review of the Endangerment Finding. Second

Supp. Craig Decl. Ex. B, FOIA Request at 12.       In determining how

to respond to this portion of the request, EPA identified a very

                                   13
 
similar FOIA request submitted just a few months earlier, for

“the entire EPA Peer Review Record . . . detailing the peer

review process conducted in connection with the Endangerment

Finding.”   Second Suppl. Craig Decl. ¶ 32.    In response to that

request, EPA identified thirty one employees who might have

responsive records, and these individuals searched all of their

electronic and paper files for records related to the peer

review process.   Id. ¶ 33.    Accordingly, EPA determined that a

new search would not turn up any additional records and produced

to Plaintiffs the records it had produced in response to the

earlier FOIA request.   Id. ¶ 32.

     Plaintiff claims that EPA’s searches were inadequate for a

variety of reasons:   lack of detail, unexplained methodology,

and failure to search all relevant locations and/or the files of

all relevant individuals.     Opp’n to Renewed Mot. at 5-7.    None

of these claims are persuasive.     Taken together, the Craig

Declarations provide detailed descriptions of the EPA’s search

for documents responsive to subparts D(1)(b), E(2)(a),(b),

F(1)(a), including the methodology used for determining how to

respond to the FOIA request, the manner in which relevant

individuals and offices were identified as possessing responsive

documents and the reasons for such identification, the filing

systems and files searched, and the search terms used.        See,

e.g., Craig Decl. ¶¶ 17, 23-27, 29-30, 32; Supp. Craig Decl. ¶¶

                                  14
 
13-15, 17, 19, Second Supp. Craig Decl. ¶¶ 28-33.          The

Declarations “describe in . . . detail what records were

searched, by whom, and through what process.”          Steinberg v. U.S.

Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994) (citation

omitted).   Moreover, plaintiff does not identify other files,

search terms, documents, offices, or individuals which would

likely possess responsive records to these subparts.           Rather, he

argues that “the EPA offers no evidence for the Court to

conclude that no other departments within EPA possess documents

or information responsive to the FOIA request.”          Opp’n to

Renewed Mot. at 6 (emphasis in original).         Plaintiff

misunderstands the standard for adequacy of a search under FOIA.

As this Circuit has made clear, “[t]he issue is not whether any

further documents might conceivably exist but rather whether the

government’s search for responsive documents was adequate.”

Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (per curiam).5

                                                            
               5
                 The cases on which Plaintiff relies, Defenders of Wildlife
v. U.S. Border Patrol, 623 F. Supp. 2d 83 (D.D.C. 2009) and
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir.
1999), are easily distinguishable. See Opp’n to Renewed Mot. to
Summ. J. 6. In Defenders of Wildlife, the agency declarations
contained no explanation of what methods were used to conduct
the searches, the rationale for searching the selected
locations, or what files were searched. 623 F. Supp. 2d at 91-
92. In Valencia-Lucena, the agency informed the requester that
responsive records were likely located in a different office,
but declined to search that office. 180 F.3d at 327.

 

                                     15
 
Taken together, the detailed, non-conclusory affidavits

submitted by Ms. Craig satisfy this standard of reasonableness.

    IV.   CONCLUSION

    For the foregoing reasons, Defendant’s Renewed Motion for

Summary Judgment will be GRANTED.     A separate order accompanies

this Memorandum Opinion.


SIGNED:     Emmet G. Sullivan
            United States District Judge
            June 13, 2014




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