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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) ) ) ) ) )

SOUTHERN ALLIANCE FOR CLEAN ENERGY, Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, Defendant.

Civil Action No. 10-1335 (RLW)

DEFENDANTS CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff, Southern Alliance for Clean Energy (SACE), brings this action against Defendant, United States Department of Energy (DOE), under the Freedom of Information Act (FOIA), 5 U.S.C. 552, regarding DOEs response to a FOIA request that Plaintiff submitted by letter dated March 25, 2010. Specifically, SACE challenges DOEs response to Item 6 of SACEs FOIA response,1 contending that DOE improperly invoked FOIA Exemption 4 to withhold portions of three conditional term sheets setting forth the terms and conditions underlying federal loan guarantees for the construction and operation of two nuclear reactors at the Vogtle Electric Generating Plant in Burke County, Georgia. As the supporting memorandum demonstrates, DOE properly redacted confidential commercial information contained in these three conditional term sheets upon its determination that disclosure of such information would likely result in substantial competitive injury to the loan applicants from whom the information was obtained. Pursuant to the parties joint request, the Court entered a schedule governing the briefing of partial summary judgment on DOEs response to Item 6 of Plaintiffs FOIA request, along with a schedule governing DOEs ongoing processing and disclosure of nonexempt documents responsive to the remaining outstanding aspects of Plaintiffs FOIA request. See ECF No. 9.
1

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As there are no material facts in dispute, Defendant respectfully moves this Court pursuant to Federal Rule of Civil Procedure 56 for partial summary judgment on its response to Item 6 of Plaintiffs FOIA request. Defendant respectfully submits that the attached

memorandum of points and authorities, statement of material facts not in genuine dispute, and supporting declarations and exhibits thereto establish that Defendant is entitled to the relief it is seeking. Date: March 1, 2011 Respectfully submitted, RONALD C. MACHEN JR., D.C. Bar #447889 United States Attorney for the District of Columbia RUDOLPH CONTRERAS, D.C. Bar #434122 Chief, Civil Division By: /s/ Michelle Lo MICHELLE LO Assistant United States Attorney 555 4th Street, N.W. Washington, D.C. 20530 Tel: (202) 514-5134 Fax: (202) 514-8780 Michelle.Lo2@usdoj.gov .

Of counsel: Marilyn M. Madarang, Esq. Office of General Counsel U.S. Department of Energy

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) ) ) ) ) )

SOUTHERN ALLIANCE FOR CLEAN ENERGY, Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, Defendant.

Civil Action No. 10-1335 (RLW)

DEFENDANTS STATEMENT OF MATERIAL FACTS NOT IN GENUINE DISPUTE AND RESPONSE TO PLAINTIFFS STATEMENT OF MATERIAL FACTS NOT IN GENUINE DISPUTE Pursuant to Local Civil Rule 7(h), Defendant, United States Department of Energy (DOE), respectfully submits this Statement of Material Facts Not in Genuine Dispute in support of its Cross-Motion for Summary Judgment and responds to Plaintiffs Statement of Material Facts Not in Genuine Dispute. I. DEFENDANTS STATEMENT OF MATERIAL FACTS NOT IN GENUINE DISPUTE 1. Section 1703 of the Title XVII of the Energy Policy Act of 2005, 42 U.S.C.

16511-16514, establishes a federal loan guarantee program whereby the Secretary of Energy is authorized to make loan guarantees to qualified projects that avoid, reduce or sequester air pollutants or anthropogenic emissions of greenhouse gases, and employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time of issuance of the guarantee. Declaration of David G. Frantz (Frantz Decl.) 4. 2. On July 11, 2008, DOE issued a solicitation, Federal Loan Guarantees for Nuclear

Power Facilities, DE-FOA-0000006 (Solicitation), to invite applications for loan guarantees

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for nuclear power projects. Id. 8. 3. In accordance with DOE regulations, 10 C.F.R. Part 609, the Solicitation

specified the requirements that a borrower or applicant must meet to obtain federal support of its project under Section 1703 of Title XVII, including the submission of sensitive trade, financial, commercial and technological information. Id. 7-8. 4. In September 2008, Georgia Power Company, Oglethorpe Power Company, and

Municipal Electric Authority of Georgia (MEAG) (collectively, Applicants), the three joint owners of two new nuclear generating units under construction at the Alvin J. Vogtle Electric Generating Plant in Burke County, Georgia, each filed a Part I application. Id. 9. 5. Georgia Power is a wholly-owned subsidiary of Southern Company engaged in

the generation and purchase of electricity and the transmission, distribution and sale of electricity in Georgia. Id.; Declaration of Earl C. Long (Long Decl.) 4. Georgia Power competes with other electric utilities, independent power producers, and cooperatives for short-term and longterm energy sales in the wholesale energy market in the Southeast. Long Decl. 4. 6. Oglethorpe, a not-for-profit electric cooperative, provides wholesale electric

power to its members which are consumer-owned electric cooperatives that provide retail electric service in Georgia on a not-for-profit basis. Frantz Decl. 9; Declaration of Elizabeth B. Higgins (Higgins Decl.) 3. Oglethorpe competes in the wholesale power market in the southeastern United States with other wholesale power suppliers to provide wholesale power at the lowest possible cost to its members as well as off-system sales. Higgins Decl. 4. 7. MEAG is a member-owned general and transmission authority supplying public

power entities in Georgia. Frantz Decl. 9; Declaration of James E. Fuller (Fuller Decl.) 4.

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MEAG and its participants are engaged in competition with other electric service providers for the provision of retail and wholesale electric service, respectively. Fuller Decl. 4. 8. The loan guarantee application process involved negotiations between DOE and

each Applicant regarding the terms and conditions of the loan guarantee. Frantz Decl. 13-14. 9. In October 2009, DOE offered to each Applicant initial draft term sheet based on

Loan Guarantee Program policy, federal laws governing the program, and each applicants particular loan needs and credit profile. Id. 10. The proposed terms and conditions in the initial term sheet drafts were

subsequently revised by DOE and each Applicant to reflect each Applicants associated risk profile and incorporate information provided by the Applicant. Id. 11. Over the period between October and December 2009, LGPO and the Applicants

held a series of meetings to identify risk mitigation strategies and develop transaction terms to enhance the prospect for timely payment of principal and interest. Id. Each Applicant received and responded to numerous term sheet revisions until a final term sheet was agreed upon by both parties. Id. 12. During this time, the Applicants also supplemented their Part I and Part II

application materials in response to additional due diligence requests made by LGPO seeking sponsor corporate matters such as resource plans, corporate capital expenditure plans, and financing plans. Id. 13. Each Applicant developed project cost estimates for DOE that contained

assumptions about interest rates and financing costs that were specific for each company, including, in Georgia Powers role as agent for the other joint owners, the details of an

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Equipment, Procurement and Construction contract that represented a significant portion of the total capital cost of the project. Id. 14. 14. In addition, Applicants provided historical and projected financial statements,

financial models, resource plans and financing plans supporting their assumptions to fund, operate and own the Vogtle Project, as well as loan draw schedules reflecting projected eligible project costs and amortization schedules. Id. 15. After extensive negotiations between DOE and the Applicants, the information

provided by each Applicant was incorporated into the final terms and conditions of the Conditional Commitment. Id. 16. After DOE and each Applicant reached a consensus on the terms and conditions

of the Applicants term sheet, DOE issued final term sheets dated February 13, 2010, thereby making each term sheet a conditional commitment to the corresponding Applicant. Id. 14, 16; see Pulliam Decl. Exs. C, D & E. 17. Pursuant to 10 C.F.R. 609.9, the requirements and conditions stated in the

Conditional Commitment Letters must be satisfied or waived by the Contracting Officer prior to issuance of the loan guarantee, and the Secretary may terminate a Conditional Commitment for any reason at any time prior to issuance of the loan guarantee. Frantz Decl. 16-17. 18. Until the parties negotiate and execute a definitive loan guarantee agreement, the

Conditional Commitment Letters are not binding on DOE and there can be no assurance that any Applicant will receive a federal loan guarantee from DOE. Id. 17; Long Decl. 8; Higgins Decl. 10; Fuller Decl. 8. 19. On March 25, 2010, Plaintiff submitted a FOIA request seeking certain records

pertaining to loan guarantees for the construction and operation of two nuclear reactors at Vogtle

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Electric Generating Plant in Burke County, Georgia.

Am. Compl. 6; Pl. Mem. Ex. B.

Specifically, Plaintiffs FOIA request sought seven categories of records, including a request in Item 6 for [a]ll records related to the general terms and conditions of the Loan Guarantees. See Pl. Mem. Ex. B. 20. DOE determined that Plaintiffs FOIA request for the term sheets called for the

disclosure of sensitive commercial and financial information that potentially fell within the scope of Exemption 4. Pulliam Decl. 7. 21. In accordance with DOE regulations, the LPO FOIA staff notified each Applicant

of SACEs FOIA request and directed the companies to submit their views on any information that should be withheld along with an explanation as to why such information was subject to withholding under FOIA. Id. 8-9; 10 C.F.R. 1004.11(c). 22. The DOE Office of General Counsel took into consideration the views and

justifications provided by the Applicants in making an independent determination on whether the information in question was protected from disclosure pursuant to Exemption 4. Pulliam Decl. 11. 23. In addition, LPO subject matter experts reviewed the documents to determine if

information contained therein may otherwise be exempt from public disclosure under FOIA. Id. 12. 24. On July 6, 2010, DOE released versions of the three Conditional Commitment

Letters at issue containing redactions pursuant to FOIA Exemption 4. Id. 13; see Pl. Mem. Ex. D at 1.

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25.

The redacted portions of the Conditional Commitment Letters included

commercial and financing information. See Pulliam Decl. 13 & Exs. F-H; see generally Long Decl.; Higgins Decl.; Fuller Decl. 26. In an effort to narrow the issues for judicial review, DOE conducted a further

review to determine whether any additional non-exempt information could be segregated and disclosed. Pulliam Decl. 14. 27. DOE subsequently made a disclosure of the Conditional Commitment Letters on

December 3, 2010, which contained additional releases of segregable non-exempt information. Id. 13; Pl. Mem. Exs. I, J & K. 28. On March 1, 2011, DOE released an additional version of the Conditional

Commitment Letter for MEAG disclosing additional information that DOE determined to be non-exempt under the FOIA. Pulliam Decl. 14 & Ex. C. II. DEFENDANTS RESPONSE TO PLAINTIFFS STATEMENT OF MATERIAL FACTS NOT IN GENUINE DISPUTE As set forth below, the purportedly material facts included in Plaintiffs Statement of Material Facts do not entitle Plaintiff to partial summary judgment in this case. Defendant refers to its above Statement of Material Facts Not in Genuine Dispute for an identification of additional facts that are material to the resolution of the parties cross-motions for partial summary judgment. 1. 2. 3. 4. Not disputed. Not disputed. Not disputed but not material. Defendant does not dispute that DOE sent a letter dated April 2, 2010 stating that

upon completion of the searches and review of any records located, [SACE] will be provided a

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response. However, the statements in this paragraph are not material to the resolution of the parties cross-motions for partial summary judgment. 5. Defendant does not dispute that on July 6, 2010, DOE sent SACE a determination

letter providing a partial response to paragraph 6 of the FOIA request and asserted FOIA Exemption 4 as the legal basis for withholding the redacted portions from release. However, the statements in this paragraph are not material to the resolution of the parties cross-motions for partial summary judgment. 6. 7. Not disputed but not material. Defendant does not dispute that on August 11, 2010, the OHA issued a decision However, the statements in this

and order with respect to SACEs administrative appeal.

paragraph are not material to the resolution of the parties cross-motions for partial summary judgment. 8. 9. 10. 11. 12. Not disputed. Not disputed but not material. Not disputed but not material. Not disputed. Defendant does not dispute that on December 3, 2010, DOE re-released the

Conditional Commitment Letters to SACE with fewer redactions. Plaintiffs statement that DOE, however, still failed to disclose substantial portions of the Term Sheets consists of arguments or characterizations, not facts. 13. Not disputed that the Term Sheets released on December 3, 2010 contained

redactions. However, the number of individual redactions is not material to the resolution of the parties cross-motions for partial summary judgment.

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Date: March 1, 2011

Respectfully submitted, RONALD C. MACHEN JR., D.C. Bar #447889 United States Attorney for the District of Columbia RUDOLPH CONTRERAS, D.C. Bar #434122 Chief, Civil Division By: /s/ Michelle Lo MICHELLE LO Assistant United States Attorney 555 4th Street, N.W. Washington, D.C. 20530 Tel: (202) 514-5134 Fax: (202) 514-8780 Michelle.Lo2@usdoj.gov .

Of counsel: Marilyn M. Madarang, Esq. Office of General Counsel U.S. Department of Energy

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) ) ) ) ) )

SOUTHERN ALLIANCE FOR CLEAN ENERGY, Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, Defendant.

Civil Action No. 10-1335 (RLW)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff, Southern Alliance for Clean Energy (SACE), brings this action against Defendant, United States Department of Energy (DOE or Agency), under the Freedom of Information Act (FOIA), 5 U.S.C. 552, challenging DOEs response to a FOIA request that Plaintiff submitted on March 25, 2010. Plaintiff seeks partial summary judgment on DOEs response to Item 6 of its FOIA response, which sought [a]ll records related to the general terms and conditions of the Loan Guarantees issued for the construction and operation of two nuclear reactors at the Vogtle Electric Generating Plant in Burke County, Georgia. See ECF No. 11. Specifically, SACE contends that DOE insufficiently justified its application of FOIA Exemption 4 to withhold portions of the three conditional loan guarantee letters at issue (Conditional Commitment Letters or term sheets) and that, even if DOE had adequately justified the exemption, the information at issue does not fall within the scope of Exemption 4 because it was not obtained from a person and would not result in competitive harm to the loan applicant.

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SACEs arguments suffer from a host of legal and factual defects that preclude summary judgment in its favor. As the declarations and Vaughn indices submitted herewith demonstrate, DOE has properly supported its withholdings of the confidential commercial and financial information contained in the three Conditional Commitment Letters at issue here. DOE properly redacted commercial and financial information in the three term sheets upon its determination that the information had been obtained in the first instance from applicants seeking loan guarantees from DOE and that disclosure of such information would likely result in substantial competitive injury to the applicants. As there are no material facts in dispute, DOE submits that partial summary judgment in its favor is appropriate. DOE respectfully requests that the Court enter judgment for DOE on the claims asserted with respect to Item 6 of Plaintiffs FOIA request and deny Plaintiffs motion for partial summary judgment. FACTUAL AND PROCEDURAL BACKGROUND I. THE FEDERAL LOAN GUARANTEE PROGRAM SIGNFICANTLY IMPROVED ENERGY TECHNOLOGIES A. Background of the Federal Loan Guarantee Program FOR NEW OR

Section 1703 of the Title XVII of the Energy Policy Act of 2005, 42 U.S.C. 1651116514, establishes a federal loan guarantee program whereby the Secretary of Energy is authorized to make loan guarantees to qualified projects that avoid, reduce or sequester air pollutants or anthropogenic emissions of greenhouse gases, and employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time of issuance of the guarantee. Declaration of David G. Frantz (Frantz Decl.) 4. The Agencys Title XVII Loan Guarantee Program was initially administered through its Loan Guarantee Program Office, which was the predecessor to the Loan Programs Office (LPO).

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Id. 5. The mission of LPO is to accelerate the domestic commercial deployment of innovative and advanced clean energy technologies at a pace sufficient to contribute meaningfully to the achievement of . . . national clean energy objectives. Id. 6. Among the ways in which LPO accomplishes its mission is by guaranteeing loans to eligible clean energy projects and agreeing to repay the borrowers debt obligation in the event of default. Id. On July 11, 2008, DOE issued a solicitation, Federal Loan Guarantees for Nuclear Power Facilities, DE-FOA-0000006 (Solicitation), to invite applications for loan guarantees for nuclear power projects. Id. 8. In accordance with DOE regulations, 10 C.F.R. Part 609, the Solicitation specified the requirements that a borrower or applicant must meet to obtain federal support of its project under Section 1703 of Title XVII, including the submission of sensitive trade, financial, commercial and technological information. Id. 7-8. In response to the Solicitation, applications for loan guarantees to be issued under Title XVII were filed in connection with 17 proposed new nuclear generating projects around the country. Id. 9. In September 2008, Georgia Power Company, Oglethorpe Power Company, and Municipal Electric Authority of Georgia (MEAG) (collectively, Applicants), the three joint owners of two new nuclear generating units under construction at the Alvin J. Vogtle Electric Generating Plant in Burke County, Georgia, each filed a Part I application. Id. Georgia Power, an investor-owned utility whose retail rates are regulated by the Georgia Public Service Commission, is a wholly-owned subsidiary of Southern Company engaged in the generation and purchase of electricity and the transmission, distribution and sale of electricity in Georgia. Id.; Declaration of Earl C. Long (Long Decl.) 4. Georgia Power competes with other electric utilities, independent power producers, and cooperatives for short-term and long-term energy sales in the wholesale energy market in the Southeast. Long Decl. 4. Oglethorpe, a not-for-

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profit electric cooperative, provides wholesale electric power to its members which are consumer-owned electric cooperatives that provide retail electric service in Georgia on a not-forprofit basis. Frantz Decl. 9; Declaration of Elizabeth B. Higgins (Higgins Decl.) 3. Oglethorpe competes in the wholesale power market in the southeastern United States with other wholesale power suppliers to provide wholesale power at the lowest possible cost to its members as well as off-system sales. Higgins Decl. 4. MEAG is a member-owned general and transmission authority supplying public power entities in Georgia. Frantz Decl. 9; Declaration of James E. Fuller (Fuller Decl.) 4. MEAG and its participants are engaged in competition with other electric service providers for the provision of retail and wholesale electric service, respectively. Fuller Decl. 4. The Part I applications explained each Applicants proposed method of achieving the technical, budget, financial, personnel and project scheduling requirements of the Solicitation, and defined the percentage of the cost of the Vogtle Project that each owner would pay based on its ownership interest. Frantz Decl. 10. Under the Applicants proposed financing structure, Georgia Power would be the direct borrower of the government funds and DOE would have full recourse to all of Georgia Powers assets in the event of a default on the guaranteed borrowing. Long Decl. 6. B. DOEs Processing of Loan Guarantee Applications

Following an initial review to eliminate loan guarantee proposals that did not meet the criteria set forth in the Solicitation, DOE determined that each Applicant satisfied the initial eligibility requirements. Frantz Decl. 11-12. DOE next provided guidance to each Applicant on its submission of a Part II application in December 2008. Id. 12. As part of the Part II application process, DOE and its independent consultants undertook a more comprehensive due

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diligence review of a projects financial, technical, regulatory, and legal strengths and weaknesses, along with a market analysis and environmental review (which assesses a projects compliance with the National Environmental Policy Act, Endangered Species Act and other state and local environmental laws and regulations). Id. An essential part of the loan guarantee application process involved negotiations between DOE and each Applicant regarding the terms and conditions of the loan guarantee. Id. 13-14. In October 2009, DOE offered to each Applicant initial draft term sheet based on Loan Guarantee Program policy, federal laws governing the program, and each applicants particular loan needs and credit profile. Id. Each Applicant then responded to the term sheet offer with issues lists and through follow-up in-person and telephonic meetings to discuss and negotiate the terms and conditions contained in the initial term sheet. Id. The proposed terms and conditions in the drafts initial term sheet were subsequently revised by DOE and each Applicant to reflect each Applicants associated risk profile and to incorporate information provided by the Applicant. Id. Over the period between October and December 2009, LGPO and the Applicants held a series of meetings to identify risk mitigation strategies and develop transaction terms to enhance the prospect for timely payment of principal and interest. Id. Each Applicant received and responded to numerous term sheet revisions until a final term sheet was agreed upon by both parties. Id. During this time, the Applicants also supplemented their Part I and Part II

application materials in response to additional due diligence requests made by LGPO seeking sponsor corporate matters such as resource plans, corporate capital expenditure plans, and financing plans. Id. As stated in their respective applications, each joint owner of the Vogtle Project is obligated to pay a certain percentage of the total cost to construct the units as well as its own

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separate financing costs. Id. 10, 14. Thus, each Applicant developed project cost estimates for DOE that contained assumptions about interest rates and financing costs that were specific to each company, including, in Georgia Powers role as agent for the other joint owners, the details of an Equipment, Procurement and Construction contract that represented a significant portion of the total capital cost of the project. Id. 14. In addition, Applicants provided historical and projected financial statements, financial models, resource plans and financing plans supporting their assumptions to fund, operate and own the Vogtle Project, as well as loan draw schedules reflecting projected eligible project costs and amortization schedules. Id. After extensive

negotiations between DOE and the Applicants, the information provided by each Applicant was incorporated into the final terms and conditions of the Conditional Commitment. Id. Although most of the terms and conditions in the initial term sheet drafts offered to Applicants were negotiated and revised based on the information provided by Applicants, a few of the terms remained unchanged and were incorporated into the Conditional Commitment Letters. Id. 15. After DOE and each Applicant reached a consensus on the terms and conditions of the Applicants term sheet, DOE issued final term sheets dated February 13, 2010, thereby making each term sheet a conditional commitment to the corresponding Applicant. Id. 16; see Pulliam Decl. Exs. C-E. On February 16, 2010, President Obama announced that DOE had offered conditional commitments for the construction and operation of two new nuclear generating units at Vogtle Electric Generating Plant in Burke County, Georgia. Am. Compl. 5; Pl. Mem. Ex. A. Pursuant to 10 C.F.R. 609.9, the requirements and conditions stated in the Conditional Commitment Letters must be satisfied or waived by the Contracting Officer prior to issuance of the loan guarantee, and the Secretary may terminate a Conditional Commitment for any reason at any time prior to issuance of the loan guarantee. Frantz Decl. 16-17. Until and unless the

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parties negotiate and execute a definitive loan guarantee agreement, the Conditional Commitment Letters are not binding on DOE and there can be no assurance that any Applicant will receive a federal loan guarantee from DOE. Id. 17; Long Decl. 8; Higgins Decl. 10; Fuller Decl. 8. II. SACES FOIA REQUEST FOR CONDITIONAL COMMITMENT LETTERS On March 25, 2010, Plaintiff submitted a FOIA request seeking certain records pertaining to loan guarantees for the construction and operation of two nuclear reactors at the Vogtle Electric Generating Plant. Am. Compl. 6; Pl. Mem. Ex. B. Specifically, Plaintiffs FOIA request sought seven categories of records, including a request in Item 6 for [a]ll records related to the general terms and conditions of the Loan Guarantees. See Pl. Mem. Ex. B. A. The Agencys Search for and Disclosure of Responsive Records

On April 5, 2010, the LPO FOIA staff began its search for documents responsive to SACEs FOIA request. See Pulliam Decl. 6. With respect to Item 6 of SACEs FOIA request, the LPO FOIA staff obtained from the Senior Investment Officer copies of the term sheets or conditional commitment letters issued to each Applicant in connection with the Vogtle Project. Id. DOE determined that Plaintiffs request for the term sheets called for the disclosure of sensitive commercial and financial information that potentially fell within the scope of Exemption 4. Id. 7. Section 1004.11 of the Agencys regulations requires that DOE, in the course of responding to a Freedom of Information request, promptly notify the submitter of the commercial and/or financial information and provide the submitter an opportunity to submit his view on whether information contained in the requested document . . . is exempt from the mandatory public disclosure requirements of the Freedom of Information Act. See id. 8 (citing 10 C.F.R. 1004.11(c)). Agency regulations also require that DOE give the submitter of potentially exempt information no less than seven days prior to intended public disclosure to 7

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provide their views and submit an item-by-item indication, with accompanying explanation addressing whether such information is subject to FOIA exemptions. Id. Since the Applicants provided information to DOE related to the financing of the Vogtle Project, the LPO FOIA staff notified each Applicant of SACEs FOIA request and directed the companies to submit their views on any information that should be withheld along with an explanation as to why such information was subject to withholding under FOIA. Id. 8-9. The DOE Office of General Counsel took into consideration the views and justifications provided by the Applicants in making an independent determination on whether the information in question should be released. Id. 11. Where necessary, DOE engaged in additional follow-up discussions with each Applicant to determine whether certain commercial information in the Conditional Commitment Letters was protected from disclosure pursuant to Exemption 4. Id. In addition, LPO subject matter experts reviewed the records to determine if information contained therein may otherwise be exempt from public disclosure under FOIA. Id. 12. B. The Agencys Additional Disclosures of Non-Exempt Information in the Conditional Commitment Letters

On July 6, 2010, DOE released versions of the three Conditional Commitment Letters containing redactions pursuant to FOIA Exemption 4. Id. 13; see Pl. Mem. Ex. D at 1. Plaintiff thereafter commenced this action on August 9, 2010. ECF No. 1. In its partial response dated September 2, 2010, DOE indicated that the portions redacted from the Conditional Commitment Letters included sensitive cost and financing information that, if disclosed, would provide an unfair advantage to competitors by enabling competing power suppliers to estimate supply costs and use this information to bid against the applicant. See Pulliam Decl. 13 & Ex. B at 2-3. In an effort to narrow the issues for judicial review, DOE conducted a further review to determine whether any additional non-exempt information could be segregated and disclosed.

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Id. 14. DOE subsequently made another disclosure of the Conditional Commitment Letters on December 3, 2010, which contained additional releases of segregable non-exempt information. Id. 13; Pl. Mem. Exs. I, J & K. On March 1, 2011, DOE released another version of the Conditional Commitment Letter issued to MEAG, disclosing additional information determined to be non-exempt under the FOIA. Pulliam Decl. 14 & Ex. C. LEGAL STANDARD Summary judgment is appropriate when the pleadings and evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). The party seeking summary judgment must demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 248. A genuine issue of material fact is one that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248. Once the moving party has met its burden, the nonmoving party may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 248. FOIA cases are typically and appropriately decided on motions for summary judgment. Citizens for Responsibility & Ethics in Washington v. U.S. Dept of Labor, 478 F. Supp. 2d 77, 80 (D.D.C. 2007) (CREW); Wheeler v. Dept of Justice, 403 F. Supp. 2d 1, 5-8 (D.D.C. 2005). An agency may be entitled to summary judgment in a FOIA case if it demonstrates that no material facts are in dispute, it has conducted an adequate search for responsive records and each responsive record that it has located either has been produced to the plaintiff or is exempt from disclosure. See Weisberg v. Dept of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). To meet its

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burden, a defendant may rely on reasonably detailed and non-conclusory declarations. See McGehee v. C.I.A., 697 F.2d 1095, 1102 (D.C. Cir. 1983); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert denied, 415 U.S. 977 (1974); Wheeler, 403 F. Supp. 2d at 6. [T]he Court may award summary judgment solely on the basis of information provided by the department or agency in declarations when the declarations describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith. CREW, 478 F. Supp. 2d at 80 (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). Here, DOE has submitted the declarations of David G. Frantz and Wendy Pulliam and detailed Vaughn indices for each of the three Conditional Commitment Letters to explain and justify the Agencys response to Item 6 of Plaintiffs FOIA request. Additionally, DOE submits the declarations of Earl C. Long, Assistant Treasurer of Georgia Power Company, Elizabeth B. Higgins, Executive Vice President and Chief Financial Officer of Oglethorpe, and James E. Fuller, Senior Vice President and Chief Financial Officer of MEAG, to explain the competitive harm that would result from disclosure of the commercial and financial information in the three Conditional Commitment Letters. ARGUMENT I. DOE PROPERLY WITHHELD CONFIDENTIAL COMMERCIAL FINANCIAL INFORMATION PURSUANT TO EXEMPTION 4 AND

The FOIA requires that an agency release all records responsive to a properly submitted request unless such records are protected from disclosure by one or more of the Acts nine exemptions. 5 U.S.C. 552(b); U.S. Dept of Justice v. Tax Analysts, 492 U.S. 136, 150-51 (1989). Exemption 4 shields the disclosure of trade secrets and commercial or financial

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information obtained from a person and privileged or confidential. 5 U.S.C. 552(b)(4). As the D.C. Circuit articulated in National Parks I, the applicability of Exemption 4 under the FOIA is guided by the substantial competitive harm test. National Parks and Conservation Assn v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974) (Natl Parks I), as modified by National Parks and Conservation Assn v. Kleppe, 547 F.2d 673, 679 (D.C. Cir. 1976) (Natl Parks II). This standard remains the definitive measure for evaluating whether information falls within the scope of FOIA Exemption 4 where the materials in question were not volunteered, but required to be provided, to the Government. In National Parks I, the D.C. Circuit held that commercial or financial information qualified as confidential if disclosure of the information would likely: (1) impair the Governments ability to obtain necessary information in the future; or (2) cause substantial harm to the competitive position of the person from whom [it] was obtained. 498 F.2d at 770. Plaintiff does not dispute that the Conditional Commitment Letters contain commercial and financial information, so this element of the National Parks I test is not before the Court. See Pl. Mem. at 11-15. See Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1291 (D.C. Cir. 1983) (instructing that the terms commercial and financial be given their ordinary meaning). Plaintiff challenges, however, DOEs application of Exemption 4 to redact certain information from the term sheets on the grounds that the withheld information was not obtained from a person and would not cause competitive harm if disclosed. See id. As explained below, Plaintiffs arguments are without merit. Plaintiff ignores the fact that the Applicants were the ultimate source of the requested information and offers only speculation in support of its claims of lack of competitive injury.

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A.

The Requested Commercial Information Was Obtained From A Person

Exemption 4 excepts from disclosure confidential information that is obtained from a person. 5 U.S.C. 552(b)(4). Under the FOIA, a person is defined as an individual, partnership, corporation, association, or public or private organization other than an agency. 5 U.S.C. 551(2); Pub. Citizen Health Research Group v. Natl Inst. of Health, 209 F. Supp. 2d 37, 44 (D.D.C. 2002) (There is no doubt that a corporation may be considered a person for the purposes of exemption 4.). Plaintiff contends that the withheld portions of the Conditional Commitment Letters contain unequivocally DOEs terms and conditions, and therefore fall outside the scope of Exemption 4 because they were generated by the government. Pl. Mem. at 11-13. The fact that the confidential terms of the loan agreement were arrived at as a result of negotiations between LPO and the Applicants does not, however, alter the fact that the [Applicants] were the ultimate source of this information. See Pub. Citizen, 209 F. Supp. 2d at 44. Indeed, courts have held that documents containing summaries or reformulations of

information supplied by a source outside of the government are protected under Exemption 4. Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 28 (D.D.C. 2000) (citing Gulf & W. Indus. v. United States, 615 F.2d 527, 529-30 (D.C. Cir. 1979)); see OSHA Data/CIH, Inc. v. U.S. Dept of Labor, 220 F.3d 153, 162 n.23 (3d Cir. 2000) (concluding that the release of a ratio derived by an agency from numbers submitted to the agency would result in the disclosure of commercial information obtained from a person and would thus come within Exemption 4 if the information was confidential). On this basis, the court in Public Citizen upheld the application of Exemption 4 to withhold the royalty rate in an agreement between a licensee and the National Institutes of Health upon its determination that the licensee still must provide the information in

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the first instance, even if the final royalty rates may be the result of negotiation between the licensee and the agency. See Pub. Citizen, 209 F. Supp. 2d at 44-45. Plaintiffs reliance on the Second Circuits decision in Bloomberg, L.P. v. Board of Governors of the Federal Reserve System, 601 F.3d 143 (2d Cir. 2010), does not compel a contrary conclusion here. In Bloomberg, the Second Circuit considered whether documents that show what loans the Federal Reserve Banks actually made to borrowers, and not any of the loan applications by the borrowers themselves, were obtained from a person within the meaning of FOIA and concluded in the negative. Id. at 148 (emphasis added). As explained in more specific detail in the district court opinion, the requested documents did not reflect any financial information of the borrowers, such as pledged collateral and requested loan amounts; rather, they described the originating Federal Reserve Bank districts of the loans, individual loan amounts extended, types of lending program borrowed from, and loan origination and maturity dates, all of which was information generated by a Federal Reserve Bank upon its decision to approve the loan request. See Bloomberg L.P. v. Bd. of Governors of the Fed. Res. Sys., 649 F. Supp. 2d 262, 277-78 (S.D.N.Y. 2009). Unlike the actual loans at issue in Bloomberg, the requested information in the conditional loan commitments was generated as a result of extensive negotiations between DOE and the Applicants, with the information provided by each Applicant incorporated into the terms and conditions of the Conditional Commitment Letters. See Frantz Decl. 13-14. For example, each Applicant supplied DOE with estimates of the cost to construct, finance, own, and operate its interest in the Vogtle Project, including assumptions about interest rates and financing costs specific to each Applicant, as well as loan draw schedules reflecting each companys projected eligible project costs and amortization schedules. Id. 14. Further, the Applicants are,

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as of the date of this filing, in the process of negotiating the loan documentation to effectuate the parties agreements as embodied in the Conditional Commitment Letters. Id. 16. Importantly, the term sheets remain conditional; DOE will issue a loan guarantee if and when all the terms and conditions specified in the terms sheets and the accompanying loan documentation have been satisfied or otherwise waived. Id. 16-17. Moreover, although most of the terms and conditions in the initial term sheet drafts offered to Applicants were negotiated and revised based on the information provided by Applicants, a few initial terms remained unchanged and were subsequently incorporated into the Conditional Commitment Letters. Id. 15. Initial terms that were generated by DOE and remained unchanged include, but are not limited to, the following unredacted provisions: Sections 1, 6, 7, 11, 12 (Application Fee, Modification Fee), 15, 18(d) and (g) (Condition Precedent to Each Advance for Borrower) of the GPC Conditional Commitment; and Sections 1, 11, 12 (Application Fee, Modification Fee), 13, 15, 17(a)-(l) (Conditions Precedent to Initial Advance for Borrower) of the OPC Conditional Commitment.1 Id. Thus, given that the Applicants were the ultimate source of the commercial information contained in the Conditional Commitment Letters, the requested records contain information obtained from a person and are therefore protected from disclosure pursuant to Exemption 4. B. Disclosure of the Commercial Information Would Cause Substantial Competitive Harm to the Applicants

The D.C. Circuit does not require that a party show actual competitive harm in order to make an adequate showing of the likelihood of substantial competitive harm. Public Citizen
1

As Mr. Frantz attests, even some of the Initial Terms that were revised as a result of negotiations were also released to Plaintiff. These revised terms include, but are not limited to, the following sections: Sections 2, 3, 7, 13, 16, 17(a)-(l)(Conditions Precedent to Each Advance for Borrower), 23, 28 of GPC Conditional Commitment and Sections 2, 3, 7, 10, 23, 24, 27, 28 of OPC Conditional Commitment. See Frantz Decl. 14. 14

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Health Research Group v. FDA, 704 F.2d 1280, 1291 (D.C. Cir. 1983) (quoting Gulf & W. Indus., 615 F.2d at 530). Rather, evidence revealing [a]ctual competition and the likelihood of substantial competitive injury is sufficient to bring commercial information within the realm of confidentiality. Kahn v. Fed. Motor Carrier Safety Admin., 648 F. Supp. 2d 31, 36 (quoting Pub. Citizen, 704 F.2d at 1291). Although conclusory and generalized allegations of substantial competitive harm are insufficient to justify the application of Exemption 4, the court need not engage in a sophisticated economic analysis to determine whether there is a likelihood of substantial competitive injury. Id. (citing Public Citizen, 704 F.2d at 1291). Here, the

declarations submitted by Georgia Power, Oglethorpe, and MEAG provide detailed support demonstrating that each Applicant faces actual competition in the market for energy sales and the likelihood of substantial competitive injury that would result from disclosure of their commercial and financial information. See Natl Parks II, 547 F.2d at 684 (concluding that it is virtually axiomatic that disclosure of commercial and financial information is likely to cause competitive harm in light of the extremely detailed and comprehensive nature of the financial records requested). 1. Georgia Power Conditional Commitment Letter

As Earl Long, Assistant Treasurer of Georgia Power, attests, Georgia Power competes with other electric utilities, independent power producers, and cooperatives for short-term and long-term energy sales in the wholesale energy market in the Southeast. Long Decl. 4. Georgia Power also competes with other electric suppliers with regard to large retail electric customers and the acquisition of additional generating resources. Id. In light of the capital intensive nature of its business, Georgia Powers ability to compete in the marketplace is influenced heavily by its ability to effectively manage borrowing costs. Id.

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In view of the fact that the Conditional Commitment Letter issued dated on February 13, 2010 does not represent a definitive agreement between the agency and Georgia Power, and may in fact be terminated at the election of the Secretary of Energy for any reason at any time prior to the execution of a definitive loan agreement, Georgia Power faces the possibility of having to seek alternative financing for the significant amount of roughly $3.4 billion for the construction of the Vogtle Plant. Id. 8. In such an event, Georgia Power would have to negotiate financing documents with alternative sources of capital, and would do so in competition with other electric utilities, independent power producers, and cooperatives that are also seeking capital. Id. The disclosure of certain proposed terms in the Conditional Commitment -- which differ from the terms of Georgia Powers transactions in the private market -- would significantly undermine Georgia Powers negotiating position in an alternative financing transaction by reducing its operational and financial flexibility without any of the attendant benefits of DOE loan guarantees. Id. 10-11. The disclosure of the redacted provisions would expose the terms and conditions upon which DOE may be willing to make federal loan guarantees for new nuclear projects, and in effect permit Georgia Powers competitors to benefit from the terms to which Georgia Power has devoted substantial time and resources to negotiate with DOE. Id. 13. See Natl Parks II, 547 F.2d at 684 (Disclosure would provide competitors with valuable insights into the operational strengths and weaknesses of a [company], while [its competitors] could continue in the customary manner of playing their cards close to their chest.). Exemption 4 thus guards against the disclosure of information that would result in the affirmative use of proprietary information by competitors. See United Techs. Corp. v. United States Dept of Defense, 601 F.3d 557, 564 (D.C. Cir. 2010). Here, the redacted information includes the following:

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information in Schedules I, II, and III to the Conditional Commitment Letter containing detailed project cost estimates and a loan draw schedule (which reflects the anticipated timing of certain project costs) for the construction of the Vogtle Units, which would be of great value to competitors who are, or may be, considering the construction of new nuclear generating units, but who are not required to share their confidential internal cost estimates with Georgia Power; and provisions addressing a particular aspect of the Title XVII Loan Program that is currently the subject of discussions between DOE and Georgia Power and, depending on the final resolution of these issues, may require Georgia Power to engage in further negotiations with certain third parties. Disclosure of these provisions in their present unmodified form could negatively impact Georgia Powers negotiating position with these third parties.

Id. 14-15. As established in the Long Declaration and the Vaughn index attached as Exhibit F to the Pulliam Declaration, the commercial and financial information in the Conditional Commitment Letter would permit Georgia Powers competitors to better evaluate financing alternatives for their new nuclear generating units and assist competitors who either have less favorable credit ratings or wish to propose a different borrowing structure in obtaining a more favorable set of terms from DOE. Long Decl. 13. As set forth above, disclosure of certain proposed project cost estimates, loan draw schedules, and financing terms of its proposed transaction with DOE would likely injure Georgia Powers competitive position in the wholesale energy market given the non-binding nature of the DOEs conditional commitment. Therefore, DOE properly withheld the requested information from the Conditional Commitment Letter issued to Georgia Power. See Pulliam Decl. Ex. F. 2. Oglethorpe Conditional Commitment Letter

Along with its 39 members, Oglethorpe, a not-for-profit electric cooperative, participates in the wholesale power market in the southeastern United States. See Higgins Decl. 3-4. As a result of the number of market participants and the interconnectedness of the electric grid in the Southeast, Oglethorpe competes in a competitive marketplace with other wholesale power

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suppliers to provide wholesale power at the lowest possible cost to its members as well as offsystem sales. Id. 4. The pricing and availability of the necessary power and capacity are primary considerations in determining whether Oglethorpe or a third-party should supply the power and capacity needs of its members, and therefore Oglethorpes ability to construct, acquire and finance power and capacity sources in the most cost-efficient manner possible is critical if Oglethorpe is to meet its members needs. Id. 5. As demonstrated in the Higgins Declaration and the Vaughn index attached as Exhibit G to the Pulliam Declaration, the limited redactions of confidential financial information in the Conditional Commitment Letter issued to Oglethorpe include: confidential loan terms, including the treatment of Oglethorpes funding commitments, details on the term and maturity of the guaranteed loan, loan advance schedules, loan covenants, events of default, and loan repayment terms; and confidential financial data, including Oglethorpes internal estimates of the cost of developing and financing the additional units at the Vogtle Plant, broken down into categories such as, among others, nuclear fuel, training and debt service on non-DOE funding, and the amount of and details for calculating the loan maintenance fee to DOE and specific amounts to be paid under the repayment schedule.

Higgins Decl. 7. The project cost estimates that Oglethorpe has developed for and provided to DOE represent are subject to revision up until the final terms of Oglethorpes financing for the Vogtle Project are determined. Id. 10. Thus, the disclosure of different estimates of the project cost would likely cause substantial competitive harm to Oglethorpe by creating confusion in the credit market and presenting difficulties for Oglethorpe in future public debt offerings. Id. Moreover, the disclosure of confidential financial data and confidential loan terms could adversely affect Oglethorpes negotiating position for short-term borrowings, as well as its ability to negotiate favorable financing terms from private lenders. Id. 11-17. The prospect of competitive harm is especially acute where, as here, public release of the confidential financial

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data and loan terms would likely have a substantial adverse effect on the pricing and structure of any alternative financings should the DOE loan guarantee fail to close. Id. 13. That is, Oglethorpe may be harmed in its ability to obtain alternative financing if other lenders require payment of an interest rate premium in order to avoid inclusion of certain of the confidential loan terms that Oglethorpe has agreed to with DOE. Id. As set forth above, Oglethorpe faces actual competition in the wholesale energy market, and disclosure of certain confidential loan terms and financial data would likely injure its competitive position in the event Oglethorpe were to seek alternative sources of financing. Therefore, DOE correctly applied Exemption 4 to withhold the requested information from the Conditional Commitment Letter issued to Oglethorpe. See Pulliam Decl. Ex. G. 3. MEAG Conditional Commitment Letter

MEAG was created by the State of Georgia for the purpose of owning and operating electric generation and transmission facilities to supply bulk electric power to political subdivisions of the State of Georgia. Fuller Decl. 4. It currently provides bulk electric power to 48 cities and one county in the State of Georgia (referred to as participants) through its ownership interests in ten electric generating units and its purchases from, sales to, or exchanges with other bulk electric suppliers of additional capacity and energy. Id. MEAG and its

participants are engaged in competition with other electric service providers for the provision of retail and wholesale electric service, respectively. Id. In addition, all retail electric providers in the State of Georgia compete to serve the power requirements of new large commercial and industrial customers. Id. 5. MEAGs competitive position in the wholesale power market has a direct effect on its participants competitive position in the retail power market in that reduced wholesale power costs lead to reduced retail prices. Id. Separately, MEAG also competes in the

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wholesale power market in and outside of the State of Georgia through its participation in a Georgia wholesale power trading organization and through bilateral long-term sales of power to wholesale power consumers. Id. 6. As with the requested information contained in the terms sheets for the other two applicants, the information redacted in the Conditional Commitment Letter issued to MEAG reveals specific terms and conditions that were negotiated by MEAG and DOE in connection with the DOE loan guarantee. Id. 7. A great number of the withheld information represents specific financing terms and conditions negotiated at length and agreed with the DOE that are more restrictive and burdensome to MEAG than what MEAG would generally agree in its financing arrangements. Id. Disclosure of these specific restrictive financing terms and

conditions would provide unfair bargaining advantage to current and future lenders in negotiations with MEAG in that other lenders may demand inclusion of same or similar restrictions that have the effect of increasing financing costs to MEAG and its participants. Id. As detailed in the Fuller Declaration and in Exhibit H to the Pulliam Declaration, the redacted financing terms and conditions include: role of DOE engineer in connection with advance requests; information to be submitted by MEAG for each advance and details of DOEs approval procedure; details of applicable late charge, mandatory prepayments, voluntary prepayment option; timing of initial advance; details of conditions precedent to financial closing date and to each advance; representations and warranties; affirmative and negative covenants in favor of DOE; cure periods and exceptions relating to certain events of default; and details of the collateral securing DOEs security interest; and

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other aspects of MEAGs financing strategy for the Project.

Id. 7, 10-16. The redacted information also contains certain terms that, if not timely satisfied, may trigger DOEs right to terminate the conditional commitment -- this in turn may cause harm to MEAGs competitive position in that its business competitors, competing and potential applicants for the DOE Loan Guarantee Program and various groups who do not support development of new nuclear plants could take actions to negatively affect or delay MEAGs ability to satisfy these terms. Id. 8. Finally, public disclosure of the information withheld in Schedules 1, 2 and 3 to the Conditional Commitment Letter would reveal MEAGs financing strategy for the Project -- such as the description of certain accounts and funds to which Project costs are to be deposited, the flow of funds and information about application of proceeds of guaranteed loans -- information that would provide MEAGs competitors with insight into its financing plan for this Project, inform estimates of MEAGs cost of funding for the Project and, consequently, its cost of power produced from the Project. Id. 17. This would enable MEAGs competitors to compete unfairly against MEAG by disclosing confidential information that its competitors do not themselves have to disclose. Id. As set forth above, MEAG faces actual competition in the wholesale energy market, and disclosure of its confidential commercial information would likely injure its competitive position by disclosing financial strategy information to other lenders and its competitors. Therefore, DOE properly withheld the requested information from the Conditional Commitment Letter issued to MEAG. See Pulliam Decl. Ex. H. C. Disclosure of the Confidential Information Would Impair DOEs Ability to Effectively Implement the Loan Guarantee Program

In evaluating the interests protected by Exemption 4, courts have recognized interests beyond the impairment of an agencys ability to obtain necessary information in the future, such

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as the interest in the effectiveness of a government program. See Pub. Citizen, 209 F. Supp. 2d at 51-52 (observing that impairment of the effectiveness of a government program is a proper factor for consideration in conducting an analysis under FOIA exemption 4); Comstock Intl (U.S.A.), Inc. v. Ex.-Im. Bank of the United States, 464 F. Supp. 804, 808 (D.D.C. 1979) (citing Natl Parks I, 498 F.2d at 770 n.17) (upholding agencys application of Exemption 4 to withhold information obtained through the product of negotiation on the ground that the effectiveness of a government program would be impaired by disclosure). In addition to the competitive harm that may result, disclosure of the requested information would have an adverse impact on DOEs ability to implement the loan guarantee program established in Title XVII of the Energy Policy Act. In enacting Title XVII, Congress envisioned a cooperative relationship between DOE and business or non-federal governmental entities whereby DOE would issue loan guarantees to encourage business or non-federal governmental entities to develop and finance clean energy projects that employ innovative technologies. Frantz Decl. 18. Due to the risks associated with high technology, such projects are typically unable to obtain conventional private financing risks. Id. In light of the

competitive application process, which demands a competitive review of confidential and sensitive trade, financial, commercial and technical information, loan applicants have a legitimate expectation that their confidential financial and commercial information will not be disclosed to the public during the pendency of negotiations over the terms and conditions of the loan documents. Id. The public disclosure of sensitive and confidential information could significantly and adversely impair the Applicants performance and completion of the Vogtle Project, particularly by complicating negotiations with other third parties involved in the Vogtle Project, which would in turn impair DOEs ability to carry out its mission to work with non-

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federal entities to facilitate the development of clean energy projects. Id. For these reasons, the district court upheld the Export-Import Banks withholding of export-insurance documents upon the courts conclusion that disclosure would interfere with the agencys ability to carry out its statutory purpose of promoting the exchange of goods between the United States and foreign countries. Judicial Watch, Inc., 108 F. Supp. 2d at 30. Finally, disclosure of confidential and sensitive business and technical information would discourage prospective applicants from seeking federal loan guarantees because there would be no assurances that sensitive and confidential information provided by applicants will be protected from disclosure. Id.; Long Decl. 12 (It is not customary for financing parties to publicly disclose the particular proposed terms of a financing transaction that is pending negotiation of binding agreements. . . . In the event DOE is required to make premature disclosure of proposed terms of its loan guarantee transactions, this may jeopardize the willingness of parties such as Georgia Power or other borrowers with similar access to capital to negotiate freely and come to proposed terms with a government agency such as DOE that is interested in supporting projects.). As demonstrated above, disclosure of the confidential

commercial information would likely result in the reluctance of private entities to seek loan guarantees from DOE. Because this would have a deleterious effect on DOEs ability to

effectively fulfill its statutory mandate of promoting and financing the construction of clean energy projects to meet the growing energy needs of the country, DOE properly applied Exemption 4 to withhold commercial and financial information contained in the non-binding Conditional Commitment Letters.

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CONCLUSION For the reasons set forth above, Defendant respectfully requests that this Court grant its motion for partial summary judgment as to the claims asserted with respect to Item 6 of Plaintiffs FOIA request. Date: March 1, 2011 Respectfully submitted, RONALD C. MACHEN JR., D.C. Bar #447889 United States Attorney for the District of Columbia RUDOLPH CONTRERAS, D.C. Bar #434122 Chief, Civil Division By: /s/ Michelle Lo MICHELLE LO Assistant United States Attorney 555 4th Street, N.W. Washington, D.C. 20530 Tel: (202) 514-5134 Fax: (202) 514-8780 Michelle.Lo2@usdoj.gov .

Of counsel: Marilyn M. Madarang, Esq. Office of General Counsel U.S. Department of Energy

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