District Court Rules in Turner Clinic’s Favor in FOIA Litigation with Energy Department
The Turner Environmental Law Clinic and its client received a favorable decision from the U.S. District Court for the District of Columbia on March 29, when the court ordered the U.S. Department of Energy to immediately release its credit subsidy fee estimates for the $8.3 billion taxpayer loan guarantee committed to Southern Co.
The clinic and its students filed a Freedom of Information Act request in 2010 seeking the terms and conditions of the loan guarantee, including the credit subsidy fee, on behalf of the clinic’s client, Southern Alliance for Clean Energy.
The court ruled the credit subsidy fee, which represents the long-term costs to the government of the loan guarantee and must be paid by Southern Co. before it can receive the loan, was generated by the federal agency and therefore must be disclosed. The Energy Department had argued the fee was covered by a FOIA exemption.
“Three students, Nicolas Chandler 13L, Patrick Polenz 12L and Anne Herold 13L, worked on the brief together,” said Mindy Goldstein, acting director of Turner Clinic. “The court adopted Nicholas’ language regarding the credit subsidy fee wholesale. His arguments were well reasoned and convincing.”
At least 15 students from the clinic have worked on the FOIA litigation in the last two years, Goldstein said. Chandler, Polenz and Herold wrote the most recent briefs, which were filed Jan. 27 and March 6 in response to the Energy Department’s request for summary judgment on Dec. 16 and Feb. 17.
The court responded favorably to the clinics arguments regarding the other terms and conditions of the loan guarantee, but gave the agency a second chance to justify its withholdings. The department has 60 days to revise its justification. It must release the credit subsidy fee immediately.