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

No. 19-547 - Argued November 2, 2020
At Issue

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
Background and Case Commentary

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.

U.S. Fish and Wildlife Service v. Sierra Club on Oyez: https://www.oyez.org/cases/2020/19-547

Key Questions from Oral Argument

Justice Breyer to Respondent Sierra Club (43:06): So, we’re talking about that draft biological opinion, and it has two things about it: One, we're going to negotiate this with EPA; and, two, private people, who are nothing to do with the EPA, can get a hold under FOIA of that document. Is that right?

Katherine Meyer: Yes, Justice Breyer, and I’m glad you mentioned that latter point. The applicable regulations require the consulting entities to provide the Draft Biological Opinion to a third party who has applied to a federal agency for a permit that, if granted, may adversely affect a listed species. That disclosure obligation has been in existence since 1986, when those regulations were first promulgated. This means that for over two decades, this mandatory disclosure obligation has not resulted in “chilling” any give and take between the agency scientists and policymakers. There is accordingly no reason to believe it would do so when the applicant is basically a federal agency rather than a third party. This disclosure obligation vis a vis an applicant also highlights the fact that although the document is labeled a “draft,” in function it really is a final determination of the expert agency regarding whether the proposed action will cause jeopardy.

Justice Thomas to Respondent Sierra Club (40:58): So what's at stake here? EPA's first rule, it doesn't --it's gone now. They've got a different rule. So what's at stake? Why do you need --what information are you trying to get about a rule that's no longer in place?

Katherine Meyer: What’s at stake here, Justice Thomas, is the fundamental purpose of FOIA. As this Court has reiterated many times, the core purpose of FOIA is to allow the public to scrutinize whether government agencies are carrying out their statutory duties—in this case to ensure that agency actions do not drive already imperiled species to extinction. The public simply cannot scrutinize government action in this way if it does not know the scientific basis for the Services’ initial determination that the EPA’s rule would have resulted in jeopardy and whether the EPA’s changes to its final rule in fact ameliorated that concern.