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US Supreme Court rejects effort to access documents tied to power plant rule

The U.S. Supreme Court on March 4 dealt the Sierra Club a loss by ruling that documents related to a U.S. Environmental Protection Agency power plant rule are shielded by an exemption under public records law and therefore do not need to be disclosed.

The 7-2 ruling reversed an earlier decision by the U.S. Court of Appeals for the 9th Circuit that concluded a draft biological opinion prepared by the U.S. Fish and Wildlife Service and National Marine Fisheries Service was subject to disclosure under the Freedom of Information Act, or FOIA.

At the center of the legal dispute is a draft "jeopardy" biological opinion prepared by the agencies' staff that found a proposed version of the EPA's 2014 water cooling intake rule was insufficient in protecting aquatic organisms from being killed by power plants, which intake more water than any other industrial sector.

While the draft opinion was never officially sent to the EPA, it nevertheless prompted the agency to make significant revisions to the final rule so that a final biological opinion arrived at a "no jeopardy" conclusion.

'Died on the vine'

In seeking access to the draft opinion under FOIA, the Sierra Club argued that the draft had an "operative effect" on the EPA and therefore is not subject to the law's deliberative process exemption. That exemption, one of the most cited out of nine, protects agencies from disclosing documents generated during deliberations over a final action. Its aim is to foster candid discussions among staff who may otherwise fear that their preliminary communications could otherwise make front-page news.

In siding with the Sierra Club, the 9th Circuit agreed that the operative effect of the draft opinion proved decisive in the EPA's eventual move to strengthen the final rule. The circuit court, therefore, ruled that the draft opinion should be disclosed pursuant to FOIA.

The U.S. government subsequently petitioned the Supreme Court to review that decision in U.S. Fish and Wildlife Service v. Sierra Club (No. 19-547).

Justice Amy Coney Barrett led six other judges in ruling in favor of the petitioners, finding that the draft opinion was not in fact final because it "died on the vine."

The draft opinion was "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," Barrett wrote for the majority.

Noting that the Sierra Club characterized the draft documents as "polished" and "lacking only an autopen signature," Barrett nevertheless observed that decisionmakers never approved the drafts or sent them to the EPA.

"It is not always self-evident whether a document represents an agency's final decision, but one thing is clear: A document is not final solely because nothing else follows it," Barrett wrote.

Despite ruling against the Sierra Club, Barrett sought to dissuade agencies from evading FOIA's deliberative process exemption.

"If the evidence establishes that an agency has hidden a functionally final decision in draft form, the deliberative process privilege will not apply," Barrett said.

Joining Barrett in the opinion were Justices John Roberts, Clarence Thomas, Samuel Alito, Elena Kagan, Neil Gorsuch and Brett Kavanaugh.

Draft of a draft

Justice Stephen Breyer, joined by Justice Sonia Sotomayor, penned a partial dissent. "Literally speaking, a draft biological opinion is a 'final' document with respect to its content," Breyer said.

Breyer argued that draft biological opinions finding jeopardy are "much the same" as final biological opinions finding jeopardy. Moreover, he noted that draft opinions are discoverable when private parties sue the EPA.

"To hold that draft biological opinions are discoverable when a private party seeks an EPA permit but not when, as here, the EPA seeks to write a generally applicable rule that governs private party conduct seems highly anomalous," Breyer asserted.

Breyer said he would have remanded the case back to the 9th Circuit to allow the court to determine whether the documents at issue were "draft biological opinions" or "drafts of draft biological opinions." If the 9th Circuit were to agree that they are mere "drafts of draft biological opinions," Breyer said we would have agreed with the high court's majority.