On March 4, 2021, the Supreme Court of the United States in United States Fish and Wildlife Service v. Sierra Club, Inc. (2021) 141 S.Ct. 777, in an opinion written by newly appointed Justice Barrett and joined by Justices Roberts, Thomas, Alito, Kagan, Gorsuch, and Kavanaugh, reversed in part the Ninth Circuit Court of Appeals’ decision in holding that the deliberative process privilege protects Draft Biological Opinions (B.O.s) from disclosure under the Freedom of Information Act (FOIA) if the Draft B.O.s are pre-decisional and deliberative, even if they represent an agency’s last views on a proposed action.
In 2011, the U.S. Environmental Protection Agency (EPA) proposed a rule on the design and operation of cooling water intake structures intended for use in industrial facilities, to make use of technology to minimize adverse environmental impacts. (See 79 Fe. Reg. 22174 (2001).) Even still, these cooling structures would kill a certain amount of fish and other aquatic species, some of which might be federally protected (threatened or endangered). Accordingly, under Section 7 of the Endangered Species Act (ESA), the EPA consulted with the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS), both of which began preparation of Draft B.O.s in order to make their jeopardy determinations, i.e., whether or not the EPA’s proposal would jeopardize the continued existence of a protected species. Informal consultation with these agencies began in 2012 and formal consultation began in 2013. Multiple documents were exchanged between agencies during this time.
In November 2013, the EPA revised its proposed rule in response to consultation, and USFWS/NMFS tentatively agreed to provide the EPA with their Draft B.O.s by December 6th and Final documents by December 20th. Both Draft B.O.s concluded that the proposed rule likely would jeopardize protected species. Neither agency formally approved their Draft B.O. or presented them to the EPA by the deadline and, instead, both agencies concluded that more work needed to be done. As well, the EPA was still internally debating its rule, therefore all parties agreed to extend the period of consultation.
By March 2014, the EPA had revised its proposed rule again from the 2013 version, in a manner that allowed USFWS/NMFS to issue a joint no-jeopardy determination, after which the EPA issued its final rule that same day. Sierra Club made FOIA requests to USFWS/NMFS regarding their consultation on this rule, and both agencies invoked the deliberative process privilege for the Draft B.O.s of EPA’s 2013 proposed rule. Sierra Club sued in the Northern District of California, and won on this issue. The Ninth Circuit affirmed the trial court’s decision on this issue. The Supreme Court grant certiorari.
FOIA mandates the disclosure of documents held by federal agencies upon request unless one of nine exemptions apply. One such exemption is the deliberative process privilege, which protects documents from FOIA requests if they reflect an agency’s preliminary thinking about an issue, as opposed to its final opinion. The deliberative process privilege exists to encourage agency candor so as to improve decisionmaking and avoid the “chilling effect” that can occur when an agency believes its internal discussion may be made public. Pre-decisional, deliberative documents are exempt from disclosure under this privilege, whereas documents indicating final agency opinion must be disclosed. This does not mean, however, that the last document prepared by the agency is necessarily a final document. As Justice Barrett put it, sometimes a document does not present a final opinion upon which an agency has settled and is only considered final at all because nothing else follows it, because the proposed action upon which it is based “dies on the vine.” Further, whether or not the agency producing the document treats it as final is a primary determining factor.
Here, the Sierra Club contended that the 2013 Draft B.O.s, with their jeopardy determinations, must be considered final under prior precedent because they forced the EPA to change its rule in response. According to Justice Barrett, however, the precedent cited by Sierra Club was inapposite and the Draft B.O.s prepared in response to the EPA’s 2013 proposed rule were simply draft documents that “died on the vine” when the EPA changed its rule in 2014, and did not represent final agency opinions. She reasoned that, because the 2013 Draft B.O.s were not made available to the EPA, they were still “subject to change.” Even if they had been made available to the EPA, existing regulations would still allow them to be revised. Justice Barrett further found that the gap in time between due dates for the 2013 Draft B.O.s and their Final counterparts indicated their deliberative nature, for why would there be a two-week gap between draft and final unless revisions were anticipated? Mostly though, the court relied on the fact that neither the USFWS nor NMFS had finalized their 2013 Draft B.O.s—they were unapproved by agency decisionmakers and not forwarded to the EPA—as evidence showing that the agencies did not view them as final and thereby proving their lack of finality. These documents then were not really Draft B.O.s but instead were “drafts of draft[s].” They may have contained the last words on the 2013 proposed rule but were not intended to be final.
Justice Breyer penned a dissent, joined by Justice Sotomayor, in which he questioned the majority’s position that the documents were “drafts of drafts,” and asserted that Draft B.O.s do not normally “enjoy” the deliberative process privilege. The dissent preferred a more in-depth factual analysis to determine finality of the documents, and would have liked the question remanded to allow the Ninth Circuit to determine exactly how much more work needed to be done on the draft documents to establish whether they were closer to draft or final documents. Justice Breyer also noted the long agency history of disclosing Draft B.O.s to the public.
– Casey Shorrock