By James Purvis
The Sierra Club brought a Freedom of Information Act (FOIA) action against the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), challenging their denial of a request for certain draft Biological Opinions generated during a rule-making process by the U.S. Environmental Protection Agency (EPA). After the Ninth Circuit Court of Appeals found that the documents should be produced, on March 4, 2021, the U.S. Supreme Court reversed, finding that the deliberative process privilege protected the documents from disclosure. [U.S. Fish & Wildlife Service v. Sierra Club, 592 U.S.___, 141 S.Ct. 777 (Mar. 4, 2021). ]
Factual and Procedural Background
In 2011, the EPA proposed a rule regarding the design and operation of “cooling water intake structures,” which withdraw large volumes of water to cool industrial equipment. Because aquatic wildlife can become trapped in these structures and die, the EPA was required to “consult” with the FWS and NMFS (together: Services) under the Endangered Species Act (ESA) before proceeding. Generally, the goal of consultation is to assist the Services in preparing a Biological Opinion on whether an agency’s proposal would jeopardize the continued existence of threatened or endangered species. Typically, these opinions are known as “jeopardy” or “no jeopardy” opinions. If the Services find that the action will cause “jeopardy,” they must propose “reasonable and prudent alternatives” that would avoid harming the threatened species. If a “jeopardy” opinion is issued, the agency either must implement the alternatives, terminate the action, or seek an exemption from the Endangered Species Committee.
After consulting, the EPA made changes to the proposed rule, which was submitted to the Services in 2013. Staff members at the Services completed draft Biological Opinions, which found the proposed rule was likely to jeopardize certain species. Staff sent these drafts to the relevant decisionmakers within each agency, but decisionmakers at the Services neither approved the drafts nor sent them to the EPA. The Services instead shelved the drafts and agreed with the EPA to extend the period of consultation. After further discussions, the EPA sent the Services a revised proposed rule in March 2014 that significantly differed from the 2013 version. Satisfied that the revised rule was unlikely to harm any protected species, the Services issued a joint final “no jeopardy” Biological Opinion. 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 invoked the deliberative process privilege to prevent disclosure of the draft “jeopardy” Biological Opinions analyzing the EPA’s 2013 proposed rule. The Sierra Club brought suit to obtain those records. The U.S. District Court agreed with the Sierra Club, and the Ninth Circuit affirmed in part. Even though the draft Biological Opinions were labeled as drafts, the Ninth Circuit reasoned, the draft “jeopardy” opinions constituted the Services’ final opinion regarding the EPA’s 2013 proposed rule and must be disclosed. The U.S. Supreme Court then granted certiorari.
The Supreme Court’s Decision
Generally, FOIA mandates the disclosure of documents held by a federal agency unless the documents fall within certain exceptions. One of those exceptions, the deliberative process privilege, shields from disclosure documents reflecting advisory opinions and deliberations comprising the process by which governmental decisions and policies are formulated. The privilege aims to improve agency decisionmaking by encouraging candor and blunting the chilling effect that accompanies the prospect of disclosure.
The privilege distinguishes between predecisional, deliberative documents, which are exempt from disclosure, on the one hand, and documents reflecting a final agency decision and the reasons supporting it, which are not, on the other hand. As the Supreme Court observed, however, a document does not represent an agency’s final decision solely because nothing follows it; sometimes a proposal dies on the vine or languishes. What matters is if the document communicates a policy on which the agency has settled and the agency treats the document as its final view, giving the document “real operative effect.”
Draft Biological Opinions Reflected a Preliminary View of the Proposed Rule
Applying those general principles, the Supreme Court found that the draft Biological Opinions were protected from disclosure under the deliberative process privilege because they reflected a preliminary view—as opposed to a final decision—regarding the EPA’s proposed 2013 rule. In addition to being labeled as “drafts,” the Supreme Court explained, the administrative context confirmed that the draft opinions were subject to change and had no direct legal consequences. Because the decisionmakers neither approved the drafts nor sent them to the EPA, they were best described not as draft Biological Opinions but as drafts of draft Biological Opinions. While the drafts may have had the practical effect of provoking EPA to revise its 2013 proposed rule, the Supreme Court reasoned, the privilege still applied because the Services did not treat the draft Biological Opinions as final. The Supreme Court thus reversed the Ninth Circuit decision and remanded the case for further proceedings consistent with its holding.
Conclusion and Implications
The case is significant because it contains a substantive discussion of the deliberative process privilege, particularly in the context of the U.S. Endangered Species Act—and by a Supreme Court shaped in part by the Trump administration appointees. The decision is available online at: https://www.supremecourt.gov/opinions/20pdf/19-547_new_i42k.pdf
