UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ECOLOGICAL RIGHTS FOUNDATION 

and OUR CHILDREN’S EARTH 

FOUNDATION,

Plaintiffs,

v. Civil Action No. 19-2181 (FYP) 

U.S. ENVIRONMENTAL PROTECTION 

AGENCY, et al., 

Defendants.

MEMORANDUM OPINION

In 2019, the Environmental Protection Agency (“EPA”) amended its regulations 

pertaining to the processing of Freedom of Information Act (“FOIA”) requests. In response, 

several entities that regularly submit FOIA requests to the EPA filed suit to challenge the legality 

of the amendments. After several rounds of case consolidation, briefing, and settlement 

negotiations, all that remains are four claims brought by Plaintiffs Ecological Rights Foundation 

and Our Children’s Earth Foundation (“EcoRights”). Defendants EPA and its Administrator, 

Michael Regan,

1

 now move to dismiss, and Plaintiffs cross-move for summary judgment. For 

the reasons stated below, the Court grants Defendants’ Motion to Dismiss as to Claims 1, 2, and 

5; and will remand Claim 4 without vacatur. The Court denies EcoRights’ Cross-Motion for 

Partial Summary Judgment. 

1

 Michael Regan is automatically substituted for defendant Andrew Wheeler pursuant to Federal Rule of 

Civil Procedure 25(d).
2

BACKGROUND

I. Factual Background

On June 26, 2019, the EPA published a Freedom of Information Act Regulations Update 

(the “2019 Rule”) in the Federal Register. See 84 Fed. Reg. 30028.2 According to the EPA, the 

agency was “tak[ing] final action to revise the Agency’s regulations under the [FOIA] . . . by

updating the process by which the public may access information about EPA actions and 

activities.” See id. The 2019 Rule modified the EPA’s FOIA regulations “to implement 

statutory updates, correct obsolete information, and reflect internal EPA realignment and 

processing changes to improve the Agency’s FOIA response process.” See id. The amendments 

were intended to “bring EPA’s regulations into compliance with nondiscretionary provisions of 

the amended [FOIA] statute and reflect changes in the Agency’s organization, procedure, or 

practice.” See id. at 30029. The agency promulgated the new regulations without notice and 

comment, invoking the procedural and good-cause exceptions to notice-and-comment 

rulemaking. See id. The 2019 Rule became effective on July 26, 2019, thirty days after it was 

published in the Federal Register. See id. at 30028. As relevant here, the 2019 Rule made four 

changes to the EPA’s FOIA procedures. 

A. Requiring the Submission of All Requests to EPA’s National FOIA Office

The 2019 Rule removed the option of submitting FOIA requests directly to regional 

offices of the EPA. See 40 C.F.R. § 2.101; 84 Fed. Reg. at 30030, 30032–33.3 Under the prior 

2 Prior to 2019, the EPA last amended its FOIA regulations by final rule issued on November 5, 2002. See

67 Fed. Reg. 67303.

3 40 C.F.R. § 2.101(a) provides: 

(a) Requesters must submit all requests for records from EPA under the FOIA in writing 
3

regulations, members of the public could mail FOIA requests either to the agency’s headquarters, 

or to one of ten regional EPA offices; people could also send requests by e-mail directly to a 

regional office. See 40 C.F.R. § 2.101(a) (2018). The 2019 Rule, by contrast, requires all FOIA 

requests to be submitted to the EPA’s National FOIA Office, either electronically (via the 

agency’s FOIA submission website, FOIAonline, or another government submission website, 

such as FOIA.gov), or via U.S. mail or overnight delivery. See 84 Fed. Reg. at 30030; 40 C.F.R. 

§ 2.101(a). The revised regulation provides that the National FOIA Office will then assign FOIA 

requests to the appropriate regional or headquarters office for processing. See 40 C.F.R. 

§ 2.103(a). According to the EPA, this revision was designed to “minimize the number of 

misdirected requests sent to the Agency” and “to address” a provision of the 2007 FOIA

statutory amendments that “decreased the amount of time an agency may take to route a request 

and by one of the following methods:

(1) EPA’s FOIA submission website at https://www.foiaonline.gov;

(2) An electronic government submission website established pursuant to 5 U.S.C. 

552(m), such as FOIA.gov;

(3) U.S. Mail sent to the following address: National FOIA Office, U.S. 

Environmental Protection Agency, 1200 Pennsylvania Avenue NW (2310A), 

Washington, DC 20460; or

(4) Overnight delivery service to National FOIA Office, U.S. Environmental 

Protection Agency, 1200 Pennsylvania NW, Room 5315, Washington, DC 

20460. EPA will not treat a request submitted by any other method as a FOIA 

request, and the Agency will not re-route the request. The requester or requester 

organization must include the full name of their point of contact and their mailing 

address for EPA to process the request. For all requests, requesters should 

provide an email address and daytime telephone number whenever possible. For 

requests submitted through EPA’s FOIA submission website or as provided by an 

electronic government submission website established pursuant to 5 U.S.C. 

552(m), requesters must include an email address. For requests submitted 

through U.S. Mail, the requester must mark both the request letter and envelope 

“Freedom of Information Act Request.” The requester should not provide social 

security numbers when making a request for information under the FOIA. 

Requesters submitting requests electronically must do so before 5:00 p.m. 

Eastern Time for the Agency to consider the request as received on that date.
4

to the appropriate component of the agency to ten-working days or less.” See 84 Fed. Reg. at 

30030 (citing 5 U.S.C. 552(a)(6)(A)(ii)). 

B. Authorizing EPA Administrator to Make Final FOIA Determinations

The 2019 Rule includes the EPA Administrator on a list of officials who are authorized to 

“issue final determinations whether to release or withhold a record” under the FOIA. See 40 

C.F.R. § 2.103(b) 4

; 84 Fed. Reg. at 30031. According to the agency, that revision “eliminates a 

potential conflict in the existing regulations and ensures consistency of responses across the 

Agency;” and also “simplifies and consolidates section 2.103(b), which empowered the ‘head of 

an office, or that individual’s designee’ to grant or deny requests, and section 2.104(h), which 

empowered division directors or equivalents authority to issue ‘denials.’” See 84 Fed. Reg. at 

30031. Notably, the EPA retained and made no changes to a preexisting regulation, 40 C.F.R. 

§ 2.104(j), which established that “[a]n adverse determination by the Administrator on an initial 

request will serve as the final action of the Agency.” Compare id. § 2.104(j)(2), with id.

§ 2.104(j)(3) (2018).

C. Authorizing EPA Officials to Withhold a “Portion of a Record on the Basis

of Responsiveness”

Revised § 2.103(b) also purports to authorize EPA officials to “issue final determinations 

whether to release or withhold a record or a portion of a record on the basis of responsiveness or 

4 40 C.F.R. § 2.103(b) reads: 

(b) Authority to issue final determinations. The Administrator, Deputy Administrators, 

Assistant Administrators, Deputy Assistant Administrators, Regional Administrators, 

Deputy Regional Administrators, General Counsel, Deputy General Counsels, 

Regional Counsels, Deputy Regional Counsels, and Inspector General or those 

individuals’ delegates, are authorized to make determinations required by 5 U.S.C. 

552(a)(6)(A), including to issue final determinations whether to release or withhold a 

record or a portion of a record on the basis of responsiveness or under one or more 

exemptions under the FOIA, and to issue “no records” responses.
5

under one or more exemptions under the FOIA, and to issue ‘no records’ responses.” See 40 

C.F.R. § 2.103(b); 84 Fed. Reg. at 30033. The agency did not explain why it added this 

language. The parties agree that the Agency does not have authority to withhold records on the 

basis of responsiveness, under controlling case law. See ECF No. 26 (Defendants’ Motion to 

Dismiss) (“Def. MTD”) at 20 (citing Am. Immigr. Laws. Ass’n v. Exec. Off. for Immigr. Rev., 

830 F.3d 667, 677 (D.C. Cir. 2016)); ECF No. 28 (Plaintiffs’ Cross Motion for Summary 

Judgment) (“Pl. MSJ”) at 27.

D. Other Modifications

 Finally, the 2019 Rule modifies language related to the EPA’s aggregation of FOIA 

requests, the fees charged for processing requests, expedited processing of requests, and multitrack processing, whereby the EPA manages requests in accordance with perceived complexity. 

See 40 C.F.R § 2.107(i) (aggregation); id. § 2.107 (schedule of fees); id. § 2.104(f) (expedited 

processing); id. § 2.104(c) (multi-track processing). Those modifications, for the most part,

make grammatical and stylistic changes, while leaving the substance of the regulations 

untouched. Compare, e.g., id. § 2.104(c) with id. § 2.104(c) (2018). The only substantive 

change is to the limitations on charging fees the EPA adopts. Id. § 2.107(d)(6).5

 There, the EPA 

5 The regulation reads: 

(6) If EPA fails to comply with the FOIA’s time limits for responding to a request, EPA 

will not charge search fees, or, in the instance of requesters described in paragraphs 

(b)(4) through (6) of this section, duplication fees, except as follows:

(i) If EPA determined that unusual circumstances as defined by the FOIA apply and 

the Agency provided timely written notice to the requester in accordance with the 

FOIA, a failure to comply with the time limit shall be excused for an additional 

10 working days;

(ii) If EPA determined that unusual circumstances as defined by the FOIA apply and 

more than 5,000 pages are necessary to respond to the request, EPA may charge 
6

modified the circumstances under which it charges search fees, implementing a congressional 

directive in the FOIA Improvement Act of 2016. See 130 Stat. 538, 544 (“[T]he head of each 

agency . . . shall review the regulations of such agency and shall issue regulations on procedures 

for the disclosure of records under [the FOIA], in accordance with the amendments made by [the 

2016 Act].”). 

II. Procedural History

Soon after the EPA implemented the 2019 Rule, EcoRights filed a Complaint challenging 

the amended regulations in the U.S. District Court for the Northern District of California on July 

24, 2019. See Ecological Rts. Found. v. EPA, Case No. 19-cv-3270 (D.D.C.), ECF No. 1 

(Complaint). On October 18, 2019, the Northern District of California granted the EPA’s motion 

to transfer the case to the District of Columbia. See id., ECF No. 23. On April 17, 2020, this

Court consolidated EcoRights’ case with two related cases, Center for Biological Diversity v. 

EPA, Case No. 19-cv-2198 (D.D.C.), and Citizens for Responsibility and Ethics in Washington v. 

EPA, Case No. 19-cv-2181 (D.D.C). As discussed, infra, the two other cases have been settled.

search fees, or, in the case of requesters described in paragraph paragraphs (b)(4) 

through (6) of this section, may charge duplication fees, if the following steps are 

taken: EPA must have provided timely written notice of unusual circumstances to 

the requester in accordance with the FOIA and the EPA must have discussed with 

the requester by written mail, email, or telephone (or made not less than three 

good-faith attempts to do so) how the requester could effectively limit the scope 

of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii), which includes 

notification to the requester of the availability of the FOIA Public Liaison and the 

right to seek dispute resolution services from the Office of Government

Information Services. If this exception is satisfied, EPA may charge all 

applicable fees incurred in the processing of the request; or

(iii) If a court determines that exceptional circumstances exist, as defined by the 

FOIA, a failure to comply with the time limits shall be excused for the length of 

time provided by the court order.

See 40 C.F.R. § 2.107(d)(6). 
7

EcoRights’ Complaint alleges that:

(1) The centralization of the EPA’s FOIA processing, as codified in 40 C.F.R. § 2.101(a), 

violates the FOIA and the APA because it will “inevitably slow” the FOIA process. See Compl., 

¶ 48.

(2) Allowing the EPA Administrator to make initial and final FOIA determinations, as 

provided in 40 C.F.R. § 2.103(b), violates the FOIA and the APA because there would be no 

avenue to appeal such a determination to the agency head, as required by statute. See id., ¶ 51.

(3) Authorizing EPA officials to withhold portions of records based on responsiveness, as 

codified in 40 C.F.R. § 2.103(b), violates the FOIA and the APA because agencies may not 

withhold portions of a record based only on responsiveness under well-settled D.C. Circuit 

precedent. See id., ¶ 57 (citing Am. Immigr. Laws. Ass’n, 830 F.3d at 676–79).

(4) The promulgation of the 2019 Rule without notice and comment violates the FOIA 

and the APA because the EPA’s invocation of the procedural and good-cause exceptions was 

inappropriate; and in any event, certain modified provisions independently require notice-andcomment rulemaking under the FOIA. See Compl., ¶ 60.6

EcoRights asks the Court to vacate the 2019 Rule, to enjoin the EPA from relying on any 

of its provisions, and to direct the agency to “promulgate new FOIA regulations, if any, by first 

providing a proposed rule followed by at least a 30-day public comment period before adopting a 

final rule.” See id. at 20. On May 11, 2020, the EPA moved to dismiss Plaintiff’s case under 

6 EcoRights initially asserted an additional claim, challenging modifications to 40 C.F.R. § 2.103(a), but it is 

no longer pursuing what it originally styled as “Claim 3.” See Pl. MSJ at 26 (“EcoRights does not oppose dismissal 

of its third claim for relief.”). 
8

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6); EcoRights cross-moved for partial 

summary judgment. See generally Def. MTD; Pl. MSJ. 

On February 10, 2022, the plaintiffs in the two cases consolidated with this one entered a 

settlement agreement with the EPA. See ECF No. 50 (Stipulation of Dismissal); ECF No. 50-1 

(Settlement Agreement).7 The Court held a hearing on March 3, 2022, to discuss the impact of 

the Settlement Agreement on EcoRights’ claims. The parties agreed that the Court should rule 

on the pending motions with respect to Claims 1, 2, and 5; and should remand Claim 4 to the 

agency. The parties dispute, however, whether Claim 4 should be remanded with or without 

vacatur, in light of the Settlement Agreement. The Court held a motion hearing on April 6, 

2022. The motions are now ripe for decision. 

LEGAL STANDARD

I. Subject-Matter Jurisdiction

When a defendant brings a Rule 12(b)(1) motion to dismiss, the plaintiff must 

demonstrate by a preponderance of the evidence that the court has subject-matter jurisdiction to 

hear her claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); US Ecology, Inc. v.

Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). “Because subject-matter jurisdiction focuses 

on the court’s power to hear the plaintiff’s claim, a Rule 12(b)(1) motion imposes on the court an 

affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.” 

See Grand Lodge of Fraternal Ord. of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001)

7 Pursuant to the Settlement Agreement, the EPA agreed, inter alia, to sign and submit a notice of proposed 

rulemaking in which the agency will propose revising the text of 40 C.F.R. § 2.103(b). See Settlement Agreement 

§ 1.a. The NPRM will also solicit public comment on whether the EPA should reinstate any FOIA request 

submission method that was removed from 40 C.F.R. § 2.101(a). See id. The EPA agreed to sign and publish a 

notice of final action, if appropriate, after receiving the public comments. See id. § 1.b. 
9

(citation omitted). As a result, “the plaintiff’s factual allegations in the complaint . . . will bear

closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to 

state a claim.” See id. at 13–14 (cleaned up). A federal court lacks jurisdiction if the plaintiff 

does not establish standing. See Lujan, 504 U.S. at 561 (noting that “[t]he party invoking federal 

jurisdiction bears the burden of establishing the[] elements” of standing (citation omitted)). 

II. Failure to State a Claim

To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a claim upon 

which relief can be granted.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 552 (2007). 

Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) 

motion, see id. at 555, “a complaint must contain sufficient factual matter, accepted as true, to 

‘state a claim to relief that is plausible on its face.’” See Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (quoting Twombly, 550 U.S. at 570). “[W]hen a district court is reviewing agency 

action . . . the legal questions raised by a 12(b)(6) motion and a motion for summary judgment 

are the same.” See Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1222–23 (D.C. 

Cir. 1993); see also Nat’l Auto Dealers Ass’n v. FTC, 864 F. Supp. 2d 65, 72 (D.D.C. 2012) 

(noting that motions to dismiss and motions for summary judgment “are normally judged under 

different legal standards,” but “the inquiry in [APA] case[s] is the same” (citation omitted)). 

“Under the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is 

supported by the administrative record,” while “the function of the district court is to determine 

whether or not as a matter of law the evidence in the administrative record permitted the agency 

to make the decision it did.” See id. (quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 769–

770 (9th Cir. 1985)). 
10

Notably, the APA provides a “default standard” of judicial review of agency actions 

when the governing statute does not otherwise provide one: “[a] court must set aside agency 

action it finds to be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law.’” See Tourus Records, Inc. v. DEA, 259 F.3d 731, 736 (D.C. Cir. 2001) (quoting 5 

U.S.C. § 706(2)(A)). “The ‘arbitrary and capricious’ standard of review as set forth in the APA 

is highly deferential,” and the Court must therefore “presume the validity of agency action.” See 

Am. Horse Prot. Ass’n v. Yeutter, 917 F.2d 594, 596 (D.C. Cir. 1990) (citation omitted). 

Although the “court is not to substitute its judgment for that of the agency[,] . . . the agency 

nevertheless must examine the relevant data and articulate a satisfactory explanation for its 

action[,] including a rational connection between the facts found and the choice made.” See 

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citations 

and quotation marks omitted). 

ANALYSIS

I. Claim 1: Centralization of the EPA’s FOIA Intake Procedures

EcoRights claims that the EPA’s centralization of intake for FOIA requests at the 

agency’s Washington, D.C., headquarters, as codified at 40 C.F.R. § 2.101(a), violates Section

706(2)(A) of the APA because the change is “unreasonable, arbitrary, and capricious in light of 

[the EPA’s] overwhelming failure to timely process FOIA requests and the fact that this will 

inevitably slow that process down further.” See Compl., ¶ 48. EcoRights further claims that the 

new procedure violates Section 552(a)(4)(B) of the FOIA because it “represents an improper 

withholding of records.” See id., ¶ 49. In response, the EPA argues that EcoRights does not 

have standing to challenge Section 2.101(a) because it “[has] failed to plausibly allege any 
11

imminent injury arising out of EPA’s decision to centralize FOIA intake at the National FOIA 

Office,” see Def. MTD at 9; and that even if EcoRights does have standing, it “fails to plausibly 

allege that [the] EPA’s modest changes to its FOIA submission procedures were unreasonable, 

arbitrary, or capricious,” see id. at 12. 

Standing is a necessary predicate to any exercise of federal jurisdiction. If it is lacking, 

the dispute is not a proper case or controversy under Article III, and a federal court does not have 

subject matter jurisdiction to decide the case. See Dominguez v. UAL Corp., 666 F.3d 1359, 

1361 (D.C. Cir. 2012). Thus, “[w]hen there is doubt about a party’s constitutional standing, the 

court must resolve the doubt,” before proceeding to the merits. See Lee’s Summit v. Surface 

Transp. Bd., 231 F.3d 39, 41 (D.C. Cir. 2000) (citations omitted); see also Gutrejman v. United 

States, No. 20-cv-266, 2022 WL 856384, at *5 (D.D.C. Mar. 22, 2022) (“It is, of course, a 

bedrock principle that Article III courts must, except under unusual circumstances, resolve 

jurisdictional defenses before turning to the merits of a dispute.” (citing Steel Co. v. Citizens for 

a Better Env’t, 523 U.S. 83, 94–95 (1998))). 

Standing has three elements: injury in fact, causation, and redressability. See Lujan, 504 

U.S. at 560–61. First, the plaintiff must show “an invasion of a legally protected interest which 

is (a) concrete and particularized,” and “(b) actual or imminent, not conjectural or hypothetical.” 

Lujan, 504 U.S. at 560 (cleaned up). Second, there must be traceable causation from a 

defendant’s alleged action to a plaintiff’s injury. See id.; see also Fla. Audubon Soc., 94 F.3d at 

664 (“Causation may thus be said to focus on whether a particular party is appropriate.”). Third, 

the plaintiff must establish that it is “likely, as opposed to merely speculative, that the injury will 

be redressed by a favorable decision.” See Lujan, 504 U.S. at 561 (cleaned up); see also Fla. 
12

Audubon Soc., 94 F.3d at 663–64 (“Redressability examines whether the relief sought, assuming 

that the court chooses to grant it, will likely alleviate the particularized injury alleged by the 

plaintiff.”). A plaintiff must establish injury in fact, causation, and redressability separately for 

each defendant. See Garcia v. Stewart, 531 F. Supp. 3d 194, 205 (D.D.C. 2021) (citing 

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006)). “[I]n reviewing the standing 

question, the court . . . must assume that on the merits the plaintiffs would be successful in their 

claims.” Schnitzler v. United States, 761 F.3d 33, 40 (D.C. Cir. 2014) (citation omitted). 

EcoRights’ two theories of injury are premised on its “reasonable beliefs” about the 

likely effects of the new FOIA procedures: First, EcoRights argues that it “reasonably believes” 

that delays in the EPA’s already slow processing of FOIA requests “will be exacerbated by the 

2019 Regulations,” see Pl. MSJ at 8; see also Compl., ¶ 9 (“Plaintiffs are harmed by EPA’s 

failure to properly implement FOIA, which threatens Plaintiffs’ ability to receive complete and 

timely record productions in response to their current and future FOIA requests to EPA.”); see 

id., ¶ 11 (“EPA’s FOIA Regulations will delay production of records and result in additional 

records being improperly withheld.”); second, EcoRights asserts that it “reasonably anticipates 

that its requests will be subjected to political interference” because the new regulations “route all 

requests through the office with the highest density of political appointees, increasing 

opportunity for political interference with EcoRights’ FOIA requests,” see Pl. MSJ at 9. Thus, 

EcoRights relies only on a perceived increase in risk that it will experience problems in the 

processing of its FOIA requests due to the implementation of the 2019 Rule. “Although the D.C. 

Circuit has recognized that ‘increases in risk can at times be “injuries in fact” sufficient to confer 

standing,’ the governing standard is not easily met.” See Public Citizen, Inc. v. Trump, 297 F. 
13

Supp. 3d 6, 21 (D.D.C. 2018) (quoting Nat. Res. Def. Council v. EPA, 464 F.3d 1, 6 (D.C. Cir. 

2006)). The D.C. Circuit “has limited its jurisdiction over cases alleging the possibility of 

increased-risk-of-harm to those where the plaintiff can show ‘both (i) a substantially increased 

risk of harm and (ii) a substantial probability of harm with that increase taken into account.’”

See Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 914 (D.C. Cir. 2015) (citation omitted). 

EcoRights has not met that standard. In support of its claim of anticipated delays in the 

processing of its FOIA requests, EcoRights argues that “EPA Headquarters, the site of massive 

delay even before increasing its workload, will now be carrying out further FOIA work.” See Pl. 

MSJ at 13–14 (noting that “at the end of 2018, EPA had 2,761 overdue FOIA requests 

pending[,] . . . more than twice as many overdue requests as two years before, indicating an 

escalating problem”); see also Pl. Reply at 2 (explaining that as evidence, EcoRights relies on 

“numerous personal experiences, scores of lawsuits challenging EPA’s failure to comply, and 

other sources of information”). But the EPA took steps to address the expected increase in

workload at its headquarters due to the centralization of intake: The agency hired five additional 

staff members for the EPA’s National FOIA Office (“NFO”). See ECF No. 26-1 (Declaration of 

Timothy Epp), ¶¶ 4–5. Although EcoRights attempts to downplay the significance of the 

agency’s efforts, suggesting that there has been only a “minor staffing increase” that “proves 

nothing,” see Pl. MSJ at 15, the staffing increase is certainly relevant in the Court’s assessment 

of whether there is a substantially increased risk of delay in the processing of EcoRights’ FOIA 

requests. 

Moreover, EcoRights overstates the increase in workload at headquarters associated with 

the change. Contrary to EcoRights’ contention, the agency has centralized only the
14

“submission” of FOIA requests, not their processing. See 40 C.F.R. 2.101(a); 84 Fed. Reg. at 

30030 (describing changes to the “Methods of Submitting FOIA Requests” and stating that the 

“EPA makes the [EPA headquarters] the point of entry for all requests”). Whereas FOIA 

processing involves searching for records, and then reviewing the records for responsiveness and

exempt material, see ECF No. 26-2 (Declaration of Joan G. Kaminer), Ex. B, Tab 1 at 6–12, the

intake of FOIA requests is substantially less labor-intensive: It includes only an initial review to 

determine whether requests comply with statutory and regulatory requirements; granting or 

denying applications for expedited processing, see id. at 4–6; and then assigning requests to 

appropriate offices within the agency for processing, see 40 C.F.R. § 2.103(a). Further, the 

change affects only those requests that would have been made directly to regional offices under 

the prior rule, whereas the five requests from EcoRights referenced in its Complaint were made 

via the FOIAOnline website — an entry point that remains unchanged. See Compl., ¶¶ 43–45; 

Kaminer Decl., Ex. A. Thus, EcoRights fails to meet its burden to demonstrate that the new 

procedure imposes a “substantially increased risk” of delays in the processing of its own FOIA 

requests, and a “substantial probability” of delay. See Food & Water Watch, 808 F.3d at 914.8

EcoRights relies heavily on McGehee v. CIA, 697 F.2d 1095 (D.C. Cir. 1983), to make its 

standing argument. See Pl. MSJ at 17; Pl. Reply at 5; see also Compl., ¶ 49. According to 

8 In its Reply, EcoRights attempts to establish a concrete injury by describing the EPA’s delay in processing 

a FOIA request that EcoRights submitted on October 29, 2019. See Pl. Reply at 4 (arguing that “centralization has 

already begun causing delays”). According to EcoRights, EPA Headquarters “took so long to route the request to 

EPA Region 9 that it was already 75 days overdue before Region 9 even contacted EcoRights to request an 

extension.” See id. (citing ECF No. 35-1 (Second Declaration of Stuart Wilcox)). But as the EPA showed in its 

Surreply, the agency communicated several times with EcoRights after the request was submitted. See ECF No. 53 

(Defendants’ Surreply) at 1–2 (citing ECF No. 32-3 (Second Declaration of Timothy Epp), ¶¶ 6–12). Indeed, the 

EPA issued an initial denial of EcoRights’ request for expedited processing on November 1, 2019, before engaging 

in an extended discussion with EcoRights about its requests for expedited processing and fee waiver. See Second 

Epp Decl., ¶¶ 6–12. Thus, the cited incident does not show that EcoRights suffered a concrete, particularized, and 

actual or imminent injury in fact that establishes standing. See Lujan, 504 U.S. at 560–61.
15

Plaintiffs, the D.C. Circuit held that a “system adopted for processing documents ‘constitutes 

“withholding” of those documents if its net effect is significantly to impair the requester’s ability 

to obtain the records or significantly to increase the amount of time he must wait to obtain 

them.’” See Pl. MSJ at 13 (quoting McGehee, 697 F.2d at 1110). Here, because the EPA has 

adopted a centralization system that EcoRights believes will delay FOIA processing, Plaintiff 

claims that the asserted delay constitutes a “withholding” of records under the FOIA and thereby

confers standing. As an initial matter, as discussed supra, EcoRights has failed to demonstrate 

that the new policy has caused any meaningful delay in the processing of EcoRights’ FOIA 

requests, which forecloses the argument that such delay constitutes a withholding of records. 

But in any event, Plaintiff’s reading of McGehee is overbroad. That case did not hold 

that any agency procedure that results in a slower processing of FOIA requests may be deemed 

an illegal “withholding” of records. Rather, the cited portion of McGehee addresses a challenge 

to the CIA’s “referral procedure,” under which the agency failed to process responsive 

documents in its possession that originated in other agencies and instead “referred” such requests 

to the originating agencies. See McGehee, 697 F.2d at 1109–10. While such a procedure could 

amount to an effective “withholding” of records — given that the records in question were, in 

fact, in the CIA’s possession — that policy cannot be fairly analogized to the centralization of 

intake that is at issue here, where it is undisputed that the EPA is processing the records that it 

possesses, and Plaintiff’s complaint is merely that the processing has been slowed down. Thus, 

Plaintiff’s reliance on McGehee is misplaced.

9

 

9 Plaintiffs appear to brush off the EPA’s efforts to distinguish McGehee by stating that the agency’s 

arguments “lack substance, and, regardless, the Court must assume EcoRights would succeed on the merits of this 

claim for standing purposes.” See Pl. MSJ at 17 (citing Barker v. Conroy, 921 F.3d 1118, 1124 (D.C. Cir. 2019)). It 
16

EcoRights’ attempt to allege a second injury — an increased risk of political interference 

caused by the centralization of FOIA intake — fares no better. EcoRights provides no facts to

substantiate its assertion that the new intake procedures will cause EPA officials to violate the 

FOIA by making “indefensible decisions” on EcoRights’ FOIA requests for “political” reasons. 

See Pl. MSJ at 16. Instead, EcoRights tries to bolster its political-interference claim by noting 

that several of the organization’s recent FOIA requests have been subjected to an “awareness 

review process” for “politically charged” requests. See Pl. Reply at 11 (citing Wilcox Decl. ¶ 3, 

Ex. 2 at 5, Ex. 3 at 14). But such “awareness review” does not affect the processing of FOIA 

requests and has no connection to the centralization of intake. As the EPA explains, the 

“awareness review process” is a notification process, through which “senior officials” are 

informed when the agency releases information through the FOIA “that may be of particular 

interest to the press, the public and/or Congress;” it is intended to allow agency leadership to

“respond efficiently to inquiries about such releases.” See Def. Surreply at 3 (awareness review 

is “not an approval process, nor does it alter or eliminate any part of the agency’s existing 

procedures for collecting, reviewing or redacting documents, or preparing responses to FOIA 

requests.” (citing Wilcox Decl., Ex. 4 at 1)). “Awareness review” thus does not support an 

inference of political interference in the processing of FOIA requests; and EcoRights fails to 

explain how “awareness review” is relevant to whether the centralization of intake will result in a 

is true that in Barker, the D.C. Circuit explained that “[f]or purposes of the standing inquiry, we assume [the 

plaintiff] would succeed on the merits of [his or her] claim.” See Barker, 921 F.3d at 1124 (citing Schnitzler, 761 

F.3d at 40). But even if the Court assumes the validity of Plaintiffs’ claim that the centralization policy is arbitrary 

and capricious, Plaintiff must still make a “colorable legal argument[]” that shows an injury caused by the policy

that is likely to be redressed by the remedy it seeks. See Ass’n of Am. R.R. v. Dep’t of Transp., 38 F.3d 582, 585–86

(D.C. Cir. 1994). As discussed, supra, EcoRights has failed to show that the centralization of intake injures it within 

the meaning of Article III, even if that centralization is arbitrary and capricious. 
17

“substantially increased risk” and “substantial probability” of such political interference. See

Food & Water Watch, 808 F.3d at 914.10

For the foregoing reasons, EcoRights has not established a substantially increased risk of 

harm to its interests as a result of the EPA’s centralization of FOIA intake, and it therefore has 

not demonstrated an injury that gives it standing to challenge 40 C.F.R. § 2.101(a). The Court 

therefore grants the EPA’s Motion to Dismiss Claim 1. 

II. Claim 2: Unappealable Determinations by the Administrator

EcoRights’ second claim challenges the “EPA’s decision to allow the Administrator to 

make initial determinations on FOIA requests and to bar requesters from appealing those 

determinations.” See Compl., ¶ 51. According to EcoRights, this is problematic because the 

FOIA “requires that all determinations provide notification of ‘the right of such person to appeal 

to the head of the agency,’” see Compl., ¶ 51 (citing 5 U.S.C. § 552(a)(6)(A)(i)(III)(aa)). 

Because the Administrator is the head of the agency, EcoRights argues that a regulation that 

allows the Administrator to make the initial determination is invalid because it effectively 

removes the appeal right that is guaranteed by FOIA. 

The 2019 Rule amended 40 C.F.R. § 2.103(b) to include the Administrator on a list of 

officials with authority to issue final determinations, as follows: 

10 Both of EcoRights’ alleged injuries are also appropriately categorized as “speculative,” which also proves 

fatal to standing. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409–10 (2013) (standing may not be based on a 

speculative chain of possibilities). EcoRights’ theories of injury are premised largely on its own conjecture about 

the effects of the new procedures, namely that delays and political interference will increase. See Pl. MSJ at 9. To 

finding standing on these grounds, the Court would need to accept a number of unsupported inferences: i.e., that 

centralization of submissions, as opposed to processing, will result in noticeable delays; that EPA’s hiring of 

additional staff will not offset those potential delays; and that EPA employees will choose to make “indefensible 

decisions” on FOIA requests for “political” reasons. See Pl. MSJ at 16. Such speculation is “ordinarily fatal to 

standing.” See Elec. Priv. Info. Ctr. v. DOC (“EPIC”), 928 F.3d 95, 102 (D.C. Cir. 2019) (citation omitted); see 

also id. at 104 (explaining that standing does not exist where plaintiffs “cannot allege imminent [] harm without 

assuming the independent violation of other laws” by a federal agency). 
18 

(II) Authority to issue final determinations. The Administrator, Deputy 

Administrators, Assistant Administrators, Deputy Assistant 

Administrators, Regional Administrators, Deputy Regional 

Administrators, General Counsel, Deputy General Counsels, Regional 

Counsels, Deputy Regional Counsels, and Inspector General or those 

individuals’ delegates, are authorized to make determinations required 

by 5 U.S.C. 552(a)(6)(A), including to issue final determinations 

whether to release or withhold a record or a portion of a record on the 

basis of responsiveness or under one or more exemptions under the 

FOIA, and to issue “no records” responses. 

See 40 C.F.R. § 2.103(b).11 The Administrator’s authority to issue initial determinations is 

addressed in another provision that was not modified by the 2019 Rule, 40 C.F.R. § 2.104(j)(2). 

That regulation provides: “An adverse determination by the Administrator on an initial request 

[serves] as the final action of the Agency.” See id. § 2.104(j)(2); see also 40 C.F.R. 2.104(j)(3) 

(2018).12 The EPA argues that Plaintiff is not injured by the changes made in the 2019 Rule and 

thus lack standing to challenge the new regulation; that even if Plaintiff had standing, its claim 

regarding initial determinations is barred by the statute of limitations for challenging agency 

11 The 2019 Rule’s amendments to 40 C.F.R. § 2.103(b) are as follows, with deletions in strikeout text and 

additions in bold text: 

(b) Authority to grant or deny requests issue final determinations. The head of an office

Administrator, Deputy Administrators, Assistant Administrators, Deputy Assistant 

Administrators, Regional Administrators, Deputy Regional Administrators, General 

Counsel, Deputy General Counsels, Regional Counsels, Deputy Regional Counsels, 

and Inspector General or that individual’s designee, is those individuals’ delegates, are

authorized to grant or deny any request for make determinations required by 5 U.S.C. 

552(a)(6)(A), including to issue final determinations whether to release or withhold a 

record or a portion of that office or other Agency records when appropriate a record on 

the basis of responsiveness or under one or more exemptions under the FOIA, and to 

issue “no records” responses. 

Compare 40 C.F.R. § 2.103(b), with id. § 2.103(b) (2018). 12 Under the FOIA, only final agency actions may be appealed in federal court; anything less than final 

agency action must be appealed through administrative processes. See Pinson v. DOJ, 69 F. Supp. 3d 125, 131 

(D.D.C. 2014) (“A FOIA requester must exhaust his administrative remedies before filing suit in federal court.” 

(citing Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004)). 
19

action; and that, in any event, the FOIA does not confer an absolute right of appeal to an agency 

head. See Def. MTD at 13–19. The Court agrees with the EPA on all three grounds. 

A. Standing

As with Claim 1, the Court begins with standing. See Dominguez, 666 F.3d at 1361; see 

also Gutrejman, 2022 WL 856384, at *5 (citation omitted). To challenge the amendment to

Section 2.103(b), EcoRights must satisfy the three elements of standing: injury in fact, 

causation, and redressability. See Lujan, 504 U.S. at 560–61.

EcoRights’ claim appears to rest on a misunderstanding of when the Administrator was

first empowered to make unappealable initial determinations. Although EcoRights claims that 

the 2019 Rule conferred such authority on the Administrator, it appears that the Administrator 

has been able to make initial FOIA determinations since at least 2002, under 40 C.F.R. 

§ 2.104(j)(3). See 67 Fed. Reg. 67303, 67310 (Nov. 5, 2002); 40 C.F.R. § 2.104(j)(3) (2018)

(“An adverse determination by the Administrator on an initial request will serve as the final 

action of the Agency.”).

13 In addition, the Administrator’s authority to issue unappealable initial 

FOIA determinations was acknowledged by 40 C.F.R. § 2.104(h) — also promulgated in 2002 

— under which the Administrator delegated his authority to make initial determinations to a 

series of EPA officials: The act of delegating that authority proves that the Administrator 

possessed the authority to begin with. See 40 C.F.R. § 2.104(h) (2018)14; see also 67 Fed. Reg. 

13 Although EcoRights argues that Section 2.104(j)(3) merely reflects that “an appeal decision of the 

Administrator is the final EPA agency action,” see Pl. MSJ at 24, that interpretation defies the plain meaning of the 

words. The regulation speaks to an “adverse determination by the Administrator on an initial request,” not a 

“decision by the Administrator on appeal.” See 40 C.F.R. § 2.104(j)(3) (2018). 14 The regulations read: 

Initial denials of requests. The Deputy Administrator, Assistant Administrators, Regional 

Administrators, the General Counsel, the Inspector General, Associate Administrators, and 
20

67303, 67307 (Nov. 5, 2002); ECF No. 29-1 (Second Declaration of Joan Kaminer), Ex. B

(delegations manual explaining that delegations allow subordinate agency officials to carry out

responsibilities on the Administrator’s behalf). 

Because the Administrator has had the power to issue unappealable initial FOIA 

determinations since at least 2002, EcoRights fails to establish that the harm it alleges — i.e., the 

loss of appeal rights — is caused by the challenged 2019 Rule, and that voiding the amended 

regulation would redress the asserted injury. See Lujan, 504 U.S. at 561. EcoRights’ challenge 

to the amended Section 2.103(b) focuses on the inclusion of the Administrator on a list of 

officials who can “issue final determinations” on FOIA requests. See 40 C.F.R. § 2.103(b). But

the added reference to the EPA Administrator does not substantively change the Administrator’s

authority, as discussed supra. See 40 C.F.R. § 2.104(j)(3); 40 C.F.R. § 2.104(h). The EPA

adopted the new language in the 2019 Rule merely to “simplif[y] and consolidate[] section 

2.103(b) . . . and section 2.104(h).” See 84 Fed. Reg. at 30031.

15 Because the 2019 Rule

challenged by EcoRights is not the cause of the asserted loss of appellate rights, invalidating the 

new regulation would not redress that alleged harm. See Ass’n of Am. Physicians & Surgeons v. 

Sebelius, 901 F. Supp. 2d 19, 42 (D.D.C. 2012) (holding that injuries “caused by statutes and 

regulations that pre-date the agency actions plaintiffs’ challenge” suffered from “a causation 

problem” and the harms were “not redressable”); Atl. Urological Assoc., P.A. v. Leavitt, 549 F. 

heads of headquarters staff offices are delegated the authority to issue initial 

determinations. However, the authority to issue initial denials of requests for existing, 

located records (other than initial denials based solely on § 2.204(d)(1)) may be redelegated 

only to persons occupying positions not lower than division director or equivalent.

See 40 C.F.R. § 2.104(h) (2018) (emphasis added). 15 Section 2.103(b) “empowered the ‘head of an office, or that individual’s designee’ to grant or deny 

requests,” and section 2.104(h) “empowered division directors or equivalents authority to issue ‘denials.’” See 84 

Fed. Reg. at 30031.
21

Supp. 2d 20, 28 (D.D.C. 2008) (finding that a rule that “did not change anything” was not 

causally linked to the alleged injury and “invalidating it would not afford” any relief). 

EcoRights also fails to adequately show that EcoRights itself will be injured by the 

alleged procedural change. According to EcoRights, now that the Administrator claims the 

authority to make FOIA determinations, it is likely that he will choose to make determinations on 

EcoRights’ requests; and those determinations will be motivated by “political, personal, and 

other reasons” that will injure EcoRights. See Pl. MSJ at 24–25; Pl. Reply at 11; see also ECF 

No. 11-1 (Declaration of Edward Scher), ¶ 11 (explaining that Plaintiff “believe[s] that this 

[alleged] change could lead to interference with EcoRights’ FOIA requests where they are 

considered ‘politically charged’”); id., ¶ 24 (expressing concern that “decisions on EcoRights’ 

FOIA requests could be more politicized. . . . could be subject to awareness review, political 

appointee determinations, and other political meddling with FOIA”). Such a claim of future 

injury “may suffice [for purposes of establishing standing] if the threatened injury is certainly 

impending, or there is a substantial risk that the harm will occur.” Susan B. Anthony List v. 

Driehaus, 573 U.S. 149, 158 (2014) (cleaned up). Neither is the case here. 

It is pure speculation that the Administrator will imminently decide one of EcoRights’

FOIA requests, or that there is a substantial risk that he will do so. Indeed, despite having the 

authority to issue initial decisions since at least 2002, no EPA Administrator has ever made an 

initial determination for any of EcoRights’ FOIA requests. See Def. Reply at 13; Def. MTD at 

15. And even assuming, arguendo, that the 2019 Rule confers a new power on the Administrator 

to issue initial determinations, it is highly unlikely that the head of an agency would engage in 

the mundane tasks associated with processing FOIA requests. Moreover, even if the 
22

Administrator decided to resolve one of EcoRights’ FOIA requests, there is no support for the 

claim that the Administrator would injure EcoRights by acting “for personal, reputational, and 

political reasons.” See Pl. MSJ at 25. Simply asserting that “many of EcoRights’ FOIA requests 

are ‘politically charged,’” id., is insufficient to establish “certainly impending” political 

interference by the Administrator, or even a “substantial risk” of such injury. See Susan B. 

Anthony List, 573 U.S. at 158; see also EPIC, 928 F.3d at 102 (explaining that “pure 

speculation” that a federal agency will not comply with its legal obligations “is ordinarily fatal to 

standing” (citation omitted)). The Supreme Court has held that where the challenged statute or 

regulation “at most authorizes — but does not mandate or direct — the [injury] that [plaintiffs] 

fear,” any “allegations are necessarily conjectural” and there can be no substantial risk of injury 

based on those facts. See Clapper, 568 U.S. at 412. Such is the case here. Thus, EcoRights 

lacks standing to bring Claim 2. 

B. Statute of Limitations

Even if EcoRights did have standing to bring Claim 2, its challenge is also barred by the 

applicable statute of limitations. A challenge to an agency’s regulation constitutes a “civil action 

commenced against the United States” that is “barred unless the complaint is filed within six 

years after the right of action first accrues.” See 28 U.S.C. § 2401(a); P&V Enters. v. Army 

Corps of Eng’rs, 516 F.3d 1021, 1023 (D.C. Cir. 2008) (considering challenge to rulemaking as 

pursuant to 28 U.S.C. § 2401(a)); Daingerfield Island Protective Soc’y v. Babbitt, 40 F.3d 442,

445 (D.C. Cir. 1994) (applying six-year limitations period to challenge of agency action); see 

also Jackson v. Modly, 949 F.3d 763, 776–78 (D.C. Cir. 2020). 
23

Here, EcoRights is challenging the EPA’s decision to “vest the Administrator with 

authority to make initial FOIA determinations that are not appealable.” See Pl. MSJ at 17. But, 

as noted supra, the EPA promulgated the regulation providing that “[a]n adverse determination 

by the Administrator on an initial request will serve as the final action of the Agency” in 2002. 

See 67 Fed. Reg. 67303, 67310 (Nov. 5, 2002); 40 C.F.R. § 2.104(j)(3) (2018). EcoRights filed 

its Complaint challenging the Administrator’s authority to make unappealable initial 

determinations in 2019, well outside of the six-year statute of limitations. Thus, Claim 2 is 

barred by the statute of limitations and must be dismissed on this alternative ground.

16 

C. Failure to State a Claim

Finally, even assuming that EcoRights has standing and that its challenge is timely, 

EcoRights fails to state a claim. EcoRights contends that FOIA confers a right “to appeal a 

FOIA determination to the head of the agency,” and that the 2019 Rule is invalid because it 

eliminates that statutory right. See Compl., ¶ 51 (citing 5 U.S.C. § 552(a)(6)(A)(i)(III)(aa)); see 

also Pl. MSJ at 18 (“EPA cannot eliminate the right to appeal initial FOIA determinations.”); id.

at 20–22 (explaining that the Administrator may not make initial FOIA determinations because 

“Congress conferred only appeal authority to the Administrator”). But the asserted statutory 

right does not bear the significance that EcoRights attempts to attribute to it. 

The relevant statute, 5 U.S.C. § 552(a)(6)(A)(i)(III)(aa), provides: 

(III) [I]n the case of an adverse determination —

16 EcoRights attempts to refute this argument by offering a different reading of the EPA’s 2002 regulations. 

See Pl. MSJ at 22–24; Pl. Reply at 8–10. In Plaintiff’s view, 40 C.F.R. § 2.104(j)(2) should be read to provide that 

“an Administrator determination on an appeal will preclude contrary initial determinations by subordinates on 

requests for duplicate records” because section 2.104(j)(2) is in the “appeals section” of the regulation. See Pl. 

Reply at 8. That reading, however, is tortured, to say the least. The plain language of the provision indicates that 

the Administrator may make “[a]n adverse determination . . . on an initial request.” See 40 C.F.R. § 2.104(j)(2). 
24

(aa) the right of such person to appeal to the head of the agency, 

within a period determined by the head of the agency that is not 

less than 90 days after the date of such adverse 

determination; . . . . 

See 5 U.S.C. § 552(a)(6)(A)(i)(III)(aa). The Court agrees that the statute refers to “the right . . . 

to appeal to the head of the agency,” see id., and that allowing the EPA Administrator to make 

initial determinations obviates the appeal right. But under such circumstances, the 

Administrator’s initial determination simply serves as the final action of the agency, which may 

be appealed in a court of law. See 40 C.F.R. § 2.104(j)(2) (An “adverse determination by the 

Administrator on an initial request will serve as the final action of the Agency.”).

That conclusion is consistent with the interpretation by courts in this jurisdiction of

Subsection (a)(6)(A)(i), which courts have held “relates only to the requester’s ability to get into 

court.” See Elec. Priv. Info. Ctr. v. DOJ, 15 F. Supp. 3d 32, 41 (D.D.C. 2014) (citing Citizens 

for Responsibility and Ethics in Washington v. FEC, 711 F.3d 180, 189 (D.C. Cir. 2013)

(“CREW v. FEC”)). For example, in National Security Counselors v. Central Intelligence 

Agency, 969 F.3d 406 (D.C. Cir. 2020), the D.C. Circuit upheld a CIA policy that did not permit 

FOIA requesters to administratively appeal decisions on FOIA requests that the agency had 

deemed improper. See Nat’l Sec. Couns. v. CIA, 898 F. Supp. 2d 233, 247 (D.D.C. 2012), aff’d 

sub nom. Nat’l Sec. Couns., 969 F.3d at 412. In that case, the CIA entirely eliminated the 

opportunity for administrative appeals but, as the court explained, “the unavailability of an 

administrative appeal would not preclude a requester from seeking judicial review of an agency’s 

decision that a request is improper.” See id. at 280. Instead, the court explained that the lack of 

administrative appeal meant only that the agency’s initial decision served as a final agency action 

that could be immediately appealed in federal court. See id. at 280 (“[S]uch an agency decision 
25

would be presumptively reviewable under the APA, if not the FOIA itself.”); see also id. at 281

(“A party appearing before an administrative body cannot be punished for the agency’s choice to 

shoot itself in the foot by refusing to review its own decisions.”). 

Similarly, when the D.C. Circuit has considered other subsections of Section (a)(6)(A), 

the court has tied the purpose of those provisions to the ability of a party to reach a federal court. 

In CREW v. FEC, the court considered when “a FOIA requester [must] exhaust administrative 

appeal remedies before suing in federal district court to challenge an agency’s failure to produce 

requested documents.” See 711 F.3d at 182. The D.C. Circuit explained that the requirements 

enumerated in Section 552 (a)(6)(A) are tied directly to administrative exhaustion. See id. at 189 

(“If the agency does not adhere to FOIA’s explicit timelines, the ‘penalty’ is that the agency 

cannot rely on the administrative exhaustion requirement to keep cases from getting into court.”). 

The court acknowledged that the Section provides “incentive[s] for agencies” to comply with 

certain requirements, but “recognizes that agencies may not always be able to adhere to” those 

requirements. See id. 

Reading the relevant precedents together, the Court concludes that Section (a)(6)(A) 

relates “to the requester’s ability to get into court”; and if an agency chooses to waive any of the 

requirements in the statute, then the remedy for the FOIA requester is that the agency action is 

deemed final, and the requester may appeal the agency action in federal court. It follows that 

any decision by the EPA to eliminate the right of a FOIA requester to file an administrative 

appeal to the agency head would be permissible; and that such a decision would serve only as a 

waiver of the administrative exhaustion requirement that would otherwise apply.17 Thus, the 

17 EcoRights protests that even if its right to appeal in federal court is preserved, “[a]llowing EPA to bypass 
26

Court rejects Plaintiffs’ argument that the Court should strike down any regulation that results in 

the elimination of the statutorily provided appeal right. Defendants’ Motion to Dismiss Claim 2 

is also granted for failure to state a claim.

III. Claim 4: Withholding Portions of Responsive Records 

In Claim 4, EcoRights challenges 40 C.F.R. § 2.103(b) to the extent that the regulation

purports to allow agency officials to withhold portions of responsive records on the ground that 

those portions are non-responsive to the FOIA request. See Compl., ¶ 57. The parties agree that

“[a]n agency cannot withhold a portion of a record by claiming that portion is not responsive to 

the request.” See id.; see also ECF No. 51 (Joint Status Report) at 2; ECF No. 55 (Defendants’

Memorandum) at 7 (stating that the “EPA does not claim the authority to withhold portions of 

responsive records on the grounds that portions are non-responsive”); see also Am. Immigr. 

Laws. Ass’n, 830 F.3d at 670 (“[O]nce the government concludes that a particular record is 

responsive to a disclosure request, the sole basis on which it may withhold particular information 

within that record is if the information falls within one of the statutory exemptions from FOIA’s 

disclosure mandate.”). The parties also agree that Claim 4 should be remanded to the agency for 

proposed modifications to section 2.103(b). See ECF No. 59 (Defendants’ Reply Memorandum)

at 1 (“The parties agree that the Court should remand Claim Four in this case.”); ECF No. 57 

(Plaintiffs’ Memorandum) at 9 (“remand . . . is not disputed”); id. at 10 (“EcoRights . . . does not 

this mandatory [administrative appeal] process would undermine the ‘administrative scheme’ and the ‘purposes of 

exhaustion.’” See Pl. MSJ at 19 (quoting Nat’l Sec. Couns. v. CIA, 931 F. Supp. 2d 77, 98–100 (D.D.C. 2013)). In 

particular, it highlights that elimination of an administrative appeal “prevents requesters from convincing EPA to 

‘correct its own mistakes,’” requires requesters to “forego the more efficient, quicker, and more economical remedy 

of an appeal,” and “prevent[s] further development [of] the record on appeal.” See id. Plaintiffs’ policy arguments

carry little weight against the binding D.C. Circuit precedents interpreting Section (a)(6)(A). Under those 

precedents, agencies may choose to forego the benefits of administrative exhaustion in this context. 
27

oppose remand”). The parties dispute, however, whether the remand should be accompanied by 

a vacatur of the challenged regulation.

Judicial authority to vacate rules is derived from the APA, which provides that a court 

may “set aside agency action” if it determines that the action is “arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A). As a result, 

courts cannot vacate agency regulations “without judicial consideration of the merits.” See Nat’l 

Parks Conservation Ass’n v. Salazar, 660 F. Supp. 2d 3, 5 (D.D.C. 2009); see also WildEarth 

Guardians v. Bernhardt, No. 20-cv-56, 2020 WL 6255291, at *1 (D.D.C. Oct. 23, 2020) 

(remanding without vacatur because court had not reviewed the information underlying the 

agency decisions and “therefore, it has no basis to vacate the agency action”); Carpenters Indus. 

Council v. Salazar, 734 F. Supp. 2d 126, 136 (D.D.C. 2010) (court lacked authority to order 

“vacatur without a determination of the merits”). The Court, therefore, has two options at this 

time: either to “remand without vacatur or to . . . proceed to the merits.” Am. Forest Res. 

Council v. Ashe, 946 F. Supp. 2d 1, 42 (D.D.C. 2013), aff’d, 601 F. App’x 1 (D.C. Cir. 2015). 

Here, the Court has an “interest[] in avoiding unnecessary adjudication,” and in 

permitting the “crystalliz[ation of agency] policy before that policy is subjected to judicial

review.” Sec. Indus. & Fin. Markets Ass’n v. CFTC, 67 F. Supp. 3d 373, 413 (D.D.C. 2014)

(quoting Am. Petrol. Inst. v. EPA, 683 F.3d 382, 387 (D.C. Cir. 2012)). The EPA’s Settlement 

Agreement obligates the agency to “propose revising the text of 40 C.F.R. § 2.103(b),” to “solicit 

public comment on EPA’s proposed revisions,” and to “sign a notice of final action” regarding 

the revisions within a specified time frame. See Settlement Agreement, §§ 1.a & b. Resolving 

the merits of a challenge to a regulation that may soon be revised makes little sense. Thus, the 
28

Court will decline to reach the merits of Claim 4 and will remand that claim to the EPA without 

vacatur. See 5 U.S.C. § 706; Carpenters Indus. Council, 734 F. Supp. 2d at 135.

IV. Claim 5: Lack of Notice and Comment 

EcoRights’ final argument takes aim at the entirety of the 2019 Rule, which the EPA 

promulgated without notice and comment. See 84 Fed. Reg. at 30029. EcoRights argues that the 

agency’s promulgation of the 2019 Rule without notice-and-comment rulemaking violates 

§ 706(2)(D) of the APA because: (1) The FOIA independently requires notice-and-comment 

rulemaking and the EPA may not use APA exceptions to avoid those requirements, see Compl., 

¶ 60; Pl. MSJ at 35–39; and (2) even if the EPA could rely on the procedural and good-cause

exceptions consistent with the FOIA, neither exception applies in this case, see Pl. MSJ at 39–40. 

EcoRights specifically challenges the changes made to 40 C.F.R. §§ 2.102(c), 2.104(c), 2.104(f), 

and 2.107. See id. at 37; Compl., ¶ 60.18

Before proceeding to the merits of EcoRights’ claim, the Court must first address the 

EPA’s argument that Plaintiffs lack procedural standing, i.e., standing to challenge only the 

alleged procedural deficiencies in the EPA’s adoption of the 2019 Rule. See Gutrejman, 2022 

WL 856384, at *5 (“It is, of course, a bedrock principle that Article III courts must, except under 

unusual circumstances, resolve jurisdictional defenses before turning to the merits of a dispute.” 

18 EcoRights also challenges the EPA’s failure to allow for notice and comment on changes made to 40 

C.F.R. §§ 2.101(a) and 2.103(b). See Pl. MSJ at 39–43. But in order to show standing to challenge procedural 

deficiencies related to either provision, EcoRights must establish that it was substantively harmed by the changes to 

the regulation. See California v. Trump, No. 19-cv-9602020 WL 1643858, at *7 (D.D.C. Apr. 2, 2020) (“There is 

no doubt . . . that a plaintiff that is able to establish that an agency failed to comply with the notice and comment 

procedures of the APA would, nonetheless, have no recourse in an Article III court absent a showing that it suffered 

or will suffer a concrete injury as a result of policy produced through the allegedly flawed process.” (citing Swanson 

Grp. Mfg. LLC v. Jewell, 790 F.3d 235, 239, 244–46 (D.C. Cir. 2015))). EcoRights’ procedural standing to 

challenge changes to 40 C.F.R. §§ 2.101(a) and 2.103(b), therefore, depends on its standing to challenge the 

underlying provisions. Because EcoRights lacks standing to challenge the provisions themselves, see supra, it may 

not challenge the provisions on procedural grounds. 
29

(citation omitted)). “Standing alone, procedural injuries are not enough to establish an injury in 

fact.” See Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of Am. v. Dep’t of 

Agric., No. 20-cv-2552, 2021 WL 4462723, at *7 (D.D.C. Sept. 29, 2021). As the Supreme 

Court explained in Summers v. Earth Island Institute, 555 U.S. 488 (2009), the “deprivation of a 

procedural right without some concrete interest that is affected by the deprivation — a 

procedural right in vacuo — is insufficient to create Article III standing.” See id. at 496. That 

includes the deprivation of the right to participate in notice-and-comment rulemaking, which “in 

and of itself, does not establish an actual injury.” See Int’l Bhd. of Teamsters v. TSA, 429 F.3d 

1130, 1135 (D.C. Cir. 2005). “In order to make out a constitutionally cognizable injury, 

plaintiffs must demonstrate that the allegedly deficient procedures implicate distinct substantive 

interests as to which Article III standing requirements are independently satisfied.” See Freedom 

Republicans, Inc. v. FEC, 13 F.3d 412, 416 (D.C. Cir. 1994). EcoRights must establish

procedural standing to challenge the lack of notice and comment under both the FOIA and the 

APA. 

To demonstrate standing, EcoRights must show that the changes that the EPA made to its 

regulations without notice and comment implicate a concrete interest of the organization. See 

Summers, 555 U.S. at 496. EcoRights cannot do so for its challenges to 40 C.F.R. §§ 102(c), 

104(c), and 104(f) because the changes to those provisions were non-substantive. A comparison 

of the pre-2019 language and the post-2019 language for each of those provisions reveals that the 

agency made grammatical and stylistic changes while leaving the substance of the regulations 
30 

untouched. Compare, e.g., 40 C.F.R. § 2.104(c), with 40 C.F.R. § 2.104(c) (2018).19 EcoRights 

has not shown “that it suffered or will suffer a concrete injury as a result of [the] policy produced 

through the allegedly flawed process,” because the policy has not meaningfully changed as a 

result of the process. See California v. Trump, 2020 WL 1643858, at *7. Plaintiff is correct 

“that in a procedural rights case the burden to show imminence and redressability of injury may 

be lessened,” see Int’l Bhd. of Teamsters, 429 F.3d at 1135; Pl. MSJ at 43–45, but it still bears 

the burden of demonstrating “actual injury to [its] concrete interests,” see Ctr. for Law & Educ. 

v. Dep’t of Educ., 396 F.3d 1152, 1160 (D.C. Cir. 2005). EcoRights understandably struggles to 

show how the minor modifications made by the EPA in any way implicate Plaintiffs’ interests 

other than generally arguing that the EPA would have had to address its comments, which is 

insufficient to establish standing. See Pl. Reply at 24–25. 

 The only substantive change to the regulations challenged in Claim 5 are the additions 

that the EPA made to 40 C.F.R. § 2.107(d)(6). There, the agency modified the circumstances 

under which it will charge search fees, implementing the FOIA Improvement Act of 2016. See

130 Stat. 538. In 2016, Congress amended the FOIA to “ensure that [it] remains the nation’s 

premier transparency law” by reducing the “growing backlog” and clarifying a number of 

19 The 2019 Rule’s amendments to 40 C.F.R. § 2.104(c) are as follows, with deletions in strikeout text and 

additions in bold text: 

Multitrack processing. The Agency uses three or more processing tracks by distinguishing 

between simple and complex requests based on the amount of work and/or , time needed to 

process the request, or both, including limits based on the number of pages involved. The 

Agency will advise you the requester of the processing track in which your request has 

been placed the Agency placed the request and of the limits of the different processing 

tracks. The Agency may place your the request in its a slower track(s) while providing 

you the requester with the opportunity to limit the scope of your the request in order to 

qualify for faster processing within the specified limits of the a faster track(s). If your 

request is placed the Agency places the request in a slower track, the Agency will contact 

you either by telephone or by letter, whichever is most efficient in each case the requester. 
31

exemptions. See S. Rep. No. 114-4, at 3–4 (2015). As part of that reform, Congress amended

the language of 5 U.S.C. § 552 (a)(4)(A)(viii) to provide that agencies shall not assess fees if the 

agency has failed to comply with statutory deadlines, subject to various exceptions. See 130 

Stat. at 538–39 (“[A]n agency shall not assess any search fees . . . if the agency has failed to 

comply with any time limit.”); see also 5 U.S.C. § 552(a)(4)(A)(viii). When Congress made 

those changes, it permitted the head of each agency to “issue regulations . . . in accordance with 

the amendments made by [the 2016 Act]” within 180 days; but it made clear that the 

amendments “shall take effect on the date of enactment . . . and shall apply to any request for 

records under [the FOIA] made after the date of enactment.” See 130 Stat. at 544–45. 

Although the fee provision was meaningfully changed and such changes could cause real 

injury, EcoRights falters on another requirement of standing: redressability. See Lujan, 504 

U.S. at 561 (“[I]t must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be 

‘redressed by a favorable decision.’” (citation omitted)). The EPA modified 40 C.F.R. 

§ 2.107(d)(6) to incorporate exactly the 2016 Act that already governed all FOIA requests made 

after the date of its enactment. See 130 Stat. at 544–45; 84 Fed. Reg. at 30030–31. Indeed, the 

EPA followed Congress’s instructions to the letter by copying the required language in the 2016 

FOIA amendments and pasting it into the Code of Federal Regulations. Compare 5 U.S.C. 

552(a)(4)(viii), with 40 C.F.R. § 2.107(d)(6). Because the statute was self-executing, the 

amendment to the the regulations that duplicated the statutory language had no actual effect on 

Plaintiff’s rights. Any injury to EcoRights in the form of increased fees was essentially “caused 

by [a] statute[] . . . that pre-date[d] the agency action [in amending the regulations, which]

plaintiffs’ challenge.” See Ass’n of Am. Physicians & Surgeons, 901 F. Supp. 2d at 42; see also 
32

Atl. Urological Assoc., P.A., 549 F. Supp. 2d at 28 (where the rule “did not change anything for 

these Plaintiffs,” “invalidating it would not afford them any relief”). Whether the Court 

invalidates 40 C.F.R. § 2.107(d)(6) or not, the fee provisions in the 2016 Amendments became 

effective “on the date of enactment” and will continue to “apply to any request for records under 

[the FOIA] made after the date of enactment.” See 130 Stat. at 544–45.

20

For those reasons, the Court will grant the EPA’s Motion to Dismiss Claim 5 on standing 

grounds. 

CONCLUSION

For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss as to Claims 

1, 2, and 5; remand Claim 4 without vacatur; and deny EcoRights’ Cross Motion for Summary 

Judgment. A separate Order will issue this day.

_____________________________

FLORENCE Y. PAN

United States District Judge

Date: September 12, 2022

20 EcoRights contends that the 2016 Act set a ceiling on when agencies may charge fees but that the EPA 

could choose to charge fees in more limited circumstances. Thus, EcoRights argues, it has standing because it could 

have advocated for a “more constrained” regulation during notice and comment. See Pl. Reply at 25 n.12. Plaintiff 

misapprehends both the statutory structure of the 2016 Act and the action taken by the EPA. As the Court discusses, 

supra, the 2016 Act’s fee amendments were self-executing — they apply regardless of whether the EPA 

incorporated them into the C.F.R. See 130 Stat. at 544–45. By adopting Congress’s language verbatim, the EPA did 

not alter Plaintiff’s situation: if the EPA had taken no action, Plaintiff would still be subject to the same fees. This

fact goes to the heart of redressability and destroys Plaintiff’s claim to standing.