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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SOUTHERN ALLIANCE FOR CLEAN ENERGY ) 117 S Gay Street ) Knoxville, TN 37902-1004, ) ) Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF ENERGY ) 1000 Independence Avenue, S.W. ) Washington, DC 20585-0001, ) ) Defendant. ) _________________________________________ ) COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiff Southern Alliance for Clean Energy (“SACE”) brings this action against Defendant U.S. Department of Energy (“DOE”) to compel compliance with the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). As grounds therefor, SACE alleges as follows: Jurisdiction and Venue 1. This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B)

and 28 U.S.C. § 1331. 2. 1391(e). Parties 3. SACE is a non-profit, non-partisan, environmental advocacy organization Venue lies in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. §

operating throughout the southeastern United States and having its principal place of business at 117 S Gay Street, Knoxville, TN 37902-1004. The mission of SACE is to promote responsible energy choices that solve global warming problems and ensure clean, safe, and healthy

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communities throughout the southeastern United States. SACE’s activities include working to find clean energy solutions to help reduce the impact of climate change, building bridges among environmental, business, agricultural, and governmental interests that affect our overall quality of life, working directly with diverse stakeholders and industries on energy issues affecting the region, and promoting policy change through education and outreach. 4. DOE is an agency of the United States government and is headquartered at 1000

Independence Avenue, S.W., Washington, DC 20585-0001. DOE has possession, custody, and control of records to which SACE seeks access. Statement of Facts Background 5. On February 16, 2010, President Obama announced that DOE had offered

conditional commitments to provide Georgia Power Company (“Georgia Power”), Municipal Electric Authority of Georgia, and Oglethorpe Power Corporation (collectively, the “Applicants”) $8.33 billion in federal loan guarantees for the construction and operation of two new nuclear reactors at Vogtle Electric Generating Plant in Burke County, Georgia (the “Loan Guarantees”). FOIA Request 6. On March 25, 2010, SACE submitted a FOIA request to DOE for records

pertaining to the Loan Guarantees, including the terms and conditions offered to the Applicants. Among other responses, DOE released heavily redacted versions of documents outlining the Loan Guarantees’ initial terms and conditions (the “Term Sheets”). After administrative appeal and multiple reconsiderations by DOE, SACE was ultimately forced to seek release of the Term Sheets by filing suit in the United States District Court for the District of Columbia on August 9,

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2010. This Court ruled in favor of Plaintiff on many issues. See S. Alliance for Clean Energy v. U.S. Dep’t of Energy, 853 F. Supp. 2d 60 (D.D.C. 2012) (No. 10-1335 (RCL)). This Court found that DOE failed to adequately demonstrate how much of the redacted information was “obtained from” the Applicants under FOIA Exemption 4 and ordered DOE to provide additional justification for some withholdings, id. at 70, and release others. See Order, S. Alliance, 853 F. Supp 2d 60 (No. 10-1335 (RCL)) (the “Order”). Thereafter, DOE agreed to settle the matter by releasing largely unredacted versions of the Term Sheets. See Stipulation of Settlement and Dismissal of All Claims Except for Attorney’s Fees and Order, S. Alliance, 853 F. Supp 2d 60 (No. 10-1335 (RCL), Docket No. 44) (the “Settlement”). 7. On April 27, 2012, SACE submitted the FOIA request at issue here to DOE, via

U.S. Mail and facsimile. In this request, SACE sought Loan Guarantee records prepared after the preparation of those records released pursuant to the Order and Settlement, including: A. All records, including correspondence, pertaining to any final or proposed amendments to the Term Sheets issued to the Applicants by DOE on February 13, 2010, pursuant to Title XVII of the Energy Policy Act of 2005 (Pub. L. No. 109-58), as amended. B. All records, including correspondence, pertaining to any draft or final Definitive Agreements, as that term is defined in the Term Sheets. C. All records, including correspondence, pertaining to any loan guarantee terms or conditions proposed or required by DOE after it issued the Term Sheets. 8. On April 27, 2012, DOE acknowledged receipt of the FOIA request and stated

that the request had been sent to DOE’s Loan Program Office for a search for responsive records.

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This letter did not purport to respond to the FOIA request, instead stating that “[u]pon completion of the search and review of any records located, [the Loan Program Office] will provide a response to you.” Easing the Administrative Burden 9. On May 4, 2012, in an effort to ease DOE’s burden in searching for responsive

documents, SACE agreed to narrow the scope of the original FOIA request in a telephone conversation between DOE and SACE’s counsel. As memorialized by email that same day, the narrowed FOIA request sought only those records that reflect that: A. DOE had offered new terms and/or conditions to the Applicants (“Paragraph 1”). B. 10. DOE had offered a new credit subsidy fee estimate (“Paragraph 2”).

In addition to narrowing the scope of the FOIA request, SACE eased DOE’s

administrative burden by agreeing to extend DOE’s response deadline, despite the time-sensitive nature of the information requested. Although the FOIA request informed DOE that time was of the essence, DOE did not initially provide an estimated date of document production, as required by FOIA, 5 U.S.C. 552(a)(7)(B). SACE was forced to request such an estimate from DOE twice via email on May 1, 2012 and again on May 16, 2012. Both of these emails reiterated that the information requested was time sensitive. On May 22, 2012, DOE informed SACE via email that it would respond to the FOIA request within 120 days. Considering the harm that such a delay would cause, SACE asked DOE, via email that same day, whether DOE could expedite the FOIA request by responding to it before other pending SACE FOIA requests. Despite abundant notice that time was of the essence, DOE informed SACE, via email on May 23, 2012, that it would take no additional action to expedite the response.

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11.

On August 23, 2012, after a phone conversation between counsel, SACE, via

email, again reminded DOE that time was of the essence. Partial Response 12. On September 18, 2012, DOE sent SACE a partial determination letter stating that

DOE had located responsive records. These records consisted of four letters sent by DOE to the Applicants extending the Applicants’ deadlines for accepting the Loan Guarantees. The determination letter also stated DOE was continuing to work on the FOIA request and that additional responsive records would be provided as they became available. 13. Three days after receiving this partial response, SACE submitted an

administrative appeal dated September 21, 2012, challenging DOE’s failure to timely and fully respond to the entire FOIA request. SACE again reminded DOE of the time-sensitive nature of the information requested. In a letter dated September 26, 2012, the DOE Office of Hearing and Appeals (“OHA”) dismissed the appeal as premature for the very same reason it was filed— because DOE had not made a final determination on the FOIA request. Final Response 14. On October 23, 2012, DOE provided a final response—nearly six months after the

FOIA request was originally filed, well beyond the 10-day period mandated by DOE’s own regulations (10 C.F.R. § 1004.5(d)(1)), and 44 days beyond DOE’s self-imposed 120-day document production deadline. 15. In response to Paragraph 1 of the narrowed FOIA request, which sought records

relating to the new terms and conditions of the Loan Guarantees, DOE provided two records: a draft version of DOE’s Open Issues List for Georgia Power dated July 11, 2012 (the "Open Issue List") and a draft version of the Loan Guarantee Agreement between DOE and Georgia Power

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dated January 30, 2012 (the “Loan Guarantee Agreement”). Both of these records contained numerous redactions. DOE asserted FOIA Exemption 4, 5 U.S.C. § 552(b)(4), as the legal basis for withholding the redacted information. As to Paragraph 2 of the narrowed FOIA request, which sought new records regarding the credit subsidy fees, DOE stated that it had located no responsive records. Administrative Appeal of the Final Response 16. Pursuant to 10 C.F.R. § 1004.8, on November 15, 2012, SACE submitted an

administrative appeal of the October 23, 2012 “final response” letter to the OHA. The administrative appeal challenged (1) DOE’s withholding of information from the Open Issue List and Loan Guarantee Agreement under FOIA Exemption 4 and (2) the adequacy of DOE’s search for records responsive to the narrowed FOIA request. 17. On December 14, 2012, the OHA issued a Decision and Order (the “OHA

Decision”) granting in part SACE’s administrative appeal. According to the OHA Decision, the “[a]ppeal, if granted, would require the [Loan Program Office] to release the information it withheld pursuant to FOIA Exemption 4 and to conduct another search for responsive documents.” Notwithstanding this statement, the OHA did not order the release of the withheld information or order another search for responsive documents, but rather remanded the matter to DOE’s Loan Program Office for a new “determination” in accordance with instructions set forth in the OHA Decision. 18. The December 14, 2012 OHA Decision is a “final order of [DOE] from which

any aggrieved party may seek judicial review pursuant to 5 U.S.C. § 552(a)(4)(B).” 19. As of the date of this complaint, February 7, 2013, DOE has not issued a new

“determination” nor has it released any records in response to the OHA Decision.

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Count 1 (Violation of FOIA by Failing to Perform an Adequate Search and Wrongfully Withholding Non-Exempt Records) 20. herein. 21. DOE has violated FOIA by failing to perform an adequate search and failing to SACE realleges paragraphs 1 through 19 of this Complaint as if fully stated

produce non-exempt records responsive to Paragraphs 1 and 2 of the narrowed FOIA request within the twenty (20) day time period required by 5 U.S.C. § 552(a)(6)(A)(i). 22. SACE has exhausted all available administrative appeals with respect to DOE’s

failure to perform an adequate search and failure to produce the non-exempt requested records. 23. SACE and its members are being irreparably harmed by DOE’s failure to perform

an adequate search and failure to produce non-exempt records and are entitled to injunctive relief requiring a new and adequate search for records responsive to the narrowed FOIA request and the release of all non-exempt records. Count 2 (Violation of FOIA by Wrongfully Withholding Portions of the Open Issues List and Loan Guarantee Agreement Under Exemption 4) 24. herein. 25. DOE has violated FOIA by wrongfully withholding portions of the Open Issues SACE realleges paragraphs 1 through 19 of this Complaint as if fully stated

List and Loan Guarantee Agreement. DOE’s reliance on FOIA Exemption 4 to withhold portions of these records is inadequately justified, unlawful, and has no basis in law or fact. 26. SACE has exhausted all available administrative appeals with respect to DOE’s

wrongful withholding of portions of the requested records.

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27.

SACE and its members are being irreparably harmed by DOE’s wrongful

withholding of portions of the Open Issues List and Loan Guarantee Agreement and are entitled to injunctive relief requiring DOE to release all non-exempt portions of the Open Issues List and Loan Guarantee Agreement, and to fully and adequately justify any redactions and/or withholdings.

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WHEREFORE, SACE respectfully requests that the Court: (1) Order DOE to release immediately all non-exempt portions of the Open Issues List and Loan Guarantee Agreement; (2) Order DOE to conduct a new search and produce within ten (10) days any and all non-exempt records responsive to Paragraphs 1 and 2 of the narrowed FOIA request; (3) Order DOE to produce within ten (10) days a “Vaughn index” of any records responsive to Paragraphs 1 and 2 of the narrowed FOIA request that are withheld under any FOIA exemption; (4) Grant SACE an award of attorneys’ fees and other litigation costs reasonably incurred in this action pursuant to 5 U.S.C. § 552(a)(4)(E); (5) Expedite this action in every way pursuant to 28 U.S.C. § 1657(a); and (6) Grant SACE such other relief as the Court deems just and proper. Dated: February 7, 2013 Respectfully submitted, _____________________________ /s/ James B. Dougherty James B. Dougherty 709 3rd Street, SW Washington, D.C. 20024 (202) 488-1140 D.C. Bar No. 939538 jimdougherty@aol.com _____________________________ /s/ Mindy Goldstein Mindy Goldstein Turner Environmental Law Clinic 1301 Clifton Road Atlanta, GA 30322 (404) 727-3432 Georgia Bar No. 727476 Application for Pro Hac Vice Pending Counsel for Southern Alliance for Clean Energy
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