Justice Amy Coney Barrett authored the majority view, her first since joining the court. .
Facts of the Case
Even the Environmental Protection Agency (EPA) proposed a rule in 2011 about”cooling water intake structures” used to cool industrial equipment.
Observing this required inspection, the Services prepare a formal”biological opinion” (called a”threat” or”no jeopardy” biological opinion) Changing if the agency’s proposal will jeopardize the occurrence of threatened or endangered species. After consulting with all the Services, the EPA made changes to its proposed rule, along with the Services received the revised version from November 2013. Staff members at NMFS and FWS soon completed draft biological opinions concluding that the November 2013 planned rule was likely to jeopardize certain species. Staff members sent these drafts to the relevant decisionmakers within every agency, but decisionmakers at the Services publicly approved the drafts nor shipped them to the EPA. The Services instead shelved the draft opinions and agreed with the EPA to expand the length of consultation. After these continued talks, the EPA sent the Services a revised proposed rule in March 2014 that differed considerably in the 2013 version. Satisfied that the revised guideline was not likely to damage any protected species, the Services issued a combined final”no jeopardy” biological opinion.
Sierra Club, an environmental company, submitted FOIA requests for documents associated with the Services’ consultations with the EPA. FOIA requires that federal agencies make documents available to the general public upon request, unless all those documents fall within one of nine exemptions. Exemption 5 incorporates the privileges offered to Government agencies in civil litigation, such as the deliberative process privilege, attorney-client liberty, and attorney work-product privilege. The Services invoked the deliberative process privilege, which protects from disclosure documents created through an agency’s deliberations about a policy, rather than files that embody or explain a policy which the agency adopts. Even the Sierra Club sued to obtain these withheld documents. Even the Ninth Circuit Court of Appeals held that the draft biological opinions weren’t privileged because even though labeled as broadcasts, the draft opinions represented the Services’ final opinion regarding the EPA’s 2013 planned rule.
Supreme Court’s Conclusion
With a vote of 7-2, the Supreme Court reversed. “The deliberative process privilege protects the draft biological feedback from disclosure since they are both predecisional and deliberative,” Justice Amy Coney Barrett composed on behalf of the Court.
In her view, Justice Barrett explained that the deliberative process privilege intends to enhance service decisionmaking by”encouraging candor and blunting the chilling impact which accompanies the prospect of disclosure.” Citing Renegotiation Bd. V. Grumman Aircraft Engineering Corp., 421 U. S. 168 (1975), she further noted that the privilege distinguishes between predecisional, deliberative files, that might be exempt from disclosuredocuments and records reflecting a last agency decision and the reasons supporting it, that are not.
“It is not always self-evident whether a document signifies an agency’s ultimate decision, but only one thing is apparent: A document is not final only because nothing else follows . Sometimes a proposal expires on the vine,” Justice Barrett composed. “That happens in deliberations–some thoughts are discarded or simply languish. Yet documents speaking such dead-end notions can hardly be described as reflecting the agency’s preferred class. What things, then, is not whether a document is last in line, however if it conveys a coverage where the agency has settled”
Relying on this framework, the Court went on to conclude that the deliberative process privilege shields the draft biological feedback from disclosure since they reflect a preliminary perspective –not a last decision–about the EPA’s suggested 2013 rule. In support, Justice Barrett emphasized that the Services …