Before: Katzmann, C.J., Lynch, C.J., and Kaplan, D.J.*
Plaintiffs-Appellants Natural Resources Defense Council and Environmental Defense Fund appeal from a judgment of the United States District Court for the Southern District of New York (Castel, J.). The district court held that the Environmental Protection Agency properly invoked the deliberative process privilege and Exemption 5 of the Freedom of Information Act (“FOIA”) to withhold a portion of its OMEGA computer program when responding to Plaintiffs-Appellants’ FOIA request. Because we agree with Plaintiffs-Appellants that the requested record is not deliberative, the judgment of the district court is REVERSED and the case REMANDED. GERARD LYNCH, C.J. This appeal concerns a Freedom of Information Act (“FOIA”) request filed with the Environmental Protection Agency (“EPA”) by Plaintiffs-Appellants Natural Resources Defense Council and Environmental Defense Fund (collectively “NRDC”). NRDC requested release of the current version of the OMEGA model, an EPA computer program used to forecast the likely responses of automakers to proposed EPA greenhouse gas emissions standards. In response to NRDC’s request, EPA released several components of the computer program but withheld one component — the so-called “core model” — under FOIA Exemption 5, citing the deliberative process privilege. NRDC filed suit and the United States District Court for the Southern District of New York (P. Kevin Castel, J.) held that EPA properly invoked the deliberative process privilege and Exemption 5. For the reasons set forth below, we agree with NRDC that the core model is not deliberative and therefore does not fall within the scope of the privilege and FOIA Exemption 5. The judgment of the district court is REVERSED and the case is REMANDED with directions to enter judgment for NRDC on its motion for summary judgment and for further proceedings consistent with this opinion. BACKGROUND I. The OMEGA Model and EPA Rulemaking The Clean Air Act requires EPA to regulate emissions from new motor vehicles if EPA determines that the vehicles “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. §7521(a)(1). In 2009, EPA concluded that greenhouse gas (“GHG”) emissions from motor vehicles contribute to air pollution and climate change and thereby “endanger[ ] the public welfare of both current and future generations.” Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,498-99 (Dec. 15, 2009). Per its Clean Air Act mandate, EPA began regulating GHG emissions from new motor vehicles in 2010. See Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards, 75 Fed. Reg. 25,324 (May 7, 2010). As EPA sets emissions standards under the Clean Air Act, the statute directs it to do so in consideration of the compliance costs and lead time required for automakers to meet the new standard. 42 U.S.C. §7521(a)(2). Estimating these time and cost factors is no easy task because EPA does not prescribe the manner by which automakers meet a given GHG standard, instead leaving it to each manufacturer to select from the “almost infinite number of technology combinations that could produce a desired level of emissions reductions.” J. App’x 82 9 (internal quotation marks omitted). And since each technology combination has its own price tag and lead time requirements, coming up with viable, industry-wide estimates for these statutory factors is a complex undertaking. To sift through the multitude of ways in which each automaker could comply with a GHG standard to identify the most likely compliance decisions, EPA developed a computer program called the Optimization Model for Reducing Emissions of Greenhouse Gases from Automobiles (“OMEGA” or “the OMEGA model”). See 75 Fed. Reg. at 25,446. The OMEGA model simulates how automakers will likely react to a hypothetical GHG standard. Based on scenario data loaded into the model, OMEGA forecasts “which emissions-reducing technologies manufacturers will use, when they will incorporate those technologies into each of their vehicles, and how much those technologies will cost to apply.” J. App’x 76 18. With the OMEGA projections in hand, EPA is better able to set a GHG emissions standard that protects public health and welfare while remaining cognizant of the time and cost burdens imposed on automakers. As described in greater detail below, the OMEGA model consists of five key components. This appeal concerns only one of these components: the core model. EPA has relied on the OMEGA model to inform its GHG standards since it started regulating emissions in 2010. See 75 Fed. Reg. at 25,446. Since then, EPA has publicly released then-current versions of OMEGA alongside technical reports, proposed rules, and final rules, anticipating that the public would be most interested in using OMEGA at those times. In total, EPA has released five versions of the OMEGA model over the past decade. In addition to these public releases, EPA’s historic practice was to freely share the most current version of OMEGA upon request. In 2012, EPA set GHG emissions standards for vehicles with model years (“MY”) 2017-2025. See 2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards, 77 Fed. Reg. 62,624, 62,627 (Oct. 15, 2012). Recognizing the long time frame of the rule and the likelihood of intervening technological advancements, the 2012 rule required EPA to conduct a mid-term evaluation by April 2018 to ensure that the GHG standards set for MY 2022-2025 continued to be appropriate. Id. at 62,784. When EPA carried out the evaluation, it determined that the GHG standards set for MY 2022-2025 were based on overly optimistic assumptions and were therefore too stringent. See Mid-Term Evaluation of Greenhouse Gas Emissions Standards for Model Year 2022-2025 Light-Duty Vehicles, 83 Fed. Reg. 16,077, 16,087 (Apr. 13, 2018).1 In August 2018, EPA issued a notice of proposed rulemaking that recommended freezing the GHG emissions standards at MY 2020 levels for MY 2021-2026. See The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks, 83 Fed. Reg. 42,986, 42,988 (Aug. 24, 2018). As with previous GHG emissions rules, the 2018 proposed rule was issued as a joint rulemaking between EPA and the National Highway Traffic Safety Administration (“NHTSA”). Unlike previous rules, however, EPA did not base its proposal on the OMEGA model’s projection of automaker compliance, instead relying on a NHTSA modeling program. Id. at 43,000.2 II. Procedural History In August 2018, NRDC submitted a FOIA request to EPA, seeking several records related to OMEGA, including all unreleased versions of the model itself. EPA did not respond within the statutory deadline and NRDC filed suit. While the litigation was pending, NRDC voluntarily narrowed its request to seek only four of the five components of the current version of the OMEGA model, version 1.4.59. EPA then released three of the components of OMEGA v.1.4.59. EPA withheld release of the fourth component, the core model for OMEGA v.1.4.59, on the grounds that it was protected by the deliberative process privilege and thus within the scope of FOIA Exemption 5. NRDC and EPA filed cross-motions for summary judgment on the issue of whether EPA properly withheld the OMEGA core model. The district court granted summary judgment for EPA. DISCUSSION “We review a district court’s grant of summary judgment in FOIA litigation de novo.” ACLU v. Nat’l Sec. Agency, 925 F.3d 576, 588 (2d Cir. 2019). In enacting FOIA, Congress “intended to establish a general philosophy of full agency disclosure.” Fed. Labor Relations Auth. v. U.S. Dep’t of Veterans Affairs, 958 F.2d 503, 508 (2d Cir. 1992) (internal quotation marks omitted). FOIA thus requires an agency to “disclose records on request, unless they fall within one of nine exemptions.” Milner v. Dep’t of the Navy, 562 U.S. 562, 565 (2011). “[I]n a FOIA case, the defending agency has the burden of showing…that any withheld documents fall within an exemption to the FOIA.” Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994). Here, EPA has invoked Exemption 5, which provides that agencies need not release “inter-agency or intra-agency memorandums or letters that 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). By this language, Congress incorporated civil discovery privileges into Exemption 5, allowing an agency to withhold records that would be privileged in litigation. Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). The specific discovery privilege invoked by EPA to justify withholding the OMEGA core model is the deliberative process privilege. That privilege is designed “to enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the Government.” Id. at 9 (internal quotation marks omitted). Accordingly, the privilege covers certain agency records reflecting internal advisory opinions, recommendations, and deliberations. In order for the privilege to apply, the agency record at issue must be (1) an inter-agency or intra-agency memorandum or letter; (2) pre-decisional; and (3) deliberative. See Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 76 (2d Cir. 2002). NRDC argues that the OMEGA core model does not meet any of these three requirements, and that each offers an independent basis for reversing the district court. Because we agree that the OMEGA core model is not deliberative, we resolve this appeal on that ground alone.3 I. The Function and Context of the Core Model “Whether [the core model] is exempt under (b)(5) depends not only on the intrinsic character of the [core model] itself, but also on the role it play[s] in the administrative process.” Lead Indus. Ass’n, Inc. v. Occupational Safety and Health Admin., 610 F.2d 70, 80 (2d Cir. 1979). We thus begin by describing both the core model and its role within the broader OMEGA context. Both EPA and NRDC submitted declarations detailing the workings of the OMEGA model, and these declarations are largely consistent in their depictions.4 While the NRDC declarations are somewhat more detailed, EPA did not dispute their accuracy before the district court and does not do so before us on appeal. We draw on this undisputed factual record to form our understanding of the core model and its context within OMEGA. Each “run” of the OMEGA model involves five components or stages. In the first component, input data is loaded into the model. The inputs are Excel spreadsheets filled with raw data that establish the factors and constraints to be modeled in that run of OMEGA. These inputs include (1) market data, including the characteristics of the vehicles at issue and current emissions levels; (2) technology data, such as the available emissions-reduction options and their costs; (3) scenario data, primarily the GHG standard being modeled; and (4) other data relevant to the projection, such as anticipated fuel prices. Once the input files have been loaded, the second component takes over. A series of pre-processors take the raw input data and organize it into datasets to facilitate the modeling. For example, one pre-processor groups together technologies that might commonly be implemented together while another accounts for emissions-reduction technologies already in use to avoid doublecounting. The third component is the core model, which consists of a series of algorithms, written in the C# computer programming language. These algorithms “run thousands of calculations” on the processed input data to forecast the emissions-reduction technologies automakers would likely incorporate to meet the simulated GHG standard in the particular scenario created by the input data. J. App’x 131 13. The core model begins by “determin[ing] the specific emission standard applicable for each manufacturer and its vehicle class (car or truck). Then the model determines the emission standard applicable to each manufacturer’s car and truck sales.” Id. at 87 20. With the emissions goals identified from the input data, the core model “considers the range of technology packages available to each automaker’s individual vehicles” and applies different combinations of the available technologies to an automaker’s fleet until it meets the simulated GHG standard in the most cost-effective way possible. Id. at 131 11. The core model results are turned into a series of output Excel files, the fourth component of OMEGA.5 The outputs detail the technologies automakers are projected to deploy as well as the costs of compliance. In the final component, the raw output data is put through a series of post-processors, which organize the results into a more user-friendly format and provide additional analysis. EPA can then review the results of the run to get a sense of the compliance time and costs likely to be associated with the simulated scenario. II. The Core Model Is Not Deliberative Upon our review of OMEGA in general and the core model in particular, we are persuaded that the core model is not deliberative. An agency record is “deliberative if it reflects the give-and-take of the consultative process.” Brennan Ctr. for Justice at N.Y.U. Sch. of Law v. U.S. Dep’t of Justice, 697 F.3d 184, 202 (2d Cir. 2012) (internal quotation marks omitted). “[T]he privilege focus[es] on documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999) (internal quotation marks omitted). Here, the record shows that to the extent the full OMEGA model reflects any subjective agency views, it does so in the input files, not the core model. See J. App’x 85 13, 86
