U.S. Fish and Wildlife Service v. Sierra Club

Does Exemption 5 of the Freedom of Information Act, by incorporating the deliberative process privilege, protect against compelled disclosure of a federal agency’s draft documents that were prepared as part of a formal interagency consultation process under Section 7 of the Endangered Species Act of 1973 and that concerned a proposed agency action that was later modified in the consultation process?

• Matthew Guarnieri for the petitioners
• Sanjay Narayan for the respondent

Section 7 of the Endangered Species Act requires all federal agencies to “ensure” that their actions are not likely to jeopardize the continued existence of any species that has been listed as “endangered” under the statute. An endangered species is one that is already on the brink of extinction. To comply with this obligation, an agency proposing to take an action that “may affect” a listed species must “consult” with either the Fish and Wildlife Service (FWS) (for terrestrial species) and/or the National Marine Fisheries Service (NMFS) (for aquatic species). The FWS and/or the NMFS then issue a Draft Biological Opinion setting forth their expert conclusions on whether the proposed action is likely to jeopardize the continued existence of endangered species (“a jeopardy opinion”) and suggesting “reasonable and prudent” alternatives that would avoid that result. The action agency can then either accept the proposed alternative measures, change its proposal in other ways to avoid jeopardy, or seek approval from a high-level cabinet committee—known as “the god squad”—to go forward with the proposed action even though it may cause the extinction of a species. The statute requires that a jeopardy determination be based on the “best scientific data”—i.e., the Services’ may not rely on economic or policy considerations.

In this case, the EPA drafted a proposed rule governing operation of cooling water intake structures—the systems by which large industrial facilities cool down their equipment by extracting water from nearby sources.  These intake practices suck large numbers of fish, turtles, and other wildlife into the system and thereby kill those animals, including members of species listed as endangered. The FWS and NMFS concluded that absent alternative measures, the proposed rule would jeopardize endangered species. Rather than adopt the proposed alternatives, the EPA chose to modify its rule in different ways, and, after conducting a new consultation on the amended proposal, the FWS and NMFS concluded that the modified rule would not cause jeopardy to any species.

The Sierra Club, which challenged the EPA’s final rule, sought to obtain access to the original Draft (jeopardy) Opinion under the Freedom of Information Act (FOIA). The Services withheld the document in its entirety under Exemption 5 of the Act, which applies to “intra- or inter-agency memoranda” that would fall within a privilege in the civil discovery context. To properly invoke the Exemption, the government bears the burden of demonstrating that the document is both (a) pre-decisional and (b) deliberative in nature—i.e., it reveals the give and take on advice and recommendations between agency personnel. In this case, the Services asserted that the Draft Biological Opinion met both criteria. The Sierra Club maintains that the document is not “pre-decisional” because, despite being called a “Draft” Biological Opinion, it was the Services’ final scientific determination that the initially proposed rule would impermissibly jeopardize endangered species unless it were changed.

The pro-disclosure community is concerned about the ramifications of this case because the government seeks a ruling that any document labeled “draft” is automatically covered by Exemption 5, regardless of either its actual role in the process or its content.

During one highly important line of questioning (17:24), Justice Sotomayor obtained the government counsel’s assurance that even if the Court rules in the government’s favor, the district court would still have to decide, on remand, what purely factual information the government must disclose. The assurance indicates a change in the government’s position; previously, the government had argued that all such factual information was too inextricably intertwined with the “deliberative” nature of the document to warrant disclosure of any of the information. The government’s position in response to Justice Sotomayor, by contrast, would mean that most, if not all, of the requested document should be disclosable—especially because both the district court and the Court of Appeals already reviewed the document in camera and ruled that it was not exempt.

Below I address two additional, important questions: one by Justice Breyer and the second by Justice Thomas.  Justice Breyer’s question provided an opportunity for Sierra Club to explain why its proposed rule would not have any chilling effect on inter-agency communication.  Justice Thomas’s question addresses the ultimate stake in the litigation.