BY MARC CAMANAG
Earlier this month, Associate Justice Amy Coney Barrett delivered her first signed majority opinion via the case U.S. Fish and Wildlife Service v. Sierra Club. Breaking from the tradition of freshly-minted Justices writing their inaugural assignment on a unanimous decision, Barrett’s big milestone was rife with a sense of dissent, filed in an opinion by the faltering liberal wing of the Court. As expected, the deepening and unequal ideological divide among the Justices is beginning to rear its ugly head, and the environment — most definitely not for the last time — is at the center of it all.
Olivier Douliery/AFP via Getty Images
Amy Coney Barrett and her ascension to the highest court in the land have all but guaranteed the arrangement that many legal scholars have long anticipated: a rigidly conservative Supreme Court. With the death of the notorious R.B.G. having ushered in the third and final Trump-era Justice, what remains of the Court’s left — Breyer, Sotomayor, and Kagan — has largely been left to fend for itself amid a right-leaning supermajority that can be expected to rule the judicial branch for the foreseeable future.
As the climate crisis develops and more of its reverberations manifest, we can only expect that the Supreme Court will take on a heavier environmental docket and deepen its ideological divide vis-à-vis future environmental litigation. Prior to Barrett joining the Court, the Justices had only heard one environmental case this term that touched on climate change’s impact but was ultimately decided unanimously. In contrast, its second such case — FWS v. Sierra Club — was decided among more contentious circumstances that are very well indicative of what is to come.
Facts of the Case
Argued in early November, the underlying issue driving the case is interpretation of the Freedom of Information Act (FOIA), a Johnson-era law that requires disclosure of government controlled information and documents, upon request. In particular, the disagreement pertains to whether or not an exemption within the FOIA — deliberative process privilege — extends to draft documents related to the internal processes of a federal agency.
The documents in question are draft biological opinions by the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS), produced as part of the Environmental Protection Agency’s mandated consultation process for new regulations. In this instance, the topic of concern is an alteration to the EPA’s regulation of cooling water intake structures, and the draft biological opinions contain analyses of impacts on the environment and endangered species via such a change.
Following the required initial consultation and a resulting draft biological opinion that confirmed the jeopardization of endangered species, the agencies extended this consultation process to a period of over three years, with the preliminary draft opinions never being shared with the EPA. During that time, the EPA revised its rule on cooling water intake structures and eventually proposed a new regulation that was thereafter affirmed by a final biological opinion stating there was no longer jeopardy to any endangered species.
In response to a FOIA request by the Sierra Club to access the draft documents that preceded the EPA’s final decision, the agencies shared the majority of their records with the exception of their earlier draft biological opinions from the initial consultation with the EPA, citing the deliberative process privilege. The Sierra Club would then go on to successfully sue in district court for the release of twelve of the sixteen draft documents, and this ruling was affirmed by the U.S. Court of Appeals — albeit with the proviso that only ten of the documents were to be disclosed. Naturally, the FWS and NMFS challenged these decisions, petitioning the Supreme Court to rule on the status of the documents pursuant to the argued exemption.
After being granted certiorari, the case — U.S. Fish and Wildlife Service v. Sierra Club — was heard in November, following the death of Justice Ginsburg and the appointment of Justice Barrett. Along with being her first case, it would also become her first time writing a majority opinion of the Court, which she delivered at the beginning of this month.
The Majority Opinion
Delivered by Justice Barrett; Joined by Chief Justice Roberts and Justices Thomas, Alito, Kagan, Gorsuch, and Kavanaugh
Justice Barrett’s majority opinion holds that the deliberative process privilege protects internal draft biological opinions — and more broadly, draft documents — that are both predecisional and deliberative from FOIA disclosure, even if such drafts reflect the last views of the agencies on a proposal.
With NLRB v. Sears, Roebuck & Co. as precedent, she asserts that the draft documents are protected by the FOIA exemption because they reflect only a preliminary view on the EPA’s initial rule. As draft opinions, they are not final decisions, and the nature of the extended consultation between the agencies — along with the fact that the opinions were not treated as final, or shared with the EPA — lead her to describe the documents as “drafts of draft biological opinions” and thus shielded by privilege.
In disagreement with the Sierra Club’s claim that privileging the opinions will allow the federal government to conceal future scientific findings and agency decisions from the public, Justice Barrett maintains that although deliberative process privilege is not absolute, it applies to those documents pertaining to the case in hand. With that, she delivers the majority opinion that the draft biological opinions are protected from disclosure, that the contrary judgement of the Ninth Circuit is reversed, and that the case is to be remanded and deliberated in line with the Court’s opinion.
The Dissenting Opinion
Filed by Justice Breyer; Joined by Justice Sotomayor
Justice Breyer’s dissenting opinion holds that the draft biological opinions are reflective of the final agency perspectives on the environmental jeopardy that the EPA’s initial rule would cause, and ergo fall outside of the ‘deliberative process privilege’ exemption of the FOIA.
Based on an examination of features of the draft biological opinions in question, he argues that the finality and function of the draft documents are not as differentiated from final biological opinions than the Court suggests. In light of the specific circumstances by which draft biological opinions are produced and utilized, Justice Breyer finds that such documents are not normally entitled to privilege from FOIA disclosure.
To conclude, Breyer raises the question of whether the documents under consideration are draft biological opinions or “drafts of draft biological opinions”, as designated by Justice Barrett. Although the majority holds that the documents in review are more evocative of the latter, he asserts that some documents are more reminiscent of the former, and — consistent with his dissenting opinion — are consequently not shielded from FOIA requests. The Justice ultimately leaves this task of ascertainment to the Court of Appeals, stating that he would align in part with the majority opinion if it were determined that the documents are indeed “drafts of draft biological opinions”.
Although the ruling in Fish and Wildlife Service v. Sierra Club may seem like a rather miniscule episode in our grand environmental struggle, it has major implications for environmental litigation in the time to come.
Now established as legal precedent, the Court’s opinion will limit the extent to which the public can utilize the Freedom of Information Act to access such documents, which shed light on the environmental ramifications of projects and rule-making by the federal government. It is unlikely that this will be the only time that federal agencies will attempt to withhold records of this nature, and it is without question that draft documents provide valuable perspective on the government’s deliberation process vis-à-vis impacts to the environment.
Ultimately, Justice Barrett’s first majority opinion has the potential to weaken government transparency as a whole by strengthening federal agencies’ ability to challenge FOIA requests and inhibiting the public from obtaining critical insight via draft documents. As exciting as this milestone and accomplishment may be for the new Justice, it goes without saying that this ruling will be far from advantageous as we continue to navigate climate change and its externalities.