1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

HERITAGE FOUNDATION, et al., 

 Plaintiffs,

 Civil Action No. 23-748 (JEB) v.

U.S. ENVIRONMENTAL PROTECTION 

AGENCY, 

Defendant.

MEMORANDUM OPINION 

Plaintiffs Heritage Foundation and Mike Howell recently submitted a Freedom of 

Information Act request to Defendant Environmental Protection Agency, seeking records related 

to the Norfolk Southern freight-train derailment in East Palestine, Ohio. Plaintiffs also applied 

for expedited processing of the request, which EPA denied. Dissatisfied with that decision, they

filed this lawsuit against EPA and now move for a preliminary injunction. Because Plaintiffs 

have not carried their burden of showing that such relief is warranted, the Court will deny their 

Motion. 

I. Background 

On February 23, 2023, Heritage and Howell, the Director of Heritage’s Oversight Project

and an investigative columnist with Heritage’s publication The Daily Signal, submitted a FOIA 

request to EPA. See ECF No. 1-6 (FOIA Request) at 1; ECF No. 1 (Compl.), ¶ 3. (The Court 

will refer to Plaintiffs together as Heritage.) The request sought 20 categories of information 

related to the derailment, ranging from “All communications with any state or local government 

employee relating to the Incident” to “All records relating to the Incident and ‘Trump.’” FOIA 
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Request at 1–3. Heritage also requested expedited processing pursuant to 5 U.S.C. 

§ 552(a)(6)(E) and EPA regulations. Id. at 7 (citing 40 C.F.R. § 2.104(f)). 

On February 24, EPA denied the latter request. See ECF No. 1-8 (Denial Letter). It 

concluded that the requesters had not explained how their listed categories were tailored to 

urgently needed information about the incident. Id. at 4–5. Plaintiffs responded with this lawsuit

on March 20, challenging EPA’s denial of their expedite request. They filed the present Motion 

for a Preliminary Injunction a week later, on March 27. See ECF No. 4 (Mot. for Preliminary 

Injunction).

After Plaintiffs filed their Motion, the parties conferred by video call; EPA memorialized 

that call in a March 30 letter. See ECF No. 5-7 (Letter of Mar. 30, 2023). That letter identifies 

how the agency intends to proceed on each of the 20 questions, including noting that one has 

been withdrawn and that others will be answered by production of a single document. Id. at 1–6. 

For the balance, EPA estimates that, due to the need to review “thousands of potentially 

responsive records, coordinat[e] with several offices within EPA, and consult[] with other 

agencies,” full document production should conclude on November 1, 2023. Id. at 6. Not 

content with that timetable, Heritage presses this Motion.

II. Legal Standard 

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 

v. NRDC, 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction must establish [1] 

that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the 

absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an 

injunction is in the public interest.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) 

(quoting Winter, 555 U.S. at 20). The final two factors merge when the government is the 
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opposing party. Pub. Citizen Health Rsch. Grp. v. Acosta, 363 F. Supp. 3d 1, 20 (D.D.C. 2018). 

“The moving party bears the burden of persuasion and must demonstrate, ‘by a clear showing,’ 

that the requested relief is warranted.” Hospitality Staffing Solutions, LLC v. Reyes, 736 F. 

Supp. 2d 192, 197 (D.D.C. 2010) (citing Chaplaincy of Full Gospel Churches v. England, 454 

F.3d 290, 297 (D.C. Cir. 2006)). 

Historically, these factors have “been evaluated on a ‘sliding scale.’” Davis v. Pension 

Ben. Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009) (quoting Davenport v. Int’l Bhd. of 

Teamsters, 166 F.3d 356, 361 (D.C. Cir. 1999)). In other words, if the movant makes an 

“unusually strong showing on one of the factors, then it does not necessarily have to make as 

strong a showing on another factor.” Id. at 1291–92. This Circuit has hinted, though not held, 

that Winter — which overturned the Ninth Circuit’s “possibility of irreparable harm” standard — 

establishes that “likelihood of irreparable harm” and “likelihood of success” are “‘independent, 

free-standing requirement[s].’” Sherley, 644 F.3d at 392–93 (quoting Davis, 571 F.3d at 1296 

(Kavanaugh, J., concurring)); see League of Women Voters v. Newby, 838 F.3d 1, 7 (D.C. Cir. 

2016) (declining to address whether “sliding scale” approach is valid after Winter). In any event, 

this Court need not resolve the viability of the sliding-scale approach today, as it determines that 

“a preliminary injunction is not appropriate even under the less demanding sliding-scale 

analysis.” Sherley, 644 F.3d at 393. 

Relevant here, “[t]he basis of injunctive relief in the federal courts has always been 

irreparable harm,” and if a party fails to make a showing of irreparable harm, “that alone is 

sufficient . . . to conclude that the district court did not abuse its discretion.” CityFed Fin. Corp. 

v. Off. Thrift Supervision, U.S. Dep’t of Treas., 58 F.3d 738, 747 (D.C. Cir. 1995) (citation and 

internal quotations omitted). The D.C. Circuit has cautioned, moreover, that a preliminary 
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injunction generally “should not work to give a party essentially the full relief [it] seeks on the 

merits,” Dorfmann v. Boozer, 414 F.2d 1168, 1173 n.13 (D.C. Cir. 1969); see also Diversified 

Mort. Invs v. U.S. Life Ins. Co. of N.Y., 544 F.2d 571, 576 (2d Cir. 1976) (collecting cases), and 

this equitable power “should not be exercised unless it is manifest that the normal legal avenues 

are inadequate [and] that there is a compelling need to give the plaintiff the relief he seeks.” 

Dorfmann, 414 F.2d at 1174. 

III. Analysis 

The Court considers the preliminary-injunction factors in turn. The first is close, but the 

second and third cut decisively against Heritage. The Court will accordingly deny Plaintiffs’

Motion. 

A. Likelihood of Success 

FOIA provides that expedited processing of a request is appropriate “in cases in which 

the person requesting the records demonstrates a compelling need.” 5 U.S.C. 

§ 552(a)(6)(E)(i)(I). “Compelling need” is defined, in turn, to mean: 

(I) that a failure to obtain requested records on an expedited basis 

. . . could reasonably be expected to pose an imminent threat to the 

life or physical safety of an individual; or 

(II) with respect to a request made by a person primarily engaged 

in disseminating information, urgency to inform the public 

concerning actual or alleged Federal Government activity.

Id. § 552(a)(6)(E)(v)(I)–(II). Plaintiffs contend that their request meets the second definition, 

which is mirrored in EPA’s regulation governing expedited-process requests. See FOIA Request 

at 7–8; Mot. at 12–31; see also 40 C.F.R. § 2.104(f)(1)(ii) (compelling need is established when 

there is “[a]n urgency to inform the public about an actual or alleged Federal government 
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activity, if the information is requested by a person primarily engaged in disseminating 

information to the public”).

Defendant, for its part, raises two primary arguments for why Plaintiffs are unlikely to 

show that they satisfy that definition: (1) they have not established that either of them qualifies as 

a “person primarily engaged in disseminating information,” and (2) they have not established an 

“urgency to inform the public.” ECF No. 5 (Opp. to PI Mot.) at 14–21. The Court considers 

each category separately, mindful of the D.C. Circuit’s caution that the urgency-to-inform

standard is “intended to be narrowly applied.” Al-Fayed v. CIA, 254 F.3d 300, 310 (D.C. Cir. 

2001) (quoting H.R. Rep. No. 104-795, at 26 (1996)). 

Disseminating Information 

Consistent with our Circuit’s restraint, courts in this district have emphasized that they 

“must be cautious in deeming non-media organizations as persons primarily engaged in 

information dissemination.” Landmark Legal Found. v. EPA, 910 F. Supp. 2d 270, 275–76 

(D.D.C. 2012). Courts have thus “routinely held that media organizations and newspapers 

qualify,” but in light of the Circuit’s reasoning, “other types of organizations have been held to 

not qualify, unless information dissemination is also their main activity, and not merely 

incidental to other activities that are their actual, core purpose.” Progress v. Consumer Fin. Prot. 

Bureau, No. 17-686, 2017 WL 1750263, at *4 (D.D.C. May 4, 2017) (collecting cases). The

relevant EPA regulation likewise provides that if the requester is “not a full-time member of the 

news media, the requester must establish that they are a person whose primary professional 

activity or occupation is information dissemination, although it need not be the requester’s sole 

occupation.” 40 C.F.R. § 2.104(f)(3). 
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Here, Plaintiff Howell can likely show that he qualifies as a person primarily engaged in 

disseminating information. As the FOIA request explained, he is “an author for the Daily 

Signal,” which the request described as “a major news outlet.” FOIA Request at 6. Major or 

not, the Daily Signal is indeed a news outlet, and Howell does indeed serve as a columnist there. 

Defendant recognizes as much. See Opp. at 17 (“Mr. Howell’s biography page on the Daily 

Signal website, cited by Plaintiffs in their request, describes him as both ‘an investigative 

columnist for The Daily Signal and a senior adviser for executive branch relations at The 

Heritage Foundation.’”). Heritage itself presents a trickier call: the organization is a think tank 

and the request described it that way, even if its Oversight Project appears more focused on 

public dissemination of information. See FOIA Request at 6 (“Heritage Foundation’s mission is 

to is to formulate and promote public policies based on the principles of free enterprise, limited 

government, individual freedom, traditional American values, and a strong national defense.”). 

No matter, however, because at least one of the FOIA requesters — i.e., Howell — appears 

likely to satisfy this requirement. 

Urgency to Inform the Public 

Courts consider three factors to determine whether a requester has demonstrated 

sufficient urgency to merit expedited processing: “(1) whether the request concerns a matter of 

current exigency to the American public; (2) whether the consequences of delaying a response 

would compromise a significant recognized interest; and (3) whether the request concerns federal 

government activity.” Al-Fayed, 254 F.3d at 310. EPA does not dispute that the request 

concerns federal-government activity and argues only that Plaintiffs have established neither 

exigency nor that delay would compromise a significant recognized interest. See Opp. at 17. 
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As to the first, the Court believes that Heritage can likely show that the FOIA request at 

least in part concerns matters of current exigency. The derailment and EPA’s response are 

newsworthy topics, as EPA recognizes. Id. at 18; see Al-Fayed, 254 F.3d at 310. Indeed, 

Plaintiffs cite voluminous media coverage substantiating that the issue is one of genuine and 

widespread concern. See Mot. at 15–31; see also Energy Pol’y Advocs. v. U.S. Dep’t of the 

Interior, No. 21-1247, 2021 WL 4306079, at *4 (D.D.C. Sept. 22, 2021). 

EPA’s response, in its denial letter and briefing, is that Plaintiffs have not identified that 

the specific requests they make will shed light on currently exigent matters. See Opp. at 18. In 

other words, they argue that while the general topic of the train derailment is a matter of current 

exigency, Plaintiffs have not shown that their specific requests within that topic are. See Elec. 

Priv. Info. Ctr. v. Dep’t of Def., 355 F. Supp. 2d 98, 102 (D.D.C. 2004) (“The fact that Plaintiff 

has provided evidence that there is some media interest in data mining as an umbrella issue does 

not satisfy the requirement that Plaintiff demonstrate interest in the specific subject of Plaintiff’s 

FOIA request, the Verity K2 Enterprise software program.”). On this score, EPA is partly right. 

Some of Plaintiffs’ queries, such as one seeking information on the derailment and “Trump,” do 

not concern matters of particular public exigency and can be resolved in the normal course. Cf.

ECF No. 6 (Reply) at 10 (arguing that “[t]he connection of President Donald J. Trump to the 

Incident is palpable in the press,” but nowhere identifying why such information is exigent). Yet 

others, such as those going directly to EPA’s communications with local officials on the ground 

regarding the ongoing cleanup, plainly do. The Court will save a detailed analysis for any future 

merits ruling but notes here only that Plaintiffs do make out a strong case on this first element 

with respect to at least some of their requests. 
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On the second factor, however, Heritage has greater difficulty in showing that the 

consequences of delay would compromise a significant recognized interest. Plaintiffs offer that 

delay would jeopardize their ability to shape ongoing public debate, as well as congressional 

proceedings and executive action on the ground. See Mot. at 27–31; Reply at 11. But they have 

not shown why that is so. The caselaw on which they rely suggests that a plaintiff seeking to 

establish that a particular delay would compromise recognized interests must do more than 

gesture at the general decline in the documents’ value over time. Instead, she may need to 

identify a specific end point at which the information’s value drops off altogether — i.e., the 

conclusion of a process such as a legislative vote, impeachment proceeding, national census, 

court case, or the like. See, e.g., Mot. at 29 (quoting Brennan Ctr. for Just. v. Dep’t of Com., 498 

F. Supp. 3d 87, 98–99 (D.D.C. 2020), for proposition that plaintiffs there made this merits 

showing because “the 2020 census and reapportionment processes are currently unfolding . . . 

but they will largely conclude early next year” at a particular time); see also Opp. at 21 (citing 

Long v. Dep’t of Homeland Sec., 436 F. Supp. 2d 38, 43 (D.D.C. 2006), for proposition that 

plaintiffs must “identify an imminent action indicating that the requested information will not 

retain its value if procured through the normal FOIA channels” to make out this element) 

(emphasis added and citation omitted). Plaintiffs do not identify any such end point. See Reply 

at 11 (arguing that request “directly relates to an on-going debate about the EPA’s response to 

the Incident” but recognizing that, “[t]o be sure, that is not a debate about a particular bill before 

Congress, or a particular Administration regulation”). 

In addition, Plaintiffs never provide an alternative legal standard in their Reply, resting 

primarily on one court’s irreparable-harm analysis (addressed below) and on another’s language 

describing an impeachment proceeding that did in fact have an end date. See Reply at 12 (citing 
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Am. Immigr. Council v. U.S. Dep’t of Homeland Sec., 470 F. Supp. 3d 32, 38 (D.D.C. 2020), 

and Ctr. for Pub. Integrity v. U.S. Dep’t of Def., 411 F. Supp. 3d 5, 13 (D.D.C. 2019)); see also

Ctr. for Pub. Integrity, 411 F. Supp. 3d at 12 (finding sufficient harm “[i]f the requested 

information is released after the impeachment proceedings conclude,” a particular point after 

which the information will lose value) (emphasis added). 

To be clear, the Court does not hold that a definite end-date is necessary to show that 

delay would compromise a significant recognized interest. It holds only that, because at this 

stage Plaintiffs have neither provided a convincing counter to that rule nor offered any concrete 

time frame, the Court is not persuaded that they are likely to succeed on the merits as to this 

component. 

* * * 

Because Heritage has not met its burden of persuading the Court that it can make out 

every element it needs to prevail on the merits, this factor is at best a wash for Plaintiffs or tips 

slightly against them. 

B. Irreparable Harm

Of greater significance here, Heritage does not surmount the “high standard for 

irreparable injury” required for a preliminary injunction. Chaplaincy of Full Gospel Churches, 

454 F.3d at 297. To show irreparable harm, a plaintiff must demonstrate that it faces an injury 

that is “both certain and great,” “actual . . . not theoretical,” and “of such imminence that there is 

a clear and present need for equitable relief to prevent irreparable harm.” Wis. Gas Co. v. Fed.

Energy Reg. Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985) (quotation marks and emphasis 

omitted). Further, a plaintiff must show that “the alleged harm will directly result from the 

action which the [plaintiff] seeks to enjoin,” as “the court must decide whether the harm will in 
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fact occur[].” Id.; see also Winter, 555 U.S. at 22 (rejecting “‘possibility’ standard [as] too 

lenient” and explaining that “[o]ur frequently reiterated standard requires plaintiffs seeking 

preliminary relief to demonstrate that irreparable injury is likely in the absence of an 

injunction”).

 Courts in our district have generally found irreparable harm in FOIA preliminaryinjunction cases only where the requested documents are “time-sensitive and highly probative, or 

even essential to the integrity, of an imminent event, after which event the utility of the records 

would be lessened or lost.” New York Times Co. v. Def. Health Agency, No. 21-566, 2021 WL 

1614817, at *8 (D.D.C. Apr. 25, 2021) (internal quotation marks omitted) (summarizing cases). 

For example, courts have granted preliminary injunctions in cases seeking documents regarding 

potential political interference with mail-in voting ahead of the imminent 2020 Presidential 

election, see Protect Democracy Project, Inc. v. U.S. Dep’t of Just., 498 F. Supp. 3d 132, 141 

(D.D.C. 2020); documents relevant to the 2020 census where “the value of the information 

sought . . . would be materially lessened or lost” once the census process concluded, Brennan 

Ctr., 498 F. Supp. 3d at 100; documents related to an ongoing and time-limited impeachment 

process, Ctr. for Public Integrity, 411 F. Supp. 3d at 7, 11; and documents related to a requester’s 

role as a confidential FBI informant ahead of an imminent evidentiary hearing. Aguilera v. FBI, 

941 F. Supp. 144, 151 (D.D.C. 1996); see also generally New York Times, 2021 WL 1614817, at 

*8 n.9 (canvassing these cases). By contrast, courts have denied preliminary injunctions in cases 

without a definite impending or time-limited event, such as where plaintiffs sought documents 

related to FISA surveillance generally, Elec. Privacy Info. Ctr. v. Dep’t of Justice, 15 F. Supp. 3d 

32, 35, 39–40 (D.D.C. 2014); an already existing Consumer Financial Protection Bureau rule, 

Allied Progress, 2017 WL 1750263, at *6; records related to former Secretary of State Hillary 
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Clinton’s use of a private email server well before the election, Daily Caller v. U.S. Dep’t of 

State, 152 F. Supp. 3d 1, 8–13 (D.D.C. 2015); or records concerning an individual’s termination 

after the event. Wadelton v. Dep’t of State, 941 F. Supp. 2d 120, 121 (D.D.C. 2013). 

A recent and thorough opinion from Judge Beryl Howell is instructive. In New York 

Times Co. v. Defense Health Agency, Judge Howell found no irreparable harm to a requester 

who sought records related to the federal government’s distribution of COVID-19 vaccines soon 

after their development. See 2021 WL 1614817, at *1–2. While the requested documents would 

be “indisputably valuable in informing the public about how the federal government functioned 

in preserving public health during a global pandemic,” Judge Howell concluded that there was 

no irreparable harm because “these records are not ‘time-sensitive’ in the sense of losing value 

vis-à-vis any date certain.” Id. at *8. The touchstone for the FOIA irreparable-harm analysis is

thus whether a plaintiff can show a specific need for records in advance of an upcoming event 

that, once past, would leave the information with little to no relevance. Id.; Brennan Ctr., 498 F. 

Supp. 3d at 100. 

Here, Plaintiffs do not seek documents that are necessary ahead of such an imminent 

event. They have identified no specific proceeding — be it a vote on legislation, a proposed 

administrative action, or a judicial process — after which the sought records would lose 

substantial value, much less one that will occur before November 2023, when EPA estimates that 

it will produce the records. Indeed, Plaintiffs essentially concede as much. See Reply at 11 

(arguing that request “directly relates to an on-going debate about the EPA’s response to the 

Incident” but recognizing that, “[t]o be sure, that is not a debate about a particular bill before 

Congress, or a particular Administration regulation”). While Heritage points out that Congress is 

conducting oversight related to the derailment, it does not explain why the documents it seeks are 
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essential to the integrity of such oversight proceedings. Cf. New York Times, 2021 WL 

1614817, at *9 (noting that, there as here, “delay in this production is not halting” public 

oversight of the incident). Public critiques of how EPA handled the derailment-cleanup effort 

have no expiration date; though Plaintiffs may prefer to levy them as expeditiously as possible, 

they cannot show irreparable harm from delay. 

Heritage’s best counterargument rests on American Immigration Council v. U.S. Dep’t of 

Homeland Security, 470 F. Supp. 3d 32 (D.D.C. 2020). There, Immigration and Customs 

Enforcement had approved a FOIA request from an immigration-advocacy coalition seeking 

documents regarding COVID-19 conditions in detention facilities, but then failed to timely 

produce the records. The district court there held that a delay in releasing the information sought 

would produce irreparable harm, even absent a particular end-date by which plaintiffs needed the 

records. Id. at 38. But the plaintiffs there sought information concerning the agency’s “response 

to the [then-ongoing] COVID-19 pandemic,” a “rapidly evolving” emergency to which the 

agency’s response would no longer be as relevant or pressing once the pandemic ebbed. Id. In 

any event, to the extent that this case’s reasoning is inconsistent with the conclusion in New 

York Times and with other cases, this Court reads Al-Fayed and the weight of district precedent 

to suggest that the sounder approach is to require a specific event or time period after which the 

information will lose significant value. See Al-Fayed, 254 F.3d at 310 (emphasizing that, 

“[g]iven the finite resources generally available for fulfilling FOIA requests, unduly generous 

use of the expedited processing procedure would unfairly disadvantage other requestors”)

(quoting H.R. Rep. 104-795, at 2 (1996)). 

Plaintiffs also maintain that they will suffer irreparable harm because “[t]ime cannot be 

wound back,” and so “[t]he time lost to Plaintiffs . . . is thus irreparable.” Reply at 16. This 
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argument sweeps far too broadly. Every requester would always rather have her records sooner 

rather than later. Under Plaintiffs’ logic, any requester who suffers even a one-day delay in any 

FOIA case could show irreparable harm. That cannot be the standard. Something more is 

needed, and the Court concludes that it is the presence of “an imminent event, after which event 

the utility of the records would be lessened or lost.” New York Times, 2021 WL 1614817, at *8 

(internal quotation marks omitted). 

Plaintiffs finally maintain that “the residents of East Palestine are irreparably harmed 

every day they lack information that is vital to making informed decisions.” Mot. at 34. 

Unfortunately for Plaintiffs, however, “injuries to third parties are not a basis to find irreparable 

harm.” Alcresta Therapeutics, Inc. v. Azar, 318 F. Supp. 3d 321, 326 (D.D.C. 2018). To the 

extent Plaintiffs argue that this is not a third-party harm but rather a harm they themselves 

experience, see Reply at 20–21, it folds back into their primary argument about newsworthiness, 

which fails because the information will not lose value past a future time certain. Plaintiffs must 

show irreparable harm to their own role in the public conversation; as the Court has held, they 

cannot do so. This factor accordingly weighs heavily against Heritage. 

C. Balance of Equities and the Public Interest

The balance-of-equities and public-interest factors merge here and also substantially 

favor EPA. These require courts to “balance the competing claims of injury and . . . consider the 

effect on each party with the granting or withholding of the requested relief,” Winter, 555 U.S. at 

24 (quoting Amoco Production Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987)), in addition to 

paying “particular regard for the public consequences in employing the extraordinary remedy of 

injunction.” Id. (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)). Where the 
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federal government is the opposing party, the two factors merge. Nken v. Holder, 556 U.S. 418, 

435 (2009). 

Here, issuing the requested injunction would just allow Heritage to jump over other FOIA 

requesters in line. As EPA described to Plaintiffs in the parties’ March 29 call, the agency had 

by the end of March 2023 received no fewer than 47 FOIA requests related to the East Palestine 

train derailment. See Mar. 30, 2023, letter at 1; ECF No. 5-1 (Declaration of Timothy R. Epp), 

¶ 16. Other courts have on this basis found the balance of equities and public interest to weigh 

against plaintiffs in similar circumstances. See New York Times, 2021 WL 1614817, at *10 

(other requesters “would almost certainly face additional delays” if injunction were granted); 

Nation Magazine v. Dep’t of State, 805 F. Supp. 68, 74 (D.D.C. 1992) (holding that entry of 

preliminary injunction expediting FOIA request over other pending requests “would severely 

jeopardize the public’s interest in an orderly, fair, and efficient administration of [ ] FOIA”); 

Baker v. Consumer Fin. Prot. Bureau, No. 18-2403, 2018 WL 5723146, at *5 (D.D.C. Nov. 1, 

2018) (granting expedite request “would harm the . . . other requesters . . . in line ahead of 

Plaintiff and would erode the proper functioning of the FOIA system”); cf. Mashpee 

Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003) (refusing to 

compel agency action under 5 U.S.C. § 706(1) “where a judicial order putting the petitioner at 

the head of the queue would simply move all others back one space and produce no net gain”) 

(quoting In re Barr Laboratories, Inc., 930 F.2d 72, 75 (D.C. Cir. 1991)) (formatting modified). 

The Court agrees and finds these factors counsel against injunctive relief. 

* * * 

EPA has thus far been a constructive partner to Heritage and other FOIA requesters 

seeking information about the incident: it has proactively released information to the public, see
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Epp Decl., ¶ 5; compiled more than 14,000 records in an effort to expeditiously comply with

requests, id., ¶ 15; and worked productively with Plaintiffs here to facilitate document 

production. See Letter of Mar. 30, 2023. The Court commends such actions. Because the three 

stay factors do not favor Plaintiffs, it does not believe a preliminary injunction is warranted at 

this point. 

IV. Conclusion 

For the foregoing reasons, the Court will deny Plaintiffs’ Motion for a Preliminary 

Injunction. A separate Order so stating will issue this day. 

/s/ James E. Boasberg

JAMES E. BOASBERG

Chief Judge 

Date: April 14, 2023