United States Fish and Wildlife Serv. v. Sierra Club, Inc.

Background

In 2011 the Environmental Protection Agency proposed rules for large cooling-water intake systems. The EPA consulted two wildlife agencies—the Fish and Wildlife Service and the National Marine Fisheries Service—because the rule could harm endangered aquatic species. In late 2013 staff at those agencies prepared draft biological opinions saying the 2013 rule was likely to cause jeopardy, but agency decisionmakers did not approve or send those drafts to the EPA. The agencies continued consulting, the EPA revised the rule in 2014, and the agencies issued a joint final "no jeopardy" opinion the same day the EPA finalized the rule.

Reasoning

The Sierra Club requested the withheld drafts under the Freedom of Information Act. The Court framed the core question in simple terms: when is an internal draft a protected part of deliberation and when is it effectively the agency’s final view? The Court held that the deliberative process privilege shields predecisional, deliberative documents. Because decisionmakers never approved or transmitted the 2013 drafts and they were part of ongoing consultation, the drafts were not treated as final and are protected. The Court reversed the Ninth Circuit’s judgment requiring disclosure.

Real world impact

The decision lets federal agencies withhold internal draft environmental analyses that are part of ongoing discussions. Environmental groups and the public may receive fewer preliminary documents during rulemaking and species consultations. The ruling is procedural, not a final decision on the environmental rule itself, and the case returns to lower courts to check whether any nonexempt parts must be disclosed.

Dissents or concurrances

Justice Breyer, joined by Justice Sotomayor, dissented, arguing some drafts functioned like final agency views and should be disclosed; he would have sent factual questions back for further review.