Formal memoranda that the U.S. Army Corps of Engineers circulated and presented at congressional hearings cannot be claimed as private, internal and protected by privilege, North Dakota Attorney General Paul Seby told an appeals court (In re Murray Energy Corp. v. EPA (In re EPA & Dep’t of Def. Final), 6th Cir., No. 15-03751, brief filed 7/29/16).

“The Agencies cannot present documents to the public and to Congress and claim that they are private and internal,” Seby told the U.S. Court of Appeals for the Sixth Circuit in a July 29 brief. The brief responds to the dispute with the government over which records should be amassed by the Sixth Circuit prior to its review of the Clean Water Rule’s legality (RIN:2040-AF30).

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James Saul, of Earthrise Law Center at the Portland, Ore.-based Lewis & Clark Law School, and Deborah Sivas, of the Stanford Law School Environmental Law Clinic, urged the court to include the corps memoranda in the administrative record.
“Because the corps memoranda are predominantly factual in nature, and because they reveal several fatal flaws in the Agencies’ technical, scientific and economic analyses used to support the Clean Water Rule and the corps’s findings under the National Environmental Policy Act, their inclusion in the administrative record for the Clean Water Rule is essential for this court’s judicial review,” wrote Saul and Sivas.