An Environmental Law and Public Records Case is the First Majority Opinion Written by Newly-Minted U.S. Supreme Court Justice Amy Coney Barrett

United States Fish & Wildlife Service v. Sierra Club, Inc.
(U.S. Mar. 4, 2021) —S.Ct.— (No. 19-547)

In a 7-2 decision (Breyer, Sotomayor dissenting), the U.S. Supreme Court held that draft environmental opinions prepared by the U.S. Fish and Wildlife Service and National Marine Fisheries Service (together, “Services”) are exempt from public disclosure under the “deliberative process” exemption to the federal Freedom of Information Act (FOIA). The deliberative process exemption shields documents that reflect an agency’s preliminary thinking about a problem, as opposed to its final decision. This decision is instructive to document requests under the California Public Records Act, which is modeled on the FOIA. (See Michaelis, Montanari & Johnson v. Superior Ct. (2006) 38 Cal.4th 1065, 1076.)

The FWS v. Sierra Club case involves a proposed rule by the U.S. Environmental Protection Agency (EPA) related to the design and operation of “cooling water intake structures,” which draw large volumes of water from various sources to cool industrial equipment. The water withdrawn by these structures typically contains fish and other organisms that can become trapped in the intake system and die.

When an agency plans to undertake an action that might “adversely affect” a protected species, the agency must consult with the Services before proceeding, pursuant to the federal Endangered Species Act. The goal of the consultation is to assist the Services in preparing an official “biological opinion” on whether the agency’s proposal will jeopardize the threatened or endangered species — these opinions are known as “jeopardy” or “no jeopardy” biological opinions. (50 CFR §402.14(h)(1)(iv).)

Therefore, beginning in 2012, the EPA consulted with the Services about its proposed rule. The EPA sent the Services a draft of the proposed rule in November 2013. Staff members at the Services completed draft biological opinions in December 2013. The draft biological opinions concluded that the proposed rule was likely to jeopardize certain species, and identified possible reasonable and prudent alternatives that the EPA could pursue. Decisionmakers at the Services neither approved the drafts nor sent them to the EPA, which was still debating key elements of the rule. Instead, the Services “shelved” the draft opinions and extended the consultation period. Then, in March 2014, the EPA sent the Services a new proposed rule that differed significantly from the 2013 version. The Services determined that the revised rule was unlikely to harm any protected species. As such, the Services issued a joint final “no jeopardy” biological opinion, thereby terminating the formal consultation. The EPA issued its final rule that same day.

The Sierra Club submitted FOIA requests for records related to the Services’ consultations with the EPA. The Services turned over thousands of documents, but invoked the deliberative process exemption for others ­— including the draft biological opinions analyzing the EPA’s 2013 proposed rule. The Services asserted that, as drafts, the withheld documents were necessarily nonfinal and therefore protected. The Sierra Club sued the Services, alleging that the withheld documents were subject to disclosure under the FOIA. The Supreme Court disagreed.

The FOIA requires that federal agencies make records available to the public upon request, unless those records fall within one of nine exemptions. (5 U.S.C. §522(b).) Exemption 5 incorporates the privileges available to government agencies in civil litigation, such as the deliberative process privilege, attorney-client privilege, and attorney work-product privilege. This case concerns the “deliberative process” privilege, which protects from disclosure documents generated during an agency’s deliberations about a policy. Under this privilege, pre-decisional deliberative documents are exempt from disclosure. However, documents reflecting a final agency decision and the reasons supporting it are not protected and must be disclosed. The deliberative process privilege protects agencies from being forced to operate in a “fishbowl.” The privilege is rooted in “the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.”

In FWS v. Sierra Club, the Supreme Court held that the Services’ draft biological opinions were protected from disclosure under the deliberative process privilege. To determine whether the privilege applies, a critical question is whether the public agency treated the documents as their final view on the matter. Courts must evaluate the documents “in the context of the administrative process” that generated them. Here, the draft biological opinions were generated as part of a consultative process that specifically contemplates further review. The Services share their draft biological opinions with the action agency — in this case, the EPA — and generally may not issue final opinions “while the draft is under review” by the action agency. (50 CFR §402.14(g)(5).) Also, the Services did not treat the draft biological opinions as final, because they neither approved the drafts nor sent them to the EPA. Instead, the decisionmakers concluded that “more work needed to be done” and extended the consultation with the EPA. Accordingly, the draft biological opinions were just that — opinions that were subject to change.

The Court opinion notes that a document is not “final,” and thus subject to disclosure, solely because nothing else follows it. Sometimes a proposal “dies on the vine.” Some ideas are discarded, yet documents discussing such dead-end ideas cannot be described as reflecting the agency’s chosen course. What matters is whether the document communicates a policy on which the agency has settled. If so, it is subject to public disclosure. Here, the Services’ draft biological opinions proved to be their “last word” about the 2013 version of EPA’s proposed rule. But the opinions were only “last” because they died on the vine. Further consultations with the Services prompted the EPA to alter key features of its 2013 proposal, so there was never a need for the Services to render a definitive judgment about it.

In short, in FWS v. Sierra Club, the Court found that the deliberative process exemption protects from public disclosure in-house agency draft documents that do not represent an agency’s final view on a matter. And in this case, the consultation that generated deliberative process drafts protected from production in response to a FOIA request worked as it should have: The Services and the EPA consulted about how a proposed rule would affect aquatic wildlife until the EPA settled on an approach that would not jeopardize any protected species.

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