Charleston Regional Business Journal
January 8, 2020
A U.S. district judge has ordered the federal government to produce all documents related to its decision to allow seismic blasting tests off the coast of South Carolina, a legal victory for municipalities and environmental groups who are suing to block the tests.
The S.C. Environmental Law Project filed a federal lawsuit in December 2018 on behalf of 16 Lowcountry municipalities and the S.C. Small Business Chamber of Commerce challenging the Trump administration’s decision to allow seismic testing off the East Coast.
Defendants include the National Marine Fisheries Service, Commerce Secretary Wilbur Ross and Assistant Administrator for National Oceanic and Atmospheric Administration fisheries Chris Oliver.
The plaintiffs argued in August that the defendants were improperly withholding information and documents used by the National Marine Fisheries Service to issue authorizations to five companies. The municipalities and environmental groups pointed to several documents referenced in disclosed communications that they believe are pertinent to the record.
The federal government disagreed, arguing that all withheld documents and communications were properly excluded because they were internal deliberation documents, which are legally exempt.
Judge Richard Gergel ruled Friday (.pdf), however, that “to exclude these documents and any similar documents that have yet to be disclosed would, in effect, be creating an inaccurate record for the court’s ultimate review.”
“While predecisional recommendations, draft documents, proposals, suggestions and comments … are protected by the deliberative process privilege,” Gergel wrote, communications with the Bureau of Ocean Energy Management “or other agencies, including information or memoranda, must be included in the administrative record.”
The judge ordered the federal defendants to produce all memos, emails and attachments with information that was considered in the fisheries service’s decision, as well as any communications or information shared with other agencies or third parties, within 45 days.
Gergel also ruled that the federal government must produce a “privilege log” of all documents it is withholding based on its claims of deliberative process privilege.
“Without an index of some sort there is no manner for the plaintiffs, the federal defendants or the court to know whether there are documents that should be included in the administrative record that have been improperly excluded,” he wrote.
The documents listed in the log would not be part of the administrative record.