Regulatory Developments

D.C. Circuit Decides CWA Does Not Supersede FOIA Exemption

An apparent statutory conflict about which information about a company the EPA must protect from public disclosure was decided in favor of protection by a panel of the U.S. Court of Appeals for the D.C. Circuit.

The Freedom of Information Act (FOIA) directs that federal agencies must withhold from public disclosure both trade secrets and commercial and financial information identified as “privileged or confidential.” The Clean Water Act (CWA) specifies that trade secrets are entitled to such protection but makes no mention of protecting commercial and financial information.

In this case, environmental groups argued that under CWA Section 308, the EPA is required to release financial and commercial information power plants and states submit to the Agency. The D.C. Circuit panel disagreed.

Answer in APA

As described by the panel, while FOIA Exemption 4 exempts commercial and financial information from disclosure, Section 308 of the CWA “seemingly requires disclosure of commercial and financial information.” All parties in the case agreed that the information being requested did not qualify as trade secrets.

The panel states that the answer to the question “Which statute prevails?” is in fact provided by a third statute—the Administrative Procedures Act (APA). Section 559 of the APA states that a provision of a statute has the force of law unless a subsequent statute contains language that supersedes or modifies that provision. Here Section 308 is the latter statute since FOIA Exemption 4 was enacted in 1967, while CWA Section 308 was enacted in 1972.

“Section 308 does not expressly supersede Exemption 4,” said the panel. “Therefore, EPA permissibly invoked Exemption 4 to deny the environmental groups’ FOIA request.”

TSCA as an Example

As the courts often note when discussing congressional intentions in writing laws, what is left out is often as important as what is explicitly stated. In this instance, Congress did not state that Section 308 supersedes Exemption 4.

“If Congress had wanted Section 308 to supersede Exemption 4, Congress could have drafted express language to that effect, as it has in other statutes,” wrote the panel.

The opinion included an example of “express language” in the 2016 amendments to the Toxic Substances Control Act (TSCA). Under that statute, when an FOIA request is submitted to the EPA for certain records obtained by the Agency under TSCA, the EPA “may not deny the request on the basis of [Exemption 4].” Similar explicit language is nowhere to be found in or in relation to Section 308.

No Rules or Procedures Either

The panel also referenced a 1986 case in which the D.C. Circuit suggested that a later-enacted statute may also supersede the FOIA if the statute established “some rules and procedures—duplicating those of FOIA—for individual members of the public to obtain access to agency records.”

“That principle is not applicable here,” said the panel. “Section 308 does not establish rules or procedures for obtaining records from EPA.”

Accordingly, the panel concluded that the EPA permissibly invoked Exemption 4 to withhold the CWA records at issue in this case.

The D.C. Circuit’s opinion in Environmental Integrity Project et al. v. EPA is here.

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