UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

___________________________________ 

 ) 

SEAN D. REYES, ) 

Attorney General, State of Utah,1

 ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Civil No. 10-2030 (EGS/DAR) 

 ) 

UNITED STATES ENVIRONMENTAL ) 

PROTECTION AGENCY, ) 

 ) 

 Defendant. ) 

___________________________________) 

MEMORANDUM OPINION 

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

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

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

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

follow, the Renewed Motion is GRANTED. 

I. BACKGROUND 

This matter arises from Plaintiff’s Freedom of Information 

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

Endangerment Finding, which found that certain greenhouse gases 

taken in combination endanger the public health and welfare. The 

request was lengthy, consisting of fourteen pages and thirtyseven subparts, and broad, seeking a tremendous amount of 

                                                            

1

 By operation of Federal Rule of Civil Procedure 25(d), Sean D. 

Reyes, the Attorney General of the State of Utah, has been 

automatically substituted for Mark Shurtleff. 
2 

information about the finding. See Compl., Ex. A. The EPA 

ultimately located about 13,000 responsive records, of which 

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

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

Craig (“Craig Decl.”) ¶ 61. 

In September 2013, the Court issued a Memorandum Opinion 

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

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

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

Familiarity with the 2013 Opinion is assumed. With regard to 

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

either to disclose documents withheld under the attorney-client 

privilege or file supplemental submissions indicating in 

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

conduct another search for documents responsive to subparts 

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

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

alternative, prove that its prior searches meet the adequacy 

standard. Id. at *45. 

Subsequently, EPA filed the instant Renewed Motion for 

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

relies upon the Second Supplemental Declaration of Elizabeth 

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

the Climate Protection Partnership Division of the Office of 
3 

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

and former Acting Director of the Office of Atmospheric 

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

Motion is ripe for review. 

II. LEGAL STANDARD 

The court may grant a motion for summary judgment if the 

pleadings, depositions, answers to interrogatories, and 

admissions on file, together with affidavits or declarations, 

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

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

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

on the agency to demonstrate that it has fully discharged its 

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

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

III. DISCUSSION 

A. Attorney-Client Privilege 

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

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

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

U.S.C. § 552(b)(5). 

The attorney-client privilege protects confidential 

communications from clients to their attorneys made for the 

purpose of securing legal advice or services. The 

privilege also protects communications from attorneys to 

their clients if the communications “rest on confidential 

information obtained from the client.” In the governmental 
4 

context, the “client” may be the agency and the attorney 

may be an agency lawyer. 

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

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

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

that information exchanged between an agency and its attorneys 

is confidential. Privilege only extends to “those members of 

the organization who are authorized to act or speak for the 

organization in relation to the subject matter of the 

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

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

to records withheld pursuant to the attorney client privilege 

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

documents, thus it did not establish the communications were 

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

responsibilities, thus, it did not establish that the recipients 

were authorized to act or speak for the government in relation 

to the subject matter of the communication. Shurtleff, 2013 

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

disclose the records, or indicate in sufficient detail why 

withholding is proper. Id.

Elizabeth Craig’s Second Supplemental Declaration addresses 

each of the nine documents withheld or partially withheld 
5 

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

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

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

The documents are email chains between agency counsel and other 

agency staff. 

Plaintiff claims the EPA fails to establish that the 

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

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

allow the withholding of documents simply because they are the 

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

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

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

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

most recent Declaration explains, each document pertains to an 

                                                            

2

 EPA asserted attorney client privilege as to fourteen 

documents; however, as it pointed out in its Renewed Motion, 

five of the fourteen were also withheld on the basis of either 

deliberative process or attorney work product privilege. See 

Renewed Mot. at 4 n.1. Because the Court upheld EPA’s 

application of the deliberative process and work product 

privilege in the 2013 Opinion, EPA argues, these five documents 

have already been deemed properly withheld. Id. Plaintiff 

concedes this issue by failing to address it in his opposition 

brief. “It is well established that if a [party] fails to 

respond to an argument raised in a motion for summary judgment, 

it is proper to treat that argument as conceded.” Wilkins v. 

Jackson, 750 F. Supp. 2d 160, 162 (D.D.C. 2010) (citations 

omitted). Accordingly, since the Court already concluded these 

records were properly withheld under FOIA, it need not 

separately determine whether they could also be withheld on an 

alternative basis. See, e.g., Martin v. U.S. Dep’t of Justice, 

488 F.3d 446, 456 (D.C. Cir. 2007). 
6 

issue for which EPA sought the legal advice of its lawyers: (1) 

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

Endangerment Finding in order to provide legal advice on how to 

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

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

legal interpretation and defense of the Endangerment Finding in 

response to questions from the White House, petitions for 

reconsideration, and congressional inquiries, see EPA2-3150, 

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

solicitations and providing guidance on legal compliance before 

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

regarding then-unreleased air quality standards, resting on 

confidential information from client regarding then-ongoing 

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

Supp. Craig Decl. ¶¶ 5, 11-18, Ex. A. 

Plaintiff also claims that the EPA has not met its burden 

to demonstrate that the documents remained confidential. Opp’n 

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

declaration and attachment provide the name, job title and 

responsibilities of the sender and recipient of each document. 

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

and recipients were limited to EPA attorneys, scientists, 

analysts, support staff, or senior executives who were 

responsible for developing EPA’s position on the underlying 
7 

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

burden to show the documents were limited to people “authorized 

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

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

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

the agency must still release any reasonably segregable portion 

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

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

quotation marks and citation omitted). Though not specifically 

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

consider the segregability issue sua sponte.” Trans-Pacific 

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

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

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

provides the redacted documents as attachments to her 

Declaration, and, more importantly, describes the information 

that was redacted or withheld in detail. 

                                                            

3

 One of the withheld documents involved a communication between 

EPA counsel and Counselor for Energy and Climate Change in the 

White House. See Second Supp. Craig. Decl., Ex. A, EPA2-4349 

(inquiry from White House to EPA attorney seeking legal guidance 

related to Endangerment Finding). The Court agrees with EPA -- 

and plaintiff does not dispute -- that because the White House 

official “was seeking advice on a matter within the scope of her 

official duties and was authorized to act or speak for the 

Federal Government in relation to the subject matter of her 

communication with [the EPA attorney], the EPA’s application of 

the attorney-client privilege to redact EPA 2-4349 was proper.” 

Renewed Mot. at 5-6. 
8 

B. Adequacy of the Search 

In response to a challenge to the adequacy of its search 

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

providing ‘a reasonably detailed affidavit, setting forth the 

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

all files likely to contain responsive materials . . . were 

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

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

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

attachments in support of motions for summary judgment are 

accepted as true unless the nonmoving party submits affidavits 

or other documentary evidence contradicting those assertions.” 

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

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

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

summary judgment as to the adequacy of the search for documents 

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

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

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

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

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

details about searches for documents responsive to these 

subparts). Accordingly, the Court directed EPA to conduct new 
9 

searches or prove that its prior searches meet the adequacy 

standard. Id. 

In a previous declaration by Elizabeth Craig, she explained 

that EPA held several planning meetings immediately after 

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

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

identify relevant individuals throughout the Agency who may have 

responsive documents, and develop instructions for conducting 

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

planning meetings, it was determined that the Climate Change 

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

responsive to the subparts at issue in the Renewed Motion for 

Summary Judgment, because these subparts requested records 

pertaining to work being performed by CCD on the Endangerment 

Finding. Id. 

 In support of its Renewed Motion for Summary Judgment, the 

EPA submitted the Second Supplemental Declaration of Elizabeth 

Craig. The Declaration describes the specific steps taken in 

response to plaintiff’s requests for the remaining subparts. 

EPA determined that it possessed no responsive documents with 

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

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

20-27. With respect to other requests, the agency conducted 
10 

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

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

Plaintiff raises two arguments in response. First, he 

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

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

Second, he argues that the searches conducted failed to 

adequately explain the methodology of the search and were 

unreasonably limited to certain offices and individuals. Id.

The Court considers each in turn. 

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

B(1)(a), and D(1) 

The EPA argues that it reasonably concluded it possessed no 

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

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

pertaining to any EPA “investigation” of the scientific 

credibility of reports prepared by the Intergovernmental Panel 

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

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

the request and concluded it had no responsive records because 

                                                            

4

 In its Renewed Motion and supporting Declaration, EPA also 

explains the basis for its determination that it possessed no 

responsive information with respect to subparts A(5)(a)-(e) and 

B(1)(a). See Second Supp. Craig Decl. ¶¶ 22-25. Plaintiff 

failed to contest these arguments in his response. See Reply in 

Support of Renewed Mot. at 5. The Court will therefore treat 

any challenges to the adequacy of Defendant’s search as to these 

subsections as conceded. See Judicial Watch, Inc. v. U.S. Dep’t 

of Hous. And Urban Dev., Case No. 12-1785, 2014 U.S. Dist. LEXIS 

25882, at *14 n.5 (D.D.C. Feb. 28, 2014) (citations omitted). 
11 

EPA did not conduct an investigation of the scientific 

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

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

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

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

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

In his opposition, plaintiff argues that the Agency’s 

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

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

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

basis for his argument, or offer an alternative interpretation 

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

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

currently possesses” was unreasonable with respect to subpart 

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

argument or indicate how EPA could produce documents it did not 

possess. 

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

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

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

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

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

limited resources on searches for which it is clear at the 

outset that no search will produce the records sought. Sack v. 
12 

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

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

explanation, derived from multiple planning meetings by EPA and 

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

complex request, demonstrates that EPA appropriately approached 

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

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

the Government’s declarations establish that a search would be 

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

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

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

2008). 

2) Search Methodology, Offices and Individuals: Subparts 

D(1)(b), E(2)(a),(b), and F(1)(a) 

Ms. Craig’s Second Supplemental Declaration explains that 

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

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

showing how raw temperature data developed by the United 

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

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

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

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

documents regarding EPA’s analysis of a study relating to 

temperature records (“Easterling and Wehner study”). Id. at 11. 
13 

During the agency’s multiple planning meetings to determine 

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

were identified who might possess any responsive records to 

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

Sarofim and James Samenow, the two employees responsible for the 

temperature record portions of the Endangerment Finding. Second 

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

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

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

with the raw Hadley Centre data or made any calculations to 

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

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

files, electronic files in their personal drives and on network 

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

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

and Wehner study, Sarofim and Samenow searched the same 

electronic and paper files using the search terms “Easterling” 

and “Wehner” and submitted responsive documents to the 

collection database. Id. ¶ 30. 

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

communications between EPA employees and twelve federal experts 

who conducted peer review of the Endangerment Finding. Second 

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

to respond to this portion of the request, EPA identified a very 
14 

similar FOIA request submitted just a few months earlier, for 

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

review process conducted in connection with the Endangerment 

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

request, EPA identified thirty one employees who might have 

responsive records, and these individuals searched all of their 

electronic and paper files for records related to the peer 

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

new search would not turn up any additional records and produced 

to Plaintiffs the records it had produced in response to the 

earlier FOIA request. Id. ¶ 32. 

Plaintiff claims that EPA’s searches were inadequate for a 

variety of reasons: lack of detail, unexplained methodology, 

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

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

of these claims are persuasive. Taken together, the Craig 

Declarations provide detailed descriptions of the EPA’s search 

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

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

respond to the FOIA request, the manner in which relevant 

individuals and offices were identified as possessing responsive 

documents and the reasons for such identification, the filing 

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

e.g., Craig Decl. ¶¶ 17, 23-27, 29-30, 32; Supp. Craig Decl. ¶¶ 
15 

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

Declarations “describe in . . . detail what records were 

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

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

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

search terms, documents, offices, or individuals which would 

likely possess responsive records to these subparts. Rather, he 

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

conclude that no other departments within EPA possess documents 

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

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

misunderstands the standard for adequacy of a search under FOIA. 

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

further documents might conceivably exist but rather whether the 

government’s search for responsive documents was adequate.” 

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

 

                                                             5 The cases on which Plaintiff relies, Defenders of Wildlife 

v. U.S. Border Patrol, 623 F. Supp. 2d 83 (D.D.C. 2009) and 

Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir. 

1999), are easily distinguishable. See Opp’n to Renewed Mot. to 

Summ. J. 6. In Defenders of Wildlife, the agency declarations 

contained no explanation of what methods were used to conduct 

the searches, the rationale for searching the selected 

locations, or what files were searched. 623 F. Supp. 2d at 91-

92. In Valencia-Lucena, the agency informed the requester that 

responsive records were likely located in a different office, 

but declined to search that office. 180 F.3d at 327. 
16 

Taken together, the detailed, non-conclusory affidavits 

submitted by Ms. Craig satisfy this standard of reasonableness. 

IV. CONCLUSION 

For the foregoing reasons, Defendant’s Renewed Motion for 

Summary Judgment will be GRANTED. A separate order accompanies 

this Memorandum Opinion. 

SIGNED: Emmet G. Sullivan 

 United States District Judge 

 June 13, 2014