{"id":410,"date":"2021-03-04T17:01:36","date_gmt":"2021-03-04T21:01:36","guid":{"rendered":"http:\/\/blogs.duanemorris.com\/animallawdevelopments\/?p=410"},"modified":"2021-03-04T17:01:36","modified_gmt":"2021-03-04T21:01:36","slug":"supreme-court-addresses-when-a-draft-biological-opinion-really-is-a-draft-under-the-foia","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/2021\/03\/04\/supreme-court-addresses-when-a-draft-biological-opinion-really-is-a-draft-under-the-foia\/","title":{"rendered":"Supreme Court Addresses When a “Draft Biological Opinion” Really is a “Draft” Under the FOIA"},"content":{"rendered":"

Today, in her first published opinion on the Supreme Court, Justice Barrett delivered the majority opinion in U.S. Fish & Wildlife Serv. v. Sierra Club, Inc.<\/em>, No. 19-547 (U.S. Mar. 4, 2021<\/a>), a Freedom of Information Act (FOIA) case involving whether draft biological opinions of the Fish and Wildlife Service and National Marine Fisheries Service were exempt from public disclosure.\u00a0 The Court ruled that they were, and overturned a contrary determination by the Ninth Circuit.<\/p>\n

The case involved two draft biological opinions issued in connection with a rule proposed by the Environmental Protection Agency (EPA) concerning the the design and operation of cooling water intake structures.\u00a0 \u00a0The draft biological opinions were issued by the staffs of the respective Services during the consultation process of the Endangered Species Act (ESA).\u00a0 The two drafts were “jeopardy” biological opinions in that they concluded that the proposed rule would likely jeopardize certain species and proposed\u00a0 reasonable and prudent opportunities for EPA to pursue.\u00a0 They were not approved by decisionmakers at either Service and were not sent to EPA.\u00a0 There appeared to be evidence, however, that EPA knew that these “jeopardy” opinions were coming and that the EPA acted accordingly.\u00a0 The consultation process continued, and EPA subsequently issued a significantly revised proposed rule.\u00a0 In response, the Services issued a joint “no jeopardy” biological opinion.<\/p>\n

In response to a FOIA request from the Sierra Club, the Services withheld the\u00a0 draft “jeopardy” biological opinions under Exemption 5 of the FOIA covering pre-decisional or deliberative process materials.\u00a0 The lower courts ruled the the documents were not exempt from disclosure, but the Supreme Court reversed in a 7-2 decision.<\/p>\n

That the documents were marked “draft” was not determinative.\u00a0 What mattered was the context in which these documents arose.\u00a0 \u00a0These documents had been the last thing that either Service had said on the issue and they provoked a response from EPA, but that did not make them final and disclosable.\u00a0 “The recommendations were not last because they were final; they were last because they died on the vine.”\u00a0 Majority op. at 10.\u00a0 As the majority explained:<\/p>\n

\n

To determine whether the privilege applies, we must evaluate not whether the drafts provoked a response from the EPA but whether the Services treated them as final.\u00a0 They did not.\u00a0 The drafts were prepared by lower-level staff and sent to the Services\u2019 decisionmakers for approval.\u00a0 Sierra Club characterizes the drafts as polished documents\u00a0 lacking only an autopen signature. But the determinative fact is not their level of polish\u2014it is that the decisionmakers at the Services neither approved the drafts nor sent them to the EPA.\u00a0 Instead, the decisionmakers concluded that \u201cmore work needed to be done\u201d and extended the time for consultation with the EPA. These documents, then, are best described not as draft biological opinions but as drafts of draft biological opinions.<\/p>\n<\/blockquote>\n

Majority op. at 9-10.<\/p>\n

As for the potential that agencies could hide secret agency law with liberal use of the “draft” stamp, the majority noted that “[i]f the evidence establishes that an agency has hidden a functionally final decision in draft form, the deliberative process privilege will not apply.\u00a0 The Services, however, did not engage in such a charade here.”\u00a0 Id<\/em>. at 10-11.<\/p>\n

In his dissenting opinion, Justice Breyer disagreed that these documents were drafts of draft biological opinions.\u00a0 His view was that a draft biological opinion is essentially a final position of the Service at that stage in the consultation process and has an effect in the process similar to a final biological opinion — both documents limit the EPA’s set of options.\u00a0 Dissenting op. at 2, 5.\u00a0 He did not address the point stressed by the majority that neither of these draft biological opinions had been approved by the Services’ decisionmakers.\u00a0 Justice Breyer also pointed out that final biological opinions are made public and, in cases involving a permit or other action sought by a private party, draft biological opinions normally are disclosed to the private party thereby removing them from Exemption 5.\u00a0 Id<\/em>. at 3-4.<\/p>\n

The outcome of this case may not be that significant because the case turned on whether the documents were “drafts” of draft biological opinions.\u00a0 Had the two draft biological opinions been approved by decisionmakers in the two Services, it is not at all clear that the documents would have still be considered “deliberative” and exempt from disclosure.<\/p>\n

Moreover, the potential for “secret law” developing within an agency is concerning for any business that is subject to the agency’s regulations.\u00a0 The\u00a0 majority’s treatment of that issue is not satisfying.\u00a0 Given that discovery is not routinely allowed in FOIA cases, it is unclear how the majority believes it can be determined whether “an agency has hidden a functionally final decision in draft form.”\u00a0 Majority op. at 11.\u00a0 Perhaps that comes through a district court’s in<\/em> camera<\/em> review in a FOIA case, but in camera<\/em> review is not routinely performed either.<\/p>\n","protected":false},"excerpt":{"rendered":"

Today, in her first published opinion on the Supreme Court, Justice Barrett delivered the majority opinion in U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., No. 19-547 (U.S. Mar. 4, 2021), a Freedom of Information Act (FOIA) case involving whether draft biological opinions of the Fish and Wildlife Service and National Marine Fisheries Service … <\/p>\n

Continue reading “Supreme Court Addresses When a “Draft Biological Opinion” Really is a “Draft” Under the FOIA”<\/span><\/a><\/p>\n","protected":false},"author":317,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[750,6,747,749,263,81,748,80,5,13],"ppma_author":[697],"class_list":["post-410","post","type-post","status-publish","format-standard","hentry","category-general","tag-draft-biological-opinion","tag-endangered-species-act","tag-environmental-protection-agency","tag-final-biological-opinion","tag-fish-and-wildlife-service","tag-foia","tag-foia-exemption-5","tag-freedom-of-information-act","tag-john-simpson","tag-national-marine-fisheries-service"],"authors":[{"term_id":697,"user_id":317,"is_guest":0,"slug":"jmsimpson","display_name":"John M. Simpson","avatar_url":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-content\/uploads\/sites\/38\/2018\/06\/simpsonjohn-125x150.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/410","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/users\/317"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/comments?post=410"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/410\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/media?parent=410"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/categories?post=410"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/tags?post=410"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/ppma_author?post=410"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}