United States Fish and Wildlife Service v Sierra Club, Inc. was a U.S. Supreme Court case involving whether the use of a Freedom of Information Act (FOIA) request can be used to access documents from a U.S. agency that are protected under the deliberative process privilege exemption, in this specific case, draft biological opinions made and reviewed by the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) prior to a final rulemaking decision by the Environmental Protection Agency (EPA) related to impacts on endangered aquatic species, requested by the Sierra Club. The Court ruled in a 7 to 2 decision in 2021 that the government does not have to disclose "draft biological opinions" involving potential threats to endangered species, even though the drafts reflect an agency's final proposal. The ruling limits environmental groups' ability to obtain government documents using the FOIA.
Background.
In 2011, the Environmental Protection Agency (EPA) proposed a new rule for using water from natural sources for cooling of industrial equipment. Since aquatic species may be drawn up in the uptake of this water, including endangered species, the EPA was required under the Endangered Species Act of 1973 to consult with the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) to determine if this rule would properly safeguard endangered species before finalizing the rule. This included creating biological opinions on whether the EPA's rule put endangered species in jeopardy or not.
Over the next two years, the EPA consulted with the FWS and NMFS adjusting the proposed rule to address initial concerns. The FWS and NMFS agreed to provide the biological opinions that the Endangered Species Act required, and had developed draft versions by the end of 2013 that both stated that the EPA's proposed rule (as amended through 2013) would put endangered species in jeopardy. Instead of sharing these with the EPA, both the FWS and NMFS decided instead to extend their consultations with the EPA into 2014. After a few months, the EPA released a new proposed rule that was significantly different from the original 2011 rule. The FWS and NFMS subsequently provided "no jeopardy" biological opinions to the EPA that supported implementation of the new rule. The EPA formally issued this new rule in March 2014 after receiving these reports.
The Sierra Club sought information on the background of this rule by using Freedom of Information Act (FOIA) requests to obtain all the documentation behind its development. While both the FWS and NMFS provided much of their documentation in their consultation period with the EPA, they did not provide the 2013 draft biological opinions, asserting these were protected by deliberative process privilege, one of the allowed FOIA exemptions, and previously affirmed by case law in 1975 by NLRB v Sears, Roebuck & Company as to protect "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated". The Sierra Club was seeking to obtain these draft opinions of the EPA regarding rules governing underwater structures used to cool industrial equipment. Specifically, the Sierra Club wanted to see the report about how the intake systems could harm endangered species. The Sierra Club sued in the Northern District of California for release of these draft opinions, since they reflected on the state of the proposed 2013 EPA rather than its final 2014 rule. The district court agreed with the Sierra Club in July 2017 and ordered release of the drafts, which was upheld on appeal by the government by the Ninth Circuit in December 2018.
