Usfws v. Sierra Club: Expanding the Deliberative Process Privilege

• Jurisdiction: United States,Federal,California
• Author: Written by Kathleen Leuschen
• Publication year: 2021
• Citation: Vol. 30 No. 2

USFWS V. SIERRA CLUB: EXPANDING THE DELIBERATIVE PROCESS PRIVILEGE

Written by Kathleen Leuschen¹

INTRODUCTION

In United States Fish and Wildlife Service v. Sierra Club, Inc.,² the U.S. Supreme Court held that the deliberative process privilege protected draft documents issued under the federal Endangered Species Act (ESA)³ from disclosure pursuant to the federal Freedom of I nformation Act (FOIA),⁴ reversing a decision by the Ninth Circuit Court of Appeal. The Supreme Court held that so long as the drafts are "predecisional," representing an agency's early discussion about how to approach a future decision, then the deliberative process privilege protects them from disclosure. This holding will impact future public requests for information under FOIA, and may impact disclosure under other public records laws, like the California Public Records Act.⁵ It may also reduce cost and controversy for public agencies. Sierra Club represents the highest court's underscoring of the importance of the policies underlying the privilege, which are to foster candor and innovation in internal public agency decisionmaking.

FOIA AND THE DELIBERATIVE PROCESS PRIVILEGE

FOIA requires federal agencies to make records available to the public upon request, unless those documents fall within one of nine exemptions.⁶ As the Supreme Court has explained, "the basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed."⁷ However, the Court has historically recognized Congress's intent in enacting FOIA was to strike a balance between the public's right to access information and the need of the Government to protect some of that information.⁸ This balance is expressed by FOIA's broad provisions favoring disclosure, paired with specific exemptions.⁹

United States Fish and Wildlife Service v. Sierra Club, Inc. centrally concerns the deliberative process privilege, which prevents disclosure of documents resulting from agency deliberations, as compared to documents that reflect or explain a final agency policy.¹⁰ The deliberative process privilege is intended to protect the internal decision making processes of government agencies, including documents "reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated."¹¹ The rationale behind the exemption is to encourage agencies to engage in open and frank discussions on matters of policy, which "rests on the obvious realization that officials will not communicate candidly among themselves if

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each remark is a potential item of discovery and front page news. . . ."¹² The exemption provides the opportunity for agencies to test and revise their early approaches without constraining their candor or creativity out of fear of litigation or public censure, before their ideas are fully formed.¹³ In an attempt to balance this policy against the public interest in government transparency, the privilege does not extend to the documents that explain the agency's final policy, as those documents are required to be disclosed to the public as part of agency administrative records or under government transparency laws such as FOIA.¹⁴

To apply the deliberative process privilege, courts have traditionally established two fundamental requirements, both of which must be met. First, the communication must be pre-decisional, meaning the communication was created before adoption of an agency policy.¹⁵ Second, the communication must be deliberative, i.e., "it reflects the give-and-take of the consultative process."¹⁶ The burden is upon the agency to show that the information in question satisfies both requirements.¹⁷

SIERRA CLUB: BACKGROUND

In United States Fish and Wildlife Service v. Sierra Club, Inc., the rule promulgated by the Environmental Protection Agency (EPA) was designed to protect species from the effects of cooling water intake structures. To dissipate waste heat, power plants and manufacturing facilities use cooling water intake structures to extract large volumes of water from nearby water sources. The force of inflowing water can trap, or "impinge," larger aquatic organisms against the structures and draw, or "entrain," smaller aquatic organisms into a facility's cooling system.¹⁸ "Once-through" cooling systems draw cold water from a waterbody and return heated water to the waterbody in a continuous flow.¹⁹ "Closed-cycle" cooling systems generally recirculate the same cooling water within a structure by using towers or reservoirs to dissipate heat from the water.²⁰ Closed-cycle cooling withdraws approximately 95 percent less water than once-through cooling.²¹ Steelhead, Chinook salmon, and Coho salmon are some of the fish species that may be impacted by cooling water intake structures along the Pacific Coast and its rivers.²²

In 2011, the EPA proposed a rule regarding cooling water intake structures.²³ The proposed rule was subject to consultation pursuant to the federal Endangered Species Act of 1973 (ESA), 16 U.S.C. §§ 1531 et seq., because aquatic life can become impinged or entrained in the intake structures and die. If the rule did not adequately prevent this risk, then it could jeopardize protected species. Given the potential effects on species, the ESA required the EPA to consult with the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (together, "Services").²⁴ The consultation process is intended to inform the Services' finding of either "jeopardy" (imminent potential for extinction) or "no jeopardy."²⁵ Following consultation, the Services each prepare a Biological Opinion ("BiOp") to address whether the EPA's proposal would jeopardize threatened or endangered species.²⁶ Issuance of a "jeopardy" BiOp would have required the EPA to either implement certain alternatives proposed by the Services, terminate the rule altogether, or seek an exemption.²⁷

In 2012, the EPA had informally consulted with the Services prior to requesting a formal consultation in 2013.²⁸ As a result of formal consultation, the EPA revised its proposed rule which the Services received in November 2013.²⁹ The Services then tentatively agreed to provide the EPA with draft BiOps by December 6, 2013 and final BiOps by December 20, 2013.³⁰ Thereafter, the Services completed draft BiOps that concluded the 2013 proposed rule was likely to jeopardize certain species.³¹ However, these drafts were only circulated within the Services. Decisionmakers at the Services did not approve the drafts nor send them to the EPA.³² Instead the drafts were shelved and the Services decided that "more work needed to be done," and continued consultation with the EPA.³³ After additional months of discussion, the EPA sent a new version of the proposed rule in March 2014.³⁴ Satisfied the revised proposed rule would not harm any protected species, the Services issued a joint final "no jeopardy" BiOp. and the EPA issued its final rule the same day.³⁵

Respondent Sierra Club, an environmental organization, submitted FOIA requests for records related to the Services' consultations with the EPA including the draft BiOps.³⁶ In relevant part, the Services denied the Sierra Club's request to view the draft BiOps, asserting the drafts were protected from FOIA under the deliberative process privilege exemption. The Sierra Club sued the Services to obtain the withheld drafts in the Northern District of California, alleging they were subject to disclosure under FOIA. The District Court agreed with Sierra Club and the Ninth Circuit affirmed, holding that the draft BiOps were not privileged, reasoning that even though labeled as drafts, the draft opinions represented the Services' final opinion regarding the EPA's 2013 proposed (later revised) rule. The U.S. Supreme Court granted certiorari.

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SIERRA CLUB'S HOLDING: THE REACH OF THE DELIBERATIVE PROCESS PRIVILEGE

The Supreme Court reversed the Ninth Circuit Court of Appeal's decision. In an opinion written by newly appointed Justice Coney Barrett and joined by Justices Roberts, Thomas, Alito, Kagan, Gorsuch, and Kavanaugh, the Court held that the deliberative process privilege protects the draft BiOps from disclosure under FOIA if they are "predecisional and deliberative," even if the drafts reflect the agencies' last views about a proposal.

FOR DRAFTS TO BE CONSIDERED NON-DELIBERATIVE, THEY MUST BE "FINAL" AND HAVE "REAL OPERATIVE EFFECT"

According to the Court, only documents that reflect the agency's final decision are subject to disclosure, meaning the document must have "real operative effect."³⁷ The document must reflect the agency's final decision; a document is not final simply because nothing else follows.³⁸ Notably, proposals that are "shelved" or "die on the vine" do not adequately represent the agency's settled policy.³⁹ In other words, if the document leaves open the ability for decision makers to change course, then it does not reflect the agency's final decision.⁴⁰

The Court clarified that simply labeling a document as "draft" does not end the inquiry.⁴¹ Instead, the specific nature of the document and its place in agency decisionmaking must be considered. To facilitate this consideration, the Court explored three primary considerations in determining "real operative effect": (1) the context of the relevant administrative process; (2) the legal consequences of the document; and (3) the agency's intent. Each of these elements are described below.

COURTS MUST CONSIDER THE CONTEXT OF THE RELEVANT ADMINISTRATIVE PROCESS

In the context of biological evaluations, the Court concluded draft BiOps have no "real operative effect" and are, in a sense, truly "drafts," because the administrative process provides opportunity for additional deliberation and comments by the action agency. Administrative procedures provide for continued discussion after...