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Ecological Rights Foundation v. United States Environmental Protection Agency

United States District Court, N.D. California

October 18, 2019





         In June 2019, the United States Environmental Protection Agency (“EPA”) published a rule updating the processes and guidelines by which it would manage Freedom of Information Act (“FOIA”) requests. Organizational plaintiffs Ecological Rights Foundation (“EcoRights”) and Our Children's Earth Foundation (“OCE”) quickly brought this action averring that the new rule violates various provisions of the FOIA and the Administrative Procedure Act (“APA”). Within days, other plaintiffs had also brought litigation challenging the rule under similar statutory provisions in the United States District Court for the District of Columbia (“D.D.C.”). The EPA now requests, pursuant to 28 U.S.C. § 1404(a), that the present case be transferred to D.D.C. Pursuant to Civil Local Rule 7-1(b), the motion is suitable for disposition without oral argument, and the hearing set for November 7, 2019 is vacated. For the reasons set forth below, the motion is granted.


         EcoRights and OCE are both nonprofit environmental groups based in Northern California. They frequently submit FOIA requests to the EPA as part of their advocacy work. Earlier this year, the EPA promulgated a new rule updating how it would manage FOIA requests. See FOIA Regulations Update, 84 Fed. Reg. 30, 028 (June 26, 2019) (codified at 40 C.F.R. § 2) (“the Rule”). The Rule was issued without notice-and-comment procedures by invoking an APA exception. It makes numerous changes to the EPA's processes and guidelines for FOIA requests, including: (1) centralizing all FOIA requests at the EPA's national headquarters, as opposed to its field offices; (2) allowing the Administrator of the EPA, a political appointee, to make final FOIA determinations; (3) setting the day the request is received as the presumptive search cut-off date for all FOIA requests; (4) withholding portions of requested records based on an internal determination that they are nonresponsive; and (5) changing certain regulatory language.

         On July 24, 2019, plaintiffs sued in the Northern District of California averring that the Rule violates various provisions of the APA and the FOIA. Procedurally, plaintiffs argue, the Rule's promulgation without notice-and-comment procedures violates the APA and the FOIA, as the Rule does not fall squarely into either of the notice-and-comment exceptions. Substantively, according to plaintiffs, some of the changes that the Rule makes are unreasonable, arbitrary, capricious, and otherwise not in accordance with law, again violating both the APA and the FOIA.

         The day before plaintiffs filed their lawsuit, organizational plaintiff Citizens for Responsibility and Ethics in Washington filed a similar lawsuit against the EPA in D.D.C. Citizens for Responsibility and Ethics in Washington (“CREW”) v. EPA, No. 19-cv-02181 (D.D.C. filed July 23, 2019). The CREW complaint similarly challenges the Rule by averring violations of the APA's procedural and substantive requirements, i.e. that the Rule should have been promulgated pursuant to notice and comment and is arbitrary, capricious, and contrary to law, and of the FOIA's unlawful policy or practice provision. It highlights many of the same elements of the Rule as does the complaint in this case: the centralization requirement, the Administrator's final FOIA determination power, and the bypass of notice-and-comment procedures. The CREW complaint also takes issue with parts of the Rule that the complaint in this case does not, for example the new power of EPA political appointees to delegate final FOIA determinations.

         Finally, the same day that the present case was filed, plaintiffs Center for Biological Diversity and the Environmental Integrity Project filed yet another lawsuit, also in D.D.C., challenging the Rule. Center for Biological Diversity (“CBD”) v. EPA, No. 19-cv-02198 (D.D.C. filed July 24, 2019). That complaint again stems from the promulgation of the Rule and avers violations of the APA and the FOIA's rulemaking requirements, as well as substantive violations of the APA. It mentions some of the same facts as the CREW complaint and the complaint in the present case-for example the centralization requirement-but also alleges facts that neither of the other complaints do: for example that the EPA has unlawfully bypassed APA and FOIA procedures in issuing other directives besides the Rule.

         Less than two months after the complaint in this case had been filed-before the EPA had answered it-plaintiffs filed a Motion for Summary Judgment. The EPA then filed the present Motion to Transfer this case to D.D.C., or alternatively to stay it while the CREW and CBD proceedings are ongoing. The EPA has expressed an intent to move to consolidate the cases in D.D.C. should the transfer be granted; in fact, parties in CREW and CBD have already filed notices that those cases are related to each other.


         “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). If the action could have been brought in the target district, Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960), courts then weigh a variety of factors including:

(1) where the relevant agreements were negotiated and executed, (2) which state is most familiar with governing law, (3) the plaintiff's choice of forum, (4) the parties' contacts with each forum, (5) the parties' contacts with each forum that are related to the cause of action, (6) the relative costs of litigating in each forum, (7) the availability of compulsory process in each forum, and (8) access to evidence in each forum.

See Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). Consistent with the above, courts in this district have articulated additional factors such as feasibility of consolidation with other claims, local interest in the controversy, and relative court congestion. See Vu v. Ortho-McNeil Pharmaceutical, Inc., 602 F.Supp.2d 1151, 1156 (N.D. Cal. 2009). Whether to transfer is generally left to the discretion of the district court. See Ventress v. Japan Airlines, 486 F.3d 1111, 1118 (9th Cir. 2007); Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979) (“Weighing of the factors for and against transfer involves subtle considerations and is best left to the discretion of the trial judge.”).

         IV. ...

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