SCOTUS Rules FOIA Exception Applies to Environmental Opinion

In U.S. Fish and Wildlife Service v. Sierra Club, 592 U. S. ____ (2021), the U.S. Supreme Court held that the deliberative process privilege provides protection from disclosure under the Freedom of Information Act (FOIA) to in-house draft biological opinions that are both predecisional and deliberative, even if the drafts reflect the agencies’ last views about a proposal. Justice Amy Coney Barrett authored the majority opinion, her first since joining the court..

Facts of the Case

The Environmental Protection Agency (EPA) proposed a rule in 2011 regarding “cooling water intake structures” used to cool industrial equipment. Because aquatic wildlife can become trapped in these intake structures and die, the Endangered Species Act of 1973 required the EPA to consult with the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the “Services”) before proceeding.

Following this required consultation, the Services prepare an official “biological opinion” (known as a “jeopardy” or “no jeopardy” biological opinion) addressing whether the agency’s proposal will jeopardize the existence of threatened or endangered species. After consulting with the Services, the EPA made changes to its proposed rule, and the Services received the revised version in November 2013. Staff members at NMFS and FWS soon completed draft biological opinions concluding that the November 2013 proposed rule was likely to jeopardize certain species. Staff members 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 draft opinions and agreed with the EPA to extend the period of consultation. After these continued discussions, the EPA sent the Services a revised proposed rule in March 2014 that differed significantly 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.

Sierra Club, an environmental organization, submitted FOIA requests for records related to the Services’ consultations with the EPA. FOIA requires that federal agencies make records available to the public upon request, unless those records fall within one of nine exemptions. 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. The Services invoked the deliberative process privilege, which protects from disclosure documents generated during an agency’s deliberations about a policy, as opposed to documents that embody or explain a policy that the agency adopts. The Sierra Club sued to obtain these withheld documents. The Ninth Circuit Court of Appeals held that the draft biological opinions were not privileged because even though labeled as drafts, the draft opinions represented the Services’ final opinion regarding the EPA’s 2013 proposed rule.

Supreme Court’s Decision

By a vote of 7-2, the Supreme Court reversed. “The deliberative process privilege protects the draft biological opinions from disclosure because they are both predecisional and deliberative,” Justice Amy Coney Barrett wrote on behalf of the Court. “We reverse the contrary judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.”

In her opinion, Justice Barrett explained that the deliberative process privilege aims to improve agency decisionmaking by “encouraging candor and blunting the chilling effect that accompanies the prospect of disclosure.” Citing Renegotiation Bd. v. Grumman Aircraft Engineering Corp., 421 U. S. 168 (1975), she further noted that the privilege distinguishes between predecisional, deliberative documents, which are exempt from disclosure, and documents reflecting a final agency decision and the reasons supporting it, which are not.

“It is not always self-evident whether a document represents an agency’s final decision, but one thing is clear: A document is not final solely because nothing else follows it. Sometimes a proposal dies on the vine,” Justice Barrett wrote. “That happens in deliberations—some ideas are discarded or simply languish. Yet documents discussing such dead-end ideas can hardly be described as reflecting the agency’s chosen course. What matters, then, is not whether a document is last in line, but whether it communicates a policy on which the agency has settled.”

Relying on this framework, the Court went on to conclude that the deliberative process privilege protects the draft biological opinions from disclosure because they reflect a preliminary view—not a final decision—about the EPA’s proposed 2013 rule. In support, Justice Barrett highlighted that the Services identified these documents as “drafts.” While Justice Barrett acknowledged that the label is not determinative, the Court found that it was accurate in this case given that the opinions were subject to change and had no direct legal consequences.

The Court further found that because the decision makers neither approved the drafts nor sent them to the EPA, they are best described not as draft biological opinions but as “drafts of draft biological opinions.” In rejecting the arguments raised by the Sierra Club, the Court further concluded that while the drafts may have had the practical effect of provoking EPA to revise its rule, the deliberative privilege still applies because the Services did not treat the drafts as final but rather upon to further discussion.