Supreme Court Decides United States Fish and Wildlife Service et al. v. Sierra Club, Inc.

Faegre Drinker Biddle & Reath LLP

Faegre Drinker Biddle & Reath LLP

On March 4, 2021, the U.S. Supreme Court decided United States Fish and Wildlife Service et al. v. Sierra Club, Inc., holding that the deliberative process privilege exemption in the Freedom of Information Act (FOIA) protects predecisional, deliberative draft opinions from disclosure.

In 2011, the Environmental Protection Agency (EPA) proposed a rule regarding “cooling water intake structures” used to cool industrial equipment. Because the rule had the potential to jeopardize protected aquatic wildlife, the EPA was required to consult with two related agencies — the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) — and obtain a “jeopardy” or “no jeopardy” biological opinion from them before issuing the rule. During the consultation process, the EPA revised the proposed rule twice, with the final version of the rule “differ[ing] significantly” from the prior version. The FWS and NMFS issued a joint “no jeopardy” biological opinion to the final version of the proposed rule, and the EPA issued the rule.

The Sierra Club submitted a FOIA request for records related to the consultation process for the rule. The FWS and NMFS invoked the deliberative process privilege to withhold their draft biological opinions related to the prior versions of the rule. The Sierra Club sued to get the opinions in the U.S. District Court for the Northern District of California. The district court agreed with Sierra Club that the opinions were not privileged. The Ninth Circuit affirmed in part and held that the draft opinions were not privileged.

In a 7–2 decision, the first published decision to be authored by Justice Amy Coney Barrett, the Supreme Court reversed. It held that the draft opinions relating to prior versions of the proposed rule “reflect[ed] a preliminary view — not a final decision,” and were, therefore, protected by the deliberative process privilege. The Court reasoned that the deliberative process 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 defined documents as “predecisional” if they “were generated before the agency’s final decision on the matter, and it defined documents as “deliberative” if they “were prepared to help the agency formulate its position.” The Court emphasized that a document does not reflect a final decision “solely because nothing else follows it. Sometimes a proposal dies on the vine.” As an example, documents discussing ideas that have been “discarded or simply languish” do not reflect an “agency’s settled position” or “final view” on a matter.

The Court expressly rejected the Sierra Club’s proposed “effects-based test” looking at whether the document “provoked a response” to determine its finality, explaining that “[t]o determine whether the privilege applies, we must evaluate not whether the drafts provoked a response from the EPA but whether the Services treated them as final.”

Justice Barrett delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Alito, Kagan, Gorsuch, and Kavanaugh joined. Justice Breyer filed a dissenting opinion, in which Justice Sotomayor joined.


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