In re Clean Water Act Rulemaking

STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

In re No. C 20-04636 WHA No. C 20-04869 WHA CLEAN WATER ACT No. C 20-06137 WHA

RULEMAKING.

This Document Relates to: (consolidated)

ALL ACTIONS. ORDER RE PRIVILEGE LOG

14 In a challenge to rulemaking under the Administrative Procedure Act, must an agency log documents withheld as deliberative? Despite contrary caselaw in other jurisdictions, in this district we have uniformly answered yes. The administrative record bounding our review includes not only “those documents that the agency has compiled and submitted as ‘the’ administrative record,” but “all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency’s position.” Thompson v. U.S. Dep’t. of Labor, 885 F.2d 551, 555 (9th Cir. 1989). Absent a showing otherwise, an agency’s certified record enjoys a presumption of completeness and regularity. See Portland Audubon Soc. v. Endangered Species…