Jump to Navigation
Jump to Content

Murray Energy Corp. v. United States Department of Defense

ELR Citation: 46 ELR 20159
Nos. 15-3751 et al., (6th Cir., 10/04/2016)

The Sixth Circuit, in litigation over the "waters of the United States" (WOTUS) rule, held that an internal U.S. Army Corps of Engineers memorandum critical of the rule's technical analysis may be included in the record. Petitioners argued that the litigation record omits several materials that were undisputedly considered by EPA and the Corps and should be made part of the “whole record” on which judicial review must be based. But petitioners carried their “clear evidence” burden only in relation to one: a technical analysis of the draft rule written by a top Corps official. EPA and the Corps do not deny that this memorandum was considered. Rather, they contend that it is a predecisional deliberative document, reflecting subjective motivations and decisionmaking thought processes, and should therefore be exempt from the record. Although deliberative process materials are generally exempted in order to protect the quality of agency decisions by ensuring open and candid communications, the memorandum at issue here is predominantly factual and technical in nature. The court, therefore, held that the memorandum may be considered, except for two paragraphs that reflect opinions and recommendations and an attachment that shows suggested changes and comments, which are essentially deliberative in nature. In all other respects, petitioners' motions to complete the administrative record were denied.