Today, in U.S. Fish and Wildlife Service et al. v. Sierra Club Inc., Case No. 19-547, the United States Supreme Court struck down a Ninth Circuit Court of Appeals’ ruling that the federal government was required to turn over documents with regard to a proposed U.S. Environmental Protection Agency (EPA) regulation for power plant cooling. The Sierra Club brought a Freedom of Information Act (FOIA) suit for access to documents related to the proposed rule, including biological opinions. The EPA’s rule regulates cooling water intake structures, which draw water from lakes, rivers, and other sources to moderate the temperature of water produced during operations of power plants and other industrial facilities.

In a 7-2 decision, the Court was persuaded that the U.S. Fish and Wildlife Service and National Marine Fisheries Service correctly argued that the documents arising out of the EPA’s cooling water intake structure rule were deliberative documents exempt from disclosure under FOIA.

“The deliberative process privilege protects the draft biological opinions at issue here because they reflect a preliminary view — not a final decision — about the likely effect of the EPA’s proposed rule on endangered species,” wrote Justice Amy Coney Barrett for the Court. Further, the Court rejected Sierra Club’s “effects-based” test for finality determining that it would gut the deliberative process privilege. The Court also found unpersuasive Sierra Club’s policy argument that its ruling would somehow allow agencies to cloak all work product in secrecy by using the term “draft,” noting it found no such charade at issue on this record. In writing for the dissent, Justice Stephen Breyer labeled the inquiry more fact intensive, parsing even whether editing remarks remaining in some documents rather than others should play a role in the decision of what was a “draft of a draft” or a “draft” with attendant legal consequences.