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

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Supreme Court of the United States
U.S. Fish and Wildlife Service v. Sierra Club
Term: 2020
Important Dates
Argument: November 2, 2020
Decided: March 4, 2021
Outcome
Reversed and remanded
Vote
7-2
Majority
Amy Coney Barrett • Chief Justice John G. Roberts • Clarence Thomas • Samuel Alito • Elena Kagan • Neil Gorsuch • Brett Kavanaugh
Dissenting
Stephen Breyer • Sonia Sotomayor

U.S. Fish and Wildlife Service v. Sierra Club is a case argued before the Supreme Court of the United States on November 2, 2020, during the court's October 2020-2021 term.

The court reversed the decision of the U.S. Court of Appeals for the 9th Circuit and remanded the case for further proceedings in a 7-2 ruling, holding that the deliberative process privilege protects in-house draft biological opinions made pre-decision and during deliberation, even if the drafts reflect the agencies' last views about a proposal, under the Freedom of Information Act (FOIA). Justice Amy Coney Barrett delivered the majority opinion of the court. Justice Stephen Breyer filed a dissenting opinion, joined by Justice Sonia Sotomayor.[1] Click here for more information about the ruling.

HIGHLIGHTS
  • The case: The Sierra Club challenged a new Environmental Protection Agency rule and a biological opinion from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, Services). During that litigation, the Sierra Club submitted a Freedom of Information Act (FOIA) request for draft documents from a consultation between the three agencies that took place between 2011 and 2014. The Services released some documents but withheld others under FOIA Exemption 5. The Sierra Club sued Services in the U.S. District Court for the Northern District of California, which ruled Services had to disclose some documents but could withhold others. On appeal, the 9th Circuit Court of Appeals affirmed in part and reversed in part the district court's decision. The government petitioned the U.S. Supreme Court for review.
  • The issues: It concerned whether inter-agency draft documents can be withheld under Exemption 5 of the Freedom of Information Act (FOIA).
  • The questions presented: Whether Exemption 5 of the Freedom of Information Act protects draft documents from compelled disclosure if the documents were (1) created during a formal interagency consultation process under Section 7 of the Endangered Species Act and (2) later modified in the consultation process.[2]
  • The outcome: The U.S. Supreme Court reversed the 9th Circuit's ruling and remanded the case for further proceedings.


    • The case came on a writ of certiorari to the United States Court of Appeals for the 9th Circuit. You can review the lower court's opinion here.

    Timeline

    The following timeline details key events in this case:

    • March 4, 2021: The U.S. Supreme Court reversed the U.S. Court of Appeals for the 9th Circuit's ruling and remanded the case for further proceedings.
    • November 2, 2020: Oral argument was heard.
    • March 2, 2020: The U.S. Supreme Court agreed to hear the case.
    • October 25, 2019: The U.S. Fish and Wildlife Service, the petitioner, filed a petition with the U.S. Supreme Court.
    • May 30, 2019: The 9th Circuit denied a petition for rehearing.
    • December 21, 2018: The 9th Circuit affirmed in part and reversed in part the Northern District of California's ruling.

    Background

    Consultation process

    In 2011, the Environmental Protection Agency (EPA) proposed new rules for cooling water intake structures, which help dissipate heat from industrial processes. The EPA engaged the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, Services) in a consultation process to review the potential environmental impacts of the new rule.

    In 2013, Services sent to the EPA a draft biological opinion with a preliminary finding that a draft of the rule would have a negative environmental impact. Before the drafts were finalized, Services and the EPA extended the consultation.

    In 2014, the EPA drafted a new version of the rule. Services then issued a new biological opinion finding the rule would not jeopardize the environment. The rule was published on August 15, 2014, in the Federal Register.

    Litigation

    The Sierra Club challenged the rule and the biological opinion in the United States Court of Appeals for the 2nd Circuit. The 2nd Circuit denied the petition for review. During that litigation, the Sierra Club entered a Freedom of Information Act (FOIA) request to obtain draft documents from the consultation. Services released some documents but withheld others under Exemption 5.

    The Sierra Club sued Services under FOIA in the U.S. District Court for the Northern District of California. The district court ordered Services to release 11 documents in full and one document in part. The court also ruled four documents under dispute could be withheld from disclosure. The government appealed, and the United States Court of Appeals for the 9th Circuit affirmed in part and reversed in part the district court's ruling. The 9th Circuit then denied a petition for rehearing.[3]

    In the petition to the U.S. Supreme Court, the U.S. Fish and Wildlife Service argued, "The agencies' preliminary drafts preceding their final decisions are entitled to protection. The court of appeals' decision to the contrary warrants this Court’s review." The government also argued the 9th Circuit's decision was wrong and "in serious tension with multiple decisions of this Court and other courts of appeals."[3]

    FOIA

    See also: Freedom of Information Act

    The Freedom of Information Act requires a federal agency to disclose records upon request. The law grants nine exemptions. Exemption 5 allows an agency to withhold "inter-agency or intra-agency memoranda or letters that are protected by legal privileges."[4]

    Questions presented

    The petitioner presented the following questions to the court:[2]

    Questions presented:
    “ Whether Exemption 5 of the Freedom of Information Act, 5 U.S.C. 552(b)(5) (2012), by incorporating the deliberative process privilege, protects against compelled disclosure 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, 16 U.S.C. 1536, and that concerned a proposed agency action that was later modified in the consultation process.[3][5] ”


    Oral argument

    Audio

    Audio of oral argument:[6]



    Transcript

    Outcome

    In a 7-2 ruling, the court reversed the judgment of the U.S. Court of Appeals for the 9th Circuit and remanded the case for further proceedings, holding that the deliberative process privilege protects in-house draft biological opinions made pre-decision and during deliberation, even if the drafts reflect the agencies' last views about a proposal, under the Freedom of Information Act (FOIA). Justice Amy Coney Barrett delivered the majority opinion of the court. Justice Stephen Breyer filed a dissenting opinion, joined by Justice Sonia Sotomayor.[1]

    Opinion

    In her opinion, Justice Amy Coney Barrett wrote:[1]

    “ The Freedom of Information Act (FOIA) requires that federal agencies make records available to the public upon request, unless those records fall within one of nine exemptions. Exemption 5 incorporates the privileges available to Government agencies in civil litigation, such as the deliberative process privilege, attorney-client privilege, and attorney work-product privilege. This case concerns the deliberative process privilege, which protects from disclosure documents generated during an agency's deliberations about a policy, as opposed to documents that embody or explain a policy that the agency adopts. We must decide whether the privilege protects in-house drafts that proved to be the agencies' last word about a proposal's potential threat to endangered species. We hold that it does.[5] ”
    —Justice Amy Coney Barrett

    Dissenting opinion

    Justice Stephen Breyer filed a dissenting opinion, joined by Justice Sonia Sotomayor.[1]

    In his dissent, Justice Breyer wrote:[1]

    “ Because the word "draft" may here prove misleading, it should help the reader understand my argument if he or she keeps in mind three different but related kinds of documents: “Final Biological Opinions,” “Draft Biological Opinions,” and "Drafts of Draft Biological Opinions." A Final Biological Opinion, as its name suggests, embodies a final agency decision, for example, a decision by the Services that a proposed Environmental Protection Agency (EPA) action will jeopardize an endangered species. We all agree, I believe, that a Final Biological Opinion is not deliberative and that Exemption 5 of the Freedom of Information Act (FOIA) does not protect it from disclosure. I also agree with the Court about the third kind of document, a Draft of a Draft Biological Opinion. That kind of document normally is not final. It normally is deliberative. And Exemption 5 normally protects it from disclosure.


    But what about the second kind of document, a Draft Biological Opinion? Does it normally set forth a "final" Services view, or is it normally a "deliberative" document? I agree with the Court that whether a document is “final” or“deliberative” primarily depends upon its "function[]" within an agency's decision-making process. Ante, at 10: see also NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 138 (1975) (“[T]he function of the documents” and “the context of the administrative process which generated them" is“[c]rucial” to understanding whether the deliberative process privilege applies). I believe that, in the context before us, the Services’ Draft Biological Opinions reflect “final” decisions regarding the "jeopardy" the EPA's then-proposed actions would have caused. Hence, they would normally fall outside, not within, Exemption 5. ...

    ... In sum, the likely finality of a Draft Biological Opinion, its similarity to a Final Biological Opinion, the similar purposes it serves, the agency's actual practice, the anomaly that would otherwise exist depending upon the presence or absence of a private party, and the presence of at least some regulation-based legal constraints—convince me that a Draft Biological Opinion would not normally enjoy a deliberative privilege from FOIA disclosure.

    The question remains whether the particular documents at issue here are Draft Biological Opinions or Drafts of Draft Biological Opinions. As the majority points out, there are reasons to believe some of them may be the latter. See ante, at 7, n. 4, 9. The National Marine Fisheries Service’s documents contain highlighting and editing marks reflective of a work-in-progress. But the Fish and Wildlife Service documents do not, and the record indicates they may have been complete but for a final signature. See App. 105. Given the fact-intensive nature of this question, I would remand to allow the Court of Appeals to determine just how much work was left to be done. If the court determines that the documents are merely Drafts of Draft Biological Opinions, I agree with the majority that a segregability analysis would be appropriate.

    For these reasons, I dissent.[5]

    		”
    —Justice Stephen Breyer

    Text of the opinion

    Read the full opinion here.

    October term 2020-2021

    See also: Supreme Court cases, October term 2020-2021

    The Supreme Court began hearing cases for the term on October 5, 2020. The court's yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.[7]

    The court issued 67 opinions during its 2020-2021 term. Two cases were decided in one consolidated opinion. Ten cases were decided without argument. Click here for more information on the court's opinions.

    The court agreed to hear 62 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Five cases were removed from the argument calendar.


    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 U.S. Supreme Court, United States Fish and Wildlife Service v. Sierra Club, decided March 4, 2021
    2. ↑ 2.0 2.1 Supreme Court of the United States, U.S. Fish and Wildlife Service v. Sierra Club - Questions presented, accessed March 5, 2020
    3. ↑ 3.0 3.1 3.2 Supreme Court of the United States, U.S. Fish and Wildlife Service v. Sierra Club - Petition for a writ of certiorari, accessed March 5, 2020
    4. ↑ U.S. Department of State, "The Freedom of Information Act," accessed February 5, 2018
    5. ↑ 5.0 5.1 5.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    6. ↑ Supreme Court of the United States, "Oral Argument - Audio," accessed November 9, 2020
    7. ↑ SupremeCourt.gov, "A Brief Overview of the Supreme Court," accessed April 20, 2015
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