U.S. Fish & Wildlife Serv. v. Sierra Club, No. 19-547, 2021 WL 816352 (S. Ct. Mar. 4, 2021) (Barrett, J.)

U.S. Fish & Wildlife Serv. v. Sierra Club, No. 19-547, 2021 WL 816352 (S. Ct. Mar. 4, 2021) (Barrett, J.)

Re:  Request for records generated during EPA's rule-making process concerning cooling water intake structures

Disposition:  Reversing and remanding Court of Appeals for the Ninth Circuit's affirming in part, reversing in part, and remanding of district court's grant in part and denial in part of parties' cross-motions for summary judgment

• Exemption 5, Deliberative Process Privilege:  The Supreme Court of the United States holds that "[t]he deliberative process privilege protects the draft biological opinions from disclosure because they are both predecisional and deliberative."  The court finds that "[t]he deliberative process privilege protects the draft biological opinions at issue here because they reflect a preliminary view – not a final decision – about the likely effect of the EPA's proposed rule on endangered species."  The court finds that "the administrative context confirms that the drafts are what they sound like:  opinions that were subject to change."  "Consider the regulatory process that generates a draft biological opinion."  "The governing regulation distinguishes between draft and final biological opinions by separating the steps at which each is produced."  "If the Services prepare a biological opinion, they must 'make available' to the action agency – in this case, the EPA – a 'draft' of that opinion and generally may not issue the final opinion 'while the draft is under review' by the action agency."  "This provision thus specifically contemplates further review by the agency after receipt of the draft, and with it, the possibility of changes to the biological opinion after the Services send the agency the draft."  "Consistent with this understanding, the agreement between the Services and the EPA allowed for the possibility of postcirculation changes."  The court notes that "[the requester] contends, though, that while these documents may have been called 'drafts,' they were actually intended to give the EPA a sneak peek at a conclusion that the Services had already reached and were unwilling to change."  "And [the requester] says that the EPA responded accordingly."  "Once the EPA knew that a jeopardy opinion was coming, it revised its proposed rule."  "[The requester] insists that the draft opinions thus had an 'operative effect' on the EPA and must be treated as final under our precedent."  The court finds that "[the requester] misunderstands [the court's] precedent."  "While [the court] [has] identified a decision's 'real operative effect' as an indication of its finality, that reference is to the legal, not practical, consequences that flow from an agency's action."  "In this regulatory scheme, a final biological opinion leads to 'direct and appreciable legal consequences' because it alters 'the legal regime to which the action agency is subject, authorizing it' to take action affecting an endangered species 'if (but only if) it complies with the prescribed conditions.'"  "That is not true of a draft biological opinion."  "To be sure, a draft biological opinion might carry a practical consequence if it prompts the action agency to change its proposed rule."  "But many documents short of a draft biological opinion could prompt an agency to alter its rule."  "That approach would gut the deliberative process privilege."  "[The requester's] proposed effects-based test is therefore not the right one."  "To determine whether the privilege applies, [the court] must evaluate not whether the drafts provoked a response from the EPA but whether the Services treated them as final."  "They did not."  "The drafts were prepared by lower-level staff and sent to the Services' decisionmakers for approval."  "It is true, as [the requester] emphasizes, that the staff recommendations proved to be the last word within the Services about the 2013 version of the EPA's proposed rule."  "But that does not change [the court's] analysis."  "The recommendations were not last because they were final; they were last because they died on the vine."  "Further consultation with the Services prompted the EPA to alter key features of its 2013 proposal, so there was never a need for the Services to render a definitive judgment about it."  "The staff recommendations were thus part of a deliberative process that worked as it should have:  The Services and the EPA consulted about how the rule would affect aquatic wildlife until the EPA settled on an approach that would not jeopardize any protected species."  The court cautions that "[i]f the evidence establishes that an agency has hidden a functionally final decision in draft form, the deliberative process privilege will not apply."  However, the court finds that "[t]he Services, however, did not engage in such a charade here."
  
  Justice Breyer, with whom Justice Sotomayor joins, dissents and writes that there are "three different but related kinds of documents:  'Final Biological Opinions,' 'Draft Biological Opinions,' and 'Drafts of Draft Biological Opinions.'"  Justice Breyer "believe[s] that, in the context before [the court], 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."  "Five features of the Draft Biological Opinion lead [Justice Breyer] to this conclusion."  "First, literally speaking, a Draft Biological Opinion is a 'final' document with respect to its content."  "Second, a Final Biological Opinion and a Draft Biological Opinion finding jeopardy serve the same functions within the formal administrative process."  "Both explain the Services' findings."  "Both set forth 'reasonable and prudent' modifications or alternatives."  "Third, agency practice shows that the Draft Biological Opinion, not the Final Biological Opinion, is the document that informs the EPA of the Services' conclusions about jeopardy and alternatives and triggers within the EPA the process of deciding what to do about those conclusions."  "Fourth, permitting discovery of Draft Biological Opinions under FOIA is unlikely to chill frank discussion within a Service because the Services' staff are already aware that these Drafts may well be made public."  "Fifth, legal consequences flow from the Services' completion of a Draft Biological Opinion."  "The Services' regulations state that '[i]f requested, the Service shall make available to the Federal agency [i.e., the EPA] the draft biological opinion for the purpose of analyzing the reasonable and prudent alternatives.' . . . ."  "Once the Draft Biological Opinion is under review at the EPA, the Services may not issue a Final Biological Opinion prior to the specified deadline."  "Moreover, as explained, Draft Biological Opinions, like Final Biological Opinions, limit the EPA's set of available options."  "Why, then, would these same consequences (together with the other factors mentioned above) not also place Draft Biological Opinions outside Exemption 5's protection?"  "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 [Justice Breyer] 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."  "Given the fact-intensive nature of this question, [Justice Breyer] 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, [Justice Breyer] agree[s] with the majority that a segregability analysis would be appropriate."