U.S. Fish & Wildlife Serv. v. Sierra Club, Inc.

• Decision Date: 04 March 2021
• Docket Number: No. 19-547,19-547
• Citation: 141 S.Ct. 777,209 L.Ed.2d 78
• Parties: UNITED STATES FISH AND WILDLIFE SERVICE, et al., Petitioners v. SIERRA CLUB, INC.
• Court: U.S. Supreme Court

141 S.Ct. 777

209 L.Ed.2d 78

UNITED STATES FISH AND WILDLIFE SERVICE, et al., Petitioners

v.SIERRA CLUB, INC.

No. 19-547

Supreme Court of the United States.

Argued November 2, 2020

Decided March 4, 2021

Sanjay Narayan, Elena Saxonhouse, Matthew Miller, Sierra Club Environmental Law Program, Oakland, CA, Scott L. Nelson, Public Citizen Litigation Group, Washington, DC, Reed Super, Super Law Group, LLC, New York, NY, for Respondent.

Noel J. Francisco, Solicitor General Counsel of Record, Joseph H. Hunt, Jeffrey Bossert Clark, Assistant Attorneys General, Edwin S. Kneedler, Deputy Solicitor General, Michael R. Huston, Assistant to the Solicitor General, H. Thomas Byron III, Thomas Pulham, Attorneys, Department of Justice, Washington, DC, for Petitioners.

Jeffrey B. Wall, Acting Solicitor General, Counsel of Record, Department of Justice, Washington, DC, for Petitioners.

Justice BARRETT delivered the opinion of the Court.

The Freedom of Information Act (FOIA) requires that federal agencies make records available to the public upon request, unless those records fall within one of nine exemptions. Exemption 5 incorporates the privileges available to Government agencies in civil litigation, such as the deliberative process privilege, attorney-client privilege, and attorney work-product privilege. This case concerns the deliberative process privilege, which protects from disclosure documents generated during an agency's deliberations about a policy, as opposed to documents that embody or explain a policy that the agency adopts. We must decide whether the privilege protects in-house drafts that proved to be the agencies' last word about a proposal's potential threat to endangered species. We hold that it does.

I

A

In April 2011, the Environmental Protection Agency (EPA) proposed a rule on the design and operation of "cooling water intake structures," which withdraw large volumes of water from various sources to cool industrial equipment. EPA's stated goal was to require industrial facilities to use "the best technology available" for "minimizing adverse environmental impact." 76 Fed. Reg. 22174 (2011). But it was unclear whether the proposed rule would achieve that goal, at least when it came to aquatic wildlife. The water withdrawn by these structures typically contains fish and other organisms that can become trapped in the intake system and die. If the EPA's rule did not adequately guard against this risk, it would jeopardize species protected under the Endangered Species Act of 1973, 87 Stat. 884, 16 U.S.C. § 1531 et seq .

When an agency plans to undertake action that might "adversely affect" a protected species, the agency must consult with the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, "Services") before proceeding. See 16 U.S.C. § 1536(a)(2) ; 50 CFR §§ 402.01 – 402.17 (2019).¹ The goal of the consultation is to assist the Services in preparing an official "biological opinion" on whether the agency's proposal will jeopardize the continued existence of threatened or endangered species. § 402.14(g)(4). These opinions are known as " ‘jeopardy’ " or " ‘no jeopardy’ " biological opinions. § 402.14(h)(1)(iv), as amended, 84 Fed. Reg. 45017 (2019). If the Services conclude that the action will cause "jeopardy," they must propose "reasonable and prudent alternatives" to the action that would avoid harming the threatened species. 16 U.S.C. § 1536(b)(3)(A) ; 50 CFR § 402.14(h)(2). And if a "jeopardy" biological opinion is issued, the agency must either implement the reasonable and prudent alternatives, terminate the action altogether, or seek an exemption from the Endangered Species Committee. 16 U.S.C. §§ 1536(b)(4), (g), 1538(a).

The EPA began informally consulting with the Services about its proposed regulations on cooling water intake structures in 2012, see 50 CFR § 402.13, and it requested a formal consultation in 2013, see § 402.14. Throughout this period, the Services and the EPA conducted meetings, held conference calls, and exchanged emails and draft documents on the proposed rule and its potential effect on endangered species.

As a result of the consultation, the EPA made changes to its proposed rule, and the Services received the revised version in November 2013. Soon after, the Services tentatively agreed to provide the EPA with draft biological opinions by December 6, 2013, and final opinions by December 20, 2013. See § 402.14(g)(5) (requiring the Services to provide a "draft biological opinion" to action agency upon request).

Staff members at NMFS completed a draft biological opinion on December 6, and staff members at FWS completed a draft on December 9. Both drafts concluded that the proposed rule was likely to jeopardize certain species and identified possible reasonable and prudent alternatives that the EPA could pursue. Staff members sent the drafts to the relevant decisionmakers within each Service and prepared to circulate them to the EPA.

But decisionmakers at the Services neither approved the drafts nor sent them to the EPA. Instead, concluding that "more work needed to be done," the decisionmakers decided to continue discussions with the EPA. App. 37, 58–59. The EPA was still engaged in an internal debate about key elements of the rule, and the Services wanted a better grasp of what the EPA proposed to do. So the Services shelved the draft opinions and agreed with the EPA to extend the period of consultation.

Over the next several months, the Services and the EPA continued to discuss the rule, and in March 2014, the EPA sent the Services a proposed rule that differed significantly from the 2013 version. Satisfied that the revised rule was unlikely to harm any protected species, the Services issued a joint final "no jeopardy" biological opinion, thereby terminating the formal consultation. See 50 CFR § 402.14(m)(1), as amended, 84 Fed. Reg. 45016. The EPA issued its final rule that same day.

B

Sierra Club, an environmental organization, later submitted FOIA requests for records related to the Services' consultations with the EPA. The Services turned over thousands of documents, but they invoked the deliberative process privilege for others—including the draft biological opinions analyzing the EPA's 2013 proposed rule. The deliberative process privilege shields documents that reflect an agency's preliminary thinking about a problem, as opposed to its final decision about it. The Services asserted that as drafts, the withheld documents were necessarily nonfinal and therefore protected.

Sierra Club sued the Services in the Northern District of California, alleging that the withheld documents were subject to disclosure under FOIA. The District Court agreed with Sierra Club, and the Ninth Circuit affirmed in part. 925 F.3d 1000 (CA9 2019). As relevant here, it held that the draft biological opinions were not privileged because even though they were labeled as drafts, they represented the Services' final opinion that the EPA's 2013 proposed rule was likely to have an adverse effect on certain endangered species.² Judge Wallace dissented in part on the ground that the drafts were part of the ongoing consultation process rather than summaries of the Services' final views.

We granted certiorari. 589 U.S. ––––, 140 S.Ct. 1262, 206 L.Ed.2d 253 (2020).

II

A

FOIA mandates the disclosure of documents held by a federal agency unless the documents fall within one of nine enumerated exemptions. See 5 U.S.C. § 552(b). The fifth of those exemptions protects "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency." § 552(b)(5). As the text indicates—albeit in a less-than-straightforward way—this exemption incorporates the privileges available to Government agencies in civil litigation. That list includes the deliberative process privilege, attorney-client privilege, and attorney work-product privilege. See Department of Interior v. Klamath Water Users Protective Assn. , 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001).

This case concerns the deliberative process privilege, which is a form of executive privilege. To protect agencies from being "forced to operate in a fishbowl," EPA v. Mink , 410 U.S. 73, 87, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) (internal quotation marks omitted), the deliberative process privilege shields from disclosure "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated," NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (internal quotation marks omitted). The privilege is rooted in "the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news." Klamath , 532 U.S. at 8–9, 121 S.Ct. 1060. To encourage candor, which improves agency decisionmaking, the privilege blunts the chilling effect that accompanies the prospect of disclosure.

This rationale does not apply, of course, to documents that embody a final decision, because once a decision has been made, the deliberations are done. The privilege therefore distinguishes between predecisional, deliberative documents, which are exempt from disclosure, and documents reflecting a final agency decision and the reasons supporting it, which are not. See Renegotiation Bd. v. Grumman Aircraft Engineering Corp. , 421 U.S. 168, 186, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975). Documents are "predecisional" if they were generated before the agency's final decision on the matter, and they are "deliberative" if they were prepared to help the agency formulate its position. See Sears , 421 U.S. at 150–152, 95 S.Ct. 1504 ; Grumman , 421 U.S. at 184–186, 190, 95 S.Ct. 1491. There is considerable overlap between these two prongs because a document cannot be deliberative unless it is predecisional.

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