Pruitt et al v. United States Environmental Protection Agency

RESPONSE in Opposition re MOTION to Dismiss

W.D. Okla.November 6, 2013

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA STATE OF OKLAHOMA, et al., Plaintiffs v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Defendant. ) ) ) ) ) ) Case No. CIV-13-726-M ) ) ) ) ) PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 1 of 37 i TABLE OF CONTENTS INTRODUCTION ................................................................................................................. 1 BACKGROUND ................................................................................................................... 3 LEGAL STANDARD GOVERNING MOTIONS TO DISMISS ........................................ 8 LEGAL STANDARD GOVERNING REVIEW OF FOIA DENIALS ............................... 9 ARGUMENT......................................................................................................................... 10 I. The Motion To Dismiss Must Be Denied Because EPA Fails To Show That Plaintiffs’ FOIA Request Does Not Reasonably Describe The Records Requested . 10 A. FOIA Employs A Liberal Standard For Identifying Records .............................. 10 B. Plaintiffs’ FOIA Request Satisfies 5 U.S.C. §552(a)(3)(A) and EPA’s FOIA Regulations ................................................................................................................. 13 1. Plaintiffs have identified the records requested with sufficient precision and EPA is required to conduct a search for those records because it has failed to show that such a search would be burdensome ................................................................... 14 2. Plaintiffs’ request that EPA conduct its search over the course of a specified four-year time frame is not overbroad or burdensome............................................... 18 3. Plaintiffs’ request that EPA include in its search “Other Organizations” does not render Plaintiffs’ FOIA Request overbroad or burdensome ...................................... 18 4. Plaintiffs’ request that EPA search several EPA offices does not render Plaintiffs’ FOIA Request overbroad or burdensome.................................................. 20 II. The Court Must Deny The Motion To Dismiss Because EPA Fails To Show That Plaintiffs Failed To Perfect Their FOIA Request .............................................. 23 III. EPA Effectively Denied Plaintiffs’ Appeal Of The Agency’s Denial Of The Fee Waiver And Therefore The Matter Is Properly Before This Court ..................... 24 CONCLUSION ..................................................................................................................... 25 Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 2 of 37 ii TABLE OF AUTHORITIES Cases Am. Corn Growers Ass’n v. EPA, 291 F.3d 1 (D.C. Cir. 2002) ............................................ 5, 11 Am. Fed’n of Gov’t Employees, Local 2782 v. U.S. Dep’t of Commerce, 907 F.2d 203 (D.C. Cir. 1990) ..................................................................................................................... 22 Anderson v. Dep’t of Health & Human Serv’s, 907 F.2d 936 (10th Cir. 1990).................... 11 Ashcroft v. Iqbal, 556 U.S. 662 (2009).................................................................................. passim Assassination Archives & Research Ctr, Inc. v. C.I.A., 720 F. Supp. 217 (D.D.C. 1989) ........................................................................................................................ 15, 16 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).................................................................. 8 Bowden v. United States, 106 F.3d 433 (D.C. Cir.1997) ...................................................... 9, 23 Dale v. I.R.S., 238 F. Supp. 2d 99 (D.D.C. 2002) ................................................................. passim Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989)............... 10 EPA v. Mink, 410 U.S. 73 (1973) .......................................................................................... 11 Fonda v. C.I.A., 434 F. Supp. 498 (D.D.C. 1977) ................................................................. 17 Freedom Watch, Inc. v. Dep't of State, 925 F. Supp. 2d 55 (D.D.C. 2013) .......................... 16, 17, 24 Gaunce v. Burnett, 849 F.2d 1475 (9th Cir. 1988) ................................................................ 17 Gen. Motors Corp. v. United States, 496 U.S. 530 (1990).................................................... 4 Hainey v. U.S. Dep't of the Interior, 925 F. Supp. 2d 34 (D.D.C. 2013) .............................. 18, 20 Irons v. Schuyler, 465 F.2d 608 (D.C. Cir. 1972) ................................................................. 17 John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989).................................................. 9, 11 Jones v. F.B.I., 41 F.3d 238 (6th Cir.1994) ........................................................................... 9 Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210 (10th Cir. 2011)............................... 8 Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 3 of 37 iii Cases Khalik v. United Airlines, 671 F.3d 1188 (10th Cir. 2012) ................................................... 9 Knight v. Food & Drug Admin., 938 F. Supp. 710 (D. Kan. 1996) ...................................... 9, 11 Marks, Mason v. Callaway, 554 F.2d 129 (4th Cir. 1977).................................................... 17 Marks v. United States, 578 F.2d 261 (9th Cir.1978) ........................................................... 12 Massachusetts v. U.S. Dep’t of Health and Human Servs., 727 F.Supp. 35 (D.Mass. 1989) ...................................................................................................................... 14, 15 Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004)....................................... 10 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) ................................................. 10 National Parks Conservation Assn. v. Jackson, No. 1:11-cv-1548 (D.D.C.) ...................... 3 Ramstack v. Dep't of Army, 607 F. Supp. 2d 94 (D.D.C. 2009)............................................ 9, 10, 23 Tax Analysts v. IRS, 117 F.3d 607 (D.C.Cir.1997) ............................................................... 12 Truitt v. Dep't of State, 897 F.2d 540 (D.C. Cir. 1990) ......................................................... 11, 12 Voinche v. U.S. Dep't of Air Force, 983 F.2d 667 (5th Cir. 1993)........................................ 24 Weinberger v. Salfi, 422 U.S. 749 (1975) ............................................................................. 10 WildEarth Guardians v. Jackson, No. 4:09-cv-02453 (N.D. Cal.) ....................................... 3 WildEarth Guardians v. Jackson, No. 1:11-cv-0001-CMA-MEH (D. Colo.) ................... 3 WildEarth Guardians v. Jackson, 1:10-cv-01218-REB -BNB (D. Colo.) ........................... 3 Statutes 5 U.S.C. § 552 ....................................................................................................................... 1 5 U.S.C. § 552(a)(3)(A)......................................................................................................... 2, 13, 14 5 U.S.C. § 552(a)(3)(A)(i)-(ii)............................................................................................... 11 Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 4 of 37 iv Statutes 5 U.S.C. § 552(a)(4)(A)(iii)................................................................................................... 8 5 U.S.C. § 552(a)(4)(A)(vii) .................................................................................................. 25 5 U.S.C. § 552(a)(4)(B) ......................................................................................................... 9 5 U.S.C. § 552(b)(2) .............................................................................................................. 15 42 U.S.C. § 7401(a)(3) .......................................................................................................... 4 42 U.S.C. § 7407(a) ............................................................................................................... 4 42 U.S.C. § 7491 ................................................................................................................... 5 42 U.S.C. § 7491(a) ............................................................................................................... 4 42 U.S.C. § 7491(b)(2) .......................................................................................................... 5 42 U.S.C. § 7604(a)(2) .......................................................................................................... 7, 19, 22 CAA § 162(a) ........................................................................................................................ 4 CAA § 169A.......................................................................................................................... passim CAA § 169A(g)(5)................................................................................................................. 4 Regulations 26 C.F.R. § 601.702(c)(7)...................................................................................................... 17 40 C.F.R. § 2.102(c) .............................................................................................................. 2, 12, 24 40 C.F.R. § 51.308(d)(1)(i)(B) .............................................................................................. 5 Rules Fed.R.Civ.P. 8(a)(2) .............................................................................................................. 1 Fed.R.Civ.P. 12(b)(6) ............................................................................................................ 1 Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 5 of 37 v Legislative History S. Rep. No. 93-854, 93d Cong., 2d Sess. (1974)................................................................... 12 Other Sources U.S. Senate Environment and Public Works Committee Minority Report EPA’s FOIA and Federal Records Failures Uncovered, Sept. 9, 2013....................................................... 2 Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 6 of 37 1 INTRODUCTION This is an action, by the Attorneys General of twelve states, under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as amended. Plaintiffs’ complaint seeks the disclosure and release of records held by the U.S. Environmental Protection Agency (“EPA” or the “Agency”) concerning EPA’s discussions, negotiations, and legal settlements with seventeen identified non-governmental organizations regarding EPA’s actions involving state Regional Haze State Implementation Plans (“SIPs”) under the federal Clean Air Act (“CAA”). The complaint sets forth that, after making a proper FOIA request, EPA improperly denied Plaintiffs’ request and refused to make the requested records available. The complaint provides the Court with detailed factual allegations from which the Court can assess whether, if the allegations are proven, EPA has improperly denied Plaintiffs’ FOIA request. Plaintiffs’ complaint sets forth detailed, clearly pled, and separately enumerated claims for relief. Defendant has moved for dismissal of Plaintiffs’ complaint under Fed.R.Civ.P. 12(b)(6), claiming that Plaintiffs have not met the requirements of Fed.R.Civ.P.8(a)(2) that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Relying on Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009), Defendant seeks dismissal, claiming that the complaint purportedly does not state a claim upon which this Court may grant relief. Defendant claims that Plaintiffs’ FOIA request does not “reasonably describe” the records sought, and therefore does not constitute a “valid FOIA request” received by EPA. Further, without identifying how many records there may be that are germane to the request or Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 7 of 37 2 where the records are located, Defendant asserts that Plaintiffs’ FOIA request was “impermissibly overbroad” and would presumably entail the review of a vast quantity of material and therefore be a “burden” to the Agency. Defendant’s arguments have no merit. The Supreme Court’s decision in Iqbal requires that a complaint must state sufficient factual detail to allow the Court to assess the plausibility of the allegations set forth. FOIA itself requires that the records requested be “reasonably describe[d],” (5 U.S.C. § 552(a)(3)(A)), and EPA’s FOIA regulations ask only that a request should “whenever possible,…include the date, title or name, author, recipient, and subject matter,” of the records requested. (emphasis added) 40 C.F.R. § 2.102(c). As detailed in the complaint, Plaintiffs’ FOIA request identifies the dates of the records sought; the EPA offices where the records were sent or received; the seventeen non-governmental organizations that would have sent communications concerning the subject to these EPA offices; and the subject matter of the records sought. Plaintiffs’ FOIA request clearly meets the “reasonably describe[d]” FOIA requirement and EPA’s FOIA regulation and is therefore not overbroad. As set forth below, Defendant has proffered no evidence to support any claim that Plaintiffs’ FOIA request is “overbroad.” Rather, EPA has elected to simply apply its standard protocol of improperly “impos[ing] procedural and financial hurdles,”1 1 See U.S. Senate Environment and Public Works Committee Minority Report EPA’s FOIA and Federal Records Failures Uncovered, Sept. 9, 2013. http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=513 a8b4f-abd7-40ef-a43b-dec0081b5a62 Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 8 of 37 3 including denying valid FOIA requests as “overbroad,” because the Agency would apparently prefer not to have to comply with FOIA. See Compl. Ex. 7 at 6. Congress and the Courts, however, have been clear that agencies cannot use FOIA’s identification standard as a means to obstruct the public’s access to records. Unfortunately, this is precisely what EPA is doing in this case. The Court should therefore deny Defendant’s Motion to Dismiss. BACKGROUND On February 6, 2013, the States of Oklahoma, Alabama, Arizona, Georgia, Kansas, Michigan, Nebraska, North Dakota, South Carolina, Texas, Utah, and Wyoming (Plaintiffs herein) submitted to EPA a FOIA request for records concerning EPA’s negotiations with seventeen specific non-governmental organizations that have led to binding consent decrees that dictate how and when EPA must proceed concerning various States’ Regional Haze SIPs.2 (the “FOIA Request”). See Compl. Ex. 1. Oklahoma and the other States seek this information out of substantial concern with EPA’s practice of settling with non-governmental entities on environmental regulatory enforcement issues that directly affect the States. Because the States are not parties to these cases and 2 Notably, EPA’s final action on each of the Plaintiff States’ Regional Haze SIPs was the subject of a lawsuit brought by a nongovernmental organization against EPA, to which the States were not parties. See WildEarth Guardians v. Jackson, No. 4:09-cv-02453 (N.D. Cal.); WildEarth Guardians v. Jackson, No. 1:11-cv-0001-CMA-MEH (D. Colo.); National Parks Conservation Assn. v. Jackson, No. 1:11-cv-1548 (D.D.C.); and WildEarth Guardians v. Jackson, 1:10-cv-01218-REB -BNB (D. Colo.). In each of these cases, EPA entered into binding consent decrees that (1) govern how and when EPA will act on the States’ Regional Haze SIPs and (2) may only be altered by EPA or the nongovernmental organization that brought the suit. Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 9 of 37 4 therefore not parties to the settlements, the States have no ability to meaningfully participate in crafting these legally binding agreements, most of which ultimately require the States to enforce significant regulatory matters in a certain way. This directly results in minimizing the substantive role of the States in many energy, land use, and environmental regulatory programs in a manner that is contrary to the cooperative federalism structure set forth in federal law and the United States Constitution. Specific to the scope of Plaintiff’s FOIA Request, the CAA establishes “a comprehensive national program that makes the States and the Federal Government partners in the struggle against air pollution.” Gen. Motors Corp. v. United States, 496 U.S. 530, 532 (1990). While based on a cooperative-federalism approach, the CAA recognizes that “air pollution prevention . . . and air pollution control at its source is the primary responsibility of States and local governments.” 42 U.S.C. § 7401(a)(3) (emphasis added); see also id. § 7407(a) (“Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State . . . .”). The Visibility Program, CAA § 169A, (commonly also referred to as the Regional Haze program and which is the subject of the records sought by Plaintiffs in their FOIA Request), specifically sets forth the natural visibility goal for the “prevent[ing] of any future, and the remedying of any existing, impairment of visibility in mandatory class I Federal areas, which impairment results from manmade air pollution.” 3 3 The term “mandatory class I Federal areas” is defined as “Federal areas which may not be designated as other than class I.” CAA § 169A(g)(5). “Class I” areas include international parks and national wilderness areas. See CAA§ 162(a). Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 10 of 37 5 42 U.S.C. § 7491 (a). The Visibility Program vests the States with the authority to develop and implement SIPs. See 42 U.S.C. § 7491; accord Am. Corn Growers Ass’n v. EPA, 291 F.3d 1, 7-8 (D.C. Cir. 2002) (“We agree … [that] the Act's provisions giv[e] the states broad authority over” making Regional Haze SIP determinations.) EPA, for its part, is tasked with issuing regulations that direct States to submit SIPs containing “such emission limits, schedules of compliance and other measures as may be necessary” towards implementation of the program to make reasonable progress toward meeting” the national visibility goal.4 42 U.S.C. § 7491(b)(2). Because of the clear authority vested in the States to develop and implement their Regional Haze SIPs, the Plaintiff States are concerned with EPA’s disregard of the States authority and repeated practice of entering into binding consent decrees with parties other than the States that dictate how and when the Agency is to take action on a State’s Regional Haze SIP.1 It was this concern that caused the States to serve EPA with a FOIA request seeking records concerning EPA’s settlements with nongovernmental organizations. On August 10, 2012, Plaintiff States and South Dakota submitted to EPA a FOIA request, (“First FOIA Request”) seeking records concerning “the scope and application of the EPA Administrator’s non-discretionary duty to take certain actions under the [CAA] …., the Clean Water Act …., or the Resource Conservation and Recovery Act…” related to the requesting State SIPs under the CAA or administration of any provision of 4 In its regulations, EPA established that the national goal of achieving natural visibility conditions be attained by the year 2064. 40 C.F.R. §51.308(d)(1)(i)(B). Notably, these are the first of many SIPs that States will submit over the course of the 50-year program. Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 11 of 37 6 these federal environmental programs. See Ex. A to P. Clayton Eubanks, Assistant Attorney General of the State of Oklahoma Affidavit (“Affidavit”). In the First FOIA Request, the States asked EPA to search for records regarding this subject from eighty identified interested organizations. See Id. at ¶3. The States also clearly identified in the First FOIA Request that the records requested would be used to educate the public concerning EPA’s practice of settling with nongovernmental organizations, including the preparation of a report that would be made available for free on the Internet and in the States’ federal depository libraries. See Id. at ¶4. Despite the clearly stated intent of the States to use the records requested from EPA for public purposes, by letter dated August 21, 2012, EPA denied the States’ fee waiver request. See Ex. B to Affidavit. The States timely appealed EPA’s denial of its fee waiver request. See Ex. C to Affidavit. However, EPA never considered the States’ appeal of the denial of the fee waiver request, because by letter dated September 14, 2012, EPA claimed that the First FOIA Request was too broad and therefore the request failed to describe adequately the records sought. See Ex. D to Affidavit. In its letter rejecting the First FOIA Request, EPA directed the States to contact EPA within 30 calendar days of October 1, 2012 “to discuss and modify [the] request to meet the requirements of the regulations.”5 See Ex. D at p.2 to Affidavit. On October 26, 2012, P. Clayton Eubanks, Assistant Attorney General of the State of Oklahoma, sent to EPA an email requesting time to discuss a modification to the 5 EPA’s September 14 letter to Oklahoma was sent to an incorrect address. See Ex. D to Affidavit. On October 1, 2012, EPA mailed to Oklahoma at the correct address the September 14 letter. Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 12 of 37 7 description of records requested in the FOIA Request. See Ex. E to Affidavit. A second email was sent to EPA on October 30, 2012 by Mr. Eubanks after EPA failed to respond to the October 26 email. See Ex. F to Affidavit. And after several phone calls to EPA by Mr. Eubanks, the Agency contacted Mr. Eubanks and discussed with him how the FOIA request should be revised so that it would satisfy EPA’s criteria. Based upon EPA’s guidance to Mr. Eubanks, the States submitted the revised FOIA Request seeking records from only 17 - not 80 - identified Interested Organizations and concerning only one Clean Air Act program, the Visibility Program. See Compl. Ex. 1. The February 6, 2013 FOIA Request seeks records concerning only the Visibility Program and EPA’s penchant for entering into legal settlements with non-governmental organizations regarding implementation of the program. Specifically, the FOIA Request seeks records concerning: i. the scope and application of the EPA Administrator’s non- discretionary duty to take certain actions under the Clean Air Act (“CAA”), 42 U.S.C. § 7604(a)(2); ii. the course of action to take with respect to any Regional Haze State Implementation Plan (“SIP”) required to be submitted to the U.S. Environmental Protection Agency (“EPA”) pursuant to CAA § 169A for any State; iii. the course of action to be taken with respect to any administrative or judicial order, decree or waiver entered, or proposed to be entered concerning any Regional Haze SIP (the “Subject”). (the “Subject Matter”). Compl. Ex. 1 at p. 1-2. Further, the FOIA Request specifically identifies the dates of the records requested - January 1, 2009 through February 6, 2013; the EPA offices and seventeen specific Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 13 of 37 8 organizations that would have been in receipt of or authored the records requested; and a fee waiver request. See Compl. Ex. 1 to the Complaint. Since the records requested in the FOIA Request will be used by the States to educate the public on EPA’s practice of adopting national environmental policy through the settlement of lawsuits brought by nongovernmental organizations and without consultation with their State partners, the States sought a fee waiver from EPA pursuant to 5 U.S.C. § 552(a)(4)(A)(iii). See Compl. Ex. 1 at 5. Just as EPA denied the fee waiver request contained in the First FOIA Request, EPA denied the States’ February 6, 2013 fee waiver request. See Complaint at ¶22. The States timely filed with EPA an appeal of the Agency’s denial of the fee waiver request. See id. at ¶23. On May 31, 2013 EPA rejected the States’ FOIA Request on the premise that it “fails to adequately describe the records sought,” despite the States’ efforts to work with EPA to revise the subject of the records requested. See Complaint at ¶25. LEGAL STANDARD GOVERNING MOTIONS TO DISMISS “[T]o withstand a motion to dismiss, a complaint must have enough allegations of fact, taken as true, ‘to state a claim to relief that is plausible on its face.’” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The two elements that form the basis of this standard are: (1) a plaintiff must provide “specific factual allegations to support each claim”, Twombly, 550 U.S. at 555; and (2) only a complaint that “states a plausible claim for relief survives a motion to dismiss,” Iqbal, 556 U.S. at 679. The factual allegations offered must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 14 of 37 9 555. And to “[d]etermine whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. However, “[u]nder Rule 8, specific facts are not necessary; the statement need only give the defendant fair notice of what the claim is and the grounds upon which it rests.” Khalik v. United Airlines, 671 F.3d 1188, 1191 (10th Cir. 2012). LEGAL STANDARD GOVERNING REVIEW OF FOIA DENIALS “A district court reviews de novo an agency’s decision on an FOIA request.” Jones v. F.B.I., 41 F.3d 238, 242 (6th Cir.1994) (citing 5 U.S.C. § 552(a)(4)(B)). FOIA specifically provides that “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989), Knight v. Food & Drug Admin., 938 F. Supp. 710, 715 (D. Kan. 1996). The alleged failure of a FOIA requester to exhaust its administrative remedies is considered an affirmative defense and “the defendant bears the burden of pleading and proving it.” Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir.1997). If the defendant meets this burden, then the plaintiff “bears the burden of pleading and proving facts supporting equitable avoidance of the defense.” Ramstack v. Dep't of Army, 607 F. Supp. 2d 94, 104 (D.D.C. 2009). Further, under FOIA, a plaintiff’s failure to exhaust its administrative remedies is “a prudential consideration, not a jurisdictional prerequisite, and therefore a plaintiff’s Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 15 of 37 10 failure to exhaust does not deprive the court of subject-matter jurisdiction.” Ramstack, 607 F. Supp. 2d at 101. Though as a prudential consideration, a failure to exhaust administrative remedies under FOIA may in limited circumstances prevent judicial review. Denying judicial review may be appropriate only if it would “ ‘prevent[ ] premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.’ ” Id. at 102 (quoting Weinberger v. Salfi, 422 U.S. 749, 765 (1975)). ARGUMENT I. The Motion To Dismiss Must Be Denied Because EPA Fails To Show That Plaintiffs’ FOIA Request Does Not Reasonably Describe The Records Requested. A. FOIA Employs A Liberal Standard For Identifying Records. FOIA is “a means for citizens to know ‘what their Government is up to.’ This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72, (2004) (quoting Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989)). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 16 of 37 11 The Supreme Court has “repeatedly … stressed the fundamental principle of public access to Government documents that animates the FOIA. ‘Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands.’” John Doe, 493 U.S. at 151-52 (quoting EPA v. Mink, 410 U.S. 73, 80 (1973)). “FOIA is designed to ‘pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.’” Knight, 938 F. Supp. at 715 (quoting Anderson v. Dep’t of Health & Human Serv’s, 907 F.2d 936, 941 (10th Cir. 1990) (internal quotation marks omitted). The policy Congress established with FOIA is particularly meaningful when Congress also specifically acted to give the States a primary decision and implementation role under the CAA’s Visibility Program. See Am. Corn Growers, 291 F.3d 7-8. To open a federal agency’s records to the light of day, a FOIA request “must (i) reasonably describe such records and (ii) be made in accordance with published rules.” 5 U.S.C. § 552(a)(3)(A)(i)-(ii). Congress added the term “reasonably describe in 1974. Prior to the 1974 amendment, FOIA required requesters to make “request[s] for identifiable records.” See, e.g., Truitt v. Dep't of State, 897 F.2d 540, 544 (D.C. Cir. 1990). Congress replaced the term “identifiable records” with “reasonably describe[d]” records because federal agencies were using “the identification requirements as an excuse for withholding documents.” Id. The Senate Report accompanying the FOIA amendments “emphasized that ‘[w]hile the committee does not intend by this change to authorize broad categorical requests where it is impossible for the agency reasonably to determine Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 17 of 37 12 what is sought, ... it nonetheless believes that the identification standard in the FOIA should not be used to obstruct public access to agency records.’” Id. at 545 (quoting S. Rep. No. 93-854 at 10, 93d Cong., 2d Sess. (1974)) (emphasis added). The Senate Report makes abundantly clear that the use of the term ‘reasonably describe’ “makes explicit the liberal standard for identification that Congress intended and that courts have adopted, and should thus create no new problems of interpretation.” S. Rep. No. 93-854 at 10 (emphasis added). Since the 1974 FOIA Amendments, courts have reaffirmed the liberal standard for records identification that agencies must employ. “When … an agency becomes reasonably clear as to the materials desired, FOIA’s text and legislative history make plain the agency’s obligation to bring them forth.” Truitt, 897 F.2d at 544. Thus, when determining whether a request reasonably describes the records sought, “[t]he linchpin inquiry is whether ‘the agency is able to determine precisely what records are being requested.’ ” Dale v. I.R.S., 238 F. Supp. 2d 99, 104 (D.D.C. 2002) (quoting Tax Analysts v. IRS, 117 F.3d 607, 610 (D.C.Cir.1997)). So long as the description is sufficient to allow an employee of the agency who is familiar with the subject area to “locate the record with a reasonable amount of effort,” the FOIA request will be found to have met the “reasonably described” standard. Id. (quoting Marks v. United States, 578 F.2d 261, 263 (9th Cir.1978)). EPA’s FOIA regulations provide additional criteria that a requester should, if it is possible, tailor a FOIA request to include. Specifically, EPA requires that “whenever possible [a] request should include the date, title or name, author, recipient, and subject matter,” of the records requested. 40 C.F.R. § 2.102(c) (emphasis added). Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 18 of 37 13 B. Plaintiffs’ FOIA Request Satisfies 5 U.S.C. §552(a)(3)(A) and EPA’s FOIA Regulations. On its face, the FOIA Request satisfies FOIA’s reasonably described standard and EPA’s FOIA Regulations. The FOIA Request specifically defines the Subject Matter of the records Plaintiffs seek. The Subject Matter is limited to the narrow issue of EPA entering into binding consent decrees with nongovernmental organizations concerning the EPA Administrator’s duties under CAA § 169A. See Compl. Ex. 1 at 1-2. Plaintiffs identified the specific CAA provisions that govern the Administrator’s duties. See id. Plaintiffs’ FOIA Request specifies the time frame for the records Plaintiffs seek--January 1, 2009-February 6, 2013. Id. at 1. Further, Plaintiffs’ FOIA Request identifies the specific EPA offices and officials to that would have authored or received the records, as well as the “Interested Organizations6” that EPA communicated with. See id. at 1-2. In response, Defendant asserts a boiler plate objection (consistent with EPA’s apparent internal policy, see Compl. Ex. 7 at 6) that the request does “not reasonably describe the requested records, and fails to comply with applicable agency regulations.” Motion at 7; see also Motion at 11. Sidestepping the specificity contained in Plaintiffs’ FOIA Request, Defendant instead focuses on: (1) Plaintiffs used the phrases “any and all documents” that “discuss or in any way relates” to the subject matter; and (2) that 6As defined in the FOIA Request, the “Interested Organizations” are: National Parks Conservation Association, Montana Environmental Information Center, Grand Canyon Trust, Dine Citizens Against Ruining Our Environment, Dakota Resource Council, Dacotah Chapter of Sierra Club, San Juan Citizens Alliance, Our Children's Earth Foundation, Plains Justice, Powder River Basin Resource Council, Sierra Club, Environmental Defense Fund, WildEarth Guardians, Natural Resources Defense Council, and Western Resource Advocates. See Compl. Ex. 1 at 2. Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 19 of 37 14 Plaintiffs asked EPA not to limit to its response to the FOIA Request to just those seventeen defined Interested Organizations, but to include “Other Organizations” that also communicated with EPA on the clearly defined Subject Matter. Motion at 11-12. Defendant never alleges that Plaintiffs’ description of the Subject Matter requested in the FOIA Request is not reasonably described, only that the use of phrases which seek EPA to conduct a comprehensive search of its records must mean that “Plaintiffs have not identified the documents requested with sufficient precision.” Motion at 11. As set forth below, it is evident that Defendant is simply perpetuating EPA’s standard protocol to deny FOIA requests as overbroad without ever actually considering what the requests seek, because Plaintiffs’ FOIA Request clearly satisfies 5 U.S.C. §552(a)(3)(A) and EPA’s FOIA regulations. See Compl. Ex. 7 at 6. 1. Plaintiffs have identified the records requested with sufficient precision and EPA is required to conduct a search for those records because it has failed to show that such a search would be burdensome. Defendant asserts that the use of the phrases “any and all documents” that “discuss or in any way relates” amounts to a “broad, sweeping” request that lacks specificity and cannot be fulfilled. Motion at 13. In support of this strained argument, Defendant cites to a litany of cases. However, when closely reviewed, none of those cases contains facts that bear any resemblance to the facts in this case and therefore should not be afforded any weight by this Court. For instance, Defendant cites to Massachusetts v. U.S. Dep’t of Health and Human Servs., 727 F.Supp. 35 (D.Mass. 1989) in which the Court was asked to determine whether the U.S. Department of Health and Human Services properly withheld the Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 20 of 37 15 release of five confidential records pursuant to FOIA exemption 552(b)(2). 727 F.Supp. at 36. The question of whether the Plaintiff’s FOIA request in that case was overbroad was not at issue. However, in a footnote in its opinion, the Court states that “[a] request for all documents ‘relating to’ a subject is usually subject to criticism as overbroad.” Id. at 36 n.2 (emphasis added). In that footnote, the Court cites to no cases or statutes that support (or explain why) use of the phrase “relating to” in a FOIA request can render the request overbroad. See id. The Court only noted that the use of such a phrase in a FOIA request may leave the request open to criticism for over-breadth. In Plaintiffs’ FOIA Request, the use of the phrases “any and all documents” and “that discuss or in any way relates to” were clearly tied to the Subject Matter and involved seventeen specific organizations over the course of a specific four year period of time. Plaintiffs’ FOIA Request was specific and the use of the phrases “any and all documents” and “that discuss or in any way relates to” were included in a specific context merely to emphasize the desire that a thorough review of EPA’s records be completed. Further, Defendant cites to Assassination Archives & Research Ctr, Inc. v. C.I.A., 720 F. Supp. 217 (D.D.C. 1989), to claim wrongly that Plaintiffs’ FOIA Request was not framed with sufficient particularity to enable EPA to conduct a search of its records. Motion at 13. One issue in Assassination Archives was whether the Court should order the Central Intelligence Agency (“CIA”) to conduct additional searches of its records after the plaintiff alleged that the CIA had not conducted a “proper search” because it did not produce records that plaintiff assumed existed. 720 F. Supp. at 219. In denying the Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 21 of 37 16 FOIA request that the CIA conduct additional searches of its records, the Court noted “that it is the requester’s responsibility to frame requests with sufficient particularity to ensure that searches are not unreasonably burdensome, and to enable the searching agency to determine precisely what records are being requested.” Id. Unlike Assassination Archives, EPA has yet to offer any evidence as to why it cannot conduct a search of its records for the clearly defined Subject Matter identified by Plaintiffs, protesting only that even to conduct a search for Plaintiffs’ records would be burdensome. Motion at 16. Defendant never explains why the narrowly defined Subject Matter and the additional criterion provided by Plaintiffs of specific dates and seventeen named nongovernmental organizations is not specific enough to permit EPA to search its records. As set forth in Freedom Watch, Inc. v. Dep't of State, 925 F. Supp. 2d 55, 61 (D.D.C. 2013), a FOIA request must at least “identify the documents sought with [a] modicum of specificity” to avoid a “fatally overbroad and burdensome” request. Plaintiffs have clearly exceeded the “modicum of specificity” standard noted in Freedom Watch. The FOIA Request identifies the specific CAA program at issue and specifies State Regional Haze SIPs related thereto, provides citations to the statutory section of the CAA involved, and identifies the seventeen specific nongovernmental organizations involved. Plaintiffs’ Request is not abroad and unbounded fishing expedition such as Freedom Watch’s request seeking “just about everything … regarding, among other things, Iran, China, Venezuela, Russia, sanctions, waivers, and communications between Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 22 of 37 17 the Secretary of State, the Secretary of the Treasury, and the President.” Freedom Watch, 925 F. Supp. 2d at 61. Nor is Plaintiffs’ FOIA Request similar to the litany of FOIA cases in which the FOIA requester made “broad, sweeping” requests that failed to provide the agency the ability to identify the records requested. For instance, in Dale, a taxpayer sought from the Internal Revenue Service (“IRS”) all records that the agency had concerning the taxpayer. Dale, 238 F. Supp. 2d at 101. In his request, the taxpayer failed to include specific pieces of information that the IRS FOIA regulations require, such as the subject matter, location of the records, and years at issue. See 26 C.F.R. § 601.702(c)(7); see also Dale, 238 F. Supp. 2d at 101, 104. Because of the taxpayer’s failure to provide this basic information required by the IRS’s regulation, the IRS rejected the taxpayer’s initial FOIA request and the Court concurred that the request was overbroad on its face. Similarly, in Fonda v. C.I.A., 434 F. Supp. 498, 501 (D.D.C. 1977), a request for all records that the CIA possessed concerning the requester was overbroad because there were no criterion which the CIA could apply to determine whether a record concerned the requester. In the FOIA Request at issue here, Plaintiffs provided EPA with three criterion: the name of seventeen organizations to search, the subject matter of the communications, and a specific time frame to limit the search to. Similar to the scope of the FOIA request made in Fonda, the plaintiffs in Marks, Mason v. Callaway, 554 F.2d 129 (4th Cir. 1977), Gaunce v. Burnett, 849 F.2d 1475 (9th Cir. 1988), and Irons v. Schuyler, 465 F.2d 608 (D.C. Cir. 1972), all made FOIA requests that effectively asked for every piece of paper concerning either themselves or a broad Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 23 of 37 18 subject without any criterion to narrow the search. Contrary to these cases, the scope of Plaintiffs’ FOIA Request is reasonably specific and narrow and there is no evidence provided by Defendant as to why EPA is unable to search for and identify the records requested. 2. Plaintiffs’ request that EPA conduct its search over the course of a specified four-year time frame is not overbroad or burdensome. Defendant’s assertion that conducting a search for Plaintiffs’ requested records for the period of January 1, 2009 through February 6, 2013 is unreasonably burdensome is without merit. Defendant wrongly relies on Hainey v. U.S. Dep't of the Interior, 925 F. Supp. 2d 34, 38-39 (D.D.C. 2013), to argue that searching for four years’ worth of records is burdensome. Motion at 14. In Hainey the Department of Interior determined that to conduct a search of emails over a two-year period that belonged to a twenty-five employee task force concerning a broad subject would be burdensome. 925 F. Supp. 2d at 38. In its efforts to respond to plaintiff’s FOIA request, the Department of Interior proposed narrowing the scope of the subject matter searched. Id. at 39. By narrowing the scope, the Department of Interior could conduct a search of all twenty-five employees’ emails over the course of the two-year period. Id. at 39. The issue in Hainey was not the period of time that the FOIA request covered but the scope of the request. Because Plaintiffs’ identified a narrow Subject Matter, conducting a search of that Subject Matter over a four year period should not be unduly burdensome and EPA has offered no evidence to the contrary. 3. Plaintiffs’ request that EPA include in its search “Other Organizations” does not render Plaintiffs’ FOIA Request overbroad or burdensome. Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 24 of 37 19 Defendant asserts that, because Plaintiffs’ FOIA Request asks that EPA include “Other Organizations” in its search for the Subject Matter, such a request renders the entire FOIA Request overbroad. Motion at 16. Plaintiffs’ FOIA Request identified seventeen specific non-governmental environmental organizations that have communicated with EPA regarding the Subject Matter. See Compl. Ex. 1 at 2. Plaintiffs also ask that EPA not exclude from its search Other Organizations who Plaintiffs defined as “environmental or natural resource advocacy and policy” groups. See id. at 1. Defendant asserts that asking EPA to include “Other Organizations” in its records search “would require EPA to determine the mission of an unknown number of organizations who have communicated with EPA regarding the CAA.” Motion at 16. Defendant’s claims are inaccurate and grossly mischaracterize the nature and scope of Plaintiffs’ FOIA Request. First, Plaintiffs’ FOIA Request pertains to a very narrow Subject Matter - judicial orders regarding the EPA Administrator’s duties to take certain actions under 42 U.S.C. § 7604(a)(2) related to the requesting States’ SIPs under the CAA § 169A Visibility Program. Defendant’s assertion that it would have to consider all communications “regarding the CAA” is utterly false - only one specifically identified CAA program is at issue in the Subject Matter of Plaintiffs’ FOIA Request. Second, the records requested pertaining to the Visibility Program are only in the context of the Administrator’s non- discretionary duty to take certain actions required under the Visibility Program and the legally binding settlements with these non-governmental organizations that EPA has entered into. As such, the scope of the search is reasonably and narrowly defined and Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 25 of 37 20 presumably the number of non-governmental organizations that have corresponded with EPA on this narrow subject is small. However, assuming that EPA could demonstrate with some credible evidence that including in its search records that include Other Organizations is burdensome, nothing prohibited EPA from working with Plaintiffs to narrow the scope of the search to just the seventeen identified Interested Organizations. As the Department of Interior did in Hainey, an agency always has discretion to work cooperatively with a FOIA requester to identify ways to narrow the scope of a FOIA request without summarily denying the entire request. Rather than explore whether any modest adjustment to the scope of the FOIA Request was possible, EPA instead issued a wholesale rejection of the Request with the assertion that it is “overbroad.” EPA’s sweeping denial of Plaintiffs’ valid FOIA Request is consistent with its standard protocol to avoid compliance with FOIA by claiming the request is overbroad. See Compl. Ex. 7 at 6. 4. Plaintiffs’ request that EPA search several EPA offices does not render Plaintiffs’ FOIA Request overbroad or burdensome. Defendant alleges without merit that Plaintiffs’ request that EPA conduct its search in each of its ten Regional Offices and six out of the eleven headquarter offices would “reduce [the] agenc[y] to full-time investigators on behalf of requesters.”. Motion at 16 (quoting Dale, 238 F. Supp. 2d at 104). Defendant never explains how or why conducting a search of the records requested in the specified EPA offices can or cannot be completed. Specifically, Defendant never explains, for example, how Plaintiffs’ request is incompatible with EPA’s records system, the amount of time that it would take Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 26 of 37 21 to conduct the search, or how many FOIA investigators would be assigned to the request. Rather, Defendant simply offers no evidence that would support its assertion that Plaintiffs’ request is burdensome. Further, Defendant’s reliance on Dale is misplaced. The Court in Dale concluded that the taxpayer’s FOIA request was invalid on its face because it had undeniably failed to comply with the IRS’s FOIA regulations. Dale’s broad request would not permit an IRS employee to locate the records with a ‘reasonable amount of effort,’ since his FOIA request does not specify what records he seeks, for what years, and located at which office of the IRS. Absent some description of the actions the agency may have taken against him (investigation, audit, revocation of tax exempt status, etc.), the particular records sought, and any relevant dates and locations, agency employees would not know where to begin searching. Dale, 238 F. Supp. 2d 99 104-05 (emphasis added). Put another way, Dale provided no starting point for an IRS employee to even begin a search of the agency’s records. It was in this specific factual context that the Court in Dale determined that to satisfy the FOIA request would require the IRS to become “full-time investigators.” Id. at 104. Unlike Dale, Plaintiffs clearly identified in their Request that they are seeking the disclosure of communications between EPA and specific nongovernmental organizations concerning the EPA Administrator’s non-discretionary duty to act with “respect to any Regional Haze State Implementation Plan…pursuant to CAA § 169A,” and EPA’s “course of action to be taken with respect to any administrative or judicial order, decree or waiver … concerning any Regional Haze SIP.” Compl. Ex. 1 p. 2. Further, Plaintiffs provided EPA with a specific time frame, January 1, 2009 to February 6, 2013, within Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 27 of 37 22 which to search for such records. Id. at 1. And Plaintiffs also clearly identified the EPA offices that the records would be located. Id. at 2-3. Nor does Plaintiffs’ FOIA Request bear any similarity to the one made in Am. Fed’n of Gov’t Employees, Local 2782 v. U.S. Dep’t of Commerce, 907 F.2d 203 (D.C. Cir. 1990) (“AFGE”), as Defendant wrongly asserts. Motion at 17. In AFGE, plaintiff sought from the U.S. Census Bureau: A. Inspection of every chronological office file and correspondence file, internal and external, for every branch office, staff office, assistant division chief office, division chief office, assistant director’s office, deputy director’s office, and director’s office; B. Inspection of every division or staff administrative office file in the Bureau which records, catalogues, or stores SF-52s7 or stores promotion recommendation memos, or both. AFGE, 907 F.2d at 205. Unlike the FOIA request in AFGE that asked for every single file in every office of the Census Bureau to be searched for personnel files, Plaintiffs’ FOIA Request is limited to a narrow Subject Matter and to several specific EPA offices. Plaintiffs are not asking EPA to search every correspondence file in every office concerning the entire Visibility Program. To the contrary, Plaintiffs’ FOIA Request is limited to several EPA offices and seeks information concerning judicial orders regarding the EPA Administrator’s non- discretionary duty to take certain actions concerning State SIPs under 42 U.S.C. § 7604(a)(2) as it relates to the CAA § 169A Visibility Program. Defendant has failed to 7 An SF-52 is an official government form, used in connection with personnel actions. AFGE, 907 F.2d at 205. Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 28 of 37 23 show that conducting a search in several EPA offices for the narrowly defined Subject Matter is somehow burdensome. II. The Court Must Deny The Motion To Dismiss Because EPA Fails To Show That Plaintiffs Failed To Perfect Their FOIA Request. Defendant asserts that Plaintiffs’ alleged failure to reasonably describe the records requested means that Plaintiffs did not perfect their FOIA Request and therefore have failed to exhaust their administrative remedies. Motion at p.7 n.3 and p. 20. Defendant’s allegation that Plaintiffs failed to exhaust their administrative remedies is an affirmative defense and therefore must be supported by evidence. See Ramstack, 607 F. Supp. 2d 104. Only if Defendant meets its burden of proof, then Plaintiff bears the “burden of pleading and proving facts supporting equitable avoidance of the defense.” Id. (quoting Bowden, 106 F.3d 437). As set forth supra, Defendant has failed to demonstrate that Plaintiffs’ FOIA Request does not reasonably describe the records requested. Rather, Defendant ignores that Plaintiffs, after consultation with EPA, narrowly constructed a request for specific records and provided EPA with criterion necessary to easily identify those records. Defendant provides no evidence that Plaintiffs’ FOIA request does not reasonably describe the records requested or that conducting a search for the requested records would be burdensome. Instead, EPA has again employed its apparent standard protocol to deny valid FOIA requests by claiming they are “overbroad,” when in fact they are not. In a recent email exchange disclosed by EPA as a result of a FOIA request, an EPA official advised a Region 6 EPA employee that “standard [EPA] protocol” is to tell all Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 29 of 37 24 “requestor[s] that they need to narrow their [FOIA] request because it is overbroad,” exactly what happened here. See Compl. Ex. 7 at 6. As demonstrated supra Plaintiffs’ FOIA Request provides more than “a modicum of specificity” and addresses the criteria EPA asks FOIA requesters to provide “whenever possible[.]” Freedom Watch, 925 F. Supp. 2d 61; 40 C.F.R. § 2.102(c). EPA must therefore provide specific evidence demonstrating why the FOIA Request does not reasonably describe the records requested and why it cannot conduct a search of its records for the Subject Matter. Because EPA has not satisfied its burden to support its affirmative defense, its Motion to Dismiss should be denied. III. EPA Effectively Denied Plaintiffs’ Appeal Of The Agency’s Denial Of The Fee Waiver And Therefore The Matter Is Properly Before This Court. By way of a footnote, Defendant asserts that EPA’s May 31, 2013 denial “did not reach the waiver issue as it was denied as improper, rendering the fee waiver issue is [sic] moot.” Motion at 5 n.2. And according to EPA, because there was no ruling on the denial of Plaintiffs’ fee waiver, Plaintiffs have failed to exhaust their administrative remedies. However, a reasonable reading of EPA’s May 31, 2013 denial of Plaintiffs’ FOIA Request clearly shows that EPA has denied Plaintiffs’ appeal of its fee waiver denial. The FOIA fee waiver provision does not expressly require a claimant to exhaust their remedies before seeking judicial review. See Voinche v. U.S. Dep't of Air Force, 983 F.2d 667, 669 (5th Cir. 1993). “In any action by a requester regarding the waiver of fees under this section, the court shall determine the matter de novo: Provided, that the court's Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 30 of 37 25 review of the matter shall be limited to the record before the agency.” 5 U.S.C.A. § 552 (a)(4)(A)(vii). EPA states in its May 31 denial letter that while it was closing the fee waiver appeal file, and “[a]lthough I need not address the merits of your fee waiver request and appeal at this time, I have included the following discussion in order to assist you in submitting any properly formulated request for records and a waiver of fees.” Compl. Ex. 6 at p. 3. EPA then proceeds over the course of three pages to discuss in detail why EPA is rejecting the points raised by Plaintiffs on appeal of its fee waiver. See Id. at p. 3-7. Plaintiffs filed an appeal and EPA, through its May 31 denial, has taken action on Plaintiffs’ appeal. There is a record of EPA’s actions and denial of Plaintiffs’ appeal of EPA’s denial of the fee waiver request that this Court can consider. Accordingly, this Court should proceed with Plaintiffs’ claims against EPA concerning the Agency’s denial of the fee waiver appeal. CONCLUSION For the reasons set forth herein, Plaintiffs respectfully request the Court deny Defendant’s Motion to Dismiss. Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 31 of 37 26 Dated: November 6, 2013 Respectfully submitted, E. SCOTT PRUITT, OBA #15828 Oklahoma Attorney General s/ Paul M. Seby Paul M. Seby Special Assistant Attorney General Marian C. Larsen Special Assistant Attorney General Seby Larsen LLP 165 Madison Street Denver, CO 80206 Telephone: (303) 248-3772 Email: paul.seby@sebylarsen.com Email: mimi.larsen@sebylarsen.com Tom Bates, OBA #15672 First Assistant Attorney General Patrick R. Wyrick, OBA #21874 Oklahoma Solicitor General P. Clayton Eubanks, OBA #16648 Oklahoma Deputy Solicitor General Office of the Attorney General of Oklahoma 313 NE 21st Street Oklahoma City, OK 73105 Telephone: (405) 522-8992 Facsimile: (405) 522-0085 Email: tom.bates@oag.ok.gov patrick.wyrick@oag.ok.gov clayton.eubanks@oag.ok.gov Counsel for Plaintiff the State of Oklahoma Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 32 of 37 27 s/ Luther Strange LUTHER STRANGE Alabama Attorney General Andrew L. Brasher Deputy Solicitor General Office of the Alabama Attorney General 501 Washington Avenue Montgomery, AL 36130 (334) 353-2609 abrasher@ago.state.al.us Counsel for Plaintiff the State of Alabama s/ Thomas C. Horne THOMAS C. HORNE Arizona Attorney General James T. Skardon Assistant Attorney General 1275 W. Washington Street Phoenix, AZ 85007 (602) 542-5025 Attorneys for State of Arizona James.Skardon@azag.gov Counsel for Plaintiff the State of Arizona s/ Sam Olens SAM OLENS Georgia Attorney General 40 Capitol Square SW Atlanta, GA 30334 (404) 656-3300 (phone) (404) 463-1519 (fax) Counsel for Plaintiff the State of Georgia Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 33 of 37 28 s/ Derek Schmidt DEREK SCHMIDT Attorney General of Kansas Jeffrey A. Chanay Deputy Attorney General, Civil Litigation Division 120 SW 10th Avenue, 3rd Floor Topeka, KS 66612-1597 (785)296-2215 Phone (785)291-3767 Fax jeff.chanay@ksag.org Counsel for Plaintiff the State of Kansas s/ Bill Schuette BILL SCHUETTE Michigan Attorney General S. Peter Manning (P45719) Neil D. Gordon (P56374) Assistant Attorneys General Environment, Natural Resources, and Agriculture Division P.O. Box 30755 Lansing, MI 48909 (517) 373-7540 ManningP@michigan.gov GordonN1@michigan.gov Plaintiff on Behalf of the People of Michigan s/ Jon Bruning JON BRUNING Nebraska Attorney General Katherine J. Spohn Deputy Attorney General State of Nebraska 2115 State Capitol Lincoln, NE 68509 402-471-2682 Katie.Spohn@nebraska.gov Counsel for Plaintiff the State of Nebraska Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 34 of 37 29 s/ Wayne Stenehjem WAYNE STENEHJEM North Dakota Attorney General Margaret I. Olson Assistant Attorney General Office of Attorney General 500 North 9th Street Bismarck, ND 58501-4509 Tel: (701) 328-3640 Fax: (701) 328-4300 maiolson@nd.gov Counsel for Plaintiff the State of North Dakota s/Alan Wilson ALAN WILSON South Carolina Attorney General ROBERT D. COOK Solicitor General J. EMORY SMITH, JR. Deputy Solicitor General Office of the Attorney General Post Office Box 11549 Columbia, South Carolina 29211 (803) 734-3680 Rcook@scag.gov Esmith@scag.gov Counsel for Plaintiff the State of South Carolina s/ Greg Abbott GREG ABBOTT Texas Attorney General Office of the Attorney General 300 W. 15th Street Austin, TX 78701 (512) 936-1342 (512) 936-0545 (fax) Counsel for Plaintiff the State of Texas Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 35 of 37 30 s/ John E. Swallow JOHN E. SWALLOW Utah Attorney General Utah State Capitol Suite #230 PO Box 142320 Salt Lake City, Utah 84114-2320 Craig Anderson Assistant Utah Attorney General Office of the Utah Attorney General 195 North 1950 West, First Floor Salt Lake City, Utah 84116 (801) 538-9600 Phone craiganderson@utah.gov Counsel for Plaintiff the State of Utah s/Jay Jerde PETER MICHAEL Wyoming Attorney General Jay Jerde Deputy Attorney General 123 Capitol Building 200 W. 24th Street Cheyenne, WY 82002 (307) 777-7841 Phone jay.jerde@wyo.gov Counsel for Plaintiff the State of Wyoming Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 36 of 37 31 CERTIFICATE OF SERVICE I hereby certify that, on this 6th day of November, I caused the foregoing documents to be electronically filed with the Clerk of the Court by using the Court’s CM/ECF system. All registered CM/ECF users will be served by the Court’s CM/ECF system. /s/ Paul M. Seby Paul M. Seby Case 5:13-cv-00726-M Document 21 Filed 11/06/13 Page 37 of 37