SCOTUS Rules FOIA Exception Applies to Environmental Opinion

Justice Amy Coney Barrett authored the majority view, her first since joining the court. .

Facts of the Case

Even the Environmental Protection Agency (EPA) proposed a rule in 2011 regarding”cooling water intake structures” used to cool industrial equipment.

Adhering to this required appointment, the Services prepare a formal”biological opinion” (called a”hazard” or”no jeopardy” biological opinion) Changing whether the bureau’s proposal will jeopardize the presence of threatened or endangered species. After consulting with the Services, the EPA made changes to its proposed rule, along with the Services obtained the revised version from November 2013. Staff members in NMFS and FWS shortly completed draft biological opinions concluding the November 2013 planned rule was likely to jeopardize certain species. Staff members delivered these drafts to the applicable decisionmakers within every service, but decisionmakers in the Services neither approved the drafts nor sent them into the EPA. The Services instead shelved the draft opinions and consented to the EPA to expand the period of consultation. Following these continued talks, the EPA delivered the Services a revised proposed rule in March 2014 that differed considerably in the 2013 variant. Satisfied the revised guideline was not possible to harm some protected species, the Services issued a combined final”no jeopardy” biological opinion. The EPA issued its final rule the exact same moment.

Sierra Club, an environmental firm, filed FOIA requests for documents associated with the Services’ consultations with the EPA. FOIA requires that federal agencies make documents accessible to the public on request, unless all these documents fall within one of nine exemptions. Exemption 5 incorporates the rights available to Government agencies in civil litigation, such as the deliberative process privilege, attorney-client privilege, and lawyer work-product privilege. The Services invoked the deliberative process privilege, which protects from disclosure records generated through a bureau’s deliberations about a policy, instead of files that embody or clarify a policy that the agency adopts. Even the Sierra Club sued to acquire these withheld documents. Even the Ninth Circuit Court of Appeals held the draft biological opinions were not privileged because although branded as broadcasts, the draft opinions represented the Services’ final opinion about the EPA’s 2013 suggested rule.

Supreme Court’s Decision

By a vote of 7-2, the Supreme Court reversed.

In her view, Justice Barrett explained the deliberative process privilege intends to boost agency decisionmaking by”encouraging candor and blunting the chilling effect that accompanies the prospect of disclosure.” V. Grumman Aircraft Engineering Corp., 421 U. S. 168 (1975), she noted that the privilege distinguishes between predecisional, deliberative files, that can be exempt from disclosuredocuments and documents representing a final agency decision and the reasons supporting it, that are not.

“It is not always self-evident if it’s the document signifies an agency’s ultimate decision, but only one thing is apparent: A document is not final solely because nothing else follows . On occasion a proposal expires on the vine,” Justice Barrett composed. “That occurs in deliberations–some ideas are lost or just languish. Nevertheless documents talking such dead-end notions can hardly be described as representing the agency’s preferred course. What matters, then, is not whether a document is last in line, but whether it communicates a policy where the agency has settled.”

Determined by this framework, the Court proceeded to conclude that the deliberative process privilege shields the draft biological opinions from disclosure since they reflect a preliminary view–not a final conclusion –regarding the EPA’s suggested 2013 rule. In support, Justice Barrett highlighted the Services identified all these records as”drafts.” While Justice Barrett acknowledged the label is not determinative, the Court found it had been true in this instance since the opinions were subject to change also had no immediate legal implications.

The Court further found that since the decision makers neither approved the drafts nor sent them into 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 reasoned that although the loopholes could have had the practical effect of provoking EPA to revise its own principle, the deliberative privilege still applies since the Services failed to deal with the loopholes as closing but rather upon to further discussion.
The article SCOTUS Rules FOIA Exception Applies to Environmental Opinion appeared on Constitutional Law Reporter.

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