The administrative record for consolidated challenges to the Environmental Protection Agency's (EPA) Waters of the U.S. (WOTUS) rule should not include documents that EPA and the U.S. Army Corps of Engineers – which jointly promulgated the rule with EPA – used during deliberations, the Department of Justice (DOJ) told the U.S. Court of Appeals for the Sixth Circuit in a July 22 brief.
Deliberative materials are generally not part of the administrative record because they represent the internal decision making process of the agency staff, not its final decision, the Justice Department argued.
The Justice Department said the eight internal corps memos the petitioners have sought contain "opinions, mental impressions, and staff recommendations that were shared internally among Corps and Army personnel and with Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works), in the course of interagency deliberations in connection with the Rule."
Other documents that the Justice Department said do not belong in the administrative record include the draft economic analysis of the final rule and the draft environmental assessment of the rule.
The corps memos, dating between April and May 2015, are pertinent from the perspective of business, agriculture and manufacturing groups opposed to the WOTUS rule, which would clarify which waters and wetlands fall under Clean Water Act (CWA) protections including permitting requirements.
The interest comes after other internal corps memos on the rule were leaked to the public by a member of Congress a year ago, and were sharply critical of the way the EPA wrote the draft final rule without addressing critical questions surrounding the technical, legal and economic analyses underlying the rulemaking effort.
According to the leaked memos, the support documents were "flawed in multiple respects," making it difficult for the corps to defend the rulemaking and to implement it in the field.
The Justice Department contends that the administrative record that the Sixth Circuit has amassed for this lawsuit contains at least 20,400 documents with more than 350,000 pages. These documents include the proposed and final rules as well as technical and scientific reports, scientific literature and comments submitted by the public along with the agencies' response, and are more than sufficient to inform the court about the legality of the rule, according to the Justice Department.