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

Background

The dispute involves the EPA and two wildlife agencies (Fish and Wildlife Service and National Marine Fisheries Service) after the EPA proposed rules for cooling water intake structures. In late 2013 staff drafts concluded the rule would likely jeopardize some protected species, but agency decisionmakers neither approved nor sent those drafts to the EPA and continued consultation. After the EPA revised the rule in March 2014 the agencies issued a joint final “no jeopardy” opinion. Sierra Club sought the withheld 2013 drafts under the Freedom of Information Act, the Ninth Circuit ordered disclosure, and the agencies appealed.

Reasoning

The core question was whether FOIA’s deliberative process privilege shields in-house draft biological opinions. The Court held that the privilege protects documents that are both predecisional and deliberative, and that finality depends on whether the agency treated the document as its settled position. Because decisionmakers never approved or circulated the 2013 drafts to the EPA, the Court described them as preliminary “drafts of draft” opinions and ruled they could be withheld, reversing the Ninth Circuit.

Real world impact

Government agencies can therefore withhold internal draft analyses about proposed rules when those drafts were not treated as final. That will limit public access to early staff recommendations and make FOIA requests by environmental groups harder to win. The decision concerns disclosure rules only; the underlying environmental rule was not decided, and the case was remanded for courts to decide what nonexempt material must be released.

Dissents or concurrances

Justice Breyer dissented, arguing many draft biological opinions function as agencies’ final views and should be disclosed; he would have sought more factfinding about these specific drafts and worried about hiding meaningful agency conclusions.