United States Fish And Wildlife Service v. Sierra Club, Inc.

141 S. Ct. 777 (2021)

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Nature of the Case

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Facts

The 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. The water withdrawn by these structures typically contains fish and other organisms that can become trapped in the intake system and die.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. When an agency plans to undertake action that might “adversely affect” a protected species, the agency must consult with D and National Marine Fisheries Service (NMFS). D will investigate and prepare a “biological opinion” on whether the agency’s proposal will jeopardize the continued existence of threatened or endangered species. If the proposed action cause “jeopardy,” the agency must propose “reasonable and prudent alternatives” to the action that would avoid harming the threatened species. If there is jeopardy the agency must either implement the reasonable and prudent alternatives, terminate the action altogether, or seek an exemption from the Endangered Species Committee. The EPA began consulting with D about its proposed regulations and requested a formal consultation in 2013. The EPA made changes to its proposed rule, and D received the revised version in November 2013. D tentatively agreed to provide the EPA with draft biological opinions by December 6, 2013, and final opinions by December 20, 2013. D concluded that the proposed rule was likely to jeopardize certain species and identified possible reasonable and prudent alternatives that the EPA could pursue. The drafts were disseminated within D and D prepared to circulate them to the EPA. Concluding that “more work needed to be done,” the decisionmakers decided to continue discussions with the EPA. D shelved the draft opinions and agreed with the EPA to extend the period of consultation. In March 2014, the EPA sent D 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. The EPA issued its final rule that same day. P submitted FOIA requests for records related to D's 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. P sued D for the withheld documents. The District Court agreed with P and the Ninth Circuit affirmed in part. The courts held that the draft biological opinions were not privileged because even though they were labeled as drafts, they represented D's final opinion that the EPA’s 2013 proposed rule was likely to have an adverse effect on certain endangered species. D appealed.