Federal agencies aren't required to hand over draft documents related to the harm an EPA rule would pose to endangered plants and animals, the Supreme Court ruled in U.S. Fish and Wildlife Serv. v. Sierra Club , U.S., No. 19-547.
In a 7-2 decision, and the first majority ruling led by Justice Amy Coney Barrett, the Court said that the Freedom of Information Act (FOIA) does not require the release of a draft document that would offer the public more detail about what prompted federal regulators to change their conclusions in an Endangered Species Act consultation done in support of an EPA rule. "The deliberative process privilege protects the draft biological opinions from disclosure because they are both predecisional and deliberative," Barrett wrote.
At issue in the case was a 2013 draft biological opinion and other records underpinning a 2014 EPA rule governing power plant cooling water intake structures. The draft's biological opinion from FWS determined that a proposed version of the EPA rule would harm plants and animals covered under the Endangered Species Act. EPA later finalized a revised version of the regulation.
It is important to note that the Court did not hold that the documents may be wholly withheld; the agencies will need to release any factual, non-deliberative information within them.
This is a first glimpse at how Barrett's addition to the bench could affect the outcome of environmental cases. Given that Barrett is a conservative jurist, this outcome is not surprising. Perhaps more interesting is that Justice Kagan joined Justice Barrett's majority opinion. Perhaps we may see them voting together more in future cases? Justices Stephen Breyer and Sonia Sotomayor dissented.
Originally Published by Reed Smith, March 2021
This article is presented for informational purposes only and is not intended to constitute legal advice.
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